LACONTE & CALCOTT
[2020] FCCA 1498
•18 June 2020
FEDERAL CIRCUIT COURT OF AUSTRALIA
| LACONTE & CALCOTT | [2020] FCCA 1498 |
| Catchwords: FAMILY LAW – Interim parenting proceedings – where father has not spent significant time with children – where father’s untested parenting capacity a concern of mother – where supervision resolves concern over parenting capacity – where instance of family violence present – where presumption of equal parental responsibility does not apply – where equal parental responsibility sought by both parents – where risk of further family violence low. |
| Legislation: Family Law Act 1975 (Cth), ss.4AD, 60B, 60CA, 60CC, 61DA, 62C, 65D, 65DAA, 65DAE, 65Y |
| Cases cited: M & M (1988) FLC 91-973 A & A & The Child Representative (1998) 22 FamLR 756 |
| Applicant: | MR LACONTE |
| Respondent: | MS CALCOTT |
| File Number: | SYC 4035 of 2019 |
| Judgment of: | Judge Morley |
| Hearing date: | 26 November 2019 |
| Date of Last Submission: | 26 November 2019 |
| Delivered at: | Sydney |
| Delivered on: | 18 June 2020 |
REPRESENTATION
| Counsel for the Applicant: | Mr Longworth |
| Solicitors for the Applicant: | Hogg & Associates Lawyers |
The Respondent appeared in person.
ORDERS
PENDING FURTHER ORDERS THE COURT ORDERS:
That the parents have equal shared parental responsibility for their children X born in 2012 and Y born in 2015 (“the children”).
That the children live with their mother.
That for the purpose of the father spending time with the children substantially in the presence of an approved person, the approved persons are:
(a)The children’s paternal grandmother, Ms A;
(b)Their half-brother, Mr B; or
(c)Ms C, but in relation to Ms C only after she has accompanied the father and either Ms A or Mr B on at least three occasions of the father spending time with the children pursuant to these orders.
That the father spend time with the children as follows:
(a)For two months from the date of these orders, each Saturday from 10.00AM until 1.00PM for the first three occasions and thereafter from 10.00AM until 5.00PM, such time to occur substantially in the presence of at least one of the approved persons;
(b)Thereafter for a further period of one month:
(i)Each Saturday from 10.00AM until 5.00PM; and
(ii)Each Tuesday from 3.00PM until 6.00PM
without the requirement that one of the approved persons be substantially present
(c)Thereafter:
(i)For two consecutive weekends from 10.00AM on Saturday until 11.00AM on Sunday, such time to occur substantially in the presence of at least one of the approved persons; and
(ii)Each Tuesday from 3.00PM until 6.00PM without the requirement that one of the approved persons be substantially present
(d)Thereafter:
(i)Each alternate weekend, commencing the second weekend after the last occasion under (c), from 10.00AM on Saturday until 6.00PM on Sunday; and
(ii)each Tuesday from 3.00PM until 6.00PM
without the requirement that one of the approved persons be substantially present;
(e)On Father’s Day, if not otherwise in his care on that day, from 10.00AM until 7.00PM;
(f)On each of the children’s birthdays, if not otherwise in his care on that day, from 3.00PM until 7.00PM;
(g)On the father’s birthday, if not otherwise in his care on that day, from 3.00PM until 7.00PM;
(h)On Easter Sunday, if not otherwise in his care on that day, from 9.00AM until 2.00PM;
(i)On 25 December from 11.00AM until 5.00PM; and
(j)At such other times as may be agreed between the parents from time to time.
That in the event that:
(a)Mother’s Day occurs on a day when the children will be in their father’s care, the children are to be returned to their mother’s care at 10.00AM on Mother’s Day;
(b)Either of the children’s birthdays or the mother’s birthday occurs on a Saturday when they will be in their father’s care, they will not commence their time with their father until 12.00PM noon;
(c)Either of the children’s birthdays occur on a Sunday when they will be in their father’s care, their time with their father will end at no later than 1.00PM;
(d)Easter Sunday is a day on which the children will be in their father’s care, their time with their father will end at no later than 2.00PM.
That notwithstanding any other order herein, the children will be in their mother’s care:
(a)From 4.00PM on 24 December until 11.00AM on 25 December; and
(b)From 5.00 PM on 25 December until 10.00 AM on 26 December.
That the father have telephone or Facetime communication with the children each Wednesday and Friday at some time between 6.00PM and 7.00PM, with the mother to initiate the communication.
The father is restrained from consuming alcohol for a period of 24 hours before the children or either of them come into his care on any occasions and from consuming alcohol at all whilst the children or either of them are in his care.
The father must himself attend to the care of the children in relation to their basic needs whilst they are in his care, including, but not limited to, their feeding, bathing, making sure that they have nutritious food, and being put to sleep at such times as the mother indicates their usual routine would dictate.
That changeovers on Tuesdays occur at the children’s school at the start of the father’s time and at the mother’s place of residence at the end of the father’s time.
That changeovers on Saturdays and Sundays occur by the father collecting the children from the mother’s place of residence at the start of his time with the children and by the mother collecting the children from the father’s place of residence at the end of his time with the children.
That each of the parents is restrained from denigrating the other parent, any member of the other parent’s family and any member of the other parent’s household in the presence or hearing of the children or either of them.
That each of the parents is restrained from allowing the children or either of them to remain in the presence or within either child’s hearing of any person who is denigrating the other parent, any member of the other parent’s family and any member of the other parent’s household.
That the mother, MS CALCOTT born in 1975, and the father, MR LACONTE born in 1957, and their servants and agents are restrained from removing or attempting to remove or causing or permitting to removal of the children, X born in 2012 and Y born in 2015, or either of them, from the Commonwealth of Australia, AND IT IS REQUESTED that the Australian Federal Police give effect to this order by placing the names of the said children on the Airport Watchlist in force at all points of arrival and departure in the Commonwealth of Australia and maintain the children’s names on the Watchlist until further order.
That each of the parents keep the other parent informed at all times of their current residential address, mobile telephone number and residential landline telephone number (if they have one) and notify the other parent of any change to those details as soon as practicable and in any case not later than within 72 hours of such change occurring.
The mother and father notify the other parent as soon as is reasonably practicable of any medical emergency, serious illness or injury affecting either of the children whilst the children are in their care.
That each of the parents do all things necessary to direct and authorise any school, preschool or child care centre being attended by either of the children to communicate on an equal basis with each of the parents and to provide information to each of the parents on equal basis.
IT IS NOTED that publication of this judgment under the pseudonym Laconte & Calcott is approved pursuant to s.121(9)(g) of the Family Law Act 1975 (Cth).
| FEDERAL CIRCUIT COURT OF AUSTRALIA AT SYDNEY |
SYC 4035 of 2019
| MR LACONTE |
Applicant
And
| MS CALCOTT |
Respondent
REASONS FOR JUDGMENT
Introduction
These are interim parenting proceedings under the Family Law Act 1975 (Cth) (‘the Act’) between Mr Laconte as applicant father (‘the father’) and Ms Calcott as respondent mother (‘the mother’) in relation to parenting arrangements for their children, X, born in 2012, and Y, born in 2015.
The interim hearing took place on 26 November 2019.
There is no issue between the parties that the parents will have equal shared parental responsibility for the children and that the children will live with their mother.
The issues at the interim hearing were:
a)What time, and on what conditions, if any, would the father spend with the children on an interim basis?
b)Where and how should changeovers at the start and end of the father’s time with the children occur?
c)On what days and at what times should there be communication by telephone between the father and the children?
d)Should a watch list order be made preventing the children from being taken, or sent, out of the Commonwealth of Australia, as sought by the father, or should an order be made largely in the terms of section 65Y of the Act as sought by the mother?[1]
[1] Family Law Act 1975 (Cth) s 65Y.
It was the father’s case that there was no risk whatsoever for the children in spending time with him on an unsupervised basis. He submitted that such time should be during daytime only, on a weekend, for a period of two months, and thereafter on an alternate weekend basis of Saturday to Sunday and each Tuesday evening and on special occasions. The father proposed that there be changeovers either at the children’s school or preschool, if appropriate, or otherwise at his home at the start of his time and at the mother’s home at the end of his time with the children. He proposed that he have telephone communication with the children each Wednesday and Friday between 6.00PM and 7.00PM, with the mother to initiate the call.
In relation to international travel by a parent with the children, he proposed that the children be placed on the airport watch list at all points of arrival and departure from the Commonwealth of Australia, thereby preventing them being taken or sent outside the Commonwealth of Australia.
The mother proposed that any time the father spends with the children be supervised. In the course of submissions at the hearing she indicated that such supervision need only endure for a period of up to six months. She further proposed that his time with the children be on a Saturday from 10.00AM to 3.00PM, with no interim orders being made providing for the father to have any overnight time with the children, supervised or otherwise. The mother also proposed that the father spend time with the children on special occasions, but without seeking a specific supervision order relating to those special occasions.
The mother proposed that changeover be at the Suburb D Shopping Centre at Suburb E at the start and end of the father’s time with the children. She also proposed that the father have telephone communication with the children each Monday and Wednesday between 5.00PM and 6.00PM, with the father to initiate the call.
The mother proposed that “Neither parent shall permit the children to travel outside Australia without the written consent of the other parent”, and that information about the travel overseas is to be provided, by the parent wishing to travel with the children, to the other parent.
In the mother’s written material, she presented a case to the Court that the father presented an unacceptable risk to the children by reason of
a)Family violence during cohabitation and following their separation;
b)The father’s mental health and, in particular, an incident of attempted suicide by the father in 2018;
c)The father’s abuse of alcohol; and
d)The father’s lack of parenting capacity, by a combination of a lack of experience in caring for young children and a lack of willingness to himself undertake the caring required for young children.
During the interim hearing, the mother’s assertions in relation to risk reduced considerably during exchanges between the Court and the mother, as will be detailed later in these Reasons.
These Reasons have been too long delayed. I apologise to the parents and the children for that delay.
The materials relied upon by the parties
The father relied on the following:
a)Initiating Application filed 23 June 2019;
b)Notice of Risk filed 23 June 2019;
c)Affidavit of the father sworn and filed 19 November 2019;
d)Affidavit of Ms A (the paternal grandmother) sworn and filed 26 November 2019;
e)Affidavit of Ms C (the father’s non‑cohabitive partner) affirmed and filed 21 November 2019; and
f)A Case Outline document prepared for the interim hearing by the father’s counsel, Mr Longworth.
The mother relied upon the following:
a)Response to Initiating Application filed 22 November 2019 (in effect, an Amended Response);
b)Notice of Risk filed 24 August 2019; and
c)Affidavit of the mother affirmed and filed 25 November 2019.
Documents were tendered on behalf of the father and admitted into evidence and marked as exhibits as follows:
a)Exhibit A1 – a medical report dated 19 November 2019 prepared by Mr F, clinical and forensic psychologist and psychotherapist, in relation to the father;
b)Exhibit A2 – from the documents produced on subpoena by G School, those documents contained therein marked with a green adhesive tag; and
c)Exhibit A3 – documents produced on subpoena by the Employer H, being all applications for leave from her employment made by the mother from 1 January 2015 to the time of production.
The mother tendered into evidence documents produced on subpoena by J Medical Centre, in relation to the father’s medical records, those documents marked with yellow tabs “M‑3”, “M‑3(a)” and “M‑3(c)”. This was admitted into evidence and marked as exhibit R1.
I have read and carefully considered the whole of the evidence presented on behalf of each of the parties, being all of the affidavit evidence and all of the evidence contained in the exhibits.
Submissions were made on behalf of the father by his counsel, Mr Longworth, both by way of the written submissions contained in his case outline document and oral submissions at the hearing, including oral submissions in reply.
Oral submissions were made by the mother at the hearing. I have carefully taken into account all of those submissions, including again listening to the whole of those submissions on audio transcript, for the preparation of these Reasons and the making of orders.
The orders sought by the father
The orders sought by the father at the interim hearing are set out in his Initiating Application and may be summarised as follows:
a)That the parents have equal shared parental responsibility for the children;
b)That the children live with their mother;
c)That the mother and father each have responsibility for the daily care, welfare and development of the children during periods when the children are with each party respectively. No consideration was given to this order sought by the father, as the situation is fully covered by section 65DAE of the Act;
d)That the children spend time with their father as agreed and, failing agreement, for a period of two months, each Saturday (changed from Sunday, as appearing in the Initiating Application, to Saturday during the interim hearing) from 10.00AM until 5.00PM, and thereafter each alternate weekend from 10.00AM Saturday until 6.00PM Sunday, and commencing from the making of orders, each Tuesday from 3.00PM to 6.00PM,;
e)That, unless otherwise agreed, the children spend time with their father for special occasions as follows:
i)On Father’s Day from 10.00AM to 7.00PM;
ii)On each of the children’s birthdays from 3.00PM to 7.00PM;
iii)On the father’s birthday from 3.00PM to 7.00PM;
iv)On Easter Sunday from 9.00AM to 2.00PM; and
v)On Christmas Day from 11.00AM till 8.00PM;
f)That changeover take place as agreed between the parties and, failing agreement, at the children’s school or child care centre if a school day or, if not a school day, at the father’s home at the start and at the mother’s home at the end;
g)That the mother facilitate and encourage the children to communicate with the father each Wednesday and Friday by FaceTime or telephone between 6.00PM and 7.00PM, with the mother to initiate the call;
h)That the parents notify each other of any change of telephone number or address as soon as practicable and not later than 72 hours after such change occurring;
i)That the parents notify each other as soon as reasonably practicable of any medical emergency, serious illness or injury to the children while the children are in their care;
j)That each parent do all things necessary to authorise a school or child care centre at which the children attend to communicate with the other parent;
k)That a non‑denigration order be made;
l)That the parents have liberty to provide a copy of the orders made as a result of the interim hearing to the children’s school or child care centre; and
m)That a watch list order be made restraining the children from being removed from, or sent out of, Australia.
The orders sought by the mother
In her Amended Response filed 22 November 2019, the mother sought orders on the interim basis as follows:
a)That the parents have equal shared parental responsibility for the children;
b)That the children live with the mother;
c)That the father have supervised care of the children from 10.00AM to 3.00PM every Saturday, supervision to be arranged by the father through Region K Children’s Contact Service or another approved provider, paid for by the father, and if the service is not immediately available, the father to spend the Saturday visits with the children at the children’s play area in an agreed shopping centre location or a local park within 10 kilometres of L Street, Suburb M, NSW;
d)The children not have overnight visits with the father “due to safety concerns”;
e)The children spend time with the father on special occasions as follows:
i)On Father’s Day from 10.00AM till 5.00PM;
ii)On the father’s birthday from 10.00AM to 5.00PM;
iii)On Christmas Day from 2.00PM to 7.00PM;
iv)On Easter Day from 2.00PM to 7.00PM; and
v)The children’s birthdays to be jointly celebrated by both parents at an agreed time and location;
f)The changeovers occur at Suburb D Shopping Centre at Suburb E;
g)That at the end of the children’s time with the father any areas of concern or handover detail for the mother’s attention be communicated by email;
h)That the mother encourage the children to communicate with the father by telephone on Mondays and Wednesdays between 5.00PM and 6.00PM, with the father to initiate the communication;
i)The parents notify each other of any change in telephone number or address as soon as practicable or within a week of the change;
j)The mother and father notify the other parent as soon as practicable of any medical emergency, serious illness or injury to the children while the children are in their care;
k)That the mother and father enrol in and complete a Parenting After Separation course;
l)That a non‑denigration order be made;
m)That neither parent have their dating partner or a person to whom the parent is not related by blood or marriage present while the children are in their care;
n)That the mother and father may present a copy of the interim orders to the children’s school and child care centre;
o)That the children continue to enjoy and be encouraged to experience all aspects of each of the father’s and mother’s distinct cultural heritage, and that neither parent to denigrate the other parent’s cultural heritage in the presence or hearing of the children;
p)That neither parent permit the children to travel outside of Australia without the written consent of the other parent; and to ease any fears from the father or mother, that the following steps apply:
i)Each parent provide a reasonable period of notice, up to two months, when the children are to go on an international holiday;
ii)That the travelling parent prepare a letter of consent authorising the children’s travel to be endorsed by the mother and father, to be sighted at any Commonwealth of Australia border and international airport;
iii)That the travelling parent provide copies of the children’s travel itinerary, address at destination and return tickets; and
iv)That the children will only be permitted to travel to Hague Convention countries.
The evidence
The following summary of evidence represents findings by the Court in relation to factual matters unless otherwise indicated.
The father is 63 years of age and was born in Australia. He is a professional at Employer H. He has two adult children from a previous relationship, Mr B, age 32, and Mr N, age 30.[2]
[2] Affidavit of Mr Laconte sworn 19 November 2020, [7].
The father lives alone in a two‑bedroom rented apartment in Suburb O. He occupies one bedroom and the other bedroom is set up for the accommodation of the children if they spend overnight time with him.[3]
[3] Affidavit of Mr Laconte sworn 19 November 2020, [9].
The mother is 44 years of age and was born in City P, Country Q. The father writes in his affidavit, and the mother does not dispute it, that the mother moved to City R in the Country S when she was nine years of age and attended boarding school and tertiary institutions in the Country S.[4] The maternal grandparents continue to live in the Country S.[5]
[4] Affidavit of Mr Laconte sworn 19 November 2020, [92].
[5] Affidavit of Mr Laconte sworn 19 November 2020, [93].
At some time, the mother migrated to Australia and has certainly lived in Australia for a considerable period of time. She has been an Australian citizen since 2008.[6] The mother owns the home in which she lives with the children at Suburb M.[7]
[6] Affidavit of Ms Calcott sworn 25 November 2019, [15(c)].
[7] Affidavit of Ms Calcott sworn 25 November 2019, [15(e)].
The mother is also a professional, at Employer H.
The parties met in about 2011, according to the father, and commenced cohabitation in 2012. They married in 2012 and they separated on 29 February 2016, when the mother left the then matrimonial home at Suburb T with the children. The parties divorced on 4 June 2018.
X was born in 2012 and was seven years of age at the time of the interim hearing. Y was born in 2015 and was four years of age at the time of the interim hearing. X attends G School, in Suburb U.
Following the birth of X, the mother took six months maternity leave and says that she undertook the whole of the care of X, and that following the birth of Y she also undertook the whole of the care of Y up until the time of the parties’ separation on 29 February 2016, without any assistance from the father, whom she asserts was in the habit of staying in his room and ignoring the rest of the family when he was home from his employment.[8]
[8] Affidavit of Ms Calcott sworn 25 November 2019, [12(e)].
The father, for his part, asserts that he was actively involved in the care of both children from the time of their birth, including assisting the mother with the care of the children when he was not at his place of employment, and caring for them on his own on occasions when the mother needed to be absent.[9]
[9] Affidavit of Mr Laconte sworn 19 November 2020, [15]-[22].
The mother returned to her work at the Employer H following maternity leave after the birth of each of the children. On her return to work after the birth of X, X was placed by the parties at the ‘V Child Care Centre’ at Suburb W, near the parents’ mutual place of employment, in 2013.[10]
[10] Affidavit of Ms Calcott sworn 25 November 2019, [12(j)].
In 2013, the parties purchased a unit at Z Street, Suburb AA, and lived there until they sold those premises and moved to larger, rented premises at Suburb T.[11]
[11] Affidavit of Mr Laconte sworn 19 November 2020, [19].
Throughout the parties’ cohabitation, the father suffered from chronic pain in his legs and was diagnosed with peripheral neuropathy. In mid‑2015, the father was diagnosed with diabetes.[12]
[12] Affidavit of Mr Laconte sworn 19 November 2020, [23]-[24].
The mother had a difficult pregnancy with Y, being required to undertake complete bedrest for six to seven months of her pregnancy, under the orders of her obstetrician, Dr BB.[13] The father asserts that he undertook the principal care of X during this period of the mother’s bedrest, though this is disputed by the mother.
[13] Affidavit of Mr Laconte sworn 19 November 2020, [26].
It is agreed that during this period the parties employed nannies to care for X whilst the mother undertook bedrest and the father was at his employment, between 7.30AM and 5.30PM on weekdays. They originally hired a nanny named Ms CC and later a nanny named Ms DD. The father asserts that on weekends, when the nanny was not present, he was assisted in caring for X by the paternal grandmother, Ms A. The father gives evidence that the nanny continued to assist with the care of X and with the care of Y following Y’s birth, during the period of the mother’s maternity leave.[14]
[14] Affidavit of Mr Laconte sworn 19 November 2020, [35].
The father organised to be absent from the home from 21 February 2016 until a date in early March 2016 to attend a work retreat. During that time, on 29 February 2016, the father says that he received a message from the mother that she had moved out of the matrimonial home at Suburb T and into a flat that she had rented at Suburb AA, taking the children with her.[15] The mother gives evidence that she had discussed with the father her intention to leave the relationship and move out of the matrimonial home property at Suburb T into a rental property prior to him leaving for the retreat, and that she had, with his knowledge, been searching for suitable accommodation prior to that time.[16] She says that, on moving, she provided the father with details of her new address.
[15] Affidavit of Mr Laconte sworn 19 November 2020, [48]-[49].
[16] Affidavit of Ms Calcott sworn 25 November 2019, [11(f)-(g)].
Shortly after the parties separated, they met near the Suburb T home to give the father an opportunity to spend some time with the children for a period of about 15 minutes.
The father suffered from increasing problems of depression following the breakdown of the marriage and his separation from the children, which was exacerbated by his chronic pain problems. He was referred to and began consultations with Mr F, clinical and forensic psychologist and psychotherapist, and he was prescribed and took medication, Cymbalta.[17]
[17] Affidavit of Mr Laconte sworn 19 November 2020, [53]-[55].
In 2018, the father was admitted to EE Hospital Mental Health Assessment Ward as a voluntary patient, following an attempted suicide in which he mixed consumption of alcohol and medication and then made preparations to hang himself. During the course of this attempt, the father had telephone communication with a colleague, who alerted emergency services, and the father was conveyed to hospital by ambulance. It is the father’s evidence that this suicide attempt was a product of his depression arising from the breakdown of his marital relationship and his separation from his children and, in particular, as a consequence of having been served with an Application for divorce filed by the mother.[18]
[18] Affidavit of Mr Laconte sworn 19 November 2020, [50]-[55].
In her evidence, the mother refers to an occasion in August 2016 when she was told by the paternal grandmother that the father had collapsed and been admitted to FF Hospital.[19] There was no other evidence in relation to such an occasion.
[19] Affidavit of Ms Calcott sworn 25 November 2019, [10(b)].
The mother asserts that the father is subject to epileptic seizures and that she witnessed the father having such seizures in 2013 and 2015. She describes these occasions as “He suddenly froze during the conversation and had seizures.”[20] However, in giving that description, she indicates that on those occasions the parties were talking, that she had X in her arms, and that when the father “had seizures” X looked at him, then leaned into him and tugged at his arm, before bursting into tears. Those specifics would not seem to describe an epileptic seizure.
[20] Affidavit of Ms Calcott sworn 25 November 2019, [10(c)].
The father denies that he has ever suffered from epilepsy, and he puts into evidence as annexure “C” to his affidavit a letter dated 15 November 2019 from Mr GG, consultant neurologist, of GG Hospital, to the father’s general practitioner, Dr HH, that states “There is nothing in the history to suggest a seizure disorder.”[21]
[21] Affidavit of Mr Laconte sworn 19 November 2020, [97], Annexure “C”.
In January 2019, the father commenced a non‑cohabitive relationship with Ms C. Ms C provided an affidavit indicating that:
a)She is a professional employed by Employer H;
b)She has three adult children, two of whom live with her, the other living independently in Country JJ where his father lives;
c)She is aware of the father’s health circumstances in relation to chronic pain, diabetes, and history of depression;
d)She was told by the father about the occasion on which he attempted suicide in 2018, and describes an occasion on 22 January 2019 when she received a telephone call from the father during which he admitted to having consumed alcohol to excess, as a consequence of which she went to the father’s home, found him intoxicated, and cared for him. She gives evidence that that was the only occasion on which she has seen the father intoxicated; and
e)Up until the time of swearing her affidavit, she had not met the children.[22]
[22] Affidavit of Ms C, sworn 21 November 2019.
The father is unable to drive for “medical reasons”[23] – though the medical reasons are not elaborated – and he relies on public transport.
[23] Affidavit of Mr Laconte sworn 19 November 2020, [60].
X originally attended KK School at Suburb LL, but after separation, the mother changed her school to G School. Though the father gives evidence that he was not consulted, the mother gives evidence that he was. The father does not oppose X and later Y attending G School. The father asserts that what purport to be his signatures on the enrolment and other official documents from G School found in exhibit A2 are not his signature, but are forged, and he points out, as is the case, that in each place where a phone number, address or email address is given for the father in those documents it is a repeat of the phone number, email address and address of the mother.[24] It is, of course, open to the father to provide the school with his correct details.
[24] Affidavit of Mr Laconte sworn 19 November 2020, [61]-[64].
In June 2016, the mother and children moved from the flat she had rented at separation at Suburb AA to the home occupied by the mother and children at Suburb M. Once again, the father alleges that the move was made without any consultation with or disclosure to him, and that he only became aware of the move when he became aware of the change of school for X from KK School to G School. In contradiction, the mother says that she told the father beforehand about both the change of residence and X’s change of school.[25]
[25] Affidavit of Ms Calcott sworn 25 November 2019, [11(g)], [14(i)].
The evidence of the parties is not definitive in relation to the time that the father spent with the children between the separation on 29 February 2016 and an occasion in October 2018 when the father begins to detail the occasions he spent time with the children. There is inference in the mother’s evidence that the parties entered into a parenting plan on 15 August 2016, pursuant to which the father was to spend time with the children for two hours each Saturday or Sunday. Whether or not this took place is not in the evidence and no copy of any parenting plan is provided in the evidence.
In 2018, the mother invited the father and paternal grandmother to spend time with the children for Y’s third birthday at ‘MM Play Centre’ at Suburb NN. The father and paternal grandmother did spend that time with the children.[26]
[26] Affidavit of Mr Laconte sworn 19 November 2020, [68].
In October or November 2018, the mother brought the children to spend time playing with the father at the paternal grandmother’s home at Suburb OO.[27]
[27] Affidavit of Mr Laconte sworn 19 November 2020, [69].
On 25 December 2018, Christmas Day, the father spent time with the children from 3.00PM until 5.00PM at the paternal grandmother’s home at Suburb OO.
On 25 January 2019 the father spent time with the children at his home at Suburb O from 11.00AM until 1.00PM.
In 2019 the children spent time with the father at the paternal grandmother’s home at Suburb OO, though the mother had arranged the occasion as one for the children to spend time with their half‑brother, Mr B, shortly prior to his wedding.
In 2019, the children and the mother attended by invitation at Mr B’s wedding. The children sat with their father and the paternal grandmother. The five, including the mother, sat at the bridal table.
On all the occasions detailed above of the father spending time with the children between 2018 and 2019, the mother was present with the father and children throughout the occasion.
The father asserts that after the occasion of Mr B’s wedding in 2019 he had not been able to arrange an occasion to spend time with the children, that he had been able to talk to the children on the phone up until about May 2019 but not thereafter, because the mother did not answer his telephone calls.[28]
[28] Affidavit of Mr Laconte sworn 19 November 2020, [87]-[89].
The mother gives evidence that on 8 February 2019 the father came to the mother’s office at work and gave her $100 toward expenses for the children. The father says that he so attended to ask the mother if they could make plans for him to see the children, but that the mother did not look up or respond to him. The mother, for her part, asserts that on this occasion she was verbally abused by the father and as a consequence was in fear of the father.[29]
[29] Affidavit of Ms Calcott sworn 25 November 2019, [11(m)].
On 22 May 2019, the father again went to the mother’s office at work to have a conversation about arranging for him to see the children. He says that the mother asked him to leave and that he left. The mother, for her part, proposes that the father was again verbally abusive, as a result of which she sought police assistance. The police advised her to arrange for her employer to enable her to change offices.
Exhibit A3 evidences that in about 2018 the mother made an application to her employer for extended study-leave in 2019 to enable her to undertake work, including work at Employer PP in Country QQ. It was in consequence of this evidence that the father sought the watch list order. The mother, in her submissions, indicated that most of her communication with Employer PP in Country QQ would have been via Skype, and that she at no time intended to take the children outside Australia for a period of six months.
The children both have current Australian passports. The father asserts that he was unaware that the children had Australian passports until reading about them in the mother’s evidence,[30] but the mother asserts that the father was fully aware of the children having Australian passports, as they were a consequence of a joint application when the parties had planned a trip in 2016 (the month the parties separated) to Country RR.[31]
[30] Affidavit of Mr Laconte sworn 19 November 2020, [94].
[31] Affidavit of Ms Calcott sworn 25 November 2019, [11(a)].
The mother asserts that, throughout their period of cohabitation, the father had a firearm and that he continues to be in possession of such firearm. She asserts that such firearm presents a danger to the children, a position from which she resiled in her submissions at the interim hearing. The father indicates that throughout the parties’ cohabitation he had parts of a firearm that he had inherited from his late father, and that it was an old shotgun that lacked vital parts so as to render it inoperative and totally incapable of discharging any projectile. The father says that he disposed of the item shortly following the parties’ separation.
On 17 August 2019, the father spent some time with the children, arranged with the mother, at a park at Suburb SS. The occasion was also attended by the paternal grandmother and by Mr B and his wife. The father spent two hours with the children and says “…both X and Y ran towards the gate to greet Ms A and me. The children were clearly excited, and when I opened the gate I was embraced individually and warmly by them both.”[32]
The mother remained nearby throughout the occasion.
[32] Affidavit of Mr Laconte sworn 19 November 2020, [102].
Again, in 2019, by arrangement between the mother and the father, the father spent time with the children at a play centre at Suburb TT for Y’s birthday, the occasion again being attended by the paternal grandmother, and Mr B and his wife, and the mother remaining throughout the whole occasion. The occasion lasted for two hours and on the father’s evidence the children were perfectly happy to be spending time with him.[33] There is no contrary evidence by the mother.
[33] Affidavit of Mr Laconte sworn 19 November 2020, [105]-[110].
The proceedings were commenced by the father filing his Initiating Application on 23 June 2019. The matter came before the Court for the first return date on 18 September 2019 before Registrar Campbell, who appointed a Child Dispute Conference on 19 December 2019 and listed the matter for the interim hearing on 26 November 2019. Following that date and by arrangement between the mother and the father’s solicitors, an occasion was organised for 9 November 2019 for the father to spend time with the children from 10.30AM until 3.00PM, supervised by the commercial supervision agency UU Contact Centre. A further occasion for the same time was to occur on 23 November 2019.
On 9 November 2019, the father accompanied the supervisor from UU Contact Centre to the mother’s home. This was on the basis that the mother had insisted that the father accompany the supervisor to collect the children, as she indicated there was a 45‑minute car trip from her home to the father’s home during which the children would be with strangers. The children, the father, and the supervisor were to be conveyed in a car driven by a volunteer from ‘VV Courier Service’.
On that occasion, the father and supervisor attended at the mother’s home and the mother insisted that she walk the children to the car in which they were to be conveyed, so that she could see that it was appropriately set up. On the way, the children began to cry and continued to cry when they were placed in the car, though the father calmed Y down and she stopped crying after she was placed in her car seat. The supervisor spoke to X and asked her why she was crying, and X responded, “Because I’m scared, and I don’t want to go with him.”[34] The supervisor asked X if she wanted the visit to be cancelled and X said yes. The supervisor made a decision to cancel the visit.
[34] Affidavit of Mr Laconte sworn 19 November 2020, p 94.
The supervisor reports that X appeared to be concerned that she would not be returned to her mother at the end of the visit, and she also reports that she heard the mother making encouraging statements to the children about going with their father. The children returned to their home with their mother and the father, supervisor and driver left. The occasion of 23 November 2019 was not attempted.
The paternal grandmother, in her affidavit, indicates that she is 83 years of age, but still spry and capable, and that she would be most prepared to supervise occasions between the father and the children, and outlined her understanding, appropriately, of her obligation in relation to that supervision.[35] Ms C, in her affidavit, indicated she would be prepared to supervise occasions between the father and the children and indicated an appropriate understanding of that role, though it is plain on her evidence that she had not at that time met the children.[36] The paternal grandmother indicates that she lives 50 metres from the father’s place of residence. The paternal grandmother gives evidence that:
I have observed the children to be very comfortable in Mr Laconte’s company. They are very affectionate children and will happily cuddle and play with him. Mr Laconte has a very gentle manner with the children. He willingly plays with them and he is aware and attentive to their individual needs.[37]
[35] Affidavit of Ms A sworn 26 November 2019, [16].
[36] Affidavit of Ms C sworn 21 November 2019, [28].
[37] Affidavit of Ms A sworn 26 November 2019, [36].
It has been asserted by the mother in her evidence that the paternal grandmother had suffered a stroke. In her evidence, the paternal grandmother indicates that she has never suffered a stroke, and that about four years prior to the proceedings, she suffered a transient ischaemic attack, and that that attack had not been repeated since that time.[38]
[38] Affidavit of Ms A sworn 26 November 2019, [41].
The mother’s assertion of family violence and risk
The mother asserts in her evidence – and I note here that a comment will be made about the concessions made by the mother in submissions later in these Reasons – that the father represents an unacceptable risk to the children in consequence of the following:
a)His inability to sit for long periods of time;
b)That he has an attention span of 15 minutes;
c)That he has decades of use of opioids;
d)That he has made two suicide attempts within two years leading up to the interim hearing;
e)That he suffers from amnesia;
f)That he suffers from thought disorder and adjustment disorder;
g)That he suffers from depression;
h)That he suffers from anxiety;
i)That he is subject to panic attacks;
j)That he has possession of a firearm; and
k)That he abuses alcohol.[39]
[39] Affidavit of Ms Calcott sworn 25 November 2019, [10(a)].
I will address each of these asserted risks in due course.
The mother, in her affidavit, gives evidence of what she asserts are occasions of family violence perpetrated by the father against her.
The mother gives evidence that on 11 February 2016 the father picked up an object (which I am able to infer from other evidence was a television remote control device) and that, in anger, he smashed that object on the side of the baby’s cot, shattering pieces on the ground and in the cot. I asked the mother during the interim hearing if either of the children were in the cot when this occurred and the mother said that Y was in the cot. However, her affidavit evidence about the incident does not bear this out.
The mother gives evidence about incidents she describes as occurring on 12, 14, and 18 February 2016. I find that each of these incidents does not represent family violence perpetrated by the father toward the mother or the children.[40]
[40] Affidavit of Ms Calcott sworn 25 November 2019, [11].
The mother gives evidence of incidents she asserts occurred in January, February and March 2015. I find that none of these incidents represent family violence perpetrated by the father against the mother or the children.[41]
[41] Affidavit of Ms Calcott sworn 25 November 2019, [11].
In relation to her assertions in relation to unacceptable risks presented by the father to the children, I will deal with a few by way of clarification of the evidence in the interim hearing. By and large, I do not need to deal with much of what is asserted by the mother to be unacceptable risk due to concessions made by the mother in the course of her submissions, as I will detail hereunder.
The mother’s assertion that the father is affected by occasions of amnesia rests on the document tabbed as “M‑3” in the father’s medical records from J Medical Centre in exhibit R1. That interpretation is incorrect. The reference to amnesia is under a heading “allergies/adverse reactions”[42] and is in the part stated “Stilnox – amnesia with EtOH”.[43] ‘EtOH’ is the well‑known abbreviation in the medical world for alcohol. The reference is to the father having an adverse reaction to any mixture of alcohol and the medication Stilnox, such that some amnesia can be produced. The father is not currently, and was not at that time, taking Stilnox.
[42] Exhibit R1, tab M-3.
[43] Exhibit R1, tab M-3.
The mother pointed to a medical certificate contained in the father’s medical records in exhibit R1 dated 17 January 2019, provided by his general practitioner, Dr HH, and submitted that the document establishes that the father is incapable of sitting for long periods and that he has an attention span of 15 minutes. That is not what the document says. The document says, in relation to providing a medical certificate in support of the father seeking to be excused from jury duty, the following:
This is to certify that Mr Laconte suffers from chronic neuropathic pain and anxiety. He cannot sit still for more than 15 minutes and has poor concentration due to his medications. Please excuse him from jury duties. Please remove him from the jury duty list. Any kind consideration regarding his absence would be greatly appreciated.[44]
[44] Exhibit R1, tab M-3a.
The mother relies on the father’s medical records in exhibit R1 for her assertion that he has used opioids for decades. She relies on the document marked with the tag “M‑3(c)”, being a letter of 28 March 2019 from Mr WW, who is a specialist pain medicine physician and rheumatologist and a conjoint professor, to the father’s general practitioner, Dr HH, in which a reference is made in the third paragraph:
In December 2014, in the context of the “opioid crisis” and in the midst of a difficult divorce from his second wife, including custody issues regarding their young daughter, Mr Laconte went off all medications. In May 2016 my colleague, Dr XX, recommenced him on gabapentin and then mirtazapine.[45]
[45] Exhibit R1, tab M-3c.
The December 2014 ‘opioid crisis’ referred to is not any crisis in reference to the father, but is a reference – and I take judicial notice of this – to the well‑known ‘opioid crisis’ at that time, commencing in the United States of America, when it was recognised that there was an epidemic of opioid dependence and harm consequent upon asserted over‑prescription by physicians.
The mother finds references to the father being affected on occasions by “thought disorder”, “adjustment disorder”, “depression”, and “anxiety” in the summary of his medical records marked at tab M‑3 in exhibit R1. All of those references are historic and are dealt with in exhibit A1, being the report provided by the father’s treating clinical psychologist, Mr F, such that I would find, if necessary, that the father does not present an unacceptable risk, or indeed a risk at all, to the children if in his care by reason of mental health issues.
In the course of the mother’s submissions, she conceded that she had no concerns whatsoever that the father would do any harm to the children. I indicated to her that in making that concession the Court would find that her assertions in relation to the father’s possession of the firearm would have no ongoing relevance and the father’s attempted suicide in 2018 would have no ongoing relevance. I note here that my use of the word ‘relevance’ in my exchanges with the mother was inappropriate, as those incidents are certainly relevant evidence, and my expression should have been more to the effect that that evidence, though admitted, would not have found a finding of unacceptable risk in view of the mother’s concession.
In the course of submissions and in response to my questions, the mother conceded that the children loved their father and that he loves them and that it would be good for the children to spend time with their father. This pairs with her evidence that:
As it is of essence that X and Y have a meaningful relationship with both parents, I have no intention of living in another country besides Australia.[46]
[46] Affidavit of Ms Calcott sworn 25 November 2019, [15(h)].
During her submissions, I clarified with the mother what she regarded as her concern or concerns leading her to seek that time between the father and the children be supervised for a period of up to six months. I asked the mother:
Is your only real concern that the father cannot attend to the children’s needs, their food, their grooming, and their going to sleep and so on?
The mother responded, “That’s right.”
Further, during the mother’s submissions, I indicated to her that I did not accept the father’s submission that the purpose of her application for a sabbatical from Employer H was for the purpose of, or even the dominant purpose of, taking the children away from the father. However, I did suggest to the mother that the children being overseas for a period of six months would greatly damage the children’s relationship with their father, and I asked the mother if she accepted that proposition. The mother indicated clearly that she did accept that proposition. She also indicated that she had not at that time taken up any offer of overseas employment, and that she would be conducting much of her work with overseas institutions by Skype communication.
In relation to the mother’s other assertions of unacceptable risk, I suggested to the mother during her submissions that the Court could make an order restraining the father from consuming alcohol for a period of 24 hours before the children were in his care and at all whilst they were in his care. I also asked the mother if that would address her concerns in that regard, and the mother indicated that such an order would address those concerns.
Further, during the mother’s submissions I suggested to her that the Court could make an order in the nature of a mandatory injunction, requiring the father to do all things necessary to tend to the children’s needs himself whilst they are in his care, including, but not limited to, their feeding, bathing, making sure that they have nutritious food, and being put to sleep at such times as the mother indicates their usual routine would dictate. The mother indicated that she would be accepting of such an order to address concerns over the father’s care for the children.
I must be clear to recognise that, right to the end of the interim hearing and the conclusion of all submissions, the mother maintained her position that any time between the father and the children should be supervised for a period of up to six months, and that at no time did she resile from the orders sought by her on the interim basis in her Amended Response that “The children will not have overnight visitation with the father due to safety concerns.”
The law
In parenting proceedings under the Act, the Court is required to follow the legislative pathway set down in the Act. That applies to interim hearings on parenting issues.[47]
[47] MRR & GR [2010] HCA 240; Goode & Goode (2006) FLC 93-286; Marvel & Marvel (2010) 240 FLR 367.
The Court must give attention to section 60B of the Act that sets out the objects of Part IV of the Act relating to children. Those objects inform the making of parenting orders.[48] That section also contains the principles behind those objects. In this matter I have considered those objects and the principles behind those objects.
[48] Family Law Act 1975 (Cth) s 60B.
Section 60CA of the Act provides that in deciding whether to make a particular parenting order in relation to a child the Court must regard the best interests of the child as the paramount consideration. The child’s interests are not the only consideration. Parents and other persons, especially partners and extended families, are almost always relevant in the matter, but the child’s interests must always be the paramount consideration.
In parenting proceedings, pursuant to section 65D of the Act, the Court may, subject to the presumption of equal shared parental responsibility in section 61DA and consideration of parenting plans under section 65DAB, make such parenting order as it thinks proper.[49] The Court may make a parenting order that discharges, varies, suspends, or revives some or all of an earlier parenting order.[50]
[49] Family Law Act 1975 (Cth) s 65D(1).
[50] Family Law Act 1975 (Cth) s 65D(2).
In determining what is in a child’s best interest, the Court must consider the matters set out as the primary considerations and additional considerations in section 60CC and make findings. [51]
[51] Family Law Act 1975 (Cth) s 60CC.
Section 61DA provides that when making a parenting order in relation to a child the Court must apply a presumption that it is in the best interests of the child for the child’s parents to have equal shared parental responsibility for the child.[52]
[52] Family Law Act 1975 (Cth) s 61DA.
The presumption does not apply in circumstances where a parent has perpetrated family violence or abuse. The presumption, when applying, may be rebutted by evidence that satisfies the Court that it would not be in the best interests of the child for the child’s parents to have equal shared parental responsibility for the child.[53]
[53] Family Law Act 1975 (Cth) s 60B.
When the Court is considering parenting matters on the interim basis the presumption applies unless the Court considers it would not be appropriate in the circumstances for the presumption to be applied when making interim orders.
If a parenting order provides that a child’s parents are to have equal shared parental responsibility for the child, then pursuant to section 65DAA, the Court must consider:
a)Whether the child spending equal time with each parent would be in the best interest of the child;[54] and
b)Whether the child spending equal time with each of the parents is reasonably practicable.[55]
If both questions are answered ‘yes’, the Court must consider making an order to provide for the child to spend equal time with each of the parents.[56]
[54] Family Law Act 1975 (Cth) s 65DAA(1)(a).
[55] Family Law Act 1975 (Cth) s 65DAA(1)(b).
[56] Family Law Act 1975 (Cth) s 65DAA(1)(c).
If the Court does not make an order for the child to spend equal time with each of the parents, then the Court must consider whether the child spending substantial and significant time with each of the parents would be in the best interests of the child and consider whether the child spending substantial and significant time with each of the parents is reasonably practicable and, if the answer to both is yes, the Court is to consider making an order to provide for the child to spend substantial and significant time with each of the parents.
What is meant by substantial and significant time is set out in section 65DAA(3) of the Act and includes days that fall on weekends and holidays, days that do not fall on weekends or holidays, the child being able to be involved in occasions and events special to the parents, the parents being able to be involved in occasions and events of particular significance to the child, and the parents being able to be included in the child’s daily routine.
If the Court does not make an order for the child to spend substantial and significant time with each of the child’s parents, the Court must then go on to determine what parenting orders are proper in the best interests of the child, per section 65D.
As to what is ‘proper’ and how the Court’s discretion is to be exercised I note the comments of the Full Court of the Family Court of Australia in the recent decision of Grella & Jamison:[57]
A discretionary judgment concerning the parenting orders necessarily involves, because of the focus upon the future, significant elements of value judgments; assumptions; necessarily uncertain predictions and intuition. [58]
[57] Grella & Jamison [2017] FamCAFC 21.
[58] Grella & Jamison [2017] FamCAFC 21, [18].
There is much jurisprudence on the issue of risk in parenting proceedings. The jurisprudence may be simplified by saying that the task of the Court where risks are asserted is not necessarily to make a finding as to whether the actions and events asserted have actually happened or have definitely not happened, as such a finding is rarely open to the Court on the evidence and most particularly in interim parenting proceedings replete with contested evidence.
Rather, the task of the Court is to assess whether the evidence establishes that there is a risk to the best interests of the child. If the evidence establishes that there is such a risk, briefly expressed, the Court must:
a)Assess whether that risk is an acceptable risk or an unacceptable risk;
b)If it is assessed that it is an unacceptable risk, assess whether or not the risk can be mitigated by appropriate orders; and
c)Decide what orders are proper in all the circumstances in the best interests of the child.
Detailed exposition of the treatment of risk in parenting matters can be found in the decision of the High Court in M & M[59] and the decisions of the Full Court of the Family Court of Australia in A & A & The Child Representative ,[60] Napier & Hepburn,[61] Johnson & Page,[62] Deiter & Deiter,[63] and Eaby & Speelman.[64]
[59] M & M (1988) FLC 91-973.
[60] A & A & The Child Representative (1998) 22 FamLR 756, [3.23] to [3.25].
[61] Napier & Hepburn (2006) FLC 93-303.
[62] Johnson & Page (2007) FLC 93-344.
[63] Deiter & Deiter [2011] FamCAFC 82, [61].
[64] Eaby & Speelman (2015) FLC 93‑654.
Where there is contested evidence in an interim hearing the Court is not always able to make a finding, but must do what can be done on the basis of agreed facts and any contested evidence where there is sufficient corroboration on one side to enable a finding. This is to enable the Court to perform its function, and resolve any interim issues with the best interests of the child as the paramount consideration, and make whatever orders are then considered proper.
In SS & AH,[65] in the context of discussing the obligations of the Court whilst conducting interim children’s proceedings where the evidence available was contradictory in nature but nonetheless raised significant welfare concerns for the children concerned, the Court observed:
… 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.[66]
[65] SS & AH [2010] FamCAFC 13 (Boland, Thackray, and O’Ryan JJ).
[66] SS & AH [2010] FamCAFC 13, [100].
As noted by the Full Court of the Family Court of Australia in Eaby & Speelman,[67] 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.”
[67] Eaby & Speelman [2015] FamCAFC 104 (Thackray, Ryan, and Forrest JJ).
Section 60CC – the primary considerations
The primary considerations are the benefit to the children of having a meaningful relationship with both of the children’s parents and any need to protect the children from physical or psychological harm from being subjected to, or exposed to, abuse, neglect or family violence.[68] Subsection (2A) requires that the court give greater weight to the consideration relating to any need to protect the children over the benefit to the children of having a meaningful relationship with both of their parents.
[68] Family Law Act 1975 (Cth) s 60CC(2).
On all of the evidence, the children have a meaningful relationship, a close and loving relationship, with their mother. She has been their primary carer since birth and virtually their sole carer, as between their parents, since the parties separated on 29 February 2016.[69]
[69] Family Law Act 1975 (Cth) s 60CC(3)(b).
The current state of the father’s relationship with each of the children and as to whether or not it is a meaningful relationship is far harder to determine on the evidence. The father’s evidence as to the children’s reaction to him on occasions when he has been able to spend time with them in the recent two years indicate that they do have a relationship of familiarity, ease, and love with him and also with their paternal grandmother.[70]
[70] Affidavit of Ms Calcott sworn 25 November 2019, [15(h)].
However, the children’s reaction to the proposed occasion of spending time with their father, supervised by UU Contact Centre, on 9 November 2019 gives some cause for pause in making the finding that there is currently sufficient relationship between the father and the children to find that it is a meaningful relationship. On the evidence, the father has spent very little time with the children since the parties separated, and their reaction on 9 November 2019 brings into question their willingness to spend time with the father when that time is attended by strangers.
Subject to my consideration of any risk elements, I find that it is essential that time between the father and the children start as soon as possible on a regular basis, and that for a short period of time the occasions between the father and the children be substantially in the presence of a person in addition to the father who is known to the children, for preference the children’s paternal grandmother, half-brother Mr B, or Ms C after she has become adequately known to the children. Such time will allow the relationship already existent between the father and the children, but of unknown extent and nature, to further establish and develop so as to become a meaningful relationship.
There is benefit to the children in having a meaningful relationship with both parents. That much is asserted by both parties, the father through his oral submissions and evidence, and the mother specifically in paragraph 15(h) of her affidavit and in her submissions.[71] The mother conceded in her submissions, readily and immediately, that the children love their father and the father loves the children. That, on the basis of the mother’s submission, is certainly the grounding from which the father and children can develop their meaningful relationship.
[71] Affidavit of Ms Calcott sworn 25 November 2019, [15(h)].
It is, happily, not necessary for me to make findings in relation to many of the risk elements originally asserted by the mother in her evidence, due to the concession made by her in her submissions that the only element of risk that gave her any cause for concern was that the children may not be appropriately cared for by the father whilst in his care, the core of that concern being that he may not, through lack of experience, have appropriate parenting skill or give appropriate attention to the children’s needs in relation to food, grooming, sleep, safety and so forth. The mother conceded that the other risk elements relating to the father’s mental health, the old firearm, and her assertion of the father’s propensity to anger were not matters in relation to which she now held concern.
She further conceded that the making of an order restraining the father from using alcohol for 24 hours before the children came into his care or at all whilst they were in his care, whether supervised or not, would appropriate deal with her concerns in that area of risk. Further, the mother conceded that her concerns in relation to the father’s parenting capacity, as described above, would be addressed by both an order in the nature of mandatory injunction that the father himself attend to those matters whilst the children are in his care and that his time be supervised for a period of up to six months.
There is in this matter, as in so many matters on the interim basis, conflicting and contested evidence, particularly going to the level of involvement of the father in the care of the children after the time of separation and his consequent parenting skills and capacity. Though the father has two adult children, there is no evidence before the Court of his involvement in their care when they were of ages similar to X and Y.
In proceeding with caution on this interim basis, in view of the state of the evidence, I find that it is appropriate to make the injunctive order in relation to consumption of alcohol by the father and to make a mandatory injunctive order in relation to the care to be provided for the children by the father whilst they are in his care. I also find that it is appropriate to make an order that the father’s time with the children occur substantially in the presence of an approved person, being one of the paternal grandmother, the father’s adult son Mr B or by Ms C, the latter only after she has spent at least three occasions with the children that occur substantially in the presence of one of the other approved persons.
I find that it is not necessary for the father’s time being substantially in the presence of an approved person to endure for a period of more than two months, for time to be spent with the children on a daytime basis only. I find that it is appropriate for the father’s time being substantially in the presence of an approved person to re-engage for two occasions only once his time with the children increases to overnight time.
Section 60CC – the additional considerations
The children are not of an age where any views expressed by them would be given substantial weight by the Court and in any case, there is no evidence before the Court of expressed views of the children in relation to spending time with their father.[72] The children’s reaction on 9 November 2019, when they were to spend time with their father supervised by a commercial supervision agency, that is, time with their father attended and supervised by two strangers, may be taken as an inference that the children have a view that they are afraid to spend time with their father or afraid of him, or some other concept held by the children, that could cause concern in relation to their spending time with their father.
[72] Family Law Act 1975 (Cth) s 60CC(3)(a).
I do not make that finding, on the basis that the evidence does not provide adequately for findings as to what caused the children’s upset behaviour on the occasion. A submission was made on behalf of the father that it could have been caused by things said to the children by the mother outside the hearing of others, though there is no evidence to that effect. It could have been caused by the circumstance of there being strangers present. It could have been caused by a concern held by X that she may not be being returned to her mother’s care after the occasion, as the comments reportedly made by X tend toward that interpretation.
I find on the whole of the evidence that the children’s reaction on 9 November 2019 is not such that it would mitigate against orders being made for the children to spend time with the father, initially daytime only and with the assistance of another relative or person known to them – their paternal grandmother, their half-brother, Mr B, or, eventually, Ms C. Hopefully, such a measure would overcome any anxiety that the children may express in spending time with the father, especially where they are returned to their mother at the end of each visit.
I have already made comments and findings in relation to the nature of the relationship of the children with each of their parents. I find on the evidence that the children have a sufficient familiarity and relationship with their paternal grandmother and their half-brother, Mr B, to make those persons suitable supervisors for the initial occasions of the father’s daytime with the children and overnight occasions with the children. This is because I have found that the only circumstance rendering that supervision necessary is to monitor the father in relation to his attention to the children’s needs. I find that it is not necessary that that supervision be constant supervision such as would be required to safeguard the children from a risk of harm, but that the supervisors being substantially present during the time the father spends with the children will be adequate for this purpose.
The extent to which each of the children’s parents has taken, or failed to take, the opportunity to participate in making decisions about major long term issues related to the children is a matter of disputed evidence.[73] The father asserts that he has been denied the relevant opportunities by the mother, that the mother made decisions in relation to relocating the children’s place of residence and changing schools and preschools without consultation with the father. On the other hand, the mother asserts that there was consultation and, whilst not specifically asserting agreement, did not give evidence of any overt disagreement being expressed by the father. Accordingly, I am not able to make findings in relation to this consideration on this interim basis.
[73] Family Law Act 1975 (Cth) s 60CC(3)(c).
In relation to the extent to which each of the children’s parents has taken or failed to take the opportunity to spend time with the children and communicate with the children, I find that self-evidently, the mother spends her time with the children when she is not engaged in her employment as she is their sole caregiver. I cannot make a finding in relation to the father on this consideration, as the evidence in this regard is largely contested, the father asserting that he has consistently sought opportunity and the mother asserting that he has not. However, the father has taken these proceedings for the purpose of pressing his desire to have opportunity to spend time with and communicate with the children.
In relation to the extent to which each of the children’s parents has fulfilled or failed to fulfil their obligation to maintain the children, I have the evidence of the father that he pays child support as assessed for the children, and the evidence of the mother that though the father pays child support as assessed for the children, he was enraged by her act of seeking the assessment of child support and that he refuses to contribute further than payment of the required child support toward the children’s financial needs.[74] Accordingly, I am not in a position to make specific findings in this regard at the present time, but I do find that the consideration is not one that would be against orders being made for the father to spend time with the children on a basis increasing from daytime, through an appropriate period of time to overnight.
[74] Family Law Act 1975 (Cth) s 60CC(3)(ca).
The likely effect of a change in the children’s circumstances by being given opportunity to spend more time with their father, will be a change beneficial to and in the best interests of the children.[75] This is because it will enable the children to develop their relationship with their father into, if it is not already such, an appropriately meaningful relationship and for them to benefit from having the influence in all aspects of their lives of both of their parents.
[75] Family Law Act 1975 (Cth) s 60CC(3)(d).
It is true that the likely effect of a change in the children’s circumstance by their being separated for periods of time, initially daytimes and after a period of time single overnights, from their mother may be that in the early stages they will experience some upset and distress at being separated from their mother. However, over the course of their time with their father and their experience of being returned to their mother’s care at the end of their time with their father, will in all likelihood ameliorate and remove any such distress after a few occasions.
The only practical difficulty and expense consideration in relation to the children spending time with their father is in relation to the distance between the parent’s places of residence – the mother with the children at Suburb M and the father at Suburb O.[76] However, that is a practical difficulty that stands to be addressed and overcome by the father in taking whatever steps are necessary to enable him to spend time with his children. Any expense related thereto should be met by each of the parents to whatever extent is necessary, in compliance with the orders.
[76] Family Law Act 1975 (Cth) s 60CC(3)(e).
The consideration of the capacity of each of the children’s parents to provide for their needs, including their emotional and intellectual needs, has been addressed to some extent already in these Reasons when considering the concerns expressed by the mother – amounting to an unacceptable risk requiring supervision of the father’s time on the mother’s argument – relating to the father’s capacity to care for the children whilst with him by providing for their immediate needs.[77]
[77] Family Law Act 1975 (Cth) s 60CC(3)(f).
That is addressed by giving their father the opportunity to provide care to the children with the assistance of others – the paternal grandmother and Mr B and, in time, Ms C. If such a lack of parenting capacity is a fact, the cure, once again, is in the father having to provide that care whilst his time is in the substantial presence of others whose capacity in that regard the mother does not doubt.
In relation to the mother’s capacity to provide for the needs of the children, including their emotional and intellectual needs, I comment only in relation to concern arising from the considerable gaps between occasions when time between father and children has been provided by the mother. That fact brings into some question her willingness to encourage and foster the relationship between the children and their father, despite her evidence that a meaningful relationship between the children and their father is essential. However, the making of orders for time to be spent between the children and the father and the mother’s compliance with those orders will deal with any concerns raised in relation to this consideration.
The mother is a proud Country Q woman and has every opportunity to develop the children’s understanding of and involvement with their Country Q culture, other than by taking the children overseas to visit her country of birth at the present time or taking the children overseas to visit their relatives in the Country S or elsewhere.[78] At the present time, the making of an airport watch list order preventing the children being taken or sent outside Australia is in the children’s best interests from the point of view of there being no long (weeks or months) cessation of their spending time with their father whilst they re-establish, and develop to an appropriate level, their bond and relationship with him. Such an order, of course, is made on the interim basis and is to be reconsidered in terms of any specific proposal for overseas travel which may arise on the final basis.
[78] Family Law Act 1975 (Cth) s 60CC(3)(g).
I have set out my findings earlier in these Reasons in relation to the multiple occasions on which the mother asserts the father perpetrated family violence against her. I find that all but one of such occasions did not amount to family violence.[79] The one occasion was on 11 February 2016, a few weeks before the separation, when the father deliberately caused damage to property by a violent act in the presence of the mother and the children, that is, in smashing the television remote control device on the side of the cot. That is an action within the definition of family violence in section 4AB of the Act.[80] I find that it was an isolated incident. The incident is not one so as to raise an ongoing concern in relation to time to be spent between the father and the children, or to indicate the presence of a risk to the children in that regard.
[79] Family Law Act 1975 (Cth) s 60CC(3)(j).
[80] Family Law Act 1975 (Cth) s 4AD.
Overall, in relation to the primary and additional considerations under section 60CC of the Act, I find that it is in the best interests of the children to spend time with their father, that such time be initially on an introductory basis of daytime only with at least one of the paternal grandmother, Mr B, or Ms C, after she has had three introductory occasions with the children, being substantially present for the first two months. I find that when the father’s time moves to overnight time pursuant to considerations set out below that his first two occasions of overnight time also be with one of those persons substantially present.
I find that it is in the children’s best interests to make orders for them to spend time with their father on Father’s Day, the father’s birthday, the children’s birthdays, Easter Sunday, and Christmas Day and as different times (all being daytime only) are proposed by the parents for those occasions, I find it is appropriate to make orders in relation to the time to be spent as sought by the father. I will also make orders of the same nature for the children’s time with their mother on such occasions if they are otherwise in the care of their father.
I find in relation to changeovers at the start and end of the father’s time with the children, that it is appropriate that such changeovers occur by collection of the children from school, or pre-school, where possible, and by collection of the children from the mother’s place of residence at the start of the father’s time on other occasions and collection of the children from the father’s place of residence by the mother at the end of the time on each occasion.
I find that the information orders and non-denigration orders sought by each of the parties are in the best interests of the children and should be made. I find that it is appropriate for the children to have communication with their father by telephone or FaceTime on two occasions per week, as proposed by each of the parents, and, as the parents propose different days and times for that communication, I find that it is in the children’s best interest to make orders in accordance with the time sought by the father.
I find that there is no evidence to support a necessity to restrain the parents from having their dating partner, or persons for whom the parent is not related by blood or marriage, present while the children are in their care. Accordingly, I will not make an order to that effect.
Parental responsibility
Section 61DA of the Act provides that the Court must apply a presumption that it is in the best interests of the children for their parents to have equal shared parental responsibility for them.[81] The other requirements of the section have been set out earlier in these Reasons.
[81] Family Law Act 1975 (Cth) s 61DA.
I have made a finding that there was a single occasion of family violence, which occurred on 11 February 2016. Accordingly there are reasonable grounds to believe that the father has engaged in family violence. It is what may be termed a minor incident of family violence and because it occurred within weeks of the parties’ separation it may be situational violence. Indeed with both of those considerations as they stand, section 61DA(2) of the Act provides that the presumption does not apply if there are reasonable grounds to believe that a parent of the children has engaged in family violence.[82] The section does not talk of degrees. Accordingly, I find that the presumption does not apply.
[82] Family Law Act 1975 (Cth) s 61DA(2).
However, both parties seek an order on the interim basis that they have equal shared parental responsibility for the children. The incident of family violence is not such that it would lead to a finding that it would not be in the best interests of the children for the parents to have equal shared parental responsibility. Though the tensions between the parents are reflected in the evidence, most particularly in the evidence given by the mother of occasions that she asserts amount to family violence (though I have found that they do not), some consideration should be given to whether or not it is a practical reality that the parents have equal shared parental responsibility.
Much of the tension between them would seem on the evidence to be consequent upon the lack of time spent by the father with the children. These orders will begin to address that and to take the regulation of such occasions out of the hands of the mother. On that basis, I find that the parents, both being highly intelligent persons and having shown that they are capable of arranging occasions of time for the father with the children without orders, are capable of communicating so as to satisfy their statutory obligation to consult in relation to matters going to the children’s long-term care, welfare and development and to make their best efforts to reach agreement.
Accordingly, I find that it is in the children’s best interest that an order be made that the parents have equal shared parental responsibility for the children.
Consideration of section 65DAA – equal time or substantial and significant time or otherwise proper orders
As I will make an order that the parents have equal shared parental responsibility for the children, I am required by section 65DAA of the Act to consider whether the children spending time with each of their parents would be in their best interests and consider whether the children spending equal time with each of their parents is reasonably practicable. If such is in their best interests and is reasonably practicable then I must consider making an order that would provide that the children spend equal time with each of their parents.
Without any need to go into great analysis or detail of the present state of the relationship between the father and the children, and with the mother’s expressed concern in relation to the father’s parenting capacity, I find that it is not in the best interests of the children at the present time to make an order that they spend equal time with each of their parents. That being so, I need not consider the reasonable practicality of such a circumstance and I will not go on to consider making such an order.
I am next required to consider whether the children spending substantial and significant time with each of their parents would be in their best interests and consider whether the children spending substantial and significant time with each parent is reasonably practicable.
At the present time the father is not seeking and the mother is not proposing time between the father and the children that amounts to substantial and significant time within the meaning of that phrase as set out in section 65DAA(3) of the Act.[83] Given the employment requirements of both of the parents, the state of the relationship between the father and the children, and the requirement that initial occasions of first daytime time with the children and thereafter the first two occasions of overnight time with the children should be substantially in the presence of another person, I find that it is not currently in the children’s best interest to order they spend substantial and significant time with each of their parents. I will not consider making an order to that effect.
[83] Family Law Act 1975 (Cth) s 65DAA(3).
With neither equal time nor substantial and significant time with each of the parents being the appropriate order in the best interests of the children, what order for time between the father and children is proper to be made with the best interests of the children as the paramount consideration?
The father seeks to spend the time with the children each Tuesday from 3.00PM until 6.00PM, but he submitted through his counsel on the interim hearing that in the event that his time is to be supervised by or substantially in the presence of any other person, then Tuesday time will not commence until he was not required to have another person present. I find that once the father is able to spend time with the children without another person being substantially present, then time between the father and the children on Tuesdays will be in their best interest as it will mean that the father and children are together on three occasions each fortnight. Such regularity of time is important given the delayed nature of the development of the relationship between father and children since 29 February 2016.
The father further seeks that for a period of two months he spend time with the children each Saturday from 10.00AM till 5.00PM, and that after that period of two months he spend time with the children each alternate weekend from 10.00AM Saturday until 6.00PM on Sunday. As indicated earlier in these Reasons, I find that it is appropriate for the father to spend time with the children during daytime only for the first period of two months, with another person substantially present.
I find that such time occurring each Saturday during a two month period, from 10.00AM until 1.00PM for three occasions and thereafter from 10.00AM till 5.00PM is in the children’s best interests. Then, that time shall continue for another month after the initial two month period from 10.00AM till 5.00PM without the requirement for any other person to be substantially present.
I find that after that initial period of introduction of time between the father and the children for three months it is proper, and in the children’s best interest, that the time with the father move to a single overnight time, being from 10.00AM Saturday until 11.00AM Sunday for two occasions with another person being substantially present. Thereafter the time increase to each alternate weekend from 10.00AM Saturday till 6.00PM on Sunday, without the requirement for another person to be substantially present.
Conclusion
It is to be hoped that the children’s experience of their time with their father in the initial stages of these orders for daytime and later on for overnight will lead to an amelioration and perhaps a cessation of the mother’s concerns about the father’s capacity to appropriately care for the children. Hopefully, this will have the result that the parents will be able to move past a need for the Court to make those determinations on an ongoing basis and for the parents to be able to agree upon their own parenting arrangements for the children and enter into consent orders.
In that regard I strongly recommend to the parents that after a period of four or five months of these orders being in place they engage in Family Dispute Resolution mediation. The parties should make an honest attempt to reach such an agreement and dispense with the need for the Court to be involved in the parenting of their children.
Accordingly, I make the orders as set out at the beginning of these Reasons.
I certify that the preceding one hundred and fifty five (155) paragraphs are a true copy of the reasons for judgment of Judge Morley
Associate:
Date: 18 June 2020
Key Legal Topics
Areas of Law
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Family Law
Legal Concepts
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Injunction
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Procedural Fairness
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