Madeley & Faddis
[2021] FedCFamC2F 623
FEDERAL CIRCUIT AND FAMILY COURT OF AUSTRALIA
(DIVISION 2)
Madeley & Faddis [2021] FedCFamC2F 623
File number(s): PAC 6654 of 2020 Judgment of: JUDGE NEWBRUN Date of judgment: 20 December 2021 Catchwords: FAMILY LAW – Interim parenting – best interests of children – Orders made. Legislation: Family Law Act 1975 (Cth), ss.60CC, 69ZL Cases cited: Goode & Goode [2006] FamCA 1346; (2006) FLC 93-286
Marvel & Marvel (No 2) [2010] FamCAFC 101
Eaby & Speelman [2015] FamCAFC 104
Banks & Banks [2015] FamCAFC 36
Division: Division 2 Family Law Number of paragraphs: 78 Date of last submission/s: 16 December 2021 Date of hearing: 16 December 2021 Place: Parramatta Solicitor for the Applicant: Mr Gonzales Solicitor for the Respondent: Mr Jung Solicitor for the Independent Children’s Lawyer Mr MacDiarmid ORDERS
PAC 6654 of 2020 FEDERAL CIRCUIT AND FAMILY COURT OF AUSTRALIA (DIVISION 2)
BETWEEN: MS MADELEY
Applicant
AND: MR FADDIS
Respondent
AND: INDEPENDENT CHILDREN’S LAWYER
ORDER MADE BY:
JUDGE NEWBRUN
DATE OF ORDER:
20 DECEMBER 2021
PENDING FURTHER ORDER THE COURT ORDERS THAT:
Court file in (P)PAC5956/2017
1.The Court file in matter (P)PAC5956/2017 (‘the 2017 proceedings’) is to travel with this matter.
Prior inconsistent Orders
2.To the extent that any prior Order of the Court in this matter or in the 2017 proceedings is inconsistent with the Orders below, these Orders shall prevail.
Suspension of prior Orders
3.All prior parenting Orders are suspended.
Live with
4.The child X born in 2017 (‘the child’) shall live with the Mother.
Contact centre
5.The Father and Mother must forthwith:
(a)Contact Suburb B Children's Contact Service conducted by C Counsellors, NSW (‘the Contact Centre’) arrange any necessary appointments for assessment for suitability for supervision of the time the child spend with the Father (‘the assessment’);
(b)attend the assessment;
(c)comply with any appointments made by the Contact Centre for supervised time;
(d)comply with all reasonable policies and rules of the Contact Centre; and
(e)comply with all reasonable requests or directions of the staff of the Contact Centre.
6.If after assessment the parties are accepted by the Contact Centre as suitable for supervised time, the Father is thereafter to spend time with the child at a frequency of not more than once per fortnight for a period of 4 hours.
7.In the event that the Contact Centre offers supervised time only at times which are less regular than specified in the previous Order, then contact shall occur at the times that are offered by the Contact Centre.
8.The Mother must deliver the child to and collect the child from the Contact Centre at the times specified by the Contact Centre and on each occasion promptly leave the building and the vicinity unless directed otherwise by the Contact Centre.
Restraints
9.Without admissions, when the child is in their respective care, each parent is restrained from:
(a)Consuming alcohol in quantities that would lead to them having a blood alcohol level exceeding the then current lawful limit from time to time for drivers holding Class C drivers licenses in the State of NSW when the child is in their respective care and for a period of 24 hours prior to such time taking place;
(b)Consuming any prescription medication other than as prescribed;
(c)Consuming any illicit substance;
(d)Physically disciplining the child or permitting any other person to do so;
(e)Denigrating the other parent, the other parent’s extended family, or a person with whom the other parent has a relationship in the presence or hearing of the child, or permitting the child to remain in the presence or hearing of any other person denigrating the other parent, the other parent’s extended family, or person with whom the other parent is in a relationship with, with the parent’s knowledge or in their presence;
(f)Discussing the proceedings or any allegations raised in these proceedings with the child or permitting any other person to do so with their knowledge or in their presence;
(g)Permitting the child having access to any of the documents filed in these proceedings;
(h)Communicating any information intended for the other parent through the child; and
(i)Causing the child to be a medium in any way between the Mother and the Father or between the Mother and the Father and any other person.
10.Should there be any significant waiting period for the child to commence spending supervised time with the Father at the Suburb B Children’s Contact Service, the child may spend supervised time with the Father through a professionally recognised supervision service at times consistent with the above Orders for supervised time, with the Father to meet the expenses of such professionally recognised supervision service, and the Mother shall do all things reasonably necessary to facilitate such supervised time occurring.
11.Pursuant to section 62G of the Family Law Act 1975 (Cth), the parties and X, born in 2017 (the child) are directed to attend with a Court Child Expert (practicing under their appointment as a family consultant) nominated by the Court Children’s Service (the Court Child Expert) for the purposes of the preparation of a Child Impact Report at the dates and times below, or as otherwise directed by the Court Child Expert.
Part 1 of the event will occur by video, using Microsoft Teams, on 25/02/2022, with:
(a)the Applicant to attend at 9.00am; and
(b)the Respondent to attend at 10.30am.
Microsoft Teams links will be provided to the parties by the Court Child Expert prior to the event.
Part 2 of the event will occur in person at the Parramatta registry at Garfield Barwick Commonwealth Law Courts, Building 1/3 George St, Parramatta NSW 2150 on the morning of 3/03/2022. Specific details regarding the attendance of the parties and the child on this date will be provided to the parties in Part 1 of the event.
12.Each party will do all things necessary to ensure the child attend upon the Court Child Expert pursuant to Section 62G(3A), unless otherwise determined by the Court Child Expert that Section 62G(3B) applies.
13.The parties and the child shall continue to attend at such times, dates and places as the Court Child Expert may advise.
14.Not later than 4.00 pm on 27/12/2021 the parties must provide their contact telephone numbers and email addresses to [email protected].
15.Pursuant to order 11 herein, the Court Child Expert shall provide a written report to the Court and the report shall deal with the following matters:
(a)any agreement reached between the parties;
(b)identification of key issues requiring resolution;
(c)the Court Child Expert shall conduct an observation session between the Father and the child;
(d)any views expressed by the child and any matters (such as the child’s maturity or level of understanding) that would affect the weight that the court should place on those views;
(e)the impact of the issues/dispute before the Court on the child;
(f)any other matters that the Court Child Expert considers important to the welfare or best interests of the child.
16.Upon completion, the Child Impact Report shall be provided to the Court for release to the parties, including by way of order made in Chambers.
17.The Court Child Expert will be at liberty to inspect any material filed by the parties, and otherwise the following:
(a)any material from the Police or the Department of Communities and Justice, either adduced by the parties/ICL or produced to the Court under subpoena or pursuant to s 69ZW of the Family Law Act 1975.
18.The proceedings are adjourned to 9 March 2022 at 9:30am for mention.
Note: The form of the order is subject to the entry in the Court’s records.
Note: This copy of the Court’s Reasons for judgment may be subject to review to remedy minor typographical or grammatical errors (r 10.14(b) Federal Circuit and Family Court of Australia (Family Law) Rules 2021 (Cth)), or to record a variation to the order pursuant to r 10.13 Federal Circuit and Family Court of Australia (Family Law) Rules 2021 (Cth).
Section 121 of the Family Law Act 1975 (Cth) makes it an offence, except in very limited circumstances, to publish proceedings that identify persons, associated persons, or witnesses involved in family law proceedings.
IT IS NOTED that publication of this judgment by this Court under a pseudonym Madeley & Faddis has been approved pursuant to s 121(9)(g) of the Family Law Act 1975 (Cth).
REASONS FOR JUDGMENT
JUDGE NEWBRUN:
These are short form reasons under section 69ZL of the Family Law Act 1975 (“the Act”) in relation to an interim parenting hearing held on 16 December 2021 relating to the child, X, born in 2017.
The child has been spending time with the Father pursuant to an effective equal shared care arrangement with the Mother under Orders by consent made on 17 May 2019.
The Mother seeks interim Orders that all previous parenting Orders be suspended and discharged; that the Mother have sole parental responsibility for the child; that the child live with the Mother; and at the child spend no time with and have no communication with the Father.
The Father seeks the continuation of the current final consent parenting Orders of 17 May 2019.
The ICL sought interim Orders, inter alia, that the final consent parenting Orders of 17 May 2019 be suspended; that the child live with the Mother; and that the child spend supervised time with the Father at the Suburb B Children’s Contact Service. During oral submissions, the ICL submitted that there appears to be a waiting period at that contact Centre of several months and that the ICL would not object to the child spend supervised time with the Father through a professional contact service in the interim.
The Mother relied upon her Case Outline filed 15 December 2021 and the documents set out in that document.
The Father relied upon his Case Outline dated 15 December 2021 together with the Father’s Affidavit filed 15 December 2021.
The ICL relied upon his Case Outline filed 16 December 2021.
DISCUSSION
The Father’s Affidavit
The Father is aged 24 years and works as a transport worker. The Mother is aged 24 years, and works in “home duties”.
The parties separated in October 2017.
The Mother has a child H aged 8 years from a different relationship who lives with her.
The Father lives with the paternal grandparents and his sister in Suburb D on the Region E.
The Father confirms that there was an incident between himself and the Mother on 17 February 2020. He confirms that in about August 2021 a Crown Prosecutor withdrew one count of sexual intercourse without consent against him and that he had subsequently pleaded guilty to one count of sexually touch another person without consent, the other person being the Mother.
The Father is due to be sentenced in relation to the above guilty plea on 24 February 2022 in the District Court at Parramatta.
The Agreed facts on Sentence relating to the above guilty plea signed by the DPP solicitor and the Father on 6 July 2021 states, inter alia, that in early February 2020 the parties had an argument. They state that on 17 February 2020 the Father arrived at the Mother’s home at Suburb F to drop off the child. The parties went to the child’s bedroom to put the child to sleep. As the Mother placed the child into his cot, the Father walked behind the Mother, moved his hands underneath her arms and used his hands to grab both of her breasts. The Mother protested telling the Father not to touch her. A short time later the parties walked in the hallway and the Father pushed the Mother against a wall and asked, twice, if he could “fuck” her, to which the Mother said “no” on both occasions. The Father grabbed the Mother by the wrists, pulling her into the bedroom and onto the bed. The Father held both of the Mother’s wrists above her head in his left hand, whilst grabbing and squeezing her breasts with his right hand. The Mother asked the Father to “please stop”. The Father then undid the buttons on the Mother’s pants and put his hand down her pants and inside her underwear. He touched the outside of her vagina. The Mother said to the Father, in forceful language, to get off her. The Father then got up from the bed and yelled at the Mother stating “Why won’t you fuck me? You should touch my dick it’s really hard for you.” The Mother told the Father that she didn’t want to have sex with him and wanted nothing to do with him. The Father then left the Mother’s house. On 25 February 2020 the Mother provided a statement to Police. On 21 May 2020, at the request of police, the offender attended a police station. He was placed under arrest and voluntarily participated in an electronically recorded interview, in which he denied the allegations.
A psychological evaluation of the Father by a psychologist dated 21 August 2021 (assessment date being 9 August 2021) states inter alia, that the Father had been referred by his solicitor for a psychological evaluation and pre-sentence report. It referred to the Father’s guilty plea. The report states that the assessment and report were requested for, inter alia, the Father’s sentencing hearing.
The psychologist stated that at the time of assessment the Father was on bail and subject to standard conditions including weekly reporting. She stated that the Father was the defendant in an AVO naming the Mother as the person in need of protection. She stated that the Father reported abiding by the AVO and having had no direct contact with the Mother since his arrest for the index offence.
The Father reported to the psychologist that overall the relationship with the Mother had been very toxic and they used to clash a lot.
The Father reported having one prior conviction in 2016 for dishonestly obtain financial advantage by deception for which he incurred a section 9 bond. He reported this related to an incident in which he took another person’s winnings from a poker machine.
The Father reported, reflecting on the offence, inter alia, that he was just confused and was sorry for it now.
As to the personality assessment inventory conducted on the Father, the psychologist stated that the Father’s pattern of responses suggested that he tended to present himself in a consistently favourable light and as being relatively free of common shortcomings to which most individuals will admit. Despite this, the psychologist stated that there were some areas where the Father described problems of greater intensity than is typical of defensive respondents, in relation to impulsive tendencies.
The psychologist stated that given that the Father’s offences may be consistent with a wider pattern of relationship difficulties and that there have been allegations of nonsexual domestic violence, she would recommend that the Father participate in a men’s domestic violence and behavioural change program, such as C Counsellors – “Taking Responsibility”. She also recommended that the Father engage with individual counselling support with a psychologist or registered counsellor. This would assist him to manage psychosocial stressors while continuing to build insight into the risks associated with his offending, with a view to future risk management.
It appears that the Father has commenced the Taking Responsibility program with C Counsellors having commenced in late November 2021 or early December 2021, “to better understand about appropriate conduct and consent in relationships”.
The Father asserts that since his offending on 17 February 2020, he has complied with his bail conditions, undertaken courses and counselling to better himself.
The Sentencing assessment report from a Community Corrections Officer dated 24 November 2021 states, in relation to the above guilty plea, inter alia, that the Father has attended sessions with a psychologist on two occasions and has a further session booked for 8 December 2021. It states that it has been confirmed that the Father has enrolled to attend the Taking Responsibilities group on 25 November 2021, and that group sessions will run alongside individual assessments and reviews, as well as follow-up sessions with a C Counsellors counsellor. It states that Community Corrections has assessed that the Father as being suitable to undertake community service work.
The Mother’s Affidavits
The Mother’s first Affidavit filed 10 December 2020.
The Mother states she lives in Suburb G.
The Mother alleges that the separation was a result of the domestic violence incident where the Father abused her in the presence of the child and attempted to abscond with the child. The Mother alleges that at about the time of the parties’ separation in October 2017 she agreed to a proposal by the Father relating to him spending time with the child. He had proposed that the child lives with the Mother and spends time with him every weekend from Friday at about 8 PM until Monday at about 3 PM. The Mother alleges that she had agreed to this proposal because the Father threatened the Mother that if she did not agree that he would go to DOCS and have both children taken from her. The Mother alleges that the Father would often threatened to call DOCS on the Mother when he did not get his way.
The Mother alleges that prior to the child’s birth, during the times the parties were separated, the Father would say to her that she should hand over custody to him, to which the Mother did not agree. The Mother alleges that the Father continually asked about the Mother signing over custody to him. The Mother alleges that it got so persistent that she told him that she would do so just so he would leave her alone.
The Mother alleges that on 2 October 2017 the police applied for an ADVO on the Mother’s behalf and an interim order was put in place; the Mother, the child and H were listed as protected persons. The Grounds of the Application, in relation to the interim ADVO, states, inter alia, that on 2 October 2017 an incident had occurred at the parties’ home when the Father arrived to find certain of the Mother’s friends at home whom he disliked. An argument ensued. It was alleged that the Father had become aware that the Mother had texted her friends and, the Father having noticed this, he threatened to stab a person called Mr J in the chest if the Mother’s friends returned. The Father yelled at the Mother who had locked herself and the child in the bathroom. On leaving the bathroom the Mother saw the Father in the lounge room and he threw a large hunting knife at the wall, and he then came up to the Mother and tried to snatch the child from her arms. The Father then allegedly retrieved the hunting knife, washed it and put it in the dish rack. The police state that due to the above alleged threat and that two children live within the address, the police believe it is necessary to apply for an ADVO to ensure the safety of the Mother and children.
The Mother alleges that due to manipulation by the Father regarding a reconciliation, between November 2017 and January 2018, she asked the police to dismiss the ADVO. After this dismissal, the Mother states that the child was still spending regular time with the Father every weekend.
The Mother alleges that in November 2017 the Father retained the child without her consent, and informed the Mother that he was commencing Court proceedings for custody of the child and he would allow the Mother to have supervised visitations. During the time that the Father retained the child, he allegedly only allowed the Mother to see the child on three occasions in November 2017.
The Mother alleges that throughout the parties’ relationship the Father was violent towards her including often verbally and emotionally abusing and isolating her. She alleges that the Father would often scream and denigrate her using swear words. She alleges the Father regularly went through her phone and questioned her as to who she was messaging. The Mother alleges that if she spoke to her friends the Father would hurl abuse at her until she gave in and did not speak to her friends to avoid such conflict. The Mother alleges that she excommunicated her friends for months. The Mother alleges that the Father would take her key card and spend money out of her account without permission.
The Mother alleges that on many occasions, the Father had told her that she was crazy and would tell the Mother that because she had felt depressed that she could not parent.
The Mother alleges that she felt depressive symptoms during her relationship with the Father. The short medical report of the Mother’s GP dated 22 November 2017 states, inter alia, that the Mother attended in November 2016 with depressive symptoms. The report refers to the Mother seeking help for depression during her pregnancy and after the child’s birth to stave off postnatal depressions. The report states the Mother is attending counselling. The report refers to the Mother being a devoted parent.
The Mother asserts she has concerns about the Father’s behaviour and she has witnessed his temper. She asserts that she is worried for the child’s safety when he is with the Father.
The Mother asserts that since the making of final Orders on 17 May 2019 the parties were coparenting without any major conflict. However, she alleges that in December 2019 to January 2020 their parenting relationship broke down. The Mother alleges that she was seeing someone and the Father was not happy about this. She asserts the Father became very manipulative and started becoming aggressive towards her. She asserts that she told the Father she had had enough and then he started making abusive calls to her. In this context the Mother alleges that in February 2020 the Father would call her up to 25 times a day. The Mother also alleges that the Father had been making false allegations about her, including about the Mother being on drugs, child abuse, child neglect and mental instability.
The Mother alleges, in relation to the sexual assault on 17 February 2020, inter alia, that suddenly, after the child had been put down in his bed for a nap, the Father began touching her breasts, pushed her up against a wall and tried to kiss her. She alleges the Father asked her to have intercourse with him and she said no. The Mother alleges she walked out of the child’s room and the Father pushed her into her room onto her bed. The Mother alleges that the Father pinned her down, pulled her pants off and continued to sexually assault her for about 30 minutes. The Mother alleges that at no stage had she consented to any sexual intercourse with the Father.
The Mother alleges that she was afraid to contact police on the day and only contacted them five days after.
The Mother states that the provisional ADVO in place has a condition for no contact and when the parties make arrangements for the child, this is done by text messages to the Father’s great grandmother.
The Mother’s second Affidavit filed 15 December 2021.
In the Mother alleges that she has not had any contact with the Father since April 2020.
The Mother alleges further particulars relating to the sexual assault against her by the Father on 17 February 2020. For example, she alleges that the Father had put both of her hands above her head holding them together with his left hand and undid the jeans she was wearing. She alleges vaginal penetration by the Father’s fingers. The Mother alleges that she screamed at the Father throughout to stop, to get off her, and that she did not want to have sex with him. The Mother alleges that she could hear the child making noises in the next room as he was not asleep yet. She alleges that eventually the Father got off her, walked out the front door slamming it behind him and sped off. She alleges that from the time of putting the child to bed until the Father left was about 30 minutes. The Mother alleges that the Father tried to call her for about 20 minutes and she did not answer the phone. The Mother alleges she was very upset and was scared that if she told anyone the Father would find out, deny what he did and would try to intimidate her as he had done in the past. The Mother alleges that about five days later she told her partner at the time what occurred and then she told her friends and they all supported her making a report. The Mother alleges she was terrified of what the Father would do when he found out.
The Mother asserts that in about April 2020, the Father was charged with sexual intercourse without consent DV, and sexually touching another person without consent DV. The Mother alleges that she was told by the police that the Father initially denied the charges.
The Mother alleges that in effect a plea bargain was made between the Father and the DPP; the more serious alleged offence of sexual intercourse without consent was dropped, with the Father pleading guilty to the charge of sexual touching without consent. The Mother alleges that she was advised by the DPP officers that the Father will be sentenced (sentence is due to occur on 24 February 2022 in the District Court at Parramatta) and the Judge was considering whether it would be a corrections order or he would be sentenced to jail.
The Mother asserts that there is a current provisional ADVO in place that has been in place since about the time the Father was criminally charged in 2020. She asserts the ADVO prevents the Father from having any contact with the Mother. This ADVO is due to return to the Suburb B Local Court on 9 February 2022.
The Mother alleges that prior to the Father sexually assaulting her on 17 February 2020, he had attended many changeovers in which he demanded the Mother to do sexual things with him. She alleges that the Father would manipulate her and intimidate her into sexual acts. The Mother alleges that there were occasions the Father would pressure her into sexual intercourse and other sexual acts and would do what he pleased. The Mother alleges she was scared of the Father and what he would do if she continued to tell him no so on some occasions she gave in. The Mother alleges that there were times when the Father was at her home and he would not leave until he got what he wanted. The Mother alleges that this affected her significantly and, in about March 2019, she began to lose a lot of weight and couldn’t eat properly because of the anxiety she felt towards the Father.
The Mother alleges that she has continued to drop the child off at the changeover as per the Orders as she was afraid that if she did not then she would get into trouble with the Court or the Father and his family would abuse her. The Mother alleges that each time she has had to attend changeover she has felt extremely uncomfortable and intimidated. She alleges that she has found having to see the Father’s family at changeover makes her feel increasingly anxious and intimidated considering what the Father has done to her. The Mother alleges that this got so bad and with the intimidation and emotional abuse she had received from the Father that she attended her GP and sought assistance with the anxiety she was feeling. She alleges that as a result she was prescribed medication being an antidepressant that treats anxiety and she takes her medication as prescribed.
The Mother alleges that she has been communicating with the Father’s sister Ms K, the paternal grandmother and great paternal grandmother in relation to changeovers. The Mother alleges that the Father’s sister Ms K has spoken to her in a rude tone on many occasions saying things such as, “I want to see my nephew”. The Mother alleges that the paternal grandmother has said things to her including, “I really don’t like you and I know you don’t like me… I’m only doing this for X”, and other things that make the Mother very uncomfortable. The Mother alleges that she finds the Father’s family members very intimidating and having to have contact with them on a regular basis makes her very anxious.
The Mother alleges that she has concerns for the child’s safety in the care of the Father and his family. The Mother alleges that the child has told her on “a few occasions” that he is scared of “dad and Nanna”. The Mother alleges that in the last couple of weeks the child has told her, “I want to stay here forever”. The Mother alleges that the child gets very upset when the paternal grandmother and the Father’s sister Ms K are irritated; he shuts down, hides his face into the Mother and gets very apologetic. The Mother alleges that the child has told her that, “when I get home from school dad and auntie make me clean their rooms.” The Mother alleges the child was upset when he told the Mother this.
The Mother alleges that last week at changeover the child did not want to go with the paternal grandmother, he grabbed onto the Mother holding her arm and was hiding behind her and was upset. The Mother alleges that the paternal grandmother kept telling “let’s go get in the car”. The Mother alleges that eventually the child went but kept insisting, “I’ll come back tonight… I’ll come back in a few hours… I’ll come back tonight.”
The Mother asserts that in 2021 she gave birth to her son M. She asserts that the child’s Father is her partner Mr L aged 45 years. The Mother now lives in the Suburb F area.
The Mother asserts that she seeks to have no contact with the Father or his family.
LEGAL PRINCIPLES
The relevant principles in relation to parenting proceedings, including interim proceedings, are well settled: see Goode & Goode [2006] FamCA 1346; (2006) FLC 93-286.
In Marvel & Marvel (No 2) [2010] FamCAFC 101, the Full Court of the Family Court of Australia discussed the problems associated with making findings on disputed evidence as follows:
[120] As has frequently been emphasised interim parenting proceedings, and Orders made as a consequence, are a necessary but temporary measure until all the evidence can be tested, evaluated and weighed at a final hearing by the making of final parenting Orders. Decisions judicial officers have to make in interim proceedings are difficult and, often for very good reason, a conservative approach, or one which is likely to avoid harm to a child is adopted. This is often to the understandable distress of a party who may not achieve the outcome he or she desires, or thinks to be in the best interests of their child or children. Interim parenting Orders are frequently modified or changed after a final hearing, and any allocation of parental responsibility made at an interim hearing is disregarded at the final hearing (s 61DB).
…
[122] In SS & AH [2010] FamCAFC 13 the majority (Boland and Thackray JJ) discussed at paragraph 88 of their reasons the care necessary to be exercised in making findings in interim parenting proceedings. Their Honours said:
In our view, findings made at an interim hearing should be couched with great circumspection, no matter how firmly a judge’s intuition may suggest that the finding will be borne out after a full testing of the evidence.
[123] Later, at paragraph 100 their Honours amplified their comments and said:
The intuition involved in decision-making concerning children is arguably of even greater importance when a judge is obliged to make interim decisions following a hearing at which time constraints prevent the evidence being tested. Apart from relying upon the uncontroversial or agreed facts, a judge will sometimes have little alternative than to weigh the probabilities of competing claims and the likely impact on children in the event that a controversial assertion is acted upon or rejected. It is not always feasible when dealing with the immediate welfare of children simply to ignore an assertion because its accuracy has been put in issue.
Of this, the Full Court in Eaby & Speelman [2015] FamCAFC 104 said at [19]:
As would be immediately apparent, this approach enables the Court to appropriately and carefully deal with contentious issues relevant to the welfare of the child, and for those issues to not be ignored.
The Court also refers to the decision of the Full Court of the Family Court of Australia in Banks & Banks [2015] FamCAFC 36, especially at paragraphs 46 to 52. In that decision, the Full Court stated, inter alia, that (at paragraph 49), “It is also important to stress here that the requirement to “consider” each factor (under s60CC of the Act) does not mean each must be discussed, especially where the evidence leads inexorably to a particular conclusion: SCVG & KLD (2014) FLC 93-582”. Further, it stated, at paragraph 50, “When it is obvious that the findings made as to some of the s 60CC factors will be determinative of the child’s best interests on an interim basis, it is a sterile and unnecessary exercise to address other factors”.
Section 60B of the Act sets out the objects of Part VII of the Act relating to children that inform the making of parenting Orders.
In deciding whether to make a particular parenting order in relation to a child, a Court must regard the best interests of the child as the paramount consideration: section 60CA of the Act.
Section 60CC of the Act provides that in determining what is in the child’s best interests, the Court must consider the matters set out in subsections (2) and (3) and in this regard the Court refers to Banks & Banks above.
The child would appear to have a meaningful relationship with the Mother and will likely benefit from a continuance of that relationship.
The child would appear to have a meaningful relationship with the Father and will likely benefit from a continuance of that relationship provided it is safe, physically and emotionally to do so.
Should the child spend regular supervised time with the Father, as proposed by the ICL, there is a reasonable prospect that the child’s meaningful relationship with the Father can be maintained. Whilst the ICL, in his oral submissions, informed the Court that there was a waiting period for the commencement of supervised time at the Suburb B Children’s Contact Service of at least several months, he indicated that he would have no objection to the child spending supervised time with the Father through a professional contact service in the interim.
As to the need to protect primary consideration, the Court, at this interim stage, is of the view that there is an unacceptable risk of harm posed to this particular child, now aged only four years, of being exposed to family violence, including coercive and controlling family violence, if he continues to spend unsupervised time with the Father.
In this context, the Court has taken into account the very serious allegations made by the Mother of non-consensual sexual assaults perpetrated against her by the Father on 17 February 2020 over a period of about 30 minutes in close proximity to the child. The Father himself has pleaded guilty to a criminal charge of sexually touch another person without consent (DV) and is due to be sentenced in the District Court of NSW on 24 February 2022. The Court observes that the agreed facts on sentence between the DPP and the Father contain a significantly less serious version of events on 17 February 2020 compared to the Mother’s allegations; for example, the agreed facts on sentence do not clearly refer to the Mother’s allegations as to the length of time over which the sexual assaults took place, and nor do they refer to the Mother’s allegations that her vagina was penetrated by the Father’s fingers.
The Court has not overlooked that the Father denies perpetrating family violence against the Mother, as alleged by her, apart from his above plea of guilty. However, and again, merely because the Father denies such allegations does not mean that the Court must disregard such allegations; pursuant to legal principle, the Court is obliged to consider the parties’ competing allegations when conducting its risk analysis under the need to protect primary consideration.
Further in this context, the Court has taken into account the allegations made by the Mother of coercive and controlling family violence, including physical family violence, and aggressive and manipulative behaviour, allegedly perpetrated by the Father against her during the relationship and post separation. The Father’s plea of guilty, as referred to above, heightens the Court’s concerns in relation to this alleged family violence behaviour by the Father.
The Court also has a related concern in relation to the Mother’s allegations of disclosures made by the child to her in relation to being scared of the Father and the paternal grandmother and becoming very upset when the paternal aunt and the paternal grandmother are irritated, and when he is allegedly required to clean the Father and paternal aunt’s rooms. The Court observes in this context the Mother’s allegations that last week at changeover the child did not want to go with the paternal grandmother.
The Court has considered the Father’s submissions and contentions, and related evidence.
The Father submitted that there are no significant allegations made by the Mother that the child has been mistreated by the Father post separation and over a lengthy period of time since the final consent parenting Orders of 17 May 2019. In this context, the Father stressed the effective equal time parenting arrangement instituted by those Orders. He referred to the Father’s evidence relating to his care of the child post separation to date, as well as the meaningful relationship between the child and the Father. In this context, he had adduced evidence by way of short letter from the child’s Friday preschool being a positive report relating to the child, and referred to the child’s enrolment in certain activities at the instance of the Father.
Yet, set against the above submissions of the Father, are the Mother’s allegations:
(a)that at the time of separation the Father abused the Mother in the presence of the child;
(b)relating to the Father’s family violence in the presence of the child on 2 October 2017 resulting in an interim ADVO (including her allegations that the Mother and child retreated into the family bathroom and locked the door, the Father throwing a hunting knife at a wall and trying to snatch the child from the Mother’s arms);
(c)of the Father drinking to excess while the child was in his care;
(d)as to her concerns about the Father’s temper;
(e)relating to the sexual assault upon her by the Father on 17 February 2020 in the near vicinity of the child, and the Father’s plea of guilty and related Agreed Facts on Sentence acknowledging a sexual offence in the near vicinity of the child;
(f)of certain disclosures by the child that he is scared of the Father and the paternal grandmother;
(g)that the child gets very upset when the paternal grandmother and paternal aunt are irritated; and,
(h)that last week at changeover the child did not want to go with the paternal grandmother.
The Court observes that the Father’s alleged rehabilitation in relation to the plea of guilty of sexually touch another person without consent has only commenced relatively recently. He has only had a few sessions of individual counselling with a psychologist, and has only just commenced the Taking Responsibility program with C Counsellors. As to the latter program, whilst the Father alleges that he is undertaking this program “to better understand about appropriate conduct and consent in relationships”, he does deny the Mother’s allegations of family violence apart from his plea of guilty and related Agreed facts on Sentence. As to the psychological evaluation of the Father by the psychologist of 21 August 2021 (assessment date being 9 August 2021), the Court has some concerns in relation to the opinions and recommendations in this evaluation report. The Court observes that the opinions and recommendations of the psychologist were significantly based upon the Father’s history given to the psychologist including the Agreed Facts on Sentence and did not significantly assess the implications for the child and Mother of the possible veracity of the Mother’s family violence allegations in these proceedings. In this regard, the Court observes that at one point in the evaluation report the psychologist referred to the Father’s denials of the Mother’s allegations of domestic violence during the relationship including alleged dishonesty by the Mother.
The Court has not overlooked the terms of the Orders of 17 May 2019 relating to an effective equal shared care arrangement, that the Mother’s Initiating Application filed 10 December 2020 sought both final and interim Orders that the child spend unsupervised time with the Father, and, again, that she has facilitated such time to date. However, set against these matters are the Mother’s allegations of family violence, including coercive and controlling family violence, the Mother’s allegations of concerning disclosures made by the child, and the Mother’s allegations of her anxiety relating to facilitating time between the child and the Father (see further below relating to the Mother’s allegations relating to her anxiety).
In the view of the Court, the above discussed risks of harm can be minimised and addressed by the child spending supervised time with the Father as proposed by the ICL. The Court proposes to make a further interim Order, as suggested by the ICL, that the child be permitted to spend supervised time with the Father through a professional supervision service during the period of any waiting time for the commencement of supervised time at the Suburb B Children’s Contact Service. Such a further interim Order will assist in the maintenance of the child’s meaningful relationship with the Father.
The Court notes that under section 60CC(2A) of the Act, the Court, in applying the meaningful relationship primary consideration and the need to protect primary consideration under section 60CC(2) of the Act, is to give greater weight to the need to protect primary consideration, and the Court does so, again having regard to its above discussions as to risk. The Court should state that it gives significant weight to the need to protect primary consideration at this interim hearing, by reference to its above discussions as to risk of harm.
In any event, and independently of the Court’s views above, the Court has a significant concern that the Mother is experiencing significant anxiety by having to facilitate unsupervised time between the child and the Father. The Court has a consequential significant concern that the Mother’s parenting capacity for the child will be adversely affected. In this context, the Court takes into account the Mother’s allegations:
(a)as to experiencing depressive symptoms during the parties’ relationship related to her relationship with the Father;
(b)as to experiencing adverse anxiety arising out of the Father’s manipulative and intimidating behaviour relating to engaging in sexual acts prior to the sexual assault on 17 February 20 and the sexual assault itself;
(c)that the Mother’s anxiety allegedly resulted in her starting to lose a lot of weight and being unable to eat properly because of the anxiety she felt towards the Father in about March 2019;
(d)of her treatment from her GP relating to anxiety allegedly arising out of the Father’s family violence, including her being prescribed and ingesting (and continuing to ingest) antidepressant medication that treats anxiety;
(e)that she is experiencing changeovers with members of the paternal extended family as intimidating and that she feels increasingly anxious.
These particular concerns of the Court can also be minimised and addressed by the child spending supervised time with the Father.
The Mother sought an interim parenting order for sole parental responsibility for the child. No submissions were made by either party at the interim hearing in relation to parental responsibility. In any event, at this interim stage, taking into account the young age of this child, and taking into account that there would appear to be no major decisions looming for this child, it will not be in the best interests of the child to make an order for parental responsibility. The Court would observe that the presumption of equal shared parental responsibility is rebutted by the Father’s plea of guilty in the District Court of NSW. Taking into account the Court’s above discussion in relation to the need to protect primary consideration, it will not be in the best interests of the child to be subject to an equal time parenting arrangement and nor will it be in his best interests to be subject to interim parenting Orders providing for substantial and significant time between himself and the Father.
The Court proposes to order a Child Impact Report, with interviews to occur as soon as possible after the Father’s sentencing hearing in the District Court of NSW on 24 February 2022, with a specific direction that the family consultant conduct an observation session between the Father and the child.
Evaluating the above discussed relevant considerations under section 60CC of the Act, it will be in the best interests of the child, at this interim stage, to make Orders as set out in the ICL’s proposed Minute of Order annexed to his Case Outline filed 16 December 2021, an Order providing for initial supervised time through a professionally recognised supervision service during the period of any waiting time for entry into the ICL’s proposed contact centre, and an Order for a Child Impact Report, and the Court make such Orders.
I certify that the preceding seventy-eight (78) numbered paragraphs are a true copy of the Reasons for Judgment of Judge Newbrun. Associate:
Dated: 20 December 2021
0
5
0