Marsden & Marsden (No 2)

[2015] FamCA 855

FAMILY COURT OF AUSTRALIA

MARSDEN & MARSDEN (NO 2) [2015] FamCA 855

FAMILY LAW – CHILDREN – INTERIM PROCEEDINGS – Competing applications – Interim arrangements pending expedited final hearing – Where previous orders provided for the three children to reside with the mother – Where criminal proceedings brought against the father have been discontinued – Where there is an Apprehended Violence Order in place protecting the children from the father – Where the eldest child has chosen to reside with the father despite it being inconsistent with that Order  – Interim parenting arrangements varied insofar as the eldest child now lives with the father – Other two children to spend time with the father in accordance with the recommendations of the family therapist.

Family Law Act 1975 (Cth) – ss 4AB, 60B, 60CA, 60CC, 61DA, 64B, 65DAA

Banks & Banks (2015) FLC 93-367
Cowling & Cowling (1998) FLC 92-801
Deiter & Deiter [2011] FamCAFC 82
Goode & Goode (2006) FLC 93-286
T & N (2003) FLC 93-172

APPLICANT: Mr Marsden

RESPONDENT: Ms Marsden

INDEPENDENT CHILDREN’S LAWYER: Ms Robertson

FILE NUMBER: SYC 6980 of 2009

DATE DELIVERED: 14 October 2015

PLACE DELIVERED: Sydney

PLACE HEARD: Sydney

JUDGMENT OF: McClelland J

HEARING DATE: 14 September 2015

REPRESENTATION

FOR THE APPLICANT: Mr Marsden in person

SOLICITOR FOR THE RESPONDENT: Mr Cohen of D H Cohen & Co

SOLICITOR FOR THE INDEPENDENT CHILDREN’S LAWYER: Robertson Solicitors

THE COURT ORDERS, PENDING FURTHER ORDER, THAT:

Live with arrangements

1. A born … 2004 (“A”) and V Marsden born … 2007 (“V”) are to live with the mother.

2. M born … 2002 (“M”) is to continue to live with the father.

Time with and communication

1. The time A and V are to spend with the father is to be as agreed between the parents and in accordance with the recommendations of Ms R, or such other Family Therapist as may be agreed between the parents and the Independent Children’s Lawyer.

2. The time M is to spend with the mother shall be as follows:

   4.1.each alternate week from 3.00 pm (or after school) on Friday until 9.00 am (or before school) on the following Monday; and,

   4.2.such additional time as is agreed between the parents in accordance with the recommendations of Ms R or such other Family Therapist as may be agreed between the parents and the Independent Children’s Lawyer.

Education

1. The mother and father are to each ensure that each child that lives with them attends school each day for the entire day. Should any of the children not attend school for the entire day, the resident parent is to provide to the non-resident parent and the Independent Children's Lawyer a medical certificate forthwith for that the child’s non-attendance at school on that day.

Parenting issues

1. Each parent is restrained from denigrating the other in the presence or hearing of the children or permitting any other person to denigrate the other parent in the presence or hearing of the children.

2. Neither parent shall discuss these proceedings or any other legal proceedings involving a parent with the children.

3. Neither parent shall physically chastise any of the children or permit any other person to physically chastise any of the children.

Family therapy

1. The resident parent is to provide to the non-resident parent and the Independent Children's Lawyer details of therapists, psychologist, paediatricians and a signed authority to enable Ms R (or such other Family Therapist as may be agreed between the parties and the Independent Children’s Lawyer) to contact those professionals for the purposes of information for Family Therapy.

2. The Independent Children’s Lawyer is to provide to Ms R (or such other Family Therapist as may be agreed between the parties and the Independent Children’s Lawyer) all documents that have been filed in these proceedings by the parties together with copies of all the documents that have been produced pursuant to any subpoena served in respect to these proceedings.

3. For the purpose of giving effect to Order 10 above, the Independent Children’s Lawyer is granted leave to uplift and photocopy any documents that have been produced under subpoena in these proceedings.

4. The mother and father are to accept reasonable directions and referrals from Ms R in respect to attendance by them at parenting programs and other related programs to assist with parenting related matters.

5. Each parent is to continue to attend upon Ms R (or such other Family Therapist as may be agreed between the parties and the Independent Children’s Lawyer) on time and remain in attendance for the entire session for the purposes of Family Therapy and is to make each child available for such therapy as is directed or recommended by Ms R or such other Family Therapist as may be agreed between the parents and the Independent Children’s Lawyer.

6. Orders 2, 3 and 4 of these Orders are inconsistent with the Apprehended Violence Order made by the Suburb D Local Court on 23 June 2015 and, pursuant to section 68Q of the Family Law Act 1975 (Cth), the said Apprehended Violence Order is invalid to the extent of the inconsistency.

THE COURT NOTES THAT:

1. The child, M, is to continue to reside with his father with that arrangement made in consultation with the New South Wales Police and noting that that arrangement is inconsistent with the Apprehended Violence Order made by the Suburb D Local Court on 23 June 2015 which relates to that child.

IT IS NOTED that publication of this judgment by this Court under the pseudonym Marsden & Marsden (No 2) has been approved by the Chief Justice pursuant to s 121(9)(g) of the Family Law Act 1975 (Cth).

FAMILY COURT OF AUSTRALIA AT SYDNEY

FILE NUMBER: SYC 6980  of 2009

Mr Marsden

Applicant

And

Ms Marsden

Respondent

And

Independent Children’s Lawyer

REASONS FOR JUDGMENT

Introduction

1. These are parenting proceedings relating to competing interim applications between Ms Marsden (“the mother”) and Mr Marsden (“the father”) in relation to the children of the marriage - M born in 2002 and currently aged 13 (“M”), A born in 2004 and currently aged 11 (“A”), and V born in 2007 and currently aged 8 (“V”) (hereafter “the children”). The competing applications have been made in the context of a lengthy history of litigation between the parties since they separated on 3 November 2009. The children have been significantly affected by the dispute between their parents. M, in particular, has quite complex social and psychological problems.

2. The welfare of the children in the context of these protracted and intense proceedings between the parents is of such concern that, on 18 August 2015, Loughnan J requested that the Director-General of the NSW Department of Family and Community Services intervene in these proceedings, pursuant to section 91B of the Family Law Act 1975 (Cth) (“the Act”).

3. On 22 May 2015, Le Poer Trench J expedited the proceedings. The task before the Court in respect to the parties competing interim applications is to determine, on an interim basis, appropriate parenting arrangements, pending that expedited final hearing.

Background

1. The background relevant to this matter is set out in the judgment of Le Poer Trench J, delivered 22 May 2015.[1] At [9] – [20], his Honour notes that:

   [1] Marsden & Marsden [2015] FamCA 387.

   ·On 3 February 2011, the parties entered into final parenting orders by consent (“the Consent Orders”).

   ·The Consent Orders provided that the children live with the father, that the father have sole parental responsibility and that the children spend time with the mother on alternate weekends, Thursday overnights, and for half school holidays and special days. There were also various orders restraining the father from attending the children’s school at changeover times, from moving the children’s residence and school from the Suburb D area, or from living within a 2km radius of the mother’s home.

   ·The mother alleges that on 27 August 2014 the father assaulted M and A, leaving a bruise on M’s face. The father denies this allegation and says that the bruising could have been caused by M hitting himself or in sports training the following night.

   ·On 29 August 2014, following interviews with M and A, the police charged the father with stalking and intimidating, intending to cause fear or physical or mental harm (domestic violence offence), and with common assault in relation to M and A.

   ·On 30 August 2014, a provisional Apprehended Violence Order (“AVO”) was made naming the children as protected persons.

   ·An interim AVO was made against the father for the protection of the children at the Suburb D Local Court on 3 September 2014.

   ·On 16 September 2014, the mother initiated parenting proceedings in this Court seeking that the Consent Orders be discharged, that the children live with her, that she have sole parental responsibility, and that the children spend no time with the father. The mother also sought interim orders that the Consent Orders be suspended and that the children live with her and spend no time with the mother.

   ·In a Notice of Risk filed by the mother on 16 September 2014, the mother alleged that the father has a history of assaulting M and A, and that he engaged in behaviour which constitutes emotional abuse of the children.

   ·On 9 November 2014, the mother called the police following an incident where M physically and verbally assaulted her.

   ·On 12 November 2014, Senior Registrar Campbell ordered that the children commence living with the mother.

2. Of additional relevance, since November 2014, are the following facts:

   ·On 5 and 9 December 2014, the father’s criminal proceedings were listed for hearing at Suburb D Local Court.

   ·On 11 March 2015, the criminal proceedings were listed at Suburb D Local Court for further hearing, with cross examination of M continuing.

   ·On 23 June 2015, the criminal proceedings were listed for a further hearing at the Suburb D Local Court. The proceedings were, however, discontinued with agreement by the parties for the father to be subject to an apprehended violence order (“AVO”) for a period of nine months. The parties disagree as to why those proceedings were discontinued.

   ·On 14 July 2015, an incident occurred with the mother calling the police in respect to M's behaviour, after she banned him from using the internet. The police attended and called an ambulance to take M to the Suburb D Hospital for assessment by the mental health team. 

   ·On or about 13 August 2015, M was placed in the care of his father after a further disagreement with his mother, regarding the use of the internet, which required police attendance.

Recent Family Law Proceedings

1. On 12 November 2014, Senior Registrar Campbell made the following orders:

   (1)Leave is granted to the father to have these matters relisted before me for further interim hearing once an Independent Children’s Lawyer is appointed and information is available concerning appropriate supervision services.

   (2)The application is otherwise adjourned before me to 21 January 2015 at 10.00 am.

   (3)UNTIL FURTHER ORDER that the children live with the mother.

   (4)That pursuant to s 68L of the Family Law Act 1975 (Cth) an Independent children’s lawyer be appointed for the children, [M] born … 2002, [A] born … 2004 and [V] born … 2007.

   (5)That Legal Aid New South Wales is requested to make arrangements as soon as possible for appropriate representation for the children.

   (6)That the Court advise the Senior Solicitor, Family Law Litigation Section of the Legal Aid NSW of this order forthwith.

   (7)That each party make available to the Legal Aid NSW forthwith copies of all applications and affidavits upon which that party relies together with any existing orders and copies of any relevant reports.

   (8)Having considered seeking advice from a Family Consultant as required by s 11E of the Family Law Act 1975 (Cth), pursuant to s 11F the parties are to attend a meeting or a series of meetings with a Family Consultant nominated by the Child Dispute Section of this Registry as follows:

   (a)the applicant (mother) at 9:00 am on 18 March 2015;

   (b)the respondent (father) at 11:00 am on 18 March 2015.

   (9)The parties must forthwith attend the Child Dispute Section of this Registry to make appointments to attend an intake event for the Child Responsive Program. The parties must attend all meetings fixed by the Family Consultant and ensure that the children attend all meetings as instructed by the Family Consultant.

   (10)Following the conclusion of the meeting/s with the Family Consultant the Family Consultant provide a “Children and Parents Issues Assessment” to the parties, the Independent Children’s Lawyer (if any) and the Court.

   (11)The Family Consultant has permission to inspect the Court file and all documents produced on subpoena once permission to inspect has been granted to a party or the Independent Children’s Lawyer (if any).

   (12)Noted that the parties are advised that if they fail to attend any appointment with a Family Consultant or fail to comply with any instructions the Family Consultant gives to a party, the Family Consultant must report the failure to the Court and the Court can then make orders as it considers appropriate on its own initiative or on application by a party or the Independent Children’s Lawyer.

2. Following an interim hearing on 8 May 2015, on 22 May 2015, Le Poer Trench J made the following orders:

   (1)The hearing of the parenting dispute between the parents is expedited.

   (2)The Independent Children's Lawyer is to forthwith nominate a therapist for the children to attend upon so that therapy may commence forthwith as recommended by the Family Consultant. Each party shall thereafter do all things as may be necessary to ensure the children participate in such therapy.

   (3)The Orders made by Senior Registrar Campbell on 12 November 2014 continue pending further order.

   (4)All other parenting orders made under the Family Law Act 1975 (Cth) and otherwise having effect are suspended pending further order.

   (5)I order that a Family Report be prepared by a Family Consultant of the Court. The report to address the matters which will be determined by me in chambers.

   (6)The Independent Children's Lawyer is to prepare, as soon as her workload reasonably permits, a list of matters which she suggests the Family Report address and she is to seek each of the parent’s approval for same. The Independent Children's Lawyer is to list any other matters sought by each of the parents which the Independent Children's Lawyer does not support and I will determine that matter in chambers.

   (7)Each party and the Independent Children's Lawyer have liberty to restore on short notice to the Court and to the other parties.

3. On 22 July 2015, the father filed an Application in a Case seeking orders to the following effect:

   (1)Pursuant to Order 7 of the orders delivered 22 May 2015, this matter be restored to the list forthwith.

   (2)Liberty to serve this application at short notice.

   (3)That pending further order, the children reside with the husband.

4. On 18 August 2015, the father’s application was listed for a procedural hearing before Loughnan J. His Honour made the following orders:

   (1)Leave is granted to the Independent Children's Lawyer to issue subpoenas.

   (2)Leave is granted to the wife's solicitor to withdraw from the proceedings.

   (3)The proceedings are adjourned for hearing of the father’s interim parenting application (Application in a Case filed 22nd of July 2015) to Justice McClelland on at 10 AM on 14 September 2015, estimated hearing time of half a day.

   (4)The Court notes that the father has filed and served the evidence on which he seeks to rely.

   (5)The mother file and serve any affidavit evidence in response not later than 9 September 2015.

   (6)The Court requests that the Director-General of the Department of Family and Community Services intervene in these proceedings pursuant to section 91 B of the Family Law Act1975 (Cth).

   (7)The Court notes that the Court has been advised that there has been an involvement of the New South Wales Police and the Department in relation to the subject children and the court requests the Director-General give positive attention to the request.

   (8)The Court notes that the parties agree that the child [M] born on … 2002 is currently residing with the father and that that arrangement made in consultation with the New South Wales Police is inconsistent with an Apprehended Violence Order which relates to that child.

Orders Sought

1. As noted, by Application in a Case filed on 22 July 2015, the father sought orders for the children to live with him.

2. The case outline prepared on behalf of the mother for these proceedings, indicated that the mother sought orders to the following effect:

   (1)That all previous parenting orders be discharged.

   (2)That the children live with the mother.

   (3)That the mother have sole parental responsibility for the children.

   (4)That there be no order for contact for the children, [A] and [V] to spend time with the father.

   (5)That [M] spend time with the father as per his wishes.

   (6)Such further or other orders the court deems fit.

3. In oral submissions, it was submitted on behalf of the mother that, if orders are not made for [M] to live with her, then an order should be made for him to spend time with her, and his siblings, every weekend.

4. In her written case outline document, as modified in oral submissions, the Independent Children's Lawyer (“the ICL”) indicated that her preliminary view was that the following interim orders should be made:

Live with arrangements

(1)[A] and [V] to continue to live with the mother.

(2)That [M] continue to live with the father.

(3)That on the orders made, the court notes that the child [M] to continue to live with his father with that arrangement made in consultation with the New South Wales Police and noting that that arrangement is inconsistent with the AVO which relates to the child.

Time with and communication

(4)That time between the children of the non-resident parent is in accordance with the recommendations and directions of [Ms R] as the Family Therapist

Educational issues

(5)That the mother and father shall ensure that each child that lives with them attend school each day for the entire day. Should the child not attend school for the entire day the resident parent to provide to the non-resident parent and the Independent Children's Lawyer a medical certificate forthwith for that the child’s non-attendance at school.

Parenting issues

(6)That neither party shall denigrate or cause a third party to denigrate the other.

(7)That neither parent physically chastise any of the children.

Family therapy

(8)That the resident parent provide to the non-resident parent and the Independent Children's Lawyer details of therapists, psychologist, paediatricians and a signed Authority to enable [Ms R] to contact those professionals for the purposes of information for Family Therapy.

(9)That the mother and father accept reasonable directions and referrals from [Ms R] in respect to attendance at parenting programs and other related programs to assist with parenting related matters.

(10)That each party is to continue to attend upon [Ms R] on time and remains for the entire session for the purposes of Family Therapy and makes each child available for therapy as directed by [Ms R].

(11)That the AVO made at [Suburb D] Local Court on 23 June 2015 is varied to enable the children to have contact with their father in accordance with the recommendations of the Family Therapist.

Recent developments

1. The judgment of Le Poer Trench J delivered 22 May 2015 sets out the respective allegations and contentions of the parties as at that date.

2. Since that time, the most relevant event is an incident that occurred on 14 July 2015, which resulted in the mother calling the police in respect to M's behaviour. Upon the police attending, they arranged for M to be taken to Suburb D Hospital by ambulance for the purpose of undergoing psychiatric examination.

3. The hospital records tendered by the ICL (Exhibit 22) contain the request by the police, under section 22 of the Mental Health Act 2007 (NSW), for M to be assessed. The summary provided by the requesting officer noted:

   [M] has told police he broke a plate and held it to his neck as he doesn't want to live, he has also stated that he hates life and wants it to end. [M] was also very sombre and introverted initially and became stubborn and highly emotional later, crying and hyperventilating. When asked did he think his behaviour was normal [M] has replied "Yes", "I don't want to live.

4. The hospital’s discharge summary, dated 15 July 2015, stated:

   [M] is a 13 yo adolescent, currently living at home with his mother and 2 younger siblings, and currently in Year 7

   [M] was bought in by Police under a section 22 after threatening suicide with a shard of glass, in context of his mother barring Internet access due to behavioural issues, and is on a background of previous diagnosis of depression, previous CAMHS referrals with no engagement by patient, and previous similar threats and homicidal threats when distressed.

   [M] is currently in Yr 7 but has had poor attendance for the last 3 school terms, and no attendance for the last 7 weeks. His mother reports he is constantly on the internet playing "minecraft", and today his mother set a limit by barring his internet access. He has then become intimidating, aggressive and angry, breaking a glass plate and threatening to harm himself with a shard of glass.

   [M] has previously been diagnosed with Depression by his Paediatrician [Dr P], and started on Sertraline, but has recently been non-adherent. He has had previous threatening behaviours towards his mother and siblings resulting in police taking out an AVO against him, to protect his family. He denied any cigarettes, alcohol or illicit substances.

   [M] has previous traumatic history of physical and emotional abuse from father, with subsequent AVO and family orders barring fathers contact with family

   On review, [M] was not scheduled under the mental health act.

   He was discharged home with plans to refer to CAMHS.

   Impression of behavioural disturbance with poor and immature emotional regulation/coping mechanisms, poor sense of personal responsibility in context of limit setting.

5. For most of the period since his discharge from hospital, M has been living with his father although he has visited his mother and his siblings on several occasions. The circumstances in which M came to be living with his father occurred on 13 August 2015 when the police were requested by the mother to attend a further incident involving M. The police report in respect to the incident was tendered by the ICL (Exhibit 20). The report states:

   A verbal argument has taken place between the [mother] and [M] in the lounge room since he has not been attending his new school [S School] in [Suburb T] the last few days.… Within the argument [M] has said to the [mother] "I don't want to live with you any more, I hate you”. By [M] saying this towards the [mother] was due to the fact [the mother] had disconnected the Internet from [M’s] laptop because of him not attending school. When the [mother] told [M] he could not use the internet this has caused him to become angry towards her resulting in the verbal argument. The [mother] has told the police and signed the official notebook entry of [the attending constable] stating she did not want to take any action or provide any more details regarding the verbal incident that has taken place between herself and [M] at the residence. The [mother] has stated she does not hold fears from [M] but would like to have him in the custody of his biological father [Mr Marsden] as she believes he would be happier with that situation. The biological father [Mr Marsden] was contacted and told [Suburb D] police he would like to have [M] come and stay with him at his residence.

6. The police report into the incident notes that the proposed action was approved by a duty Sergeant at Suburb D Police Station and arrangements were made for M to be taken to the station in order for the father to collect him. The report further notes that the proposed action and changeover of M to the father was consented to by the mother.

7. Insofar as the police report refers to M attending The S School, it was common ground that the school specialises in providing assistance to children who are experiencing difficulties with their education. By letter dated 9 September 2015 (Exhibit 24), the Assistant Principal noted that M had commenced at the school on 27 July 2015 and, as at the date of writing, M had attended the school for a total of twenty out of thirty-two days. The letter commented:

   At school, [M] has engaged in his class work, participates appropriately and completes work as required. He interacts positively with staff and students and is proving to be a cohesive member of the school community.

8. It also appeared to be accepted, between the parties, that since returning to live with his father, M has commenced playing sport with school friends from U School.

9. In circumstances where there is little common ground between the parties, the Court can obtain assistance from expert reports. Where an expert's opinion is disputed, the Court will not accept the validity of that opinion until the expert has been the subject of cross examination at final hearing. Nevertheless, even in interim proceedings, the Court can be assisted by an expert's observations and identification of issues and risks that are set out in the expert’s report.

10. In that context, in paragraphs [22] – [33] of his judgment delivered 22 May 2015, Le Poer Trench J usefully summarised the report of the family consultant, Ms V, dated 24 April 2015.

11. At the hearing on 14 September 2015, the ICL also tendered an additional report from Ms R dated 12 September 2015 (Exhibit 23). Ms R, a psychologist, has been selected by the ICL to provide family therapy, pursuant to the orders made by Le Poer Trench J on 22 May 2015. Relevant extracts of the report of  Ms R include:

    From the outset it was obvious that the parents adopted inflexible and hostile attitudes towards each other.

    .....

    Notwithstanding the obvious hostility evident between the parents, and the refusal by the mother to have any interaction with the father, there have been two occasions that she relented and there was a level of agreement regarding how to manage [M] and his erratic behaviour. However [M] decided not to return to the mother at all and the issue was resolved. Overall the situation between the parents continues to be difficult, but some progress has been made.

    ...

12. In referring to her interviews with the children, Ms R commented:

    [M] impresses as an articulate but somewhat weary adolescent with good manners. He responded appropriately to all questions and was keen to express his eagerness to continue to reside with his father although he admitted to missing his siblings. During a recent session [M] told his father he wanted to spend the evening with his mother and it was agreed he would return to his father on Sunday morning as it was Father's Day. After some reluctance on the part of the father, this was agreed upon.

    During the encounter between [M] and his mother following his decision to reside with his father, [M] was adamant that he resented the mother's inclination to constantly involve the Police, Department of Family Services, School Authorities and other agencies every time there is an issue of conflict between them. He was adamant that he will not be attending school if he resided with her but would happily to do so whilst with his father. He accused her of not having any rules or the capacity to listen to him.

    [M] emphasised continually that he trusted his father, had no fears for his safety and no apprehensions at all. Again he reiterated his determination to reside with his father permanently

    [A] is a rather quiet and reserved child who was subdued and uncomfortable and responded to all enquiries in a brief manner. During the initial session [A] presented as happy until the topic of his father was raised. Subsequently he became very quiet, curled up in the corner of the couch he was sharing with his sister, refused to make eye contact and did not utter a single word until the end of the session when he whispered that he did not want to spend any time with his father.

    [A] did attend an initial joint session with his father, [V] and [M] who had already moved to the father's care. During the initial meeting [A] was seemingly very happy to see the father and was affectionate and interactive, sat close to his father and chatted comfortably with him. During the subsequent two sessions, [A] became more reserved and apprehensive and refused to attend the more recent session.

    [V] is an endearing 8-year-old girl who was pleasant and good-natured throughout the assessment process. She interacted freely with both her parents and siblings. [V] was comfortable, alert and interested at all times.

    Essentially interactions between [V] and both parents were comfortable, affectionate and uninhibited with no obvious signs of anxiety or insecurity. She was happy to spend time with her father, she expressed some reluctance when [Mr Marsden] asked her to spend the Father's Day weekend with him, [M] and the paternal family. [V] told me she was not ready to do this yet and her wishes were respected. However [V] made it abundantly clear to both myself and her mother that she wishes to continue to spend time with her father.

13. Relevant extracts from Ms R’s assessment include:

    The relationship between the parents… continues to be difficult and hostile. Both adopt extreme positions regarding the welfare of their children

    ....

    Under the circumstances it became obvious that the parents adopted opposing views on the issues under consideration. It is unreasonable for [Mr Marsden] to insist that the mother is an evil, nasty and emotionally disturbed person who deliberately poisoned to children against him. Furthermore, his assertion that as the only viable option the three children would need to be placed in his care with very limited or no contact with their mother is unacceptable. The children have a well-established bonding and attachment with the mother and to deprive them of her affection would be cruel and harsh.

    It is obvious that [Ms Marsden] does have difficulty in setting child appropriate routines, behaviour and boundaries and exercising discipline over her children's behaviour as evidenced by her inability to ensure their school attendance. In fact she freely concedes that she is at a loss how to convince [M] and [A] to attend school. In addition her reliance on family members and/or outside agencies such as Family Services or police to assist in managing [M's] disobedience is problematic.

14. In addition to noting M's poor attendance at school, Ms R referred to a similar difficulty that is arising in respect to A. In that context she said:

    Discussing [A's] situation the mother revealed that she had sought assistance from community agencies and the school to convince him to attend school. Despite the fact that his school hours have been reduced to two and a half hours daily, his attendance continues to be inconsistent.

The Law

The Legislation

1. All parenting proceedings are to be determined in accordance with Part VII of the Act.

2. Section 64B(2) sets out what parenting orders may deal with and, relevantly includes:

   (a) the person or persons with whom a child is to live;

   (b) the time a child is to spend with another person or other persons;

   (c) the allocation of parental responsibility for a child;

   …

   (e) the communication a child is to have with another person or other persons;

   …

   (h) the process to be used for resolving disputes about the terms or operation of the order;

   (i) any aspect of the care, welfare or development of the child or any other aspect of parental responsibility for a child.

3. The objects of Part VII are set out in section 60B and include, in subsection (1), the following:

   (a) ensuring that children have the benefit of both of their parents having a meaningful involvement in their lives, to the maximum extent consistent with the best interests of the child; and

   (b) protecting children from physical or psychological harm from being subjected to, or exposed to, abuse, neglect or family violence; and

   (c) ensuring that children receive adequate and proper parenting to help them achieve their full potential; and

   (d) ensuring that parents fulfil their duties, and meet their responsibilities, concerning the care, welfare and development of their children.

4. The overarching principle for parenting orders is found in section 60CA of the Act, which states 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 as the paramount consideration.

5. Section 60CC sets out a legislative pathway by identifying a number of considerations that the Court must take into account in arriving at a determination as to what is in the best interests of the children.

6. In Banks & Banks (2015) FLC 93-367 at 80,116, the Full Court outlined a practical and common sense approach to applying section 60CC in the following terms:

   …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.

Evidentiary Challenges

1. The nature of the truncated process of interim hearings is such that it is not possible to make findings about matters that are significantly in dispute between the parties. In that context, in Cowling & Cowling (1998) FLC 92-801 the Full Court said at 85,006:

   …Such proceedings are an abridged process where the scope of the inquiry is necessarily significantly curtailed. As a consequence, the Court needs to exercise considerable caution against being drawn into matters properly dealt with in the trial process. Ordinarily, at interim hearings, the Court should not be drawn into issues of fact or matters relating to the merits of the substantive cases of each of the parties.

2. Further guidance is obtained from Goode & Goode (2006) FLC 93-286 where the Full Court said that, where findings are not possible, the Court should look to less contentious matters “such as the agreed facts and issues not in dispute and would have regard to the care arrangements prior to separation, the current circumstances of the parties and their children, and the parties’ respective proposals for the future.”[2]

   [2] at 80,901, quoting Cowling & Cowling (1998) FLC 92-801 at 85,006.

Obligation to address issues of risk

1. Despite the evidentiary challenges that exist in interim proceedings, it is nonetheless essential to address issues of risk of violent and abusive conduct when they arise. The following, often cited, observation of Moore J in T & N (2003) FLC 93-172, at 78,760 – 78,761, is reflective of the Court’s serious concerns about family violence:

   It also hardly needs to be said that violent and abusive conduct by one parent against the other is highly detrimental to the wellbeing of children, whether they are witness to it or not. If they do witness it, anyone can see that such conduct can only be a traumatic experience for them. There is an abundance of research from social scientists about the highly detrimental effect upon young children of exposure to violence and the serious consequences such experiences have for their personality formation. They are terrified and simultaneously come to accept it as an expected part of life; they may learn that violence is acceptable behaviour and an integral part of intimate relationships; or that violence and fear can be used to exert control over family members; they may suffer significant emotional trauma from fear, anxiety, confusion, anger, helplessness and disruption in their lives; they may have higher levels of aggression than children who do not have that exposure; and they may suffer from higher anxiety, more behaviour problems and lower self-esteem than children not exposed to violence. Clinical profiles for children who witness domestic violence include post-traumatic play, diminished ability to regulate affect in the forms of hyper-arousal, numbness, emotional constriction, a low frustration threshold, nightmares and other sleep disturbances, aggressive behaviours, intense and multiple fears, regression in developmental achievements, and disturbances in peer relations ... One could go on to the impact upon their ability to form attachments, and so on.[3]

   [3] See for example Reid & Lynch (2010) FLC 93-448 at [211].

2. It is important to realise that the concept of violence referred to by Moore J, includes a broader concept of abusive, controlling and threatening behaviour. Section 4AB of the Act provides the following examples of behaviour that may constitute family violence:

   (a)  an assault; or

   (b)  a sexual assault or other sexually abusive behaviour; or

   (c)  stalking; or

   (d)  repeated derogatory taunts; or

   (e)  intentionally damaging or destroying property; or

   (f)  intentionally causing death or injury to an animal; or

   (g)  unreasonably denying the family member the financial autonomy that he or she would otherwise have had; or

   (h)  unreasonably withholding financial support needed to meet the reasonable living expenses of the family member, or his or her child, at a time when the family member is entirely or predominantly dependent on the person for financial support; or

   (i)  preventing the family member from making or keeping connections with his or her family, friends or culture; or

   (j)  unlawfully depriving the family member, or any member of the family member's family, of his or her liberty.

3. In terms of the obligation to address issues of risk associated with children being subject to or exposed to family violence, in Deiter & Deiter [2011] FamCAFC 82, the Full Court at [61] said:

   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...[4]

[4] See also George & George [2013] FamCAFC 182 and Enmore & Smoothe [2014] FamCAFC 131 at [35].

Section 60 CC Considerations

1. While all of the matters referred to in section 60CC have been considered, the analysis of the parties’ submissions will focus on those considerations that are most relevant to the issues in this matter.

The benefit to the child of having a meaningful relationship with both of the child’s parents (section 60CC(2)(a))

1. The father submitted that, when the children were in his care, he facilitated the children having a relationship with their mother. However, that is not reciprocated when the children are in the mother’s care.

2. The father also referred to the time during which the children lived with him and noted there were occasions when the mother wished to collect A and V but not M.

1. The father argued that, when it comes to who is likely to encourage the relationship with the other parent, the Court will find that it is him and not the mother.

2. The father also noted that the report of Ms R noted that, on the first occasion that A saw the father after not having seen him for twelve months, A greeted him warmly and chatted with him. However, in the subsequent visits, he was apprehensive and did not want to speak to his father. The father asserted that this was evidence of the mother influencing A to think badly of his father.

3. The mother, on the other hand, argued that the father did not facilitate her having a meaningful relationship with the children and made the issue of her having time with the children an extension of previously controlling and abusive behaviour. As evidence of that, the mother has annexed to her affidavit, sworn 9 September 2015, a number of SMS messages that she alleges were sent to her by the father.

4. The father, who appeared on his own behalf, stated that not all of the text messages attributed to him were genuine. When pressed to identify those which he alleged had been fabricated, he indicated he was not in a position to do that during the course of the hearing. However, he did admit to sending the following text message:

   You told [M] he was mentally ill! You are the mentally ill one you sick fucking bitch! You don’t talk to [M] or ever go near him again you fucking crazy cunt! You hurt that kid anymore and I will bring he’ll (sic) to your world. He hears you talking to people about him, I’m letting you pick them up today only cause I don’t want to disappoint them, then that’s it. The less they see you the better. Get yourself sorted you unstable bitch and if you fuck with these kids any more, you are in real shit.

5. Another SMS message that the mother alleged was sent by the father, on 1 January 2013, but was not among those admitted by the father, was the following:

   Your lucky I just saw your message after dropping kids off you dumb skank, or I would of told u to go fuck yourself! Last time I do u a favour you had your mums car and aren’t willing to come and pick them up or even go to the corner shop u piece of shit! I am saving every message and when the kids ask one day and you’re trying to put it all on me, will show them you couldn’t be bothered and I was the reason they had any contact, you are a shit parent and I’m glad you had a hysterectomy so you can’t reproduce anymore.

6. As noted, the father admitted to sending some, but not all, of the text messages annexed to the mother’s affidavit. He acknowledged they were inappropriate and stated that they were sent in anger.

7. The ICL said that these messages were evidence of just how “toxic” the parties’ relationship has become since at least 2009 when V was just two years old. The ICL argued that there is virtually no chance of the parents co-operating with each other in respect of the children, if they do not co-operate with therapeutic intervention from an appropriately qualified family therapist.

8. The ICL submitted that the family therapist should be the conduit for any contact between the parties and the children and, in that context, submitted that telephone contact was not appropriate at this stage because of the toxic relationship between the parents.

9. All parties agreed that neither party should denigrate the other or the others family members in front of the children nor discuss these proceedings with them.

10. A myriad of proceedings before this Court and resultant orders have been ineffective in resolving the discord that exists in this family. The two boys, in particular, have been severely affected by that discord. Something has to change and that change needs to be guided by professional advice. Any advice will be useless unless there is a fundamental change in approach from both of these parents.

The need to protect the child from physical or psychological harm from being subjected to, or exposed to, abuse, neglect or family violence (section 60CC(2)(b)).

1. The ICL indicated that, as result of these children being exposed to a toxic family environment, including possible violence and abuse, the ICL had very serious concerns about the mental health of both M and A.

2. This, the ICL argued, was why it was appropriate for issues relating to the time the children spend with their parents, and the circumstances in which they do so, to be under the guidance of a family therapist who can have regard to the impact on the children’s mental health.

3. The father argued that, despite the allegations of the mother that he had engaged in family violence against her and the children, the criminal charges that had been bought against him have now been dropped.

4. The father referred to an admission contained in the mother’s affidavit, sworn 9 September 2015 at paragraph 10, where she admits to smearing cheese on M’s face, when he was eight years old, as evidence that she was the perpetrator of family violence.

5. The mother stated, in response, that it was an incident that occurred approximately six years ago, which she sincerely regrets, and nothing like it had occurred since.

6. The mother argued that the mere fact that the criminal proceedings had been discontinued did not mean that the issues of risk of violence had disappeared. The mother argued that those issues still loom large. The mother asserted that the only reason the criminal proceedings had been discontinued were as a result of her unwillingness for the children to be subject to further cross examination. She argued that the discontinuance did not mean that the Family Court would reach the conclusion that violence had not occurred. Such a decision would be made by the Court on the balance of probabilities, not on the criminal onus of beyond reasonable doubt.

7. The mother argued that father is far from the kind, loving person that he makes out to the Court. The mother referred to the numerous text messages attached to her affidavit as demonstrating that the father was prepared to engage in highly abusive, insulting and threatening behaviour.

8. Even if the motivation for the text messages was frustration and anger, the mother argued that the conduct fell within the definition of family violence as defined in section 4AB of the Act. Moreover, the mother argued, the father’s reaction to frustration and stress has been influential in M developing similar traits. There is a risk, it was argued, that such behaviour would be replicated by A and V if they were to be left in his care.

9. The mother referred to the evidence of Ms Q, in her affidavit sworn 7 April 2015, where she referred to interviews that she had conducted with the children in the course of her practice as a psychologist. Those interviews occurred on 31 September 2014. Reference was made, in particular to the notes of Ms Q, which recorded:

   a)That she was advised by M: “Dad used to hit and punch us, and swear at us.”

   b)That A advised her that his father would say to him: “If you don’t do something I will kill you.”

   c)A referring to “hitting with belt – marks.”

10. In reference to A’s feelings of being away from his paternal family, Ms Q’s notes record A as saying:

    ·“They’re pretty much the same as Dad. Dad’s father hit me on the face so hard he hit me off the lounge.”

    ·His father hit him frequently “on the face and body, anywhere he can.”

    ·His father says “hell will come upon you.”

11. The mother asserted that the evidence is such that the Court would find that A has been the subject of a long period of physical and psychological abuse or, alternatively, the Court may conclude that it is a significant issue to be determined at trial. Either way, the mother argued, it would be inappropriate for the Court to permit A and/or V to have face to face time with the father outside of a clinical environment.

12. In that context, the mother asserted that Ms R had acted inappropriately (although perhaps without full knowledge of all facts and/or allegations) when she permitted the father to take A and V to a coffee shop outside of her practice. It was argued that, in so doing, Ms R had exposed the children to risk and resulted in the father engaging in conduct that was contrary to the AVO that he is subject to.

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 (section 60CC(3)(a)).

1. The father argued that M has clearly indicated that he wants to stay with the father and has specifically stated that he has no fear of his father.

2. V is much younger but expressed the desire to continue to see her father.

3. The views of A are not sufficiently clear to be considered in these interim proceedings.

4. In any event, the father argued that there is no evidence to support fear of violence and the mother is unjustifiably preventing the children from spending time with the father.

The nature of the relationship of the child with each of the child's parents; and other persons (including any grandparent or other relative of the child);

1. The father argued that V is very attached to him and referred to the report of Ms R as supporting the fact that there is a very good relationship between the father and V.

2. The father referred to the report of Ms R as indicating that when A and V first saw him after a year, they greeted him with affection and were comfortable in his company.

3. The father referred to the fact that A was far more reserved in the subsequent occasions that he met the father as part of the counselling provided by Ms R. This, he said, was evidence that the mother had influenced A to be apprehensive of the father.

4. The father referred to the fact that, since A has started seeing him through Ms R’s practice, he has been attending school.

5. The father alleged that, in the period that the children have been living with the mother, she has prevented them from spending time with the father’s relatives, including their paternal grandparents. This, the father alleged, included refusing to allow the grandparents to visit the children in order to deliver gifts.

The extent to which each of the child’s parents has fulfilled, or failed to fulfil, the parent’s obligations to maintain the child (section 60CC(3)(ca));

1. The father alleged that the mother was unable to fulfil her parental responsibilities to the children, as demonstrated by the fact that M had not attended school while in her care and that a similar problem is emerging in respect to A.

2. The father alleged that, in order to attempt to control M, she “shops him from doctor to doctor,” places him on antidepressants, and calls the police when she needs to discipline him.

3. The father alleged that, in the period that the children spent living with him, their grades at school were far superior to the grades the children are obtaining whilst living with the mother.

4. The mother referred to the fact that the father bought M a “supercomputer” which she alleged was to induce him to live with the father, but was not prepared to meet the cost of a family consultant to assist in addressing the family’s problems, as an indication of his distorted priorities.

5. In that same context, the mother referred to the fact that the father was prepared to engage the services of one of Australia’s leading criminal barristers to defend him in criminal proceedings, yet he is not prepared to pay for his own legal representation to assist in the resolution of these proceedings.

The likely effect of any changes in the child’s circumstances, including the likely effect on the child of any separation from      either of his or her parents ((section 60CC(3)(d)).

1. The father alleged that, when Senior Registrar Campbell made orders on 12 November 2014, that the children live with the mother, Senior Registrar Campbell had failed to have regard to the children’s circumstances at that time and, in particular, that they were living with the father.

2. The father referred to an email exchange that occurred in 2013 where, when the children were living with him, the mother did not want to pick up M, but only to pick up V and A.

3. The mother argued that to change the living arrangements of V and A who have been living with the mother since the orders were made by Senior Registrar Campbell would cause them extreme trauma.

The capacity of each of the child’s parents to provide for the needs of the child, including emotional and intellectual needs (section 60CC(3)(f)).

1. The father asserted that the mother is failing to pay the children’s school fees, despite the fact that the father is continuing to pay child support.

2. The mother asserted that the father was oblivious to the emotional needs of the children and, in that respect, referred to the fact that the father had retained one of Australia’s leading criminal barristers to cross-examine his son for a period of two hours in respect to allegations that he struck his son on the face causing bruising.

3. The mother also referred to the fact that the father had, subsequent to him giving evidence, apparently prevailed upon M to hand write a letter stating that he had lied to the Police and the Court in those proceedings when he alleged that his father had hit him on the face.

4. The father asserts that the mother has no capacity to provide for the physical and emotional needs of the children. He asserted that, in circumstances where the mother wanted to turn off the children’s internet, it was necessary for her to call the police and in circumstances where she wanted M and A to attend school she engaged the Department of Family and Community Services.

5. The mother acknowledges that there have been significant difficulties in respect to raising M, but states that she has done her best in the context of M suffering from a severe personality disorder since approximately 2009.

The attitude to the child, and to the responsibilities of parenthood, demonstrated by each of the child’s parents (section 60CC(3)(i)).

1. The father argued that the mother has not demonstrated sufficient responsibility in respect to parenthood, and in particular has not insisted that M attend school and had no capacity to address his emotional issues other than to place him on medication and was incapable of disciplining him, which resulted in her repeatedly calling the Police.

2. The mother argued that the children had been subject to and exposed to the father’s violent and controlling behaviour and that had been a major factor in causing children’s psychological challenges that they now face.

Any family violence involving the child or a member of the child’s family (section 60CC(3)(j)).

1. The father denied having perpetrated any family violence on the mother or the children and referred to the fact that the criminal proceedings against him were discontinued.

2. The father argued that the mother could not seriously allege that the father perpetrated violence against M in circumstances where she requested that he be returned to the father’s care. The father asserted that, if it was good enough for him to care for M, then he should also be able to care for both A and V.

If a family violence order applies, or has applied, to the child or a member of the child’s family-any relevant inferences that can be drawn from the order (section 60CC(3)(k)),

1. On 23 June 2015 the father was served with an AVO which expires on 22 March 2016. The Order provides that:

   a)The defendant must not assault, molest, harass, threaten or otherwise interfere with the protected persons or a person with whom the protected persons has/have a domestic relationship

   b)The defendant must not engage in any other conduct and intimidates the protected persons or a person with whom the protected persons has/have a domestic relationship.

   c)The defendant must not stalk the protected persons or a person with whom the protected persons has/have a domestic relationship.

   d)The defendant must not approach or contact the protected persons by any means whatsoever except through the defendant’s legal representative or as agreed in writing or as permitted by any order or directions under the Family Law Act 1975, as to counselling, conciliation or mediation.

   e)The defendant must not approach the school or other premises at which the protected persons may from time to time attend for the purposes of education for childcare or other specified premises: W School.

   The order indicates that the protected persons are the three children.

2. The father said that he consented to the AVO being made. He said that he consented to that Order because he wanted to relieve the children from having to give evidence in the criminal proceedings. The father asserted that, if he did not consent to the AVO, the children would have been required to return to the witness stand to give evidence against him and he did not want that to occur.

3. The mother denied that the children were in attendance at court on 23 June 2015, at which time the father had agreed to enter into the AVO. The mother asserted that the precondition to the police discontinuing criminal charges against the father was that he agreed to that AVO.

4. The mother noted that she had been subject to cross examination, the father had not been subject to cross examination, and there were never any findings made by the court in respect to the criminal proceedings.

5. The father asserted that he had attempted to make an application to have the AVO terminated. However, he has been advised that such action can only occur at the initiative of the NSW Police and they have declined his request to do so.

6. The mother argued that the father was represented in the criminal proceedings by both senior counsel and junior counsel and he was fully advised before agreeing to the AVO.

7. That AVO, the wife argued, should be respected and it prevents the Court from permitting the father to spend time with the children outside of the Court or a court endorsed clinical setting.

Any other fact or circumstance that the court thinks is relevant (section 60CC(3)(l)).

1. The mother differs with the ICL in respect to the success of family therapy. The mother does not believe that the therapy has been going well.

2. The mother believes that the family therapy sessions are artificial and do not take into account the AVOs and the incidences of violence and abuse that have occurred. There is a risk, the mother argued, that the therapy is pushing the children and the parents into an uncertain course that ignores what has occurred and presents an unacceptable risk to the children.

3. The ICL argued that it is very important for the children to attend ongoing therapy because appropriate care arrangements for these children need to be resolved with appropriate professional oversight.

4. The ICL argued that the current situation faced by the family has been unacceptable. They have been engaged in ongoing litigation since 2009. That is from when V was aged two. Unless there is the intervention of the experts, there is every likelihood that that current discord will continue to the extreme prejudice of the children.

5. The ICL noted that the myriad of court orders have failed to resolve the matters concerning these children and expert intervention is now required.

6. The ICL acknowledged that Ms R may be assisted by additional information being provided to her and agreed that it would be appropriate for the Court to make orders to facilitate that, including granting leave to the ICL to provide that information to her. This would include giving her authority to uplift and photocopy any material provided to the Court, pursuant to a subpoena.

7. The ICL also argued that Ms R should be given authority to contact such other professionals as she sees fit to develop her programme of intervention in the affairs of the family.

8. The ICL submitted that, despite the best intentions of any therapist, the future for the family and the children was dire unless there was a fundamental change in attitude on the part of both the father and the mother.

1. The ICL argued that, insofar as either party has an issue with the way in which therapy is being provided, then the appropriate course of action is for them to have a dialogue with the therapist. It was argued that such a dialogue is very much part of the process of therapy. The ICL argued that both parties should cooperate with that process even though they may not be entirely comfortable with everything that might be recommended by the therapist.

presumption of shared parental responsibility does not apply

1. In light of the serious allegations of domestic violence that have been made in this matter, pursuant to section 61DA(3) of the Act, it is determined that it is not appropriate, in the circumstances, for the presumption of equal shared parental responsibility to be applied in these interim proceedings.

2. Accordingly, it is unnecessary to address the questions of the children spending equal or significant and substantial time with either or both parents, as contemplated by section 65DAA of the Act.

Findings and Orders

1. In these interim proceedings, the issue that overwhelms all others is the risk of physical and psychological harm to the children. Section 60CC(2A) provides that, in applying the considerations set out in subsection (2), the Court is to give greater weight to the consideration set out in paragraph (2)(b) - that is, the risk of physical and psychological harm to the children. Regrettably, the Court agrees with the ICL that M and A, in particular, face a serious risk to their mental health.

2. It is of note that M and, to a lesser extent, A appear to be demonstrating a number of the traits referred to by Moore J in T & N (supra). The manifestation of traits consistent with those suffered by children who have been exposed to family violence does not, of course, establish that such violence has occurred. Nevertheless, there are clearly a number of serious allegations that need to be dealt with in the final hearing of this matter. 

3. In that context, without making any findings, the Court has had regard to the matters that were the subject of the criminal charges against the father, together with A’s reports of being subject to violence when in the care of his father and the father’s family.

4. The contents of the SMS exchange between the father and the mother are also of significant concern in so far as they raise issues in respect to the broader concept of family violence as defined in section 4AB of the Act.

5. As is evident from the discussion of the parties’ contentions in respect to the section 60CC considerations, at final hearing, it will be necessary for the Court to give further consideration to issues of parental capacity to provide for the care, welfare and development of the children. In this truncated interim proceeding, the Court’s primary focus is to address issues of potential physical and psychological risk to the children pending final hearing and to develop a strategy for the family to start to address the toxic relationship between the parents.

6. Accordingly, the Court will make orders that keep in place the orders made by Senior Registrar Campbell made on 12 November 2014 in respect to V and A. Those orders will, however, be varied to recognise the current living arrangements where M has been residing with the father. As noted above, that change occurred after an intervention by the police on 13 August 2015. As further noted, that change occurred with the consent of the mother and is reflected in Order 8 of the orders made on 18 August 2015 by Loughnan J.

7. The remaining orders are consistent with the orders sought by the ICL, except that they will specify a minimum amount of time that M is to spend with the mother and his siblings. The time is less than time every weekend which was sought by the mother in oral submissions made on her behalf. However, it is appropriate that M have some time with his father on every second weekend. It is nonetheless hoped that the parties will be able to agree to M spending additional time his mother and his siblings. The orders will facilitate the family therapist providing recommendations to guide that process.

8. In that context, the Court respectfully agrees with the submissions of the ICL that, irrespective of any orders that may be made at final hearing and the quality of the professional assistance utilised by the parties, there is no realistic prospect of the issues adversely impacting upon these children being resolved unless there is a fundamental change in attitude of the parents.

I certify that the preceding one hundred and fifteen (115) paragraphs are a true copy of the reasons for judgment of the Honourable Justice McClelland delivered on 14 October 2015.

Associate: 

Date:  14.10.2015