LOMBARDI & HIGGINS

[2014] FamCA 352

FAMILY COURT OF AUSTRALIA

LOMBARDI & HIGGINS [2014] FamCA 352

FAMILY LAW – CHILDREN – Interim – With whom a child lives with and spends time with – Best Interests of a child – Abuse and Family Violence –Where previous parenting plan in place – Where no time spent with father for 5 months – Where parties’ communication deteriorated substantially after a conciliation conference failed to settle financial matters – Where not possible on an interim basis to make findings of fact in relation to contentious matters – Where there is a Temporary Protection Order in place which restricts the father’s capacity to make contact with the child – Where there was previously a good father-daughter relationship prior to a verbally abusive event at Christmas by the father towards the mother – Where the mother concedes the child should have a meaningful relationship with the father – Where alleged the father poses an emotional risk of harm to the child – Where alleged during proceedings that the mother poses an emotional risk of harm to the child – Where the court not persuaded that either parent posed an emotional risk of harm to the child – Where mother sought supervised time on the basis of the event which occurred at Christmas – Where the court rejected the suggestion of contact centre supervision – Where court ordered time with the father be graduated, increasing incrementally and be initially spent in the presence of a familiar supportive adult, ultimately returning to the arrangements under the parenting plan.

FAMILY LAW – CHILDREN – Presumption of Equal Shared Parental Responsibility – Where court found the presumption of ESPR would not be appropriate as both parties accept the matter should be bought back for further consideration after a family report is obtained – Where it is unlikely any issue normally dealt with under ESPR would arise during that time – Where the parties at the present time do not enjoy communications skills as to be able to properly undertake a joint exercise of ESPR – Where the applicant does not seek orders in relation to ESPR – Where no order in relation to parental responsibility made.

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

Domestic and Family Violence Protection Act 2012 (Qld) ss 8, 9

APPLICANT: Mr Lombardi

RESPONDENT: Ms Higgins

FILE NUMBER: BRC 4680 of 2013

DATE DELIVERED: Tuesday, 8 April 2014

PLACE DELIVERED: Townsville

PLACE HEARD: Townsville

JUDGMENT OF: Tree J

HEARING DATE: Tuesday, 8 April 2014

REPRESENTATION

COUNSEL FOR THE APPLICANT: Ms Mayes

SOLICITORS FOR THE APPLICANT: Boulton Cleary & Kern

COUNSEL FOR THE RESPONDENT: Mr Jordan

SOLICITORS FOR THE RESPONDENT: Jones McCarthy Lawyers

Orders

Daily Living Arrangements for the Children

1. That the child T born … 2002 live with the Mother and spend time with the Father at all times as agreed and failing agreement as follows:-

   1.1From 1pm (or the nearest public transport service, (“service”)) to 4pm (or the nearest service) on Saturday 12 April 2014 and Sunday 13 April 2014;

   1.2From 10am (or the nearest service) to 4pm (or the nearest service) on Friday 18 April 2014;

   1.3Overnight from midday Saturday 19 April 2014 (or the nearest service) to midday Sunday 20 April 2014 (or the nearest service);

   1.4From Friday 2 May 2014 after school to 4pm Sunday 4 May 2014 (nearest services);

   1.5From Friday 9 May 2014 after school to Monday 12 May 2014 before school;

   1.6As from and including Friday 23 May 2014 from after school Friday to before school Monday on the first two of every three weekends;

   1.7That the father have a family member or close friend known to T present at all times during the visit he spends with the child on 12 and 13 April 2014.

2. For the purposes of the parent spending time with the child pursuant to these Orders, the Father will collect the child from and deliver the child to the B Transport Centre at Town C and the Mother will collect the child from and deliver the child to the B Transport Centre at Town D. 

Holidays and Special Occasions

1. Notwithstanding the above Orders, the child spend time with the parent that they are not otherwise spending time with pursuant to the above paragraphs as follows:-

   3.1With the Mother on Mother's Day and the Mother's birthday from 9.00am until 5.00pm on a non-school day or from 4.00pm to 7.00pm on a school day;

   3.2With the Father on Father's Day and the Father's birthday from 9.00am until 5.00pm on a non-school day or from 4.00pm to 7.00pm on a school day;

   3.3With the parent who is not ordinarily spending time with the child on their birthday is to spend not less than four hours with the child on their birthday from 1.00pm to 5.00pm on a non-school day or three (3) hours from 4.00pm to 7.00pm on a school day. 

Telephone Communication

1. That the child have telephone communication with her father between 6:30pm and 7:30pm each Tuesday and Thursday, commencing the second week following these Orders, such communication to occur in privacy without the use of speakerphone. 

AND IT IS FURTHER ORDERED BY CONSENT:

Authorities and Restraints

1. That this Order shall be authority to medical, health, sporting and educational providers of the child to release information about and discuss the child's progress and/or health and other needs with each parent and each parent provide such further written Authority as may be required from time to time and inform the other of the names and addresses of such medical, health, sporting or educational service providers. 

2. Each parent keep the other parent informed of current addresses, mobile and landline telephone contact numbers and advise the other parent within forty-eight (48) hours of any such change occurring. 

3. Each parent be at liberty to visit the child's school with the intent that both parents may take an active role in the child's ongoing education. 

4. Each parent be responsible for taking the child to any extracurricular activities or other functions that the child may be participating in or invited to and provide each other with reasonable notice of any school, social or sporting event or any other such activity in which the child is involved in so that the other parent may attend. 

5. Each parent be at liberty to attend all extracurricular sporting or other activities that the child is involved in with the view to supporting and participating in the activity with the child. 

6. In the event that the child is injured or there is a medical or health matter concerning the child, the parent having the care of the children at the time is to notify the other parent with respect to such matters as follows:-

   10.1Should the injury, medical or health matter include the child being taken to any hospital or receiving urgent medical treatment, the parent who has the care of the child must notify the other parent as soon as practicable or within twenty-four (24) hours;

   10.2Should the injury, medical or health matter not involve the child being taken to any hospital or receiving urgent medical treatment, then the parent who has the care of the child is to notify the other parent within seventy-two (72) hours of becoming aware of the matter. 

7. That both the Mother and the Father be restrained and an injunction issue restraining them from:-

   11.1The use of excessive physical force upon the child when disciplining the child, and the Mother and Father shall ensure that no one else excessively physically disciplines the child;

   11.2The consumption of alcohol to excess in the presence of the child, and the Mother and Father shall remove the child from the presence of anyone else who is consuming alcohol to excess in the presence of the child;

   11.3The use of any prohibited drugs whilst the child is in the parent's care and for a period of at least forty-eight (48) hours prior to the child coming into their care, and the Mother and the Father shall remove the child from the presence of anyone else who is using prohibited drugs;

   11.4Taking prescribed drugs in excess of the prescribed dosage whilst the child is in their care; and

   11.5Denigrating the other parent too or in the presence or hearing of the child; 

Family Report

1. The parties agree to appoint Ms S of E Counsellors as a joint expert to enquire into and report on parenting issues in relation to the children and prepare a family report. 

2. The parties cooperate with the joint expert and make themselves available and the children available and observed at suitable times to the report writer.

3. The parties share equally in the cost of the family report. 

4. Each party is to provide the joint expert with a copy of the material filed in this matter relating to the children’s living arrangements. 

5. That in appointing the family report writer, the following process is undertaken:-

   16.1Within five business days of receiving a sealed copy of these orders, the Father prepare a joint letter of instruction to the family report writer and provide copies of all of the filed material in this matter together with a copy of these Orders;

   16.2Within a further three business days, the Mother either amend or countersign the joint letter of instruction to the family report writer and return it to the Father's lawyers for co-signature and on forwarding to the family report writer. 

Procedural Orders

1. That pursuant to Section 33B of the Family Law Act 1975 all outstanding applications be transferred to the Federal Circuit Court of Australia in Townsville for hearing on a date to be fixed.

2. That within thirty (30) days of the date of these Orders, the Father enrol in the Replace your Rage course (operated by Centrecare), and

   18.1complete the course as soon as practicable but within six months; and

   18.2    provide to the Mother a copy of the Certificate of Completion.

3. That within thirty (30) days of the date of these Orders, the Mother and the Father enrol in the Parenting After Separation or the Parents Apart course (operated by Centrecare), and

   19.1complete the course as soon as practicable but within six months; and

   19.2provide to the other parent a copy of the Certificate of Completion.

4. The Mother make file and serve a reply on or before 4 pm Tuesday 15 April 2014.

Notation

1. In the event that the child F born … 1997 wishes to and initiates communication with or wishes to spend time with the father then the father be permitted to respond to or communicate and spend time with F but not otherwise.

2. That pursuant to s 62B of the Family Law Act, information about the family counselling services, family dispute resolution services and other courses, programs and services available, is set out in the Fact Sheet attached hereto.

3. That pursuant to s 65DA(2) of the Family Law Act, the particulars of the obligations these orders create and the particulars of the consequences that may follow if a person contravenes these orders are set out in the Fact Sheet, attached hereto and these particulars are included in these orders.

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

FAMILY COURT OF AUSTRALIA AT BRISBANE

FILE NUMBER: BRC 4680 of 2013

Mr Lombardi

Applicant

And

Ms Higgins

Respondent

Ex tempore

REASONS FOR JUDGMENT

1. By his Amended Response filed 14 March 2014, the father, for the first time in these proceedings, which previously had only dealt with property matters, sought orders in relation to the two children the subject of these proceedings, F and T.  By his Application in a case, also filed 14 March 2014, the father sought orders in relation to both of the children, being orders which would see the children ultimately, after about five months, move to an equal shared care arrangement, with changeovers to occur on Sunday afternoon.

2. By the time the hearing of the application commenced before me earlier today, the father’s position had modified significantly, in that he no longer sought any orders in relation to the child, F, and did not pursue the equal shared care orders in relation to T, but rather sought that there be a return to the arrangements which had previously prevailed in relation to the children pursuant to a parenting plan entered into by the parties on 5 September 2012.  Ultimately, however, he also put forward an alternative secondary proposal, which would see the child, T, initially spend some daytime hours with him, then progress to an overnight stay, and then progress to, by 23 May 2014, the arrangement which had prevailed pursuant to the parenting plan.

3. The mother, by her Response to an Application in a Case, only sought orders which would run for two months.  She sought orders that the father’s time with T, for the first month, be each Saturday for a period of four hours at G Contact Centre, progressing to four hours on each alternate Sunday in the second month.  She contemplated that the application would then come back for further hearing after a Family Report had been obtained.  The parties have, during the course of this hearing, agreed upon the Family Report writer, and agreed that the report should be obtained.

4. At this point it is useful to set out a little background in relation to this matter.  The parties finally separated in February 2012.  Thereafter there appeared to be some relatively ad hoc arrangements in relation to the father spending time with the children, who since separation, or shortly thereafter, have lived with the mother.  However, on 5 September a parenting plan was concluded between the parties.  It saw an arrangement whereby both children were to spend Friday, Saturday and Sunday evenings with the father, save that every third weekend the children would spend their time with the mother.  Therefore the arrangement under that plan was that the father would spend two out of every three weekends with the children, from after school on Friday until before school on Monday.

5. It is common ground that after 5 September, at least in relation to the child T, that plan operated well.  Amongst the affidavits relied upon by the father is an affidavit from his present partner, Ms H, who gives evidence as to her observations of the father and his children, including T, up until the father last spent time with T in November 2013.  Insofar as her observations of the interactions between the father and the children go, they are not the subject of any challenge by the mother.  That then makes it possible for me to conclude that up until 25 December of last year the father and T enjoyed a good, meaningful father-daughter relationship.

6. Although it is not possible to make, on an interim hearing such as this, findings of fact in relation to contentious matters, it does appear as though the parties’ communication deteriorated substantially after a Conciliation Conference failed to settle the financial aspects of this case in November last year.  There does appear to have been an increase in conflict between the parties thereafter.  That had its climax on Christmas Day of last year, on which occasion the child T was to go into the father’s care for some time, although the parties had been unable to agree how long that time would be.

7. The practice of the parties appears to have been to effect changeover of T between them at B Transport Centre in Town D, where the mother and the children live.  Whilst it is not possible to make any firm findings of fact in relation to the events on that day, because many aspects of them are not admitted by the father or positively denied by him, it does seem uncontroversial that T did not, in fact, then change over her care to the father;  that there was some reluctance on her part to do so, although exactly why is unclear, and what role the mother had in that is unclear;  and that this caused the father to become angry, and for him to swear, calling the mother a “liar and whore”, albeit the father denies that T heard or would have been able to hear that abuse.

8. Nonetheless, it is clear that T would have been aware of her father’s considerable anger at her mother.  Moreover, it appears as though this event occurred in front of a crowded public transport service, on a busy day of the year.  It doesn’t appear to be in dispute that the events of 25 December last upset T considerably.  At paragraph 39 of her affidavit, filed on 2 April 2014, the mother said that:

   [T] was very upset with her father, and on returning to the unit with [Mr J] – [who I interpolate is the mother’s present partner, albeit that he appears to reside in Brisbane] – and [Mr K] – [who is the mother’s stepfather] – declared that the name [Lombardi] was a dirty word, and was not to be mentioned, and that she wanted to change her surname from [Lombardi] to [Higgins], as well as suggesting some different surname options.

9. There is no evidence of any further communication between the father and T since that date, albeit Ms Mayes did assert that there was an email communication – or text communication, perhaps – between the father and T on New Year’s Day.  In large part, the explanation for the absence of communication lies in the fact that, in part based upon the father’s behaviour on Christmas Day, the mother sought, and on 7 January 2014 obtained, a temporary protection order against the father, which restricted his capacity to make contact with the children.

10. That order was subsequently amended, seemingly by consent, albeit that remains unclear, on 3 February 2014.  Relevantly, order 5 provides as follows:

    The respondent [who is, of course, the father] is prohibited from contacting, or attempting to contact, or asking someone else to contact, the named person [and I interpolate that the named persons are both of the children.  However, the order continues:-]

    This condition does not apply when having contact with the named person as set out in writing between the parties, or in compliance with an order of the court, or when having contact authorised by representative of the Department of Communities and Child Safety with the named person.

11. The father, as I say, leaving aside the prospect of an email communication on New Year’s Eve or Day, has not had any time with T since Christmas, and indeed didn’t really spend time with her then in any event.  On the other hand, the mother’s material does not contain anything at all which would suggest that after the ruckus of Christmas Day, T has indicated any reluctance to, in the future, spend time with the father, or any disturbed emotions of the kind that she was ruminating and articulating on Christmas Day.  I am confident, given the conflict that exists between these parties, that had the child T expressed any such view or feeling to the mother, I would have been told about it in her affidavit. 

12. Therefore, even on an interim basis, the material enables me to conclude that prior to Christmas last year, the father and T enjoyed a good daughter‑father relationship;  that there was an event on Christmas Day which greatly upset T, and justifiably so; and that the father has not thereafter had any communication with her, save perhaps for one event.  However, by the same token, T has not discussed or expressed to her mother any contrary wishes to reverting to the previous arrangement or otherwise enjoying a good relationship with her father.  Indeed, it needs to be stressed that the mother concedes that the child T should have a meaningful relationship with the father. 

13. The basis upon which the mother seeks the orders which she does were said by Mr Jordan, counsel who appeared for her, to be not on the basis that the father presents any risk of physical harm to T, but rather that he presents as a risk of emotional abuse to her which justifies a make‑haste‑slowly approach to the re‑establishment of the relationship between the father and T.  Her case is that until such time as a Family Report can be had, the father’s time should remain limited to the four hours on a Saturday and four hours on alternate Sundays and that it be supervised at the contact centre.

1. During the course of argument, I think it was conceded by the counsel for the mother that, in fact, the arrangements at G Contact Centre would not permit such generous time to be enjoyed; rather, it appears more likely that the time that the father would have at most would be two hours per week and perhaps only two hours per fortnight.  However, as I say, the mother justifies that outcome on the basis of the risk of emotional abuse.

2. The issues I identify as being raised by this application are, firstly, does the father present as a risk of emotional abuse to T; secondly, if he does, how should orders best protect T, (and in that regard, the mother says that the appropriate orders are that there be supervision at the contact centre), and thirdly, if the father does not present as a risk of emotional abuse to T, what time should the father spend with her and in what circumstances.  I will turn to considering the issues in that order.

3. The only basis upon which the mother identifies that the father presents as a risk of emotional abuse to T is his conduct on 25 December and, more precisely, the impact that had on T.  However, it is apposite at this point to note that by order 4 of the temporary protection order, the Magistrates Court ordered as follows:

   The respondent be of good behaviour towards the named person –[again, I interpolate that includes T] – and not commit associated domestic violence against the named person and not expose the children to domestic violence.

4. The definition of “associated domestic violence” is contained in section 9 of the Domestic and Family Violence Protection Act 2012.  That definition in time refers to “domestic violence”, which is defined in section 8(1) as follows:

   (1) Domestic violence means behaviour by a person – the first person – towards another person – the second person – with whom the first person is in a relevant relationship that (a) is physically or sexually abusive;  or (b) is emotionally or psychologically abusive;  or (c) is economically abusive;  or (d) is threatening;  or (e) is coercive;  or (f) in any other way controls or dominates the second person and causes the second person to fear for the second person’s safety or wellbeing or that of someone else.

5. It could readily be concluded that the father’s outburst of anger on 25 December may fall within that definition of domestic violence, in that it was allegedly threatening and arguably emotionally or psychologically abusive of the mother.  A temporary protection order is not something that should be ignored by this Court or given no weight.  The reality is that the father is obliged to comply with the temporary protection order in relation to T, including being of good behaviour towards her and not commit associated domestic violence or to expose the child to domestic violence.

6. As I have already indicated, the events of 25 December are, in some respects, in dispute, and on an interim hearing such as this, that precludes firm findings as to the detail of that event not to be made.  However, as I have said, the father appeared to become very angry and brusque, and he concedes that he called the mother a liar and whore, but denies that T would have been able to hear that.  On the other hand, it does not appear as though the mother encouraged T to in fact, go into the father’s care.  Although, properly, counsel for the mother did not read into the material before me the affidavit filed by the mother’s present partner, somewhat ironically, otherwise amongst the material before me there is an affidavit of his that was filed in the Magistrates Court in support of the protection order application in which, at paragraph 12, he said as follows in relation to that event:

   [The mother] – was very careful to ensure that [T] herself made the decision not to board the boat with her father, being very aware and supportive, from what I have previously witnessed, that the father has equal rights to see [T], and was trying to ensure this happened as agreed.  In response to [the mother] and I questioning [T] a little more, [T] expressed that she was adamant she didn’t want to go with her father.  Both [the mother] and I were supportive of this but also concerned how this would be perceived in the future.

7. It seems clear, therefore, that the mother left the decision as to whether or not the parenting plan would be complied with to the child, and did not appear to insist upon T moving to the father.  As I have said, there is no evidence of communication between the father and T since then, save for the mention of the email or text message.  Moreover, it seems plain that since then, the mother has done nothing to attempt to repair the relationship between T and the father, and indeed has for whatever motivation, acted in a way which would restrain the father from being able to repair the relationship by seeking a protection order.

8. Somewhat curiously, the mother has not explained in her evidence as to why it is that she has done nothing since December to try and facilitate the father and T having a meaningful relationship.  Although her counsel, Mr Jordan, did conjecture that perhaps her thinking was that things needed to calm down for a bit – and perhaps that is so – that is not, in fact, contained in the mother’s affidavit.  One avenue, had the mother not been intending to adhere to the parenting plan, would have been for the mother to commence proceedings seeking parenting orders in relation to the children.  However, she did not do so. 

9. Rather, her conduct on occasions since 25 December has been to suggest that, in fact, the parenting plan should continue to be the basis for the children spending time with the father.  She apparently did so first in the course of the domestic violence proceedings where she was unrepresented.  In their letter of 6 February 2014 to the mother’s solicitors, the father’s solicitors said as follows:

   We confirm that in open court, your client advised Registrar Lehman that she wished for our client to be a part of the children’s lives.  Your client then handed up a copy of the parenting plan to the registrar and confirmed that she wanted our client to have a good relationship with the children.  Your client in open court advised the registrar that the parenting plan as agreed in writing between the parties was, as far as she was concerned, the current parenting plan in place and formed the basis of the parties’ parenting arrangements.

10. This was followed up in further correspondence from the solicitors for the father to the solicitors for the mother on 21 February and was responded, ultimately, by the mother’s solicitors by letter 26 February.  There the letter relevantly provided under the heading Parenting Arrangements and Family Report:

    It is, with respect, an entirely consistent position that our client should want the children to have a relationship with their father and, indeed, for the parenting plan to form the basis of the same and yet still be concerned about your client’s conduct and the impact the same is having on the children.  Those concerns might be assuaged were your client to take a certain course in domestic violence proceedings and consent to an order being made, but appears that his intentions are to the contrary.

11. That appears to be a suggestion that the concerns which the mother has of a repetition of the sort of conduct that the father demonstrated on 25 December could be ameliorated and, indeed overcome, by consent orders on a final basis in the terms of the temporary protection order.  However, it must be remembered that, albeit that the present protection order is only a temporary one, she presently has the benefit of those orders, including order 4 that I have already recited earlier in these reasons.

12. Somewhat curiously as well, notwithstanding her obligation under the Rules to deliver a Reply as soon as possible after the Amended Response had been served upon her, she did not do so.  Moreover, she was not prepared via her counsel to articulate her final position, or likely final position, other than to say that she wanted to see what was in the Family Report.  As I say, there is an air of curiosity to that, which may extend to an air of opportunism. 

13. Ultimately, it is for the Court to be persuaded on the balance of probabilities that the father presents as a risk of emotional abuse to the child T.  The authorities make it clear that, at least on a final basis, and equally on an interim basis, such a finding can have serious consequences, and although the standard of proof is on the balance of probabilities, the court needs to be mindful of the seriousness of the allegations made.  The only basis upon which the mother asks me to find that the father presents a risk of emotional abuse is the prospect of a repetition of his conduct on 25 December and the consequences which that may have upon the child T.  I am not persuaded that the father presents any substantial risk of such emotional abuse for the reasons which I have previously identified above. 

14. That then means that the second issue is unnecessary for me to determine. The third issue, however, remains live and that is what time, where and in what circumstances should the father spend time with the child. The first matter I need to address is whether or not the presumption of equal shared parental responsibility, provided for in section 61DA of the Family Law Act applies in this case.

15. Section 61DA(3) provides when a court is making an interim order, the presumption applies unless the court considers that it would not be appropriate in the circumstances for the presumption to be applied when making that order. I am persuaded that it would not be appropriate in the circumstances for the presumption to apply here because both parties accept that the matter should be brought back for further consideration after the Family Report is obtained. That is likely to be a relatively short period of time, it being suggested that the report will be available in May.

16. Whilst it might be that there is then some delay before the matter can get listed again, the time in which these orders will be operative will be some months rather than anything approaching a year.  It is difficult to see what, if any, issue that would normally be dealt with under an arrangement of equal shared parental responsibility could arise in that time. 

17. The counsel for the father identified that the most likely matter for determination in the foreseeable future for T will be the ascertainment of her high school, since she is commencing high school next year.  In the event that these orders were to run past the period of time that the parties contemplate, then that is a matter which, if it is incapable of agreement between the parties, would justify further litigation. 

18. Somewhat curiously, in her response to the Application in a Case, the mother does not seek any order in relation to parental responsibility.  Therefore, the question is whether the order that the father seeks for equal shared parental responsibility should be made.  That is a question to be determined by the best interests of the child.  That involves a consideration of section 60CC factors and it is appropriate if I briefly turn to consider those now.

19. As to the primary considerations, that contained in subsection 1(a) of section 60CC, namely the benefit of the child having a meaningful relationship with both parents, is conceded by the mother in the sense that she accepts that there would be benefit to the child, T, in having a meaningful relationship with the father and, of course, herself.  I did not understand the father to contend to the contrary.

20. As to the second primary consideration, namely the need to protect T from physical or psychological harm from being subjected to or exposed to abuse, neglect or family violence, it is only the family violence component of it which is a live issue here.  I have already addressed in discussion of the issues the allegation that the father presents as a risk of emotional harm to T.  I do not find that it is a risk of any magnitude to warrant concern in this case.

21. The mother was said by the father to potentially present an unacceptable risk of emotional harm.  That was a matter that was raised for the first time in argument by Ms Mayes, counsel for the father.  The material does not permit me to be satisfied to the relevant standard that the mother presents as an unacceptable risk of harm to the child. 

22. Turning then to the additional considerations, the first is in subsection 3(a), and is any views expressed by the child, any factors such as the child’s maturity or level of understanding that the Court thinks are relevant to the weight it should give to the child’s views.  There is no material other than the great upset of the child on December 25 which would cause me to think that the previously good relationship between the father and the child is not likely to be presently informing the views of the child.  True it is the child appears to have expressed strong views on Christmas Day, but they have not thereafter, it seems, been repeated.   In any event, even if there were some negative views expressed by the child at this point, the weight which would given to them, given that she is only 11 and a half years old, would be a matter for debate.

23. As to 3(b), it is suffice to say that with the exception of the aberration of the child’s reaction to the father on Christmas Day, it appears as though she has always enjoyed a good relationship with him and, indeed, her mother as well. 

24. As to 3(c), both parents, it appears, have taken the opportunity to make decisions or participate in making decisions in relation to long-term issues in relation to the child to spend with the child and to communicate with the child, save that the mother appears to have made a decision unilaterally last year to change the child’s school.  The father, of course, says that he would have wished to be involved in that, and thus it cannot be said that he has not shown any interest in such decisions. 

25. As to 3(ca), it appears from the evidence that the father has met his obligations in relation to maintaining the child.  As to 3(d), that is not raised in this case.  3(e) is not pressed as an issue by any party. 

26. Section 3(f) is, however, raised.  3(f) is the capacity of each of the child’s parents to provide for the needs of the child, including emotional and intellectual needs.  The mother says that the father has limited insight.  She points particularly to the fact that the father initially in these proceedings sought orders in relation to both children, and particularly orders that would have seen both children spend week-about time with him. 

27. It appears as though the father’s relationship with the eldest child, F, is a particularly fractured one at the moment, although the cause and basis for that remains in dispute.  Mr Jordan said that the fact that the father would seek to have those orders imposed upon a child of 17, against what appears to be their strongly expressed wishes in recent times, shows a lack of insight. 

28. Further, it would have to be said that the father has not identified in his material how he intends to try and re-establish or repair the relationship with T after the Christmas ruckus.  His response, by way of the orders that he sought at the commencement of these proceedings, was to seek that T immediately go into his care this coming weekend for a number of nights.  It might be said that such a bold leap is, again, an indication of the father’s limited insight.

29. However, on an interim hearing such as this, other than identifying it as a matter of some potential concern, I am not able to make any conclusive findings as to the extent to which the father does or does not have insight.  However, the father’s insight into the child’s emotional needs is a matter to which I will return a little later.

30. Section 3(g) is not relevant; 3(h) is not relevant.  3(i) is relevant, but the parties are equal, it would seem.  3(j) is clearly invoked here.  The mother alleges a raft of allegations of family violence by the father against her.  The father denies that and, in fact, in one occasion, asserts that it was the mother who was the perpetrator of domestic violence upon him.  The mother denies that of course.  It is simply not possible on these proceedings to make any finding in relation to the factual family violence.

31. As to 3(k), that does apply because there is a family violence order in force.  However, at the moment, I am unable to draw any relevant inferences from the order, in part because it is unclear whether it was made following a consent order or after a determination.  In any event, it is an interim order and I have already referred to the relevant orders contained within it.

32. As to 3(l), whilst it would perhaps be more desirable to make interim orders that would last until the trial of this matter, it appears as though both parties concede the interim regime may need to be revisited after the Family Report is to hand. 

33. As to 3(m), which is any other fact or circumstance that the court thinks relevant, I identify that the parenting plan that was entered into in September 2012 is a relevant matter.  Section 65DAB provides as follows:

    When making a parenting order in relation to a child, the Court is to have regard to the terms of the most recent parenting plan (if any) that has been entered into between the child’s parents (to the extent to which that plan relates to the child) if doing so would be in the best interests of the child.

34. The plan from September 2012 appeared to work well for in excess of a year.  I therefore think that it is in the best interests of the child, T, to have regard to the parenting plan and I propose to have regard to it by identifying that it was what the parties, at the time, identified as being in her best interests.  It has thereafter worked well, and indeed as late as February of this year, the mother appeared to be saying that it should continue to have operation.

35. Against that review of the section 60CC factors, I turn to a consideration of whether or not there should be an order for equal shared parental responsibility as sought by the father.  In my view, there should not be such an order.  I say that for the reasons that I have previously identified as to why the presumption should not apply, namely, that it is a short period of time, that there is no major decision which is likely to be required in that period of time and, further, in addition to what I previously said, I identify that the obligations which would arise upon both the mother and the father in the course of exercising equal shared parental responsibility would require them to negotiate in good faith with a view to making joint decisions in relation to the exercise of that power.  There is nothing in the material which would give me any confidence that these parties, at this present time, enjoy such communication skills as to be able to properly undertake a joint exercise of equal shared parental responsibility.  I am of the view that the best interests of the child at present see parental responsibility left without any specific order, it being of course the case as I have previously identified, that the mother does not seek any orders for parental responsibility on an interim basis. 

36. I then turn to the question as to what time, where, and in what circumstances the child should spend time with the father.  I am of the view that the time which the child spends with the father should commence soon.  It should be graduated in the sense that it should increase incrementally.  It should initially be in the presence of a familiar supportive adult, and within a short period of time, it should return to the arrangements that prevailed under the parenting plan.  That is to say, it should return to, as soon as can be sensibly achieved, the child spending from after school Friday until before school on Monday with the father.

1. I say that I am of the view that those orders or those arrangements would be in the best interests of the child principally because, necessarily by virtue of having no contact with the father since the unfortunate events of last Christmas, the relationship between the father and the child will be affected; secondly, the mother concedes that the child should have a meaningful relationship with the father; and thirdly, in my view, the best way to re-establish that meaningful relationship is for T to spend time with her father in familiar and unstructured environments. 

2. I then turn to a consideration specifically of the mother’s proposal that there should be supervision of the father at a contact centre.  In my view, such an order would be overkill.  It is, as Ms Mayes said, likely to reinforce any view that T has that her time with the father presents a risk to her of such a kind that it needs professional supervision.  Moreover, it would restrict the time that the father could spend with T to perhaps as little as two hours per fortnight.  In my view, that is not sufficient time to rebuild and to rehabilitate the meaningful relationship which it is in T’s best interests that she have with the father.  Further, there is the difficulty that the orders proposed by the mother would end at two months, with there being no necessary prospect of being able to return to court then to review the orders which would thereafter ensue.  Moreover, there is the difficulty in seeing how it is that those orders are interim, in the sense that they lay the framework for the mother’s final proposed orders, because she has not presently articulated what those are. 

3. Therefore, for those reasons, I reject the suggestion that there should be contact centre supervision of T’s time with her father.  In my view, the alternate orders sought by the father achieve the objectives that I determine to be in the best interests of T.  I do not accept his primary set of orders because, as I have indicated, in my view they are too ambitious.  They are suggestive of some lack of insight into the turmoil which T would have and did experience on 25 December, and moreover, they seem to think that the best panacea for that is to have her immediately spend three nights with the father in the forthcoming weekend.  In my view, that is not appropriate and not in her best interests.  There will therefore be no order in relation to parental responsibility and the orders which I make in relation to the child spending time with the father will be in terms of the alternate orders sought by the father. 

I certify that the preceding fifty-two (52) paragraphs are a true copy of the reasons for judgment of the Honourable Justice Tree delivered on 8 April 2014.

Associate: 

Date:  Tuesday, 8 April 2014