MALIKA & MAIDMENT
[2019] FCCA 2781
•2 October 2019
FEDERAL CIRCUIT COURT OF AUSTRALIA
| MALIKA & MAIDMENT | [2019] FCCA 2781 |
| Catchwords: FAMILY LAW – Interim hearing – parenting – where there is an asserted risk of harm to the children spending overnight time in the mother’s care – where the mother sought additional spend time with orders – where the father sought the mother’s Amended Application in a Case be dismissed – whether it is in the child’s best interests to make an order for substantial and significant time or equal time. |
| Legislation: Family Law Act 1975 (Cth), ss.60B, 60CC, 60CA, 61DA, 65DAA, 65Y Evidence Act 1995 (Cth), s.140 |
| Cases cited: Briginshaw v Briginshaw (1938) 60 CLR 336 |
| Applicant: | MR MALIKA |
| Respondent: | MS MAIDMENT |
| File Number: | SYC 1135 of 2017 |
| Judgment of: | Judge Morley |
| Hearing date: | 17 May 2019 |
| Date of Last Submission: | 17 May 2019 |
| Delivered at: | Sydney |
| Delivered on: | 2 October 2019 |
REPRESENTATION
| Solicitors for the Applicant: | Mr Oliveri of Oliveri Lawyers |
| Counsel for the Respondent: | Ms McConaghy |
| Solicitors for the Respondent: | Lazarus Lawyers |
| Solicitors for the Independent Children's Lawyer: | Mr Blumberg of Blumberg Family Lawyers |
PENDING FURTHER ORDER, THE COURT ORDERS THAT:
Orders 2.2 and 2.3 of the orders made 28 February 2017 are discharged.
Order 7 of the orders made 11 August 2017 is discharged.
Order 1.1 of the orders made 6 October 2017 is discharged.
Orders 2.1, 2.2 and 2.3 of the orders made 10 May 2018 are discharged.
The mother spend time with the child Y, born … 2013 (“Y”), each Tuesday from the end of school until 8:00pm.
The mother spend time with the child X (“X”), born … 2010, each Wednesday from the end of school until 8:00pm.
The mother spend time with the children X and Y as follows:
(a)Each Thursday from the end of school until 8:00pm;
(b)For a period of six months each week from the end of school on Friday until 8:00pm on Saturday;
(c)At the expiration of six months from the making of these orders each alternate weekend from the end of school on Friday until 8:00pm on Sunday;
(d)At the expiration of twelve months from the making of these orders each alternate weekend from the end of school on Friday until the start of school on Monday;
(e)At such other times as may be agreed between the parents from time to time.
On every occasion of the mother spending overnight time with the children pursuant to order 7(b), (c) and (d), the mother is to provide a separate bed for each of the children to sleep in, and such separate beds can be by way of bunk beds.
The mother is to continue her treatment by her treating health professionals and is to follow all directions and recommendations of such health professionals and remain compliant with her medication regime consequent upon medications prescribed for her use by her treating health professionals.
The parties shall forthwith do all things necessary to enrol in, engage in and complete the ‘Parenting After Separation’ course run by Uniting.
Each of the parties is restrained from saying or in any manner communicating anything derogatory of the other parent in the presence of or within the hearing of the children or either of them and each of the parties are further restrained from allowing the children to remain in the presence of any other person who is saying or in any manner communicating anything derogatory of the other parent in the presence of the children or either of them or within the hearing of the children or either of them.
Each of the parties is restrained from saying anything in the presence of or within the hearing of the children or either of them that is derogatory or pejorative of persons affected by mental health issues.
Each parent is restrained from leaving the children or either of them without adult supervision while the children are in their care.
The father may take the children outside Australia for the purpose of a holiday in Italy during each July school holiday period, provided that no later than twenty-one days prior to the date of departure for such holiday the father provides to the mother a full itinerary in relation to the whereabouts of the children during such trip and details of departure flights and return flights, and then during such overseas trip the father enables the children to have regular communication with their mother no less than on one occasion every three days.
Leave is granted to the Independent Children’s Lawyer to relist the matter on the giving of 5 days’ notice to the Court and to the parties of the reason for seeking the relisting.
THE COURT NOTES:
A. The order made on 6 October 2017 in relation to changeovers has not been discharged and will continue to apply on occasions when a changeover does not occur by collection of the children from or return of the children to school.
IT IS NOTED that publication of this judgment under the pseudonym Malika & Maidment is approved pursuant to s.121(9)(g) of the Family Law Act 1975 (Cth).
| FEDERAL CIRCUIT COURT OF AUSTRALIA AT SYDNEY |
SYC 1135 of 2017
| MR MALIKA |
Applicant
And
| MR MAIDMENT |
Respondent
REASONS FOR JUDGMENT
Introduction
These reasons for judgment relate to an interim hearing that took place on 17 May 2019, relating to parenting issues concerning the parties children, X, born … 2010 (“X”) and Y, born … 2013 (“Y”).
I apologise to the parties for the delay in publishing these reasons and making interim orders consequent upon these reasons.
The proceedings were commenced by an Initiating Application filed by the Applicant father (“the father”) on 23 February 2017, in the Family Court of Australia Sydney Registry, in relation to which the matter was granted leave for short service, with an urgent first listing before the Court being allocated at 9:30am on 28 February 2017. The father sought interim and final orders in relation to both parenting and property settlement issues.
The Respondent mother (“the mother”) did not file her Response or Notice of Risk until 7 July 2017. In her Response, the mother sought orders relating to parenting matters on an interim and final basis. On the final basis, the mother sought that:
(1)The children live with her;
(2)That the parties have joint parental responsibility for the children;
(3)That the children spend time with their father as agreed between the parties, and failing agreement, each alternate weekend from 4:30pm on Saturday until start of school on Tuesday, and each other alternate weekend from 2:00pm on Sunday until start of school on Tuesday, and for half of the school holidays.
On 28 February 2017, the matter came before His Honour Justice Loughnan, and consent orders were made to the effect that:
(1)The children live with the father;
(2)The father have sole parental responsibility for the children;
(3)The children spend time with their mother, supervised by a person over the age of 18 years, each Monday, Tuesday, Wednesday, Thursday, and Friday between 6:00pm and 8:00pm, each Saturday between 2:00pm and 4:30pm, and each alternate Sunday between 10:00am and 12:00pm.
Specific orders were made by consent in relation to where changeovers were to occur, and for the mother to be able to communicate with the children via telephone or Skype at specified times.
On 16 May 2017, the matter was mentioned before a Registrar and final property settlement orders were made by consent. The matter was transferred to the Federal Circuit Court of Australia, Sydney Registry.
On 22 June 2017, orders were made by Judge Henderson (as Her Honour then was), in the absence of the mother, permitting the father to take the children outside the Commonwealth of Australia for the purpose of a holiday in Italy between 23 June and 9 July 2017.
Pursuant to an order made by Judge Harper (as His Honour then was) on 11 July 2017, the parties attended a Child Dispute Conference with Family Consultant Ms A on 7 August 2017. Ms A provided a Memorandum to Court on 11 August 2017, and Judge Harper made an order appointing an Independent Children’s Lawyer to represent the interests of the children in the proceedings.
On 6 October 2017, interim orders were made by consent for the mother to spend time:
(1)With Y each Tuesday from 6:00pm until 8:00pm;
(2)With X each Wednesday from 6:00pm until 8:00pm; and
(3)With both of the children:
(a)Each Thursday from 5:30pm to 7:30pm;
(b)Each Friday from 6:00pm to 8:00pm;
(c)Each Saturday from 1:45pm to 4:15pm; and
(d)On alternate Sundays from 10:00am until 5:00pm.
Changeovers were ordered to occur at the mother’s place of residence. An order was by consent made appointing Dr B, a Child Adolescent and Adult Forensic Psychiatrist as the Court Expert to:
Prepare a Single Expert Report upon matters pertaining to the welfare of the children
On 10 May 2018, an order was made by Her Honour Judge Henderson (as Her Honour then was), altering the time the mother was to spend with the children on Sundays to 10:00am to 8:00pm, and providing details day by day of where changeovers were to occur. Significantly, the order requiring that the mother’s time with the children be supervised was discharged.
An order was made for preparation of a Family Report and Her Honour made notations that;
(1)Dr B is unsuitable to prepare Family Reports for the Court;
(2)The Court makes no criticism of Dr B’s capacity for making psychiatric assessments;
(3)The mother has had mental health issues but she appears to be doing well.
On 12 December 2018, Her Honour made directions listing the matter for an interim hearing at 2:15pm on 17 May 2019, and orders were made by consent enabling the father and children to travel for a holiday to Italy from 10 January to 25 January 2019.
On 18 April 2019, the time for the interim hearing on 17 May 2019 was changed to 10:00am, and an order was made releasing a Family Report by Family Consultant Ms A.
The interim hearing took place on 17 May 2019. The Applicant was present in Court and represented by Mr Oliveri, the mother was present and represented by Ms McConaghy of Counsel, and Mr Blumberg appeared on his own behalf as Independent Children’s Lawyer.
The Issues
On interim hearing, the mother sought an increase to the time that she spends with the children during school term time and during school holiday periods and in relation to special occasions. A minute of proposed orders was tendered on the mother’s behalf, and is set out in full below.
The father sought an order that the mother’s Amended Application in a Case on which she moved be dismissed, thereby leaving in place the existing interim parenting orders relating to the time the children spend with their mother.
The father contended that the principal issue affecting the time the mother spends with the children was a risk to the children consequent upon serious mental health issues that had affected the mother’s parenting capacity previously, and which he asserted were still of sufficient concern to render any overnight time between the mother and children not in the best interests of the children due to the risks involved.
The mother admitted the previous mental health issues and asserted that she had had treatment, was compliant with medication, was stable, and that she was well capable of caring for the children overnight.
The Documents Relied Upon
The mother relied on the following documents:
(1)Amended Application in a Case filed 28 February 2019;
(2)Affidavit sworn or affirmed by the mother on 28 February 2019;
(3)Affidavit of Ms C sworn or affirmed 14 November 2018;
(4)A case outline prepared by Ms McConaghy of Counsel;
(5)A minute of orders sought;
(6)The Forensic Psychiatric Court Report prepared by Dr B dated 8 May 2018; and
(7)The Family Report dated 12 April 2019.
The father relied on the following documents:
(1)Affidavit sworn by the father on 11 December 2018;
(2)Affidavit sworn or affirmed by the father on 15 April 2019; and
(3)A case outline prepared by the father’s solicitor, Mr Oliveri.
The Independent Children’s Lawyer provided a Case Outline and indicated his position in relation to the interim hearing in a minute of orders sought by the Independent Children’s Lawyer forming part of the Case Outline document.
The Parties and the Independent Children’s Lawyer’s Proposals
The mother sought the following orders:
(1)That order 1 of the orders of 6 October 2017 and orders 1 and 2 of 10 May 2018 be discharged and replaced with the following:
(a)The mother to spend time with the children during school term time:
(b)With Y every Tuesday from after school (or after her English class) to 8:00pm;
(c)With X every Wednesday from after school to 8:00pm;
(d)With both children every Thursday from after school to 8:00pm;
(e)With both children every Thursday from after school to 8:00pm;
(f)With both children every Saturday from 10:00am to Sunday 10:00am in Week 1 during school term time and during all school holiday time except for the father’s school holiday time following Term 2 every year pursuant to orders 3 and 4 hereof;
(g)With both children every Saturday from 10:00am to Sunday 8:00pm in Week 2 during school term time and during all school holiday time except for the father’s school holiday time following Term 2 every year pursuant to orders 3 and 4 hereof.
(2)That order 5 of the orders of 6 October 2017 be discharged and replaced with an order that the mother spend time with the children:
(a)From 10:00am to 8:00pm Christmas Day in the even numbered years;
(b)From 10:00am to 8:00pm on Boxing Day in the odd numbered years
(c)From 10:00am to 8:00pm on New Year’s Day in the even numbered years;
(d)From 10:00am New Year’s Eve until 10:00pm in the odd numbered years
(e)From 10:00am to 8:00pm on Good Friday in the even numbered years;
(f)From 10:00am to 8:00pm on Easter Sunday in the odd numbered years; and
(g)From 2:00pm or after school to 8:00pm on each of the children’s birthdays
Provided should any of the above dates fall on a Saturday such time is extended to 10:00am Sunday in Week 1 pursuant to order 1(e) hereof and to 8:00pm Sunday in Week 2 pursuant to order 1(f) hereof.
(3)The mother shall spend school holiday time with the children as follows:
(a)During the first week (from 10:00am to 8:00pm on Monday to Friday inclusive and from 10:00am Saturday to 10:00am Sunday pursuant to order 1(e) hereof or 10:00am Saturday to 8:00pm Sunday pursuant to order 1(f) hereof) in the school holidays following the end of Term 1 AND in the school holidays following to end of Term 3 in the even numbered years;
(b)During the second week (from 10:00am to 8:00pm on Monday to Friday inclusive and from 10:00am Saturday to 10:00am Sunday pursuant to order 1(e) hereof or 10:00am Saturday to 8:00pm Sunday pursuant to order 1(f) hereof in the school holidays following the end of Term 1 AND in the school holidays following the end of Term 3 in the odd numbered years;
(c)During the first two (2) weeks (from 10:00am to 8:00pm on Monday to Friday inclusive and from 10:00am Saturday to 10:00am Sunday pursuant to order 1(e) or 10:00am Saturday to 8:00pm Sunday pursuant to order 1(f) hereof) of the school holidays following the end of Term 4 in the even numbered years; and
(d)The last two (2) full weeks of the school holidays from 10:00am to 8:00pm on Monday to Friday inclusive and from 10:00am Saturday to 10:00am Sunday pursuant to order 1(e) or 10:00am Saturday to 8:00pm Sunday pursuant to order 1(f) hereof) of the holidays following the end of Term 4 in the odd numbered years.
(4)That the father spend school holiday time with the children as agreed between the parties or failing agreement as follows:
(a)The second week (Monday to Saturday) in the school holidays following the end of Term 1 and in the school holidays following the end of Term 3 in the even numbered years;
(b)The first week (Monday to Saturday) in the school holidays following the end of Term 1 and in the school holidays following the end of Term 3 in the odd numbered years;
(c)The whole of the school holidays following Term 2 every year;
(d)The whole of the remainder of the holidays after the first two (2) weeks of the school holidays following the end of Term 4 in the even numbered years; and
(e)The whole of the remainder of the holidays apart from the last two (2) full weeks of the holidays following the end of Term 4 in the odd numbered years.
All such time apart from 4(c) to be subject to Order 1(e) and 1(f) hereof.
(5)That order 2 of 6 October 2017 and order 3 of the orders of 10 May 2018 be discharged and that changeovers occur as follows:
(a)Every Tuesday the mother will collect Y from school (or from her English class) and return her to the father’s home at 8:00pm;
(b)Every Wednesday the mother will collect X from school and return him to the father’s home at 8:00pm;
(c)Every Thursday the father will deliver the children to the mother’s residence at 5:30pm and the mother will return the children to the father’s home at 8:00pm;
(d)Every Friday the mother will collect the children from school or from the father’s residence if the children are not at school and deliver them to the father at 8:00pm on Friday;
(e)Every Saturday in Week 1 at 10:00am the mother will collect the children from the father’s residence and deliver them to the father’s residence at 10:00am on Sunday;
(f)Every Saturday in Week 2 at 10:00am the mother will collect the children from the father’s residence and deliver the children to the father’s residence at 8:00pm Sunday
(6)The mother is to spend time with the children on Mother’s Day from 9:00am to 8:00pm and the father’s time shall be suspended on that day if that is the time he would usually spend with the children.
(7)The father is to spend time with the children on Father’s Day and the mother’s time shall be suspended on that day if that is the time she would usually spend with the children.
(8)Neither parent shall leave either Y or X or both of them alone without an adult to supervise them.
(9)The father shall provide the mother with 4 weeks’ notice of his intention to travel outside Australia with the children, with such travel to take place in the father’s school holiday time pursuant to order 4 hereof and such notice to include an itinerary with flight/ship details and the address and landline number of all accommodation.
(10)Each parent shall be at liberty to travel with the children outside the Sydney metropolitan area provided they give the other parent 48 hours’ notice of their intention to travel, such notice to include flight/ship details and the address and landline number of all accommodation and provided such proposed travel does not take place in breach of order 1, 2, 3 or 4 hereof.
The father sought an order that the mother’s Amended Application in a Case be dismissed.
The Independent Children’s Lawyer sought that the interim orders up to those made on 10 May 2018 continue, apart from the following further orders:
(1)That the children spend time with the mother from 6:00pm on each Friday evening until 5:00pm on Saturday on condition that:
(a)The mother provides the children with a separate bedroom with a bed for each child;
(b)That only the mother and children be present in the mother’s residence from 8:00pm on Friday to 8:00am on Saturday;
(c)The mother continues treatment for her mental health issues with her current treating professionals and that she follow all directions of such professionals.
(2)That 12 months after the commencement of the children spending overnight time with the mother, the children spend time with the mother from 6:00pm on each Friday evening until 5:00pm on Sunday on each alternative weekend on condition that:
(a)The mother provides the children with a separate bedroom with a bed for each child;
(b)That only the mother and children be present in the mother’s residence from 8:00pm on Friday to 8:00am on Saturday and 8:00pm on Saturday to 8:00am on Sunday;
(c)The mother continues treatment for her mental health issues with her current treating professionals and that she follow all directions of such professionals.
(3)That 24 months after the commencement of the children spending overnight time with the mother, the children spend time with the mother from 6:00pm on each Friday evening until before school on Monday on each alternative weekend no condition that:
(a)The mother provides the children with a separate bedroom with a bed for each child;
(b)That only the mother and children be present in the mother’s residence from 8:00pm on Friday to 8:00am on Saturday, 8:00pm on Saturday to 8:00am on Sunday and 8:00pm on Sunday to 8:00am on Monday;
(c)The mother continues treatment for her mental health issues with her current treating professionals and that she follow all directions of such professionals.
(4)That both parties be restrained by injunction from mentioning or discussing the other parties’ mental health with the children
The Evidence
The mother was born in Country L and was forty-two years of age at the time of the interim hearing. The mother obtained a degree from University in Country L, and found on her arrival to reside in Australia in 2008 that her qualification was not recognised in Australia.
The father did not have any evidence as to his place of birth, and had no need to do so. He was fifty-eight years of age at time of the interim hearing.
Neither party gives any evidence in the material as to when they commenced cohabitation, but the mother deposes that in … 2009 she became pregnant with the parties first child, X. The parties married on … 2009 and X was born on … 2010. Y was born on … 2013. The father asserts that the parties separated under the one roof on 1 November 2015 and commenced living separately from 5 December 2016.
The mother was admitted to City D Hospital for four days in … 2013 whilst the parents and children were on a holiday, due to mental health issues identified by the mother as depression. The mother was again admitted to hospital in … 2016 and on that occasion whilst an inpatient at Hospital M, the mother was put on a Community Treatment Order by the Mental Health Tribunal and she was issued a Treatment Plan dated … 2017.
The mother’s treatment plan required her to attend on a regular basis with the Suburb N Mental Health Service at The Suburb N Clinic and to attend appointments with her treating psychiatrist at that centre, Dr E, at least once every three months and remain compliant with medication prescribed by Dr E.
On 1 February 2017, a final Apprehended Domestic Violence Order was made for the protection of the father from the mother. That order expired in February 2018. The order was made as a consequence of an incident that occurred at the business owned and run by the father in Suburb O on … 2017 as a result of which the mother was admitted to hospital after being conveyed by ambulance arranged by attending police, though the evidence does not indicate the length of her admission.
The mother was diagnosed by Dr E as having Bipolar Affective Disorder. The mother remained under the treatment of Dr E and later of Dr F, also a psychiatrist practising from The Suburb N Clinic.
Pursuant to the current interim orders, the mother has spent time with the children on an unsupervised basis since 10 May 2018, though such time has not included any overnight occasions. During the children’s Christmas school holidays at the end of the 2018 school year, the mother spent time with them each day from 22 December 2018 until 8 January 2019 from 10:00am until 8:00pm.
The mother lives in a two bedroom apartment at G Street, Suburb H, in which she is the tenant. The mother sublets one of the bedrooms in the flat to Mr J. Mr J is a separated father and spends time with his 5 year old daughter, P, though not, to the date of the interim hearing, overnight, at the apartment.
The mother has been in a relationship with Mr K, a 45 year old professional who has his own apartment and does not sleep over at her apartment.
The father in his affidavit sworn 11 December 2018, at paragraph 39, deposes that he is:
…pleased and encouraged that [the mother] has been capable of spending some time with the children unsupervised without significant incidents.
The father does raise a concern in relation to the effect of the medication taken by the mother at night on her ability to be woken up if the children need her attention in the night, if they are staying with her overnight. He refers to his experience of medication taken by the wife prior to their separation making her:
…extremely drowsy at night to the point of becoming unresponsive until the next morning.
In his affidavit sworn or affirmed on 15 April 2019, the father again refers to this concern and deposes that he has:
…never been provided with any explanation as to how the medication she takes actually affects her, in particular at night.
The mother annexes to her affidavit of 28 February 2019 a letter dated 21 February 2019 addressed to her solicitors from Dr F, Psychiatrist, the relevant parts of which are:
[The mother] is a 42 year old lady with a history of bipolar affective disorder. She has been case managed at the Suburb N Clinic since January 2017. During this period of time, she has generally been compliant with her medication and attends her appointments. She has been stable in mental state and sustained a job in Suburb Q. [The mother] usually see her case manager at least once per month and sees her psychiatrist 3 monthly.
During the period of case management, we have not identified any risk for her to access and look after her children independently. She does not report any over sedation at night with her current medications, so they should not affect her ability to look after them at night.
Current medications:
Aripiprazole depot 400mg monthly
Valproate 500mg BD
In the father’s affidavit sworn or affirmed on 15 April 2019, he expresses concern that any increase in the mother’s time with the children to include overnight from Saturday to Sunday every weekend will have considerable impact on the time that he is able to spend with the children, given that much of his time during the school week is consumed with getting them ready for school or getting ready for bed after they have spent time with their mother on Tuesday, Wednesday, Thursday and Friday evenings.
The father also expresses concerns about the children being in the mother’s care overnight in the same apartment as Mr J, though he does not present any evidence to the detriment of Mr J, his concern stemming from his knowing very little about him. The father’s other concern is in relation to appropriate sleeping accommodation being provided for the children; a valid concern in view of the mother’s evidence that the apartment is a two bedroom apartment, one-bedroom of which is occupied by Mr J.
One of the orders sought by the mother is that neither parent shall leave either of the children or both of them alone without an adult to supervise them. The mother gives evidence in her affidavit of 28 February 2019 that on 20 December 2019, she received a telephone call from X who had just turned nine years of age at the time, during which X said to her words to the following effect:
I just woke up, I am alone at home, no one is here not even Y and I am scared.
The mother relies on an affidavit of Ms C sworn 14 November 2018, in which Ms C deposes that she was engaged by the father as a nanny to look after the children between 20 March 2018 and 6 November 2018, during which time she resided with the father and the children in the father’s apartment. She deposes that in late April 2018 on a number of occasions she returned to the apartment to find the children alone, they being at that time age 8 years and 5 years of age. Ms C gives other evidence of occasions when it came to her attention that the children had been left in the apartment alone while the father attended at his business to work.
In the father’s affidavit of 11 December 2018, he deposes that to that point, the children:
…have only ever been left by themselves on one occasion.
The father further deposes that the occasion referred to occurred on 5 November 2018, when he returned to the apartment at 9:15pm to find that Ms C had left the children alone in the apartment at some time after 9:00pm, and that as a result he terminated Ms C’s employment the next day.
In his affidavit of 15 April 2019, the father deposes that:
I have staff employed at my business so that I do not need to be present at all times. I usually only work in the business while the children are at school, with the mother or at one of their activities such as swimming.
The Family Report
The Family Report dated 12 April 2019 was prepared by Family Consultant Ms A. Interviews took place on 14 March 2019 and Ms A observed the children with both parents. Ms A had access to the documents filed by the parties after the time of the interviews, and in particular, the affidavits of the mother filed 19 November 2018 and 28 February 2019, and the affidavit of the father filed on 11 December 2018.
The Family Consultant also had access to the Expert’s Report prepared by Dr B dated 8 May 2018. Ms A acknowledges her awareness of the mother’s diagnosis of bipolar affective disorder and of her having been previously subject to a Community Treatment Order. She notes the father’s concern that the children will be at risk in the mother’s care if the mother were to experience a mental health relapse.
In this regard she notes at paragraph 25:
[The father] said that, although [the mothers]’s mental health is currently stable, this does not mean that she will not relapse in the future.
Notably, at paragraph 26 of the Family Report, Ms A notes that the father said that his reasoning behind seeking a sole parental responsibility order for the children is so that he can take them on overseas trips without needing to obtain the mother’s consent. This is not correct in terms of section 65Y of the Family Law Act 1975, with consent to take or send the children or either of them outside Australia being required from the mother as a person in whose favour a parenting order has been made to which Subdivision E of Division 6 of Part VII applies.
In paragraph 36, relevant to the father’s concern about the mother being unable to wake if needed by the children during the night due to her medication, Ms A reports that the mother informed her that:
…she recently moved to G Street, Suburb H, and was initially kept awake by the high volume of traffic. She said that her partner, Mr K, snores loudly, and that this also sometimes keeps her awake at night. She reasoned that, if her medication caused her to be sedated at night, these things would not keep her awake.
I note the mother’s evidence that Mr K “does not sleep over at my apartment” and assume that the mother refers to Mr K snoring when she stays overnight at his apartment.
Ms A notes in paragraph 44 that during her interview with X he said that:
[44] …his mother is “pretty good” and that he likes spending time with her each evening and on weekends. He said that his mother has a “housemate, Mr J” with whom he said he gets along. X said he would like to spend overnight time at his mother’s home, perhaps one or two nights per week. He said, “I’ll be fine to sleep at mums, in Country R we sleep in a different home, I don’t mind it”. ….. X said that, if he were to spend overnight time with Ms Maidment, his father may not approve of this. He said, “Dad might mind a bit, but he’ll get used to it.
[45] X said that he feels safe in both the paternal and maternal homes, and that, although he does not currently have any worries or problems, if he did he could talk to either of his parents.
During her interview with Y, Ms A notes at paragraph 47 that:
[47] Y asked the Family Consultant if her mother was coming to the Family Report interviews, and whether she would be able to see her. When told by the Family Consultant that her mother was present, and that she would be able to see her later on, Y smiled broadly and said “Yes!”
In paragraph 49:
[49] Y said that she would be happy if she were to sleep at her mother’s house, and that she would do so now if possible.
At the conclusion of the interview, Y again asked when she would see her mother.
Ms A notes that during the observation session of the father with children, interactions between the children and their father were characterised by warmth and affection and appeared to be a familiar dynamic:
The observation was suggestive of a well-bonded family unit.
In relation to the observation session of the children with their mother she notes that they:
…chatted and laughed throughout the observation…Y sat in close proximity to [the mother] throughout the observation, appearing unwilling to allow her mother to be out of her sight. They appeared to enjoy each other’s company. The dynamic between [the mother] and the children appeared warm and familiar, suggestive of a well-bonded family unit.
In the Evaluation section of the Family Report, Ms A notes:
This matter appears to hinge primarily on the issue of [the mother’s] mental health status, and whether or not this alters her capacity to care for the children overnight.
Ms A notes:
[The mother’s] mental health problems and episodes of psychosis would have created a significant emotional burden for [the father] and for the children, who would have probably experienced [the mother’s] behaviours as frightening at times.
I note particularly Ms A’s comments in paragraphs 60 to 62 of the Family Report, which are set out in full:
[60] If the children continue to spend day time only with [the mother], the children will still retain their relationships with her. The children have spent no overnight time with their mother for about two years, yet it is clear from the observations that their relationships with her are strong. This is almost certainly due, in part, to [the father’s] efforts to shield the children from [the mother’s] illness and to facilitate their relationships with their mother, which is highly commendable. This is also due to [the mother] being a warm and caring parent. It is understandable that [the mother] would want to spend overnight time with Y and X, and this would probably benefit the children and enhance their relationships with her.
[61] [The mother] is to be commended for reaching a point where her mental health is stable. This would have been a considerable struggle for [the mother], and self-acceptance of her mental health status probably did not come easily. It is positive to note that [the mother] appears to have maintained a level of mental health that allows her to function, for over two years. [The mother’s] reasoning, that she has maintained consistent employment for this period of time, and that she already spends unsupervised time with the children, is valid. Based on the observations with the children and [the mother], it is clear that X’s and Y’s relationships with their mother are warm and loving. So long as [the mother] complies with her mental health treatment, there would not appear to be any obvious reason why the children could not trial overnight time with [the mother], perhaps one night per week. If this is positive, there would not appear to be any reason why overnight time could not increase. Any increase in overnight time should be gradual in order to allow the children time to adjust to a new parenting arrangement, and to give [the mother] time to learn how to manage the children’s routines again. [The father] may also need time to feel comfortable with this, given his protectiveness of the children. If [the mother] should become unwell again, or if she ceases attending the mental health service and/or taking mediation, the children’s safety and/or wellbeing would probably be at risk, as would the children’s relationships with her. If this occurs, or if [the mother] finds it difficult to manage the children’s routines, a review of the parenting arrangements would be a matter of urgency, whether overnight time is happening or not. X’s suggestion that he and Y could spend overnight time with their mother on weekends, may be a prudent one, at least at first.
[62] As X and Y grow and mature, it may be necessary for them to learn about [the mother’s] illness. Children who experience having one or both parents with a mental illness often bear a significant emotional burden, and it will be necessary to support the children in this. It is positive to note that [the mother] has identified this and has made an attempt to address it by showing the children the video, “My neighbour …”, which, according to [the mother], centres around children with a mother who is unwell. It is suggested that, in the future, X could access other supports and resources for children who have a parent with mental health concerns. Some community organisations run programs to address this issue. It is further suggested that [the father] and [the mother] could teach the children about bi polar disorder and foster insight and understanding about their mother’s mental health. This would be particularly important for the children if [the mother] becomes unwell again while again, is hospitalised or seems changed. X is probably old enough to be provided with a plan and instructions regarding what to do if [the mother] becomes symptomatic, regardless of whether the children spend overnight time or day only time with her. It is suggested that both parents access information about how children experience having a parent with mental health concerns.
And:
[66] So long as [the mother] continues to enjoy good health and to comply with her mental health treatment, there would appear to be no reason why the parents should not share parental responsibility for X and Y. If [the mother] becomes unwell again, or if she stops receiving mental health care, it may be more practical for [the father] to have sole parental responsibility for Y and X.
Ms A recommends that the children trial spending Saturday nights with their mother, in addition to the time spent under the current orders. She further recommends that the parents seek information about supporting children who have a parent with mental illness and that the children have access to age-appropriate resources about parental mental health.
Ms A recommends that the parents both attend mediation or a post-separation parenting program and that any mediator the parents attend upon have access to the Family Report. She recommends that parents share parental responsibility, provided the mother remains well and compliant with her mental health treatment.
Both Mr Oliveri for the father and Ms McConaghy of Counsel for the mother provided written submissions in their Case Outline documents. I have had close regard to those submissions and to their oral submissions at the interim hearing, as well as the oral submissions made by Mr Blumberg as Independent Children’s Lawyer.
Mr Blumberg in submissions indicated that he had interviewed the children on 16 May 2019, the day before the interim hearing, that they were delightful children, that their biggest wish was that their parents would reconcile but the next biggest wish was that their parents be happy. Mr Blumberg submitted that X indicated that if his mother and father are happy, he is happy to do overnight stays with his mother, and that Y indicated that she wanted to spend overnight time with her mother.
During submissions, Ms McConaghy for the mother indicated that she adopted the times set out by the Independent Children’s Lawyer in his Case Outline document under the heading “Current Arrangements” for her spending time with the children on Tuesday, Wednesday and Thursday, from 6:45pm until 8:00pm on Tuesday, 6:00pm until 8:00pm on Wednesday and 6:00pm until 8:00pm on Thursday. In addition, Ms McConaghy sought that the mother spend time with the children from after school on Friday until 8:00pm on Saturday each weekend, and from 10:00am until 8:00pm each alternate Sunday.
The Relevant Law
The Full Court and High Court have authoratively discussed the approach to be followed in interim parenting hearings by reference to the legislative pathway.[1]
[1] See Goode & Goode (2006) FLC 93-286 at [81] and [82]; Marvel & Marvel (2010) 240 FLR 367 and MRR & GR [2010] HCA 4.
As is made evident in the cases, and in particular in Goode & Goode, the statutory pathway applies in interim as well as in final hearings, though the court should be cautious in making findings of fact where there is contested evidence.
Section 60B of the Family Law Act 1975 (Cth) (“the Act”) sets out the objects of Part VII of the Act that inform the making of parenting orders and the principles behind those objects. I have considered those objects and the principles behind those objects in formulating these reasons and the parenting orders that result.
Section 60CA of the Act provides that in deciding whether to make a particular parenting order in relation to a child, a Court must regard the best interests of the child or children as the paramount consideration. It is not the only consideration, but must be the paramount consideration.
Section 60CC of the Act provides that in determining what is in the child’s best interests, the Court must consider the primary considerations set out in subsection (2), noting the weighting requirement in subsection (2A), and the additional considerations set out in subsection (3).
Section 61DA(3) provides that when making a parenting order in relation to a child, the Court must apply a presumption that it is in the best interests of the child for the child’s parents to have equal shared parental responsibility for the child. When the 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. The presumption does not apply in cases where there are reasonable grounds to believe that a parent of the child has engaged in abuse of the child or family violence. When the presumption applies it may be rebutted by evidence that satisfies the court that it would not be in the best interests of the child for the child’s parents to have equal shared parental responsibility for the child.
Pursuant to section 65DAA, if a parenting order provides for a child’s parents to have equal shared parental responsibility for the child, the Court must first consider whether the child spending equal time with each of the child’s parents would be in the best interests of the child, and whether that would be reasonably practicable, and if it is so in the best interests of the child AND reasonably practicable, consider making an order for the child to spend equal time with each of the parents.
If equal time is found not to be in the child’s best interests, or impracticable, or is found to be in the child’s best interests and practicable, but the Court considers and rejects equal time with each parent, as a result of consideration of one or more of the matters in section 60CC, then the Court must consider making an order that the child spends substantial and significant time (as defined in section 65DAA (3)) with the parents with whom the child does not live, on the same triple-step basis as for the consideration of equal time.[2]
[2] See MRR v GR [2010] HCA 4.
Under the combination of sections 60CA, 60CC, and 65D if neither equal time nor substantial and significant time is considered to be in the best interests of the child, or is impracticable, or are considered to be in the best interests of the child and practicable, but the Court after considering making such an order does not do so, then the Court may make such orders in the discretion of the Court it thinks proper, being orders that are in the best interests of the child, as a result of consideration of one or more of the matters in section 60CC.
The process is one involving the exercise by the Court of a judicial discretion.
As was said by the High Court in Bondelmonte & Bondelmonte[3] at paragraph 32 of the joint judgment of the bench:
[32]A parenting order made under s 65D involves the exercise of a judicial discretion because it is made by reference to a paramount consideration of a general kind, the best interests of the child, which involves an overall assessment of a number of other considerations, either statutorily prescribed or considered by the court to be relevant. The primary considerations in s 60CC(2) are matters to be borne in mind as consistent with the objects of Pt VII. The additional considerations in s 60CC(3) require assessments of the matters there listed by reference to the circumstances of the case. They involve value judgments in respect of which there may be room for reasonable differences of opinion [Norbis v Norbis (1986) 161 CLR 513 at 518], as does the overall assessment of what is in the best interests of the child.
[3] Bondelmonte & Bondelmonte (2016) FLC 93-698.
In relation to the considerations in section 60CC, the Full Court said in Banks & Banks,[4] at paragraphs 47 to 50:
[47]As the Full Court pointed out in Goode, the fact there will often be little uncontested evidence in interim proceedings means that only limited consideration may be able to be given to the relevant s 60CC factors.
[48]It should also be said that in parenting proceedings, as in all civil litigation, it will be the issues that are joined that will dictate which s 60CC factors are relevant. By their nature, interim parenting proceedings should be confined to those issues which, in the best interests of the child, require determination prior to a proper determination at a trial. The fact such disputes are commonly dealt with in overcrowded court lists makes it even more desirable to identify with precision those issues which can, or should, be resolved on an interim basis.
[49] …there is a risk that in discussing every s 60CC factor, the judicial officer may lose sight of the forest for the trees. It is also important to stress here that the requirement to “consider” each factor does not mean each must be discussed, especially where the evidence leads inexorably to a particular conclusion: SCVG & KLD (2014) FLC 93-582.
[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. Moreover, it will be a sterile exercise to determine whether or not particular facts are disputed if they are relevant only to one of the non-determinative s 60CC considerations. Properly understood, we do not interpret what was said in Goode as meaning that in an interim case, each and every fact must be characterised as disputed or not; and that each s 60CC factor must be traversed where it is obvious on the facts and issues joined that there are only one or two decisive factors.
See also Vanzin & Vanzin [2014] Fam CAFC 247 at [22]; Goode & Goode (2006) FLC 93-286 at [68]; Sun Alliance Insurance Ltd –v- Massoud [1989] VR 8 at 19 (lines 36 to 43).
[4] Banks & Banks (2015) FLC 93-637.
I will consider the relevant section 60CC considerations, then give attention to the requirements of section 61DA in relation to parental responsibility and what may flow from that on the legislative pathway, then consider and discuss the issues in this interim hearing, all in the light of my considerations of section 60CC.
Contested Evidence in Interim Hearings
Often in interim hearings on parenting issues, the Court is presented with a mass of conflicting and contested evidence. Despite the evidentiary difficulties inherent in interim hearings, the Court must proceed in accordance with the objects and their underlying principles in section 60B of the Act and follow the legislative pathway set down in that Act[5] and make a decision and resultant interim orders to regulate parenting matters in the best manner possible pending a full testing of the evidence in a final hearing.
[5] Goode & Goode.
Fortunately in this matter, the evidence is not conflicting as to the central issue being the question of any risk to the children in the mother’s care overnight consequent upon the possibility of her suffering a relapse in her mental health.
There is conflicting evidence in relation to the issue raised by the mother about appropriate adult supervision of the children whilst in the father’s care on occasions when he is attending his business premises (the business), but that issue can be addressed, in the children’s best interests, by a mild injunctive order, if after consideration of the matters referred to in section 60CC, I determine that such order is appropriate.
The Primary and Secondary Considerations in Section 60CC
Sub-section 60CC(2) sets out the primary considerations the Court must consider when determining what is in a child’s best interests. The first is the benefit to the child of having a meaningful relationship with both of the child’s parents and the second is the need to protect the child from physical or psychological harm from being subjected to, or exposed to, abuse, neglect or family violence.
Sub-section 60CC(2A) mandates that in applying the primary considerations the Court is to give greater weight to the need to protect the child over the benefit of the child of having a meaningful relationship with both of the child’s parents.
Meaningful Relationship
What is meant by a “meaningful relationship” in section 60CC(2)(a) has been the subject of a number of leading cases, and for the purposes of this interim hearing I refer to what the Full Court said in McCall & Clarke:[6]
[6] McCall & Clark (2009) FLC 93-405.
[118] It appears to us that there are three possible interpretations of s 60CC(2)(a):
(a)one interpretation is that the legislation requires a court to consider the benefit to the child of having a meaningful relationship with both of the child’s parents by examination of evidence of the nature of the child’s relationship at the date of the hearing, to make findings based on that evidence, which findings will be reflected in the orders ultimately made (“the present relationship approach”);
(b)a second interpretation is that the legislature intended that a court should assume that there is a benefit to all children in having a meaningful relationship with both of their parents (“the presumption approach”); and
(c)the third interpretation is that the court should consider and weigh the evidence at the date of the hearing and determine how, if it is in a child’s best interests, orders can be framed to ensure the particular child has a meaningful relationship with both parents (“the prospective approach”).
[119] We conclude that the preferred interpretation of benefit to a child of a meaningful relationship in s 60CC(2)(a) is “the prospective approach” although, depending upon factual circumstances, the present relationship approach may also be relevant. We note however that s 60CC(3)(b) requires a court to explore existing relationships between a child and his or her parents and other persons, including grandparents. If the interpretation we have set out in (a) above were exclusively applied, that interpretation would limit a court making appropriate orders in circumstances where a significant relationship had not been established between a child and a parent at the date of trial.
[120] We reject the interpretation in sub-paragraph (b). In our view if the legislature intended to elevate the benefit to a child of a meaningful relationship to a presumption it would have said so in clear and unambiguous language.
[121] In coming to our conclusions we accept as appropriate the interpretation of “meaningful relationship” set out by Brown J in Mazsorski. Consistently with our conclusions we also agree with the reasoning of Bennett J in G & C.
[122] In reaching these conclusions, we also consider the legislation requires a court to focus on the benefit to the child of a meaningful or significant relationship. No doubt in the majority of cases there will be a positive benefit to a child of having a significant relationship with both parents, but there will also be some cases where there will be no positive benefit to be derived by a child by a court attempting to craft orders to foster a relationship with one parent if this would not be in the child’s best interests.
The children have a meaningful relationship with both of their parents. On the assessment of Ms A in the Family Report, they have a close and loving relationship with both parents:
[58]…The Family Consultant has no doubt that [the father] has a warm, loving relationship with both children, and an excellent capacity to nurture and protect them.
[61]…it is clear that X’s and Y’s relationships with their mother are warm and loving.
There is obvious benefit to both children in maintaining and continuing to develop and deepen heir meaningful relationship with both parents.
Risk
As stated earlier, the central issue is the mother’s proposal that interim orders be made expanding her time with the children to include overnight time each week, and the father’s opposing proposal that there be no increase in time at this stage due to the father’s concern that the children would be at risk if overnight in their mother’s care and she suffered a relapse in her mental health, exposing the children to the consequences thereof, both as to their experiencing any resultant inappropriate behaviour by their mother, including possible aggression and the possibility of them being “at large” (my phrase, not the father’s) and without appropriate adult care.
The appropriate approach to assertions of risk is well established. In M & M,[7] at paragraphs 24 and 25 the High Court said, when dealing with the concept of risk in parenting proceedings:
[24] In resolving the wider issue the court must determine whether on the evidence there is a risk of sexual abuse occurring if custody or access be granted and assessing the magnitude of that risk. After all, in deciding what is in the best interests of a child, the Family Court is frequently called upon to assess and evaluate the likelihood or possibility of events or occurrences which, if they come about, will have a detrimental impact on the child's welfare. The existence and magnitude of the risk of sexual abuse, as with other risks of harm to the welfare of a child, is a fundamental matter to be taken into account in deciding issues of custody and access. In access cases, the magnitude of the risk may be less if the order in contemplation is supervised access. Even in such a case, however, there may be a risk of disturbance to a child who is compulsorily brought into contact with a parent who has sexually abused her or whom the child believes to have sexually abused her. But that is not the issue in this case.
[25] Efforts to define with greater precision the magnitude of the risk which will justify a court in denying a parent access to a child have resulted in a variety of formulations. The degree of risk has been described as a "risk of serious harm" (v A [1976] VR 298 at 300, "an element of risk" or "an appreciable risk" (In the Marriage of M (1987) 11 Fam LR 765 at 770 respectively), "a real possibility" (B v B (Access) [1986] FLC 91-758 at 75,545), a "real risk" (Leveque v Leveque (1983) 54 BCLR 164 at 167), and an "unacceptable risk" (Re G (a minor) [1987] 1 WLR 1461 at 1469). This imposing array indicates that the courts are striving for a greater degree of definition than the subject is capable of yielding. In devising these tests the courts have endeavoured, in their efforts to protect the child's paramount interests, to achieve a balance between the risk of detriment to the child from sexual abuse and the possibility of benefit to the child from parental access. To achieve a proper balance, the test is best expressed by saying that a court will not grant custody or access to a parent if that custody or access would expose the child to an unacceptable risk of sexual abuse.
[7] M & M (1988) FLC 91-979.
The Full Court in A & A & The Child Representative[8] said at paragraphs 3.23 to 3.25:
[3.23] The task which his Honour was required to perform was to determine whether the evidence was such as to establish that there would be an unacceptable risk to the children if they were to have contact or supervised contact with the husband. The basis of that is that if there were an apprehension that the husband was the perpetrator of this violent assault that, together with the profile of such an assailant referred to in Dr Waters' evidence, to which we will refer later, may cause the Court to conclude that future contact by the father to these young children, at least unless strictly supervised, will carry with it a risk that he may act in a similarly irrational and violent way towards them. This is aside altogether from the question of its effect upon the wife. The concentration here is upon the welfare and safety of the children. In reaching a conclusion on that issue, it is necessary for the Court to form some opinion about the connection between the assault and the husband. It would not be necessary in this exercise to reach a positive conclusion that he was the assailant. On the other hand, if the Court reached a comfortable conclusion that the husband was not the assailant, that would be likely to have a profound effect upon the approach to the question of contact.
[3.24]In cases of this sort often it is not possible for the Court to form a positive view at one end or the other end of this scale of persuasion and it is not necessary for it to do so: see the discussion in N and S (1996) FLC 92-655. The term identified by the High Court in M and M of "unacceptable risk" provides the touchstone for such an enquiry. Usually they are sexual abuse or similar cases, but this approach includes cases of the type identified here which involve the assessment of the risk of future physical and/or emotional harm: see M and M, supra, CLR at 77 referred to above.
[3.25]Here the primary question which his Honour should have addressed was, looking at the whole of the evidence, whether contact (or at least contact which was not strictly supervised) might expose the children to an unacceptable risk because, although it is almost impossible to quantify in any precise way, it may place those children in circumstances of potential jeopardy in the future in their father's care.
[8] A & A & The Child Representative (1998) 22 Fam LR 756.
Murphy J in Harridge & Anor & Harridge[9] at paragraph 73 quoted an article by B. Mahendra,[10] a British psychiatrist and barrister, and provided a helpful list for trial judges for determining matters where unacceptable risk is raised:
[9] Harridge & Anor & Harridge[2010] FamCA 445.
[10] Psychiatric Risk Assessment in Family and Child Law' (2008) 38 Family Law 569.
(a) What harmful outcome is potentially present in this situation?
(b) What is the probability of this outcome coming about?
(c) What risks are probable in this situation in the short, medium and long term?
(d) What are the factors that could increase or decrease the risk that is probable?
(e) What measures are available whose deployment could instigate the risks that are probable?
The Full Court in Napier & Hepburn[11] referred extensively at paragraph 56 to the judgment of Fogerty J in N v S[12] at 82,713, and emphasised that it is not for the Court to find a solution which will eliminate any chance of serious harm. Rather, it is to balance the harm that will follow if the risk is not minimised or removed, as against a normal, healthy relationship between a parent and a child not being permitted to prosper.
[11] Napier & Hepburn(2006) FLC 93-303.
[12] N v S (1996) FLC 92-655.
To go forward from an assessment of unacceptable risk to a finding that certain conduct giving rise to the assertion of unacceptable risk has actually occurred places the onus on the party asserting that the conduct has occurred to establish, on the balance of probabilities, that the assertion is correct. As pointed out by the Full Court in Re W; Sex Abuse (Standard of Proof),[13] the standard of proof the Court is required to apply must be towards the strictest end of the civil spectrum as set out in Briginshaw v Briginshaw,[14] noting that the appropriate reference is now to s 140 of the Evidence Act 1995 (Cth) and in particular s 140(2)(c).[15] Inexact proofs, indefinite testimony, or indirect inferences are insufficient to ground a finding of abuse.
[13] Re W; Sex Abuse (Standard of Proof) (2004) 32 Fam LR 249.
[14] Briginshaw v Briginshaw (1938) 60 CLR 336.
[15] Johnson & Page (2007) FLC 93-33 at [72].
In this case it is not in contest that the mother has, in the past, had occasions when her mental health caused her to behave in inappropriate ways as regards the care of children and led to police intervention, her hospitalisation and the imposition on the mother of a mental health treatment plan. It is also not in contest that the mother’s mental health has been stable for a period of over two years and that during that time she has complied with her treatment plan.
The father presents no evidence to the contrary and says to the Family Consultant at interview on 14 March 2019:
[The mother’s] mental health is currently stable.
The father then goes on to voice his concern as to risk that:
…this does not mean that she will not relapse in the future.
The mother may do, only time can tell. In assessing the risk, the Court must look to the evidence and, in line with the very helpful list stated by Murphy J in Harridge, I must make an assessment of whether or not there is a risk, and if there is a risk, the probabilities of the risk manifesting, of what factors may increase or decrease the probability of the risk manifesting, and therefore if the risk is an unacceptable risk, and if an unacceptable risk, what, if anything, may be done to mitigate the risk.
In Johnson & Page at paragraphs 62 to 72, the Full Court (May, Boland & Stevenson JJ) set out a detailed summary of the relevant law relating to unacceptable risk up to that time, and I have had regard to the whole of those paragraphs of that judgment. In particular at paragraphs 68 and 71:
[68]In his recent paper entitled ‘Unacceptable risk – A return to basics’ the Hon. John Fogarty A.M. set out his summary of the principles emerging from M and M as follows:
1. The decisive issue is and always remains the best interests of that child. All other issues are subservient.
2. 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.
3. Where past abuse of a child is alleged it is usually neither necessary nor desirable to reach a definitive conclusion on that issue. Where, however, that is done the Briginshaw civil standard of proof applies.
4. The circumstance, if it be so, that the allegation of past abuse is not proved in accordance with Briginshaw, does not impede reliance upon those circumstances in determining whether there is an unacceptable risk.
5. The concentration in these cases should normally be upon the question whether there is an unacceptable risk to the child.
6. The onus of proof in reaching that conclusion is the ordinary civil standard.
7. But the components which go to make up that conclusion need not each be established on the balance of probabilities. The court may reach a conclusion of unacceptable risk from the accumulation of factors, none or some only of which, are proved to that standard.
…
71.We generally agree with Mr. Fogarty’s seven point summary (see paragraph 68). We assume point seven of that summary is directed to the requisite standard of proof. We think a Judge may be cautious in coming to a finding of unacceptable risk if none, rather than some only, of the accumulation of factors considered, satisfy the standard of proof (but see Malec v J C Hutton Proprietary Limited (1990) 169 CLR 638).
In Deiter & Deiter[16] at paragraph 61, the Full Court said as follows:
[61]The assessment of risk is one of the many burdens placed on family law decision makers. Risk assessment comprises two elements – the first requires prediction of the likelihood of the occurrence of harmful events, and the second requires consideration of the severity of the impact caused by those events. In our view, the assessment of risk in cases involving the welfare of children cannot be postponed until the last piece of evidence is given and tested, and the last submission is made. We accept, however, that it is always a question of degree depending on the evidence that is before the Court.
[16] Deiter & Deiter [2011] FamCAFC 82.
In SS & AH[17] at paragraph 100, the Full Court indicated, in the context of discussing the obligations of the Court whilst conducting interim children’s proceedings in circumstances where the evidence available was contradictory in nature, but nonetheless raised significant welfare concerns for the children concerned as follows:
[100]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.
[17] SS & AH [2010] FamCAFC 13.
The asserted risk is identified as the possibility, and only a possibility, of a relapse being suffered by the mother in relation to her mental health while the children are in her sole care overnight and of the children not being able to have the mother’s attention at night if she is unable to be woken due to her medication. The father does not seek to restrict the mother’s current daytime occasions with the children under the present interim orders.
The harmful outcome potentially presented by that risk is, as stated, the possible exposure of the children to the consequences thereof, both as to their experiencing any resultant inappropriate behaviour by their mother, including possible aggression and the possibility of them being “at large” and without appropriate adult care.
Is this a risk?
Certainly on the evidence there is a risk of the children being exposed to inappropriate, possibly overly aggressive behaviour by the mother if she relapses, but as to being without care and “at large”, the children, and particularly X, are of an age where they can summon help, including by contacting their father by telephone so long as a telephone, for instance their mother’s mobile telephone, is available to them for use in the event of such a situation arising.
Going to the often repeated phrase in asserted risk cases, on both sides:
What can happen at 3:00am can happen at 3:00pm and what can happen at 3:00pm can happen at 3:00am.
The father voiced his reservations about the children in the mother’s care on an overnight basis due to the risk he asserts, and it must be noted he expressed to the Family Consultant a general concern in relation to the children in the mother’s unsupervised care due to the asserted risk, but he does not seek to reimpose any supervision on the mother’s daytime time spent with the children.
The children would be exposed to the same risks if the mother relapsed, whether such relapse occurred with symptoms at 3:00pm during daytime with the children or 3:00am during night-time with the children.
What is the probability of the risk manifesting while the children are in the mother’s care overnight?
It is difficult to ascertain with any degree of certainty, as the possibility of relapse must be inherently uncertain in a general sense. There are matters that affect that possibility, matters in the hands of the mother, for example compliance with her appointment regime with her treating health professionals and compliance with her medication regime.
The mother has demonstrated for over two years that she can and has maintained these regimes.
What risks are probable in the short, medium and long term?
Due to the mother’s demonstrated ability to remain compliant with her treatment and medication regime during a period of over two years, I find that the risk of relapse is at the lower end of the probability assessment.
What factors could increase or decrease the probability of the risk occurring?
The same referred to in the last paragraph, being the mother’s compliance or non-compliance with her treatment and medication regime.
What measures are available whose deployment could mitigate the risk?
The making of appropriate orders for the mother to remain compliant with her treatment regime and her medication requirements, to attend regularly on her treating psychiatrist and any other health professional that psychiatrist recommends that the mother attend.
Is there a risk?
I find that there is a risk to the children if the mother suffers a relapse in her mental health while they are in her care over-night.
Is it an unacceptable risk?
I find that it is not an unacceptable risk given the mother’s demonstrated long term ability to prevent the circumstances that can give rise to that risk occurring by staying compliant with her medical and medication regimes.
Should anything be done to mitigate the risk, albeit that I find that it is not an unacceptable risk?
I find that interim orders should be made in the event that I determine that it is in the children’s best interests to now commence having overnight time with their mother that require the mother to maintain her regular attendance on her treating health professionals and compliance with her prescribed medications.
I am mindful of the requirement in section 60CC(2A) to give the need to protect the children greater weight than the benefit to the children of a meaningful relationship with both parents, but in this matter I find that there is no conflict between the two considerations.
The Additional Considerations
Any views expressed by the child and 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
The children’s views are expressed in the Family Report and quoted above.
Both children want to begin spending over-night time with their mother. At ages 9 and 6, the children’s views and wishes do not carry a great deal of weight.
Y has not yet reached the cognitive age of 8 years. In the context of this matter, it is a consideration in favour of finding that overnight time between the mother and the children is in the children’s best interest because despite having been exposed in the past to the mother’s relapses, which Ms A suggests the children “would have probably experienced …. as frightening at times”, and with the children having had now long-term experience of time with the mother during the daytime, their wish to begin spending overnight time with their mother demonstrates the comfort in their mother’s care and their comfort with increasing that time to include overnight occasions.
The nature of the relationship of the child with: (i) each of the child’s parents; and (ii) other persons (including any grandparent or other relative of the child)
The nature of the children’s relationships with each of the parents has been explored in the consideration of the benefit to the children of having a meaningful relationship with both of the parents. The children each have a meaningful relationship, a close and loving relationship, with each of their parents.
The importance of this consideration in determining what orders should be made in the best interests of the children relates to the children having adequate opportunity to maintain and continue to develop that relationship with their mother, having only spent limited time, daytime only, with their mother pursuant to the interim orders made in October 2017 and May 2018.
I find that there is nothing in this consideration that stands in the way of the mother’s time with children being expanded to overnight time, rather, consideration of the nature of the relationship of the children and their mother is a matter in favour of an expansion of the time.
The likely effect of any changes in the child’s circumstances, including the likely effect on the child of any separation from: (i) either of his or her parents; or (ii) any other child, or other person (including any grandparent or other relative of the child), with whom he or she has been living
In considering the likely effect of any changes in the children’s circumstances, including the likely effect on children of spending less time with their father to enable them to spend more time with their mother, I find that there is nothing in the evidence that leads me to find that there would be any detriment to the children’s best interests in that “transfer” of time between the children and their parents. Rather, it would be of benefit to the children in relation to their relationship with their mother without it having any negative effect on the relationship with their father.
The practical difficultly and expense of a child spending time with and communicating with a parent and whether that difficultly or expense will substantially affect the child’s right to maintain personal relations and direct contact with both parents on a regular basis
On the evidence on interim hearing, I find that there is no practical difficulty or expense involved in the children spending the proposed increase in time with their mother that would mitigate against that expansion of time.
The capacity of: (i) each of the child’s parents; and (ii) any other person (including any grandparent or other relative of the child); to provide for the needs of the child, including emotional and intellectual needs
In considering parental capacity, I find the only element thereof that needs consideration is the mother’s capacity to provide for the needs of the children, including emotional and intellectual needs, overnight from after school on Friday until 8:00pm on Saturday, as sought by the mother.
There is nothing in the evidence to indicate that since she has taken the necessary steps to stabilise her mental health there has been any lack of capacity on the mother’s part to care for the children for the weekly occasions on Tuesday to Friday nights, Saturday afternoons and all day Sundays.
The only questions raised in the father’s evidence touching on the mother’s capacity to appropriately care for the children on the overnight basis relate to the stability of her mental health, which he acknowledges is currently stable, and the mother’s ability to be awoken in the night after taking medication if either of the children need her. I have addressed these concerns when examining the elements of risk as a necessary part of my consideration of the primary consideration relating to any need to protect the children.
I find on the basis of all of the evidence that the mother has the capacity to provide for the needs of the children during the times that she seeks to have the children in her care under her proposed orders, including the weekly overnight occasions from end of school Friday to 8:00pm on Saturday.
The maturity, sex, lifestyle and background (including lifestyle, culture and traditions) of the child and of either of the child’s parents, and any other characteristics of the child that the Court thinks are relevant
The children have had, and will continue to have, wonderful opportunities whilst in their father’s care to involve themselves in their Country R heritage. They have on several occasions now accompanied the father on holidays to Country R, and they can continue to do so. It is as important for the children to have the opportunity to involve themselves in and develop their understanding and appreciation of their Country L heritage.
Whilst at the present time this cannot involve accompanying their mother on holidays to Country L, having overnight time with their mother will increase the opportunities to learn from and with their mother about their Country L cultural heritage. I note the evidence in the mother’s affidavit of 28 February 2019 relating to her desire to read bedtime stories to the children, repeated in her interview with the Family Consultant, and having overnight time once each week will give the mother and the children an opportunity at such times to join together in exploring Country L culture.
The attitude to the child, and to the responsibilities of parenthood, demonstrated by each of the child’s parents
I find on the evidence that both the parents have demonstrated an appropriate attitude to the children and the responsibilities of parenthood, subject only to the assertions made by the mother about the father’s occasions of leaving the children without adequate adult supervision. These assertions are denied by the father, and therefore is a matter of disputed evidence in relation to which the Court is not in a position to make a finding on an interim basis.
Parental Responsibility
On 28 February 2017, Justice Loughnan in the Family Court of Australia made an interim order that the father have sole parental responsibility for the children.
At the end of these reasons I will be making parenting orders in relation to the children, and accordingly, I must consider the matters referred to in section 61DA of the Act relating to the presumption that it is in the best interests of the children for their parents to have equal shared parental responsibility for them.
The interim order made by His Honour on 28 February 2017, was made in circumstances relating to the matter coming before the Court on an urgent basis following the filing of the father’s Initiating Application on 23 February 2017, and no doubt based upon the evidence contained in the father’s affidavit sworn or affirmed by him on 17 February 2017, and filed with his Application. It is appropriate to reconsider this order and responsibility now.
There are no reasonable grounds to believe that either parent has engaged in abuse of either of the children or in family violence. There is nothing in the evidence that I have considered that would lead me to make a finding that it is not appropriate in the current circumstances for the presumption of equal shared parental responsibility to be applied on an interim basis.
The Family Consultant notes in paragraph 63 of the Family Report that:
[The father] and [the mother] do not communicate with each other effectively.
The Consultant goes on to note that this lack of effective communication has led to them being unaware of significant similarities in their approach to parenting, and as a result, has led to unnecessary criticism of each by the other. It is suggested in the Report that the co-parenting relationship might be improved through parents completing a post-separation parenting program. On this point, the Family Consultant notes:
The children would benefit greatly if their parents are able to communicate and co-parent effectively.
I find that it is appropriate in this matter to make an order that both parties engage in a ‘Parenting after Separation’ course through Uniting.
I find that there is no evidence presented on the interim hearing that would satisfy me that it would not be in the best interests of the children for the parents have equal shared parental responsibility for them.
Accordingly, I intend to apply the presumption in making interim orders.
Section 65DAA: Court to Consider the Children Spending Equal Time or Substantial and Significant Time with Each Parent in Certain Circumstances
Neither parent seeks an order that the children spend equal time, or indeed that the children spend substantial and significant time, with both parents.
The interim orders sought by the mother provide a modest increase in the amount of time to children would spend with her by adding the overnight occasion bridging her Friday to Saturday time. Since the inception of these proceedings, the time the children spend with the mother has been on a day time only basis, supervised until 8 May 2018.
After my consideration of the matters set out in section 60CC in these reasons, I find that it is currently not in the best interests of the children that they spend equal time with each of their parents. It would be reasonably practicable for the children to spend equal time with each of their parents on the basis that the parents live in fairly close proximity, with the mother at Suburb H and the father at Suburb O.
The parents are able to communicate with each other; that is not to say they enjoy doing so or would do so for any other purpose, but they can do so in relation to matters affecting the children’s welfare. As I find it is not in the best interests of the children to spend equal time with each of their parents, though reasonably practicable, I do not need to consider making an order to provide for equal time.
Neither parent seeks an order that the children spend substantial and significant time with each of their parents. The orders sought by the mother on the interim basis do not amount to what the Act provides will be taken to be a child spending substantial and significant time with a parent as, amongst other things, it does not allow the mother to be involved in the children’s school day routines.
The competing proposals of the parties are on the mother’s part that she begin spending overnight time with the children each Friday to Saturday and on the father’s part that time between the mother and the children stay as it has been since interim orders of October 2017 and May 2018.
My consideration of the matters in section 60CC leads me to find that it is appropriate to progress the time spent between the children and the mother by going to overnight time in accordance with her application as a “next step” in the children’s parenting arrangements, and that steps beyond that amounting to substantial and significant time or equal time are for consideration after a final hearing.
Accordingly, I find that it is not in the best interests of the children to spend substantial and significant time with each of their parents, but it is in their best interests to spend substantial and significant time with their father and to spend less than substantial and significant time on the interim basis with their mother.
It is reasonably practicable for the children to spend substantial and significant time with each of their parents, but as I have found that it is not in their best interests to do so I will not consider making an order to that effect.
Conclusion
At the commencement of the interim hearing, Ms McConaghy provided to the Court a Minute of Orders sought by the mother. A Minute of Orders sought was also provided by the Independent Children’s Lawyer.
During submissions, Ms McConaghy indicated on the mother’s behalf that the mother opposed the order sought by the father (that her application simply be dismissed), that she sought orders that were a combination of those sought in her Minute of Order and in the Independent Children’s Lawyer’s Minute of Order, that is, to spend time with the children as follows:
(1)With Y from the end of school until 8:00pm each Tuesday;
(2)With X from the end of school until 8:00pm each Wednesday;
(3)With both children from after-school until 8:00pm each Thursday;
(4)With both children from after-school each Friday until 8:00pm on Saturday;
(5)At the expiration of six months from the making of interim orders, with both children from after-school each Friday until 8:00pm on Sunday each alternative weekend; and
(6)At the expiration of twelve months from the making of interim orders, with both children from after-school on Thursday and start of school on Monday each alternate weekend;
(7)All overnight time to be on condition that the mother provides the children with a bunk bed for each to sleep in, and that the mother continues treatment for her mental health issues with her current treating professionals and that she follow all directions of such professionals.
The mother also indicated through her Counsel an acceptance of the other orders sought by the Independent Children’s Lawyer, that both parties be restrained from mentioning or discussing the other parents mental health with the children, and that the father be allowed to take the children to Country R in each July school holidays on the basis that he provide full itinerary details to the mother and enable the children to have regular communication with the mother during the trip.
On the basis of my consideration of all of the evidence before the Court on interim hearing, and of the primary and additional considerations set out in section 60CC of the Act, I find that it is appropriate for interim orders to remain enabling the mother to spend a single overnight occasion each week with the children, progressing after a period of six months to a double overnight occasion each fortnight, and then progressing after a further six months to a triple overnight occasion each fortnight. In this regard I note again the material reproduced earlier in these reasons from paragraph 61 in the Family Report.
I find that it is appropriate to make an interim order requiring the mother to provide a bunk bed for each of the children to sleep in while spending overnight time in her care.
I find that it is very much in the best interests of the children to order that the mother continues treatment for her mental health issues with her current treating professionals, and for the mother to follow all directions of such treating professionals, including as to medication.
I do not find that it is in the best interests of the children to make the orders sought by the Independent Children’s Lawyer, and supported by the mother, that both parties be restrained from mentioning or discussing the other party’s mental health in front of the children. I refer to paragraph 62 of the Family Report reproduced earlier in these reasons and agree with the opinion of the Family Consultant that it would be in the children’s best interests to have an awareness of matters surrounding their mother’s mental health problems, particularly as to her bipolar disorder so as to:
…foster insight and understanding about their mother’s mental health.
I find that it is appropriate to make a general non-derogation order as that would include within its ambit the requirement that the father does not discuss the mother’s mental health with the children in any manner derogatory of the mother or pejorative of persons who suffer from mental health issues generally.
It is also appropriate that I make an order granting leave to the Independent Children’s Lawyer to relist the matter before the Court on giving five days’ notice to the Court and the other parties, so that if there is some circumstances such as a relapse in relation the mother’s mental health that changes the circumstances so as to bring into question the appropriateness of the interim orders, I will ensure the matter can be back before the Court in quick time.
Accordingly I make the orders set out at the start of these reasons.
I certify that the preceding one-hundred and sixty (160) paragraphs are a true copy of the reasons for judgment of Judge Morley
Date: 2 October 2019
Key Legal Topics
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Family Law
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Jurisdiction
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Procedural Fairness
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