Maire & Tatros
[2023] FedCFamC2F 1613
•20 December 2023
FEDERAL CIRCUIT AND FAMILY COURT OF AUSTRALIA
(DIVISION 2)
Maire & Tatros [2023] FedCFamC2F 1613
File number(s): ADC 4345 of 2023 Judgment of: JUDGE DICKSON Date of judgment: 20 December 2023 Catchwords: FAMILY LAW – PARENTING – Interim proceedings – Child aged four years – Mutual allegations of family violence – Where the mother and the child are currently listed as protected persons on an Interim Intervention Order against the father – Allegations of child protection concerns for the child in the care of both parents – Consideration of best interests – Orders for the child to live with the mother and spend supervised time with the father during the period of the adjournment – Department for Child Protection invited to intervene and prepare a report pursuant to section 91B. Legislation: Family Law Act 1975 (Cth) ss 4AB, 60CC, 61DA. Cases cited: Goode & Goode (2006) FLC 93-286,
Slater & Light [2013] FamCAFC 4.
Division: Division 2 Family Law Number of paragraphs: 91 Date of hearing: 8 and 18 December 2023 Place: Adelaide Counsel for the Applicant: Mrs Read on 18 December 2023 Solicitor for the Applicant: Comley Legal Counsel for the Respondent: Mrs Tinning on 8 December 2023 Counsel for the Respondent: Ms Boyle on 18 December 2023 Solicitor for the Respondent: Websters Lawyers Solicitor for the Independent Children's Lawyer: Phillips Green & Associates ORDERS
ADC 4345 of 2023 FEDERAL CIRCUIT AND FAMILY COURT OF AUSTRALIA (DIVISION 2)
BETWEEN: MS MAIRE
Applicant
AND: MR TATROS
Respondent
INDEPENDENT CHILDREN'S LAWYER
ORDER MADE BY:
JUDGE DICKSON
DATE OF ORDER:
14 DECEMBER 2023
THE COURT ORDERS UNTIL FURTHER ORDER THAT:
1.The child X born in 2023 (‘the child’) live with the mother.
2.The parties forthwith do all such things to register at the B Contact Centre at City D for acceptance into the Supervised Time Spending Program (‘the said Program’) and do complete all necessary documentation and preconditions for such acceptance.
3.Upon the parties’ acceptance into the said Program, the child do spend time with the Father on such dates and times as directed by the Coordinator of the said Service.
4.The parties do follow all directions and requests made by the Coordinator of the said Service in relation to the supervised time visits.
5.Upon the conclusion of three (3) supervised time spending visits, the father is at liberty to have the paternal grandmother Ms E attend at and participate in such supervised visits.
6.Upon the completion of six (6) supervised time spending visits, the father do obtain at his sole expense an Observational Report from the said service and with such report to be filed under cover of Affidavit within seven (7) days of its receipt.
7.Pending acceptance into the said B Contact Centre, the child do spend supervised time with the father on dates and times supervised by such professional supervisor as agreed between the parties and the Independent Children’s Lawyer in writing or if no agreement then by such professional supervisor nominated by the Independent Children’s Lawyer and with the costs of such supervision to be borne solely by the father.
8.Within twenty-eight (28) days of the date hereof, the father do use his best endeavours to provide to the Independent Children’s Lawyer copies of all reports in respect to his participation in the Abuse Prevention Program at the City G Court.
9.Pursuant to section 91B of the Family Law Act 1975 (Cth), the Chief Executive of the Department of Child Protection is invited to intervene in these proceedings.
10.The Department for Child Protection is requested to prepare a Parent Assessment Report regarding the parenting arrangements for the child.
11.A copy of these orders is to be served upon the Chief Executive the Department of Child Protection, along with a copy of the Child Impact Report of Child Expert F dated 20 November 2023 and a copy of these Reasons dated 20 December 2023.
12.The Chief Executive be at liberty to inspect and copy all documents filed in these proceedings, and if necessary, the Independent Children’s Lawyer is permitted to provide the Department copies of all relevant Court documents on the Court file (including the Child Impact Report) to assist in the preparation of the said Parent Assessment Report.
13.The Chief Executive, or a representative of the Chief Executive, is to attend on the adjourned date, even if the Chief Executive determines not to intervene, so as to advise what steps the Chief Executive proposes to take in respect of the child in these proceedings where neither parent may be an appropriate caregiver.
AND THE COURT FURTHER ORDERS BY CONSENT THAT:
14.The parties are restrained, and injunctions are hereby granted restraining each of them from:
(a)Physically disciplining the child and from allowing any other person to do so;
(b)Abusing, denigrating, assaulting or harassing the other parent, their partner or members of their family and from allowing or encouraging any other person to do so;
(c)Discussing these proceedings or any issues raised in these proceedings with or in the presence or hearing of the child and from allowing any other person to do so;
(d)Discussing the father’s criminal prosecution/charges and terms of incarceration in the presence of or directly with the child or allowing any other person to do so;
(e)Discussing these proceedings or any issues raised in these proceedings, including the father’s criminal prosecution/charges on any social media site;
(f)Consuming illicit substances, twenty-four (24) hours prior to and while the child is in their respective care; and
(g)Consuming alcohol to excess while the child is in their respective care.
15.The mother is restrained, and an injunction is hereby granted restraining her from re-locating the child’s primary residence from the City G Metropolitan area.
16.The parties do forthwith enrol in and complete the H and J parenting programs and file and serve their respective certificates of completion for the said course.
17.Within twenty-eight (28) days of the date hereof the father file and serve an updating affidavit of no more than five (5) pages in length addressing the progress of his charges in the criminal jurisdiction and annexing a copy of the Charge Information Sheet.
18.The mother shall attend upon Dr K psychiatrist for the purposes of undertaking a medico-legal psychiatric evaluation report with the cost of such evaluation to be borne by the mother.
19.The Independent Children’s Lawyer shall provide Dr K with a letter of instruction as well as copies of all documents filed by the parties, Orders made by the Court and a copy of the Child Impact Report no later than seven (7) days prior to the mother’s appointment with Dr K.
20.The solicitor for the mother file and serve a copy of the report of Dr K within seven (7) days of receiving the same NOTING THAT such report should be available in February/March 2024.
21.Within seven (7) days the parties provide to each other’s solicitor and Independent Children’s Lawyer details of the child’s treating medical professionals.
22.The mother do all such things and sign all documents necessary to facilitate the child’s attendance upon ‘L Psychology’ for the purposes of obtaining a Global Development Assessment (‘the Assessment’), with costs of the Assessment to be shared equally between the parties.
23.The father is at liberty to provide information in relation to the child to the practitioner at ‘L Psychology’ undertaking the said Assessment and that this order serves as an Authority enabling him to so do.
24.In the event the Assessment is cancelled or varied, the mother shall inform the father’s solicitors and Independent Children’s Lawyer within forty-eight (48) hours and shall forthwith reschedule the appointment to the first available appointment.
25.The mother do provide to the father and the Independent Children’s Lawyer with a copy of the Assessment forthwith and do file and serve a copy of the same within fourteen (14) days of receipt of same.
26.The parties do follow all recommendations made in the Assessment for the child’s ongoing treatment.
27.No later than seven (7) days prior to the adjourned hearing date, the parties do file and serve an updating Affidavit of no more than five (5) pages in length.
28.No later than seven (7) days prior to the adjourned date, the parties and legal representative and the Independent Children’s Lawyer attend a Family Dispute Conference at the Legal Services Commission of South Australia on a date and time nominated by the Independent Children’s Lawyer following the release of the Observational Report from the Children’s Contact Service.
29.The proceedings be adjourned for directions to 8 May 2024 at 9:30am, such hearing to take place in open Court on a face-to-face basis in accordance with Court protocols.
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 has been approved pursuant to s 121(9)(g) of the Family Law Act 1975 (Cth).
REASONS FOR JUDGMENT
JUDGE DICKSON:
INTRODUCTION
These interim parenting proceedings come before the Court by way of an Initiating Application filed by the applicant mother on 18 September 2023 and a Response filed by the respondent father on 6 October 2023.
The parties seek parenting orders in relation to one child, X, born in 2019 and now aged four years (‘X’).
These reasons are provided having regard to the Full Court decision of Goode & Goode.[1]
[1] Goode & Goode (2006) FLC 93-286.
BACKGROUND
The mother is aged 45 years and the father is aged 43 years.
The mother is not employed and is currently a full-time homemaker and carer to her three children who reside with her.
The mother has three older children from previous relationships are now aged 16, 13 and 11 years of age respectively. The youngest daughter now aged 11 years has recently moved to reside with her father and currently spends no time with the mother.
In addition, the parties have one child, X.
The father did not work for most of the relationship. He has been in receipt of a Disability Support Pension (“DSP”) after being diagnosed with a mental illness. The father now contends that he mislead professionals in order to obtain the DSP for financial gain. He denies having mental illness or any mental health issue which would impact on his care of X.
The parties met in 2015 and commenced cohabitation in or about late 2015 at which time the father moved into the mother's residence at Suburb M in the State of South Australia.
The mother describes her relationship with the father as initially being positive and further deposed that the father was “caring, helpful and supportive” including the father undertaking household duties and the care of her three daughters.[2] The mother also is complimentary of the father supporting her during a difficult period following the loss of a child due to complications with her pregnancy and the death of a friend at or about the same time.
[2] See the Affidavit of Ms Maire filed 18 September 2023 at paragraphs 15 and 16.
X was born premature and suffered from various health issues.
It is the mother's position that sometime in 2022 she observed a change to the father's behaviour and attitudes towards her. She describes the father as denigrating and criticising her in front of the children and alleging infidelity on her behalf. The father denies the mother’s allegations.
As a consequence, the mother alleges that the parties separated under the one roof in May or June 2023 before separating on a final basis in late 2023 following a serious incident of family violence between the parties at home and in the presence of X.
The incident in late 2023 is strongly contested by each of the parties with each other alleging that they were the victim of a physical assault perpetrated by the other. As a consequence of the incident, the father was arrested and was removed from the residence. The father has now been charged with offences. In addition and following on from further police attendance at the home in late 2023, the father has been charged with "offences."
In late 2023, the Police issued an Interim Intervention Order which includes the mother, her two eldest daughters and X.
The father is also required to abide by stringent bail conditions. A copy of his most recent bail conditions are annexed to an Affidavit deposed by Ms N, solicitor for the father, filed in late 2023.
The father has instructed legal representatives in relation to the criminal charges. He vehemently denies the mother's allegations. The father's denial of any assault upon the mother is such that he has now allegedly been excluded from participating in the Abuse Prevention Program because he will not concede any culpability on his behalf which is said to be a necessary prerequisite of participation in the said Program.
The father has had no contact with X since the incident in late 2023.
On 18 September 2023, the mother filed an Initiating Application seeking parenting orders in relation to X.
On 9 October 2023, the Court made orders during the period of the adjournment to provide inter alia as follows:
(1)That X live with the mother;
(2)The appointment of an Independent Children's Lawyer;
(3)The preparation of a Child Impact Report;
(4)The filing of further affidavit material including a psychiatric assessment of the father; and
(5)The parties competing applications be listed for hearing on 8 December 2023.
On 20 November 2023, a Child Impact Report was released by the Court.
The parties’ applications now come before the Court for argument.
DOCUMENTS RELIED UPON
The mother relied upon the following documents:
(1)Outline of Case Document (Interim Hearing) filed 6 December 2023;
(2)The documents identified in Part B of the said Outline of Case Document, including the Child Impact Report of Court Child Expert F dated 20 November 2023; and
(3)Affidavit filed 18 December 2023.
The father relied upon the following documents:
(1)Outline of Case Document (Interim Hearing) filed 6 October 2023;
(2)The documents identified in Part B of the said Outline;
(3)Affidavit of the father’s solicitor filed 15 December 2023; and
(4)Affidavit of Ms E filed 15 December 2023.
In addition, the Court will receive an Affidavit deposed by the father’s solicitor (later late 2023) annexing a copy of his bail conditions as they are relevant to the Court's consideration.
The Independent Children's Lawyer relied upon the following documents:
(1)Outline of Case Document (Interim Hearing) filed 7 December 2023;
(2)Exhibit I1 being a Department for Child Protection report dated 20 September 2023; and
(3)Exhibit I2 being an Information Summary Report from SAPOL dated late 2023.
ORDERS SOUGHT
In Part E of the mother's Outline of Case Document, the mother sets out that she seeks the following orders:
(1)That the mother have sole parental responsibility for X;
(2)That X live with the mother;
(3)That the father provide an update in respect to his criminal matters;
(4)That any time the child spends with the father be professionally supervised;
(5)That any such supervised time occur at the Suburb O Children's Contact Service;
(6)That at the conclusion of such supervised time, the father obtain a written report; and
(7)That pursuant to section 62G of the Family Law Act1975 (‘the Act’), a Family Report be prepared.
The father seeks the following orders:
(1)That the father have sole parental responsibility for X;
(2)That X live with the father and spend time with the mother:
(a)Each alternate Saturday and Sunday from 10:00am until 4:00pm;
(b)Such further or other times as agreed between the parties in writing;
(3)That the child have telephone contact with the mother at times agreed between the parties in writing but failing agreement on Tuesday and Thursday between 5:30pm and 6:00pm;
(4)That for Christmas 2023 the child spend time with the father from 4:00pm Christmas Eve until 2:00pm Christmas Day and with the mother on Christmas Day from 2:00pm to 7:00pm;
(5)That all handovers that do not take place at the child's school or preschool occur at "A Park" at Suburb P;
(6)All communication with respect to X save in the case of emergency is to occur through the AppClose mobile application;
(7)That the parties complete the H Program and J Program parenting programs and provide a certificate of completion;
(8)That pursuant to section 69ZW of the Act, materials be provided from SAPOL and the Department for Child Protection in relation to the parties and X;
(9)That pursuant to section 62G of the Act, a Family Report be obtained; and
(10)Mutual injunctions restraining the parties from various forms of behaviour including the consumption of illicit substances or alcohol.
The Independent Children's Lawyer sets out in Part E of the Outline of Case Document, a raft of orders. I do not propose to repeat paragraphs 1 to 18 inclusive of the Minute of Order in circumstances where, for the most part, those orders were the subject of agreement by the parties and will be made by consent.
The Independent Children's Lawyer sought orders inter alia that:
(1)X continue to live with the mother;
(2)There be no time spending between X and the father until such time as there is clarity with respect to the outcome of the criminal charges involving the father;
(3)In the alternative, the Independent Children's Lawyer supported time spending in a supervised setting at a Children's Contact Service; and
(4)The proceedings be adjourned to await the outcome of the father's criminal proceedings, the provision of a Parenting Assessment Report by the Department for Child Protection and a report from Dr K psychiatrist in relation to the mother and a Family Dispute Resolution Conference.
At a further hearing on 18 December 2023, the parties’ proposals modified in that:
(1)The mother ultimately promoted supervised time at the B Children’s Contact Service at City D or supervised by her friend, Ms Q;
(2)The father promoted (in order of priority) primary care, or in the alternative unsupervised time, or in the alternative the B Children’s Contact Service at City D; and
(3)The Independent Children's Lawyer promoted the B Children’s Contact Service at City D and did not oppose a professional supervisor if one was available.
THE MOTHER'S POSITION
The mother’s position is that during the relationship the parties shared household duties and the care of the children. She denies the extent of social media use leading to neglect of the children as alleged by the father but admits enjoying this activity in the evenings to “wind down.”[3]
[3] See the Child Impact Report of Court Child Expert F dated 20 November 2023 at paragraph 7.
The mother supports supervised time spending occurring in a professional setting. The mother opposes the paternal grandmother supervising the father's time given the limited relationship between Ms E and X. The mother was not opposed to the paternal grandmother participating in the visits at the said Service.
The mother submits that the incident which occurred in late 2023 involved serious allegations of family violence and that SAPOL "saw fit" to charge the father with aggravated assault and to issue an Interim Intervention Order for the protection of the mother and her children.
The mother submitted that there was sufficient material before the Court to be satisfied that the current arrangements for the care of X are appropriate during the period of the adjournment acknowledging that at this interim stage the Court is unable to make any findings of fact.
Through her Counsel the mother agreed with paragraphs 1 to 18 inclusive of the Minute of Order prepared by the Independent Children's Lawyer.
The mother initially opposed time occurring at the B Children's Contact Service at City D and sought that time occur in a supervised setting at Suburb O. However, given the long delays associated with the Suburb O Children’s Contact Centre, the mother ultimately agreed with City D. Her counsel confirmed with the Court that the mother would find alternate transport to City D from her home if required.
THE FATHER'S POSITION
From the outset, the father's counsel confirmed that she was instructed to press her client’s application for a change of primary care of X. It is the father’s position that X is at risk in the mother’s care.
The father contends that shortly after the parties commenced cohabitation, the mother spent long periods of time on social media. As a consequence of this, the father says that he became the primary caregiver for the mother’s older children and then X after his birth.
The father submits that he was the victim of physical violence at the hands of the mother at the parties’ joint home in late 2023. In support of his contention the father refers to his Affidavit filed 16 October 2023 and in particular ‘Annexure T02’. The father alleges that he sustained physical injuries as a consequence of the assault by the mother.
The father acknowledges that the incident in late 2023 took place in the presence of X. The Court observes that one of the few agreed facts between the parties at hearing is that the incident in late 2023 was the first occasion of physical violence between the parties during their relationship.
The father's Counsel took significant care in taking the Court through the differing versions of the account described by the mother of the events of late 2023 as recorded by SAPOL, the Court Child Expert, and the mother herself in her affidavit.
The father strongly contends that the mother is the person who assaulted him and that X is at risk remaining in the mother's care given the matters raised in the material provided by the Department for Child Protection involving the mother and her three eldest children. The father alleges that the mother has attempted to exaggerate or manufacture the allegations against him to include a complaint to police regarding "making of weapons" and a more recent suggestion in the material that the mother's daughter R has now complained to her counsellor of the father engaging in "grooming behaviours" during the relationship between the parties.[4]
[4] See the Child Impact Report of Court Child Expert F dated 20 November 2023 at paragraph 34.
It is the father's position that the mother is now raising these issues so as to prevent X having a relationship with him.
The father relies upon a report from Dr K dated November 2023.[5] The report confirms that in Dr K’s opinion the father does not suffer from a mental illness and based upon a reasonable degree of medical probability is not suffering from a psychiatric disorder. Further, in Dr K’s opinion the father does have some unhelpful personality traits which do not reach the level of a personality disorder.
[5]The father took issue with the decision made by the Court Child Expert not to observe an interaction between the father and X as part of the Child Impact Report. Ms Tinning observed correctly that it had been the Court's expectation that such an observed interaction was to take place. The terms of the interim intervention order clearly permitted the father to come into contact with X "in accordance with an order of a Court exercising jurisdiction under the Family Law Act 1975". Regrettably that observed interaction did not take place. The father urged the Court to order an addendum Child Impact Report.
For all of the above reasons, the father seeks orders from the Court to place X in his primary care and to spend limited day time visits with the mother. In the alternative, the father seeks unsupervised time or supervised time as soon as possible.
THE INDEPENDENT CHILDREN’S LAWYER’S POSITION
The Independent Children’s Lawyer provided a comprehensive raft of Orders sought in her Outline of Case.
The Independent Children's Lawyer initially sought that X remain in the care of the mother and with no time in favour of the father until the outcome of the criminal charges are known. The Independent Children’s Lawyer considered that if X was to spend time with his father and then cease if the father was incarcerated, then this was not in X’s best interests.
However, the Independent Children’s Lawyer also agreed that if the father’s criminal charges took some time to conclude and/or the father was incarcerated, the possibility of “reunification” was also less than ideal for X. In those circumstances, the Independent Children’s Lawyer did not oppose time at a Contact Centre under supervision.
Finally, the Independent Children’s Lawyer sought an order that the Department for Child Protection South Australia be invited to intervene in these proceedings and to prepare a Parenting Assessment Report.[6] The Independent Children’s Lawyer noted that there is a child protection history in relation to the mother and her three older children. Based on the Department for Child Protection co-located material in Exhibit I1, the Independent Children’s Lawyer has concerns about the safety and welfare of the child in both parents’ care.[7] Further, that on an interim basis, X remaining in the mother’s care “is an arrangement that presents the lesser risk to the child.”[8]
[6] See the Child Impact Report of Court Child Expert F dated 20 November 2023 at paragraph 57.
[7][8]CHILD IMPACT REPORT DATED 20 NOVEMBER 2023
At interview, both parties agreed that X’s development is significantly delayed, particularly his speech. Each party blamed the other for not implementing support for X and alleged that the other actively prevented the other from doing so. The Court Child Expert records however that neither party described coercive control or fear of the other, to an extent which might explain their failure to act.[9]
[9] See the Child Impact Report of Court Child Expert F dated 20 November 2023 at paragraph 49.
The mother alleges that the child’s behaviour has now improved since the father has left her home.
The father reported to the Court Child Expert that he raised his concerns about X’s development with the mother during the relationship but that his observations were dismissed by her.[10]
[10] See the Child Impact Report of Court Child Expert F dated 20 November 2023 at paragraph 9.
No interview was undertaken of X by the Court Child Expert because his speech was limited to single words or “babbling” in place of words.[11]
[11] See the Child Impact Report of Court Child Expert F dated 20 November 2023 at paragraph 10.
The observed interaction of X and the mother is unremarkable. Unfortunately, there was no observed interaction between X and his father because the Court Child Expert determined that in light of the Intervention Order “it would not be appropriate to do an observation session with him at this stage.”[12] The mother is reported as “expressing relief” when advised by the Court Child Expert that the observed interaction would not be proceeding.[13]
[12] See the Child Impact Report of Court Child Expert F dated 20 November 2023 at paragraph 13.
[13] See the Child Impact Report of Court Child Expert F dated 20 November 2023 at paragraph 47.
At interview, each of the parties repeated their versions of the incident in late 2023. The parties agree that this was the first and only incident of physical violence between them. The father denied knowing anything about the ammunition found by SAPOL and admitted owning the “weapons”, with one of them having been owned by him since he was a teenager and the other two being reportedly purchased by the mother. The father denied any knowledge of “weapon making instructions.” [14]
[14] See the Child Impact Report of Court Child Expert F dated 20 November 2023 at paragraph 20.
Both parties otherwise allege violence towards each other during the relationship as defined in section 4AB of the Act. The mother details her concerns in paragraph 22 of the Child Impact Report and refers to several “red flags” in the father’s behaviour. For his part, the father alleges that the mother was often verbally abusive, frequently denigrated him and controlled their daily lives. He alleges that the mother threatened to burn his motor vehicle and “kick him out of the house “when he took X to the hospital in mid-2023.”[15]
[15] See the Child Impact Report of Court Child Expert F dated 20 November 2023 at paragraph 23.
Both parties allege that the other has prevented them from seeking intervention for X in relation to his development and feeding the child an inappropriate diet. The father alleges that the mother was verbally abusive to her older children. The father argues that the mother’s older child T, has now voted with her feet and has returned to live with her father and spend no time with her mother.
The mother now believes that the father had been “grooming” her elder daughter R, expressing apparent distress that “she had not noticed this earlier.”[16]
[16] See the Child Impact Report of Court Child Expert F dated 20 November 2023 at paragraph 34.
Both parties allege that the other has significant mental health issues. The father now concedes that he misled various mental health professionals in the past “until one of them gave him a diagnosis he could use to obtain the DSP long term.”[17] The diagnosis was for a mental illness. The father argues that the mother had been aware all along of the reason for the diagnosis and DSP payment reporting that she “was happy about this as it allowed them to live off his pension.”[18]
[17] See the Child Impact Report of Court Child Expert F dated 20 November 2023 at paragraph 40.
[18] See the Child Impact Report of Court Child Expert F dated 20 November 2023 at paragraph 40.
The father alleged that the mother was previously diagnosed with a “personality disorder “which had gone untreated.[19]
[19] See the Child Impact Report of Court Child Expert F dated 20 November 2023 at paragraph 41.
The Court Child Expert raises concerns about each of the parties. The mother’s accounts were described as being “incongruent” in certain respects as identified in paragraph 52 of the Child Impact Report. The father’s explanation about his diagnosis of a mental illness was said by the Court Child Expert to show a “disregard for truth and/or laws.”[20] The Court observes, that in a case where credit is squarely in issue on a number of important topics, the father’s decision to mislead various health professionals for his own personal financial gain may come back to haunt him.
[20] See the Child Impact Report of Court Child Expert F dated 20 November 2023 at paragraph 53.
In light of the concerns raised about both parties, the Court Child Expert opined that it may be appropriate to invite the Department for Child Protection to intervene in these proceedings. The current care arrangements for X were said to be appropriate “at this stage.” The Court was invited to consider supervised time spending at a contact service if there was “no further information to indicate Mr Tatros presents a risk of further violence toward either X or Ms Maire.”[21]
[21] See the Child Impact Report of Court Child Expert F dated 20 November 2023 at paragraph 59.
Finally, the Court Child Expert recommended that ultimately a Family Report may be required.
LEGAL PRINCIPLES
As I have set out above, the parties’ positions are completely polarised. Each blames the other for the incident in late 2023 and for the failure by each of them as X’s parents to address his developmental delay. They agree on practically nothing.
The evidence at this early stage of the litigation is necessarily truncated. There has been no proper opportunity for cross-examination of either party or any other witnesses. There are a range of controversies arising from the parties' affidavit material which I cannot yet resolve because of the restrictive nature of this hearing. Due to the evidence available to me, which is largely anecdotal in nature, I cannot make any definitive finding as to the mutual allegations of family violence or neglect.
Each of the parties assert one thing, and the other asserts another.
At this stage, my responsibility is to assess the degree of risk arising from the competing applications and orders sought by each of the parties at this interim stage. I cannot, on the other hand, ignore the risk of a child being deprived of an otherwise meaningful relationship with a loved parent on the basis of untested allegations or untested evidence.
In making the required assessment of risk, I am required to assess the degree of possibility that a harmful event will occur and what will be its level of severity to any individual, particularly any child who will be potentially affected by it.
Essentially, the Court is required at this juncture to assess the risk arising for any child on the material currently before it. I cannot defer that assessment until a later stage on account of deficiencies in the available evidence. Rather, I must as best as I can, assess the nature and quality of the risk arising and put in place a response which I consider to be proportionate to the degree of risk so assessed. Given the limited nature of the evidence available to me at this hearing which has not been tested, I am at pains to point out to each of the parties that consideration of a way forward cannot be deferred. However, in carrying out this assessment, obviously the best interests of X remains the paramount consideration.
I must look at the evidence and consider what is the likelihood of some deleterious outcome occurring with or without precautions. For obvious reasons highly conflicted coparenting relationships, albeit of recent event for this family, cannot be easily neutralised at this early stage.
The Court is frequently called upon to assess all manner of risks to children concerned in proceedings coming before it. In the decision of Slater & Light,[22] the Full Court expressed the task of assessing risk in the following terms:
The nature of the risk is best expressed by the term 'unacceptable risk'. It is an evaluation of the nature and degree of the risk and whether, with or without safeguards, it is acceptable.[23]
[22] Slater & Light [2013] FamCAFC 4.
[23] Slater & Light [2013] FamCAFC 4, [37].
In Goode & Goode,[24] the Full Court cautioned the Court about becoming involved in issues which were more appropriately dealt with at the final hearing when all the relevant evidence was to hand.[25]
[24] Goode & Goode (2006) FLC 93-286.
[25] Goode & Goode (2006) FLC 93-286.
I now turn to the orders in dispute at this hearing.
Parental Responsibility
Each of the parties seek an order that they have sole parental responsibility for X.
I do not consider at this early stage that any order should made for sole responsibility in favour of either party. Both parties make serious allegations against the other. Orders will be made regulating the child’s attendance upon medical practitioners during the period of the adjournment. The child is not yet at kindergarten or school.
I am not minded to make an order which one party may view as some sort of tactical advantage.
In all of the circumstances of this case I do not consider it appropriate to apply the presumption at this interim stage.[26]
[26] Family Law Act1975 (Cth) s 61DA(3).
Parenting Arrangements
As the presumption is rebutted, I do not need to consider equal time or substantial and significant time. I am still required to consider the various section 60CC factors and reach an outcome I consider to be in X’s best interests.
The same legal principles apply at this interim stage although the hearing is necessarily truncated. The best interests of X are the paramount consideration.
Section 60CC of the Act sets out the matters that the Court must bring to account in determining the child’s best interests. In general terms, the Court should give greater weight to the primary considerations which direct me to consider the benefit to X in having a meaningful relationship with both of his parents and the need to protect X from physical or psychological harm if exposed or subjected to abuse, neglect or family violence. Section 60CC(2A) of the Act directs me to give greater weight to protective concerns.
I have come to the conclusion that it is in X’s best interests to make an order that he continue to live with his mother during the next tranche of the proceedings. Such an order accords with the recommendations in the Child Impact Report and has the support of the Independent Children’s Lawyer. Ms S has a statutory duty to prioritise the best interests of the child and in these circumstances, her submissions to the Court should be given appropriate weight.
I do not, however, agree with the Independent Children’s Lawyer that X should spend no time with his father pending the outcome of his criminal charges. I have formed the view that time at a Children’s Contact Centre is appropriate as the next step. The time at the B Children’s Contact Service at City D can commence immediately upon the parties completing their intake sessions and the ‘H Program’ online. There will be an ability to obtain an observational report and further, the paternal grandmother will be able to attend the last three visits to meet X. Pending acceptance into the said Contact Service at City D and if it can be organised, time should occur supervised by a professional person at the cost if the father.
It is my view that an order for supervised time spending serves several purposes, namely:
(1)It will allow X to spend time in a setting which is secure and supervised. For a family in crisis and where further allegations are still emerging against the father by members of the mother’s household, supervised time at this crucial stage provides another layer of protection for X and the father against further allegations being made. This is also important on the facts of this case because X has a development delay and is unable to clearly articulate his experiences to others;
(2)A report of X’s interaction with his father which regrettably did not occur as part of the Child Impact Report can now be achieved; and
(3)The paternal grandmother can participate and interact with X. Consideration will be given at the next hearing date to moving away from the Contact Service to a more normalised arrangement.
I decline to make orders for telephone contact given X’s speech delay. I consider that such time spending will not be meaningful.
I decline to make an order that the parties communicate via the AppClose mobile application given the state of the parties’ co-parenting relationship and the potential for misuse.
CONCLUSION
For the Reasons set out herein I am satisfied that the within orders are in the child’s best interests.
The proceedings will be adjourned to await:
(1)The time spending visits at the B Children’s Contact Service at City D to take place and for an Observational Report to be obtained and filed;
(2)An update in relation to the progression of the criminal charges faced by the father in the City G Court;
(3)A psychiatric report to be obtained of the mother from Dr K; and
(4)Advice from the Department for Child Protection as to the request for intervention in these proceedings and possibly a Parenting Assessment Report.
The Court will be better placed to make further orders in relation to the progression of the parties’ applications and future time care arrangements for X at the adjourned hearing date.
For all of these Reasons, I make Orders as set out at the commencement of the Judgment.
I certify that the preceding ninety-one (91) numbered paragraphs are a true copy of the Reasons for Judgment of Judge Dickson. Associate:
Dated: 20 December 2023
See the Affidavit of Ms N filed 22 November 2023 at ‘Annexure “N-01’ at page 19
of Dr K’s Report.
See the Outline of Case Document (Interim Hearing) filed by the Independent Children’s Lawyer on 7
December 2023 at page 5.
See the Outline of Case Document (Interim Hearing) filed by the Independent Children’s Lawyer on 7
December 2023 at page 6.
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