MELLOR & SEARLE

[2016] FCCA 1745

FEDERAL CIRCUIT COURT OF AUSTRALIA

MELLOR & SEARLE [2016] FCCA 1745

Catchwords:
FAMILY LAW – Interim parenting – whether children should spend unsupervised time with father – no unacceptable risk to children spending unsupervised time with father – in the best interests of the children that they spend unsupervised time with the father.

Legislation:

Family Law Act 1975, ss.60B, 60CA, 60CC, 61DA, 65D, 65DAA

Cases cited:

Banks & Banks [2015] FamCAFC 36
Goode & Goode (2006) FLC 93-286
Marvel & Marvel (2010) 43 Fam LR 348

Applicant: MR MELLOR

Respondent: MS SEARLE

File Number: PAC 1613 of 2014

Judgment of: Judge Newbrun

Hearing date: 11 May 2016

Date of Last Submission: 11 May 2016

Delivered at: Parramatta

Delivered on: 17 May 2016

REPRESENTATION

Solicitors for the Applicant: Mr Farrah

Solicitors for the Respondent: Ms Kaiti

ORDERS, PENDING FURTHER ORDERS

1. The interim orders made by the Court on 23 September 2014 are discharged.

2. The children, X born (omitted) 2004 and Y born (omitted) 2009 (“the children”) shall live with the mother.

3. On Saturday, 21 May 2016, and Saturday, 28 May 2016, the children shall spend unsupervised time with the father from 2:00pm until 5:00pm.

4. On Saturday, 4 June 2016, and each fortnightly Saturday thereafter, the said children shall spend unsupervised time with the father from 11:00am to 5:00pm.

5. The parents’ daughter, Z, is not to be present during the time the said children spend with the father.

6. Changeovers, in respect to the above unsupervised time to be spent by the said children with the father, shall occur outside the ticket office of the (omitted) Railway Station.

7. Pursuant to section 68L of the Family Law Act 1975 (Cth), the interests of the said children X born (omitted) 2004 and Y born (omitted) 2009 (“the children”), shall be independently represented by a lawyer and the Legal Aid Commission of NSW is requested to arrange the appointment of a lawyer to do so.

8. The solicitors for the parties shall forthwith forward to the Legal Aid Commission of NSW notice of these Orders and copies of the documents filed in the proceedings on behalf of their respective clients.

9. Both parents shall refrain from denigrating the other parent whilst the children are in their respective care, and further, both parents shall take all reasonable steps to ensure that no other person, including children of the relationship, so denigrates the other parent.

10. The proceedings are adjourned for mention to 9:30am on 18 August 2016.

IT IS NOTED that publication of this judgment under the pseudonym Mellor & Searle is approved pursuant to s.121(9)(g) of the Family Law Act 1975 (Cth).

FEDERAL CIRCUIT COURT
OF AUSTRALIA
AT PARRAMATTA

PAC 1613 of 2014

MR MELLOR

Applicant

And

MS SEARLE

Respondent

REASONS FOR JUDGMENT

1. This was an interim hearing with respect to the children of the relationship, Y, date of birth, (omitted) 2009, and X, date of birth, (omitted) 2004. The children’s surname is “Mellor”.

2. The father sought interim parenting orders set out at page 2 of 6 of his Case Outline of 11 May 2016. In essence, the father sought parenting orders that he be able to spend time with the said children on an unsupervised basis, beginning on a certain graduated basis as set out in his Case Outline.

3. The mother, for her part, sought interim parenting orders as set out on pages 1 and 2 of her Case Outline, dated 10 May 2016;  inter alia, and in essence, she sought interim parenting orders that the father attend a mental health assessment, undergo random urinalysis, spend supervised time with the children in a public place for two (2) hours and such time to be supervised by the parties’ eldest daughter, Z and subject to her availability and her agreement with the father for such supervised time to take place at an agreed venue, further that the father spend time with the children at the Sydney Children’s Contact Service for two (2) hours each fortnight on a supervised basis and that the father ensure that only he attends such time with the children.

4. The father relied upon his affidavit, filed 12 April 2016.  He also relied upon his new partner’s affidavit, filed 12 April 2016.

5. The mother relied upon her affidavits filed 22 July 2014 and 18 March 2016. She also sought to rely upon an affidavit of the eldest daughter, Z, which affidavit was handed up in Court on 11 May 2016.  Following legal argument, the Court only permitted the mother leave to rely upon paragraphs 1 to 10 inclusive of Z’s affidavit, as well as paragraph 48 of her affidavit. The Court had made this particular ruling in relation to the affidavit of Z because firstly, the affidavit had not been the subject of prior interim hearing directions by the Court and secondly, the fact that this affidavit of Z was first sought to be filed and served on the morning of the interim hearing. In the circumstances, it was submitted and the Court accepts that the father had no realistic opportunity to meet the allegations of Z in her affidavit that were not permitted to be read by the mother at the interim hearing.

6. Certain documentary exhibits were relied upon at the interim hearing, being subpoenaed documents from the (omitted) Contact Centre (Exhibit A), New South Wales Police (Exhibits B and C), and the Family Report (Exhibit D).

Chronology

1. a)  (omitted) 1976 - date of birth of father; aged 40 years.

   b)(omitted) 1976 - date of birth of mother; aged 39 years.

   c)(omitted) 1984 - date of birth of father’s new partner.

   d)1995 - marriage of parties in (country omitted).

   e)1996 - mother travels to Australia on a spousal visa.

   f)April 2013 - separation of parties (according to mother).

   g)October 2013 - separation of parties (according to father).

   h)8 April 2014 - the father files an Initiating Application to spend time with the children.

   i)23 September 2014 - the Court’s interim orders; children live with mother; chain of custody urinalysis of father; children spend supervised time with the father at the (omitted) Contact Centre (in respect of the children Y and X).

   j)March 2015 - child, W, moves in with father.

   k)31 July 2015 - date of Family Report.

   l)6 June 2015 - father begins to spend supervised time with the children at the contact centre (once per fortnight).

   m)October 2015 - mother allows father to spend some unsupervised time with the children.

   n)Christmas holidays 2015 - father meets the children with the mother at a shopping centre.

   o)February 2016 - verbal incident between father, W and an officer or a supervisor at the (omitted) Contact Centre; thereafter, the children’s supervised time with the father ceased.

2. The father and his new partner have a six (6) months old child, A and are now expecting their second baby.

3. The father has seen and spent time with the children outside the confines of the subject contact centre since June 2015. The Court refers to the father’s affidavit, filed 12 April 2016. In paragraph 12 of that affidavit the father states, inter alia:

   On and around early October [2015], I had brought X and Y bikes to the contact centre. We assembled them at the contact centre and they asked me to bring them home for them. That same day I attended the Respondent home and she allowed the children to come out and spend time with me and ride their bikes outside. W had come with me and visited with his mom while I spent time with X and Y outside.

4. In paragraph 13 of the father’s affidavit he states:

   On and around 25 October 2015, the Respondent [mother] agreed to allow me to take the children to lunch and indoor sky diving. Annexed and marked with a letter ‘B’ are pictures from the day.

5. In paragraph 18 of the father’s said affidavit he states, inter alia:

   On and around the summer school holiday, I organised with Z to meet her at (omitted) where she works so I could buy a scooter that Y told me she wanted. At that time, the children were there with the Respondent [mother], they came up to me and we chose which scooter Y wanted and X also told me what he wanted from (omitted). They spent around 20 minutes with me. They then left. I bought what they wanted and gave them the gifts during the next visit at the centre.

6. As far as the father was concerned, his supervised time with the children at the contact centre was going really well each fortnight.  Again, the Court refers to Annexure D to his affidavit, being a photograph of the children and the father at the contact centre.

7. There was an incident at the contact centre on 13 February 2016. The coordinator at the centre spoke to the father in relation to what the coordinator alleged was “inappropriate behaviour” by the father’s son, W. The coordinator alleged that the father became verbally aggressive, saying he had done nothing wrong, and, “you were raising your voice”. The father asserts that W’s behaviour related to him wanting to help his younger brother, X, who was apparently being bullied by another person on a bus. The father asserts that the coordinator on this occasion would not let him speak. The father asserts he was not yelling or screaming but he might have come across as emotional. He asserts that it was never his intention to appear so. At this interim stage, the Court cannot fully make findings of fact in relation to the coordinator’s suggestion that the father became verbally aggressive. The Court notes that the alleged aggressive behaviour by the father and W “had never been present before, with both parties normally being very pleasant and polite.”

8. The father asserts in his affidavit that prior to 13 February 2016 the supervisor at the contact centre had told his solicitor that the supervised visits were progressing well with the children.

9. The father denies he takes drugs or gives the child, W, drugs. The father states that he has in the past attended the drug testing as required by the mother’s solicitors.

10. The father asserts that he poses no risk to the children. He denies that he tells the children to disrespect the mother and not listen to her.

11. The Court notes the Contact Reports from the subject contact centre spanning the period from 6 June 2015 to 30 January 2016. During this period there were some 15 visits and the Contact Reports indicate that those visits were a positive experience for the children. It is reasonably clear to the Court from perusing the content of those Contact Reports during that period that the children have a close attachment to the father.

12. The Family Report writer interviewed the parties, the children and the father’s new partner on 11 July 2015. As at this date, the father’s supervised time with the two (2) children had only occurred on two (2) occasions.

13. Following the separation of the parties in 2013, the father did not spend regular time with the children (apart from W) up until the commencement of the children spending supervised time with the father in June 2015.

14. The mother told the Family Report writer that she would be happy if contact was supervised between the children and the father by the parties’ eldest daughter, Z and believed that this should happen whether it is at a contact centre or at another venue.

Relevant Legal Principles

1. The relevant principles in relation to parenting proceedings, including interim proceedings, are well-settled: see Goode & Goode. 

2. In Marvel & Marvel (2010) 43 Fam LR 348, the Full Court of the Family Court of Australia discussed the problems associated with making findings on disputed evidence as follows:

   [120] As has frequently been emphasised interim parenting proceedings, and orders made as a consequence, are a necessary but temporary measure until all the evidence can be tested, evaluated and weighed at a final hearing by the making of final parenting orders. Decisions judicial officers have to make in interim proceedings are difficult and, often for very good reason, a conservative approach, or one which is likely to avoid harm to a child is adopted. This is often to the understandable distress of a party who may not achieve the outcome he or she desires, or thinks to be in the best interests of their child or children. Interim parenting orders are frequently modified or changed after a final hearing, and any allocation of parental responsibility made at an interim hearing is disregarded at the final hearing (s 61DB).

   [122] In SS & AH [2010] FamCAFC 13 the majority (Boland and Thackray JJ) discussed at paragraph 88 of their reasons the care necessary to be exercised in making findings in interim parenting proceedings. Their Honours said:

   In our view, findings made at an interim hearing should be couched with great circumspection, no matter how firmly a judge’s intuition may suggest that the finding will be borne out after a full testing of the evidence.

   [123] Later, at paragraph 100 their Honours amplified their comments and said:

   The intuition involved in decision-making concerning children is arguably of even greater importance when a judge is obliged to make interim decisions following a hearing at which time constraints prevent the evidence being tested. Apart from relying upon the uncontroversial or agreed facts, a judge will sometimes have little alternative than to weigh the probabilities of competing claims and the likely impact on children in the event that a controversial assertion is acted upon or rejected. It is not always feasible when dealing with the immediate welfare of children simply to ignore an assertion because its accuracy has been put in issue.

3. The Court also refers to the recent decision of the Full Court of the Family Court of Australia in Banks & Banks [2015] FamCAFC 36, especially at paragraphs 46 to 52.

   Consideration of the s 60CC factors that are relevant

   [46] In order to determine whether it is in the child’s best interests to remain in Thailand pending trial, we must consider matters arising under s 60CC.

   [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] Although the primary judge discussed all the potentially relevant factors in her ex tempore reasons, that luxury will not always be available. Furthermore, 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.

   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.

   [51] In our view, the undisputed facts here lead inexorably to the conclusion that it would not be in the child’s interests to be required to move to Australia pending the trial. In arriving at this conclusion we ought to record, without condescending to particulars, that it is arguable the primary judge was led into error in coming to a different conclusion by the way in which the case was presented to her.

   [52] In the following discussion, we will detail the most significant s 60CC factors we have taken into account in reaching our decision. The absence of discussion of any particular s 60CC factor does not reflect any failure to consider it. Rather, it reflects our assessment that such factor has no sufficient relevance in the circumstances of this case to displace the determinative significance of those factors we specifically address.

4. Section 60B of the Family Law Act 1975 (Cth) (“the Act”) sets out the objects of Part VII of the Act relating to children that inform the making of parenting orders.

5. In deciding whether to make a particular parenting order in relation to a child, a Court must regard the best interests of the child as the paramount consideration: section 60CA of the Act.

6. Section 60CC of the Act provides that in determining what is in the child’s best interests, the Court must consider the matters set out in subsections (2) and (3).

7. When making a parenting order in relation to a child, the Court must apply a presumption that it is in the best interest of the child for the child’s parents to have equal shared parental responsibility for the child: section 61DA of the Act. 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: section 61DA(3).

8. If the presumption of equal shared parental responsibility in relation to the child applies, and it is not rebutted, the Court must firstly consider whether the child spending equal time with each of the parents would be in the best interests of the child and reasonably practicable.

9. If equal time is found not to be in the child’s best interests, or impracticable as a result of consideration of one or more of the matters in section 60CC, the Court must consider making an order that the child spends substantial and significant time (as defined in section 65DAA(3)) with the parents, unless contrary to the child’s best interests as a result of consideration of one or more of the matters in section 60CC, or impracticable.

10. If neither equal time nor substantial and significant time is considered to be in the best interests of the child, or impracticable, then the Court may make such orders in the discretion of the Court that 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: sections 60CA, 60CC and 65D.

The Best Interests of the Children

Section 60CC Considerations

Subsection (2a) - Meaningful relationship primary consideration

1. The children have a meaningful relationship with the mother and would benefit from a continuation of that relationship.

2. In the mother’s affidavit, filed 22 July 2014, she asserts that she understands that the children “need a relationship with their father.”

3. The Family Report writer noted that the children and the father interacted well together at the interview for the Family Report for some 50 minutes; she refers to joking and pleasant interactions between the children and the father; it was noted that the father was bubbly, enthusiastic and quickly spoken.

4. The Court also notes that the father’s time spent with the children outside the confines of the contact centre, as referred to previously in these reasons was also positive.

5. The father told the Family Report writer that before the separation of the parties he and the child, Y, were very close.

6. Considering all the evidence before the Court at this interim hearing, the Court is of the view at this interim stage that the children would probably benefit from having a meaningful relationship with the father. There appears to be a real attachment of the children to the father in particular following the successful supervised time spent by them with him from early June 2015 to early February 2016. The Court notes that the Family Report writer interviewed the parties and the children only after the children had spent two (2) supervised visits with the father. The Court is not convinced at this interim stage that the father lacks any empathy for the children.

1. The Court is of the view that should the children spend unsupervised time with the father, that such time should not detrimentally affect the children’s meaningful relationship with the mother.

2. The Court is of the view that should it make interim parenting orders that the children spend unsupervised time with the father that such time would be likely to enhance and maintain the children’s meaningful relationship with him. The Court gives significant weight to this meaningful relationship primary consideration.

Subsection (2b) - Need to protect primary consideration

1. The Court has closely examined the subpoenaed material tendered at this interim hearing. In relation to the subpoenaed material from the New South Wales Police, the Court notes in particular an incident on 9 January 2014 when, according to the Police, the father suffered an anxiety attack at a police station and attempted to harm himself. In the view of the Court, at this interim stage, this incident should likely be seen in the context of the father having separated from the mother and not having seen his children for some time.

2. The Court has noted the past convictions of the father, as referred to in the New South Wales Police subpoenaed material.

3. The Court notes the mother’s allegations that during the marriage the father gambled and took drugs. The Court notes that in her affidavit filed 18 March 2016, she alleges, inter alia, that she now has concerns that the father is also providing drugs namely the drug ice to the child, W, the Court notes that the mother, in relation to her allegations, provides no factual particulars relating to these particular assertions against the father.

4. The father told the Family Report writer that he denied using illicit drugs on a regular basis. He informed her that he had tried certain illicit drugs, including marijuana and Xanax with the last time of use being in 2006, he believed.

5. The Court proposes to include in its interim parenting orders an order that Z not be present at any unsupervised time that the children spend with the father in order to avoid any possible risk of the children being exposed to conflict between Z and the father.

6. The father’s new partner, aged 32 years, swore an affidavit for this interim hearing. She states that since she has known the father, having moved in with him to live in September 2014, she is confident that he has not taken any illicit drugs or alcohol. She asserts the father has never been violent to her or their child, A. She asserts that the father is very gentle with W and Z. She states that the father has a very close relationship with W. The father’s new partner is pregnant to the father presently, being some four (4) to five (5) months pregnant. The father’s new partner states that the father has a bubbly personality and always has a positive attitude. She states that the father helps her in caring for A; he bathes her, feeds her and looks after her. She states that the father is loving, caring and a gentle human being who loves his family and would never do anything to harm them.  The father’s new partner told the Family Report writer that she had previously been in an emotional and abusive relationship with another man and that her relationship with the father is very different for her.

7. The Family Report writer stated that the father’s new partner, based on the Family Report writer’s assessment, appeared to have a good understanding of the importance of safety and would be an ally in keeping the children safe, “she reported she experienced family violence in a previous relationship and would not tolerate it again.”  The court regards, at this interim hearing, the father’s new partner’s affidavit evidence, together with the Family Report writer’s commentary as to the father’s new partner, as important in its determination.

8. The Court is of the view, at this interim stage (not accepting the Family Report writer’s views regarding the need for the children to spend supervised time with the father in her Report of 31 July 2015), that there is no unacceptable risk in the children Y and X spending unsupervised time with the father (including W) during the day time. Inter alia, the Court has considered the police and other material touching upon this “need to protect” primary consideration. The Court notes that there is a significant dispute between the parties in relation to the mother’s allegations against the father that he uses illicit drugs, and again, the Court notes that the mother’s allegations in this respect lack particularity. The Court also notes that the subject contact centre material did not disclose that the father was drug affected during his fortnightly visits with the children (the Court notes, in this context, that the suggestion by the supervisor at the contact centre that the father and W may have been affected by drugs on 13 February 2016 was speculative).

9. Again, the Court attaches significant weight to the recent sworn affidavit of the father’s new partner regarding, inter alia, the absence of family violence in their relationship since September 2014 and the Court notes the positive supervised time spent by the children with the father since June 2015 to late January 2016/early February 2016. The Court also notes the recent unsupervised time spent by the children with the father outside the confines of the contact centre and as referred to in the father’s affidavit, previously discussed in these reasons.

Section 60CC(3) - Additional Considerations

(a) 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

1. The father states that he spoke to the children Y and X on the telephone in about the beginning of April 2016 and they stated to him that they missed him and asked when they are going to see him again.

2. The Court notes the mother’s affidavit filed 22 July 2014 where she asserts that the children refused to see the father.

3. The Court refers, in this context, to the Family Report, again noting that at the time the Family Report writer interviewed the children and the parties including the father’s new partner, the children had only spent two (2) supervised visits with the father. The interviews by the Family Report writer, again, were held on 11 July 2015.

4. The child X told the Family Report writer (again, on 11 July 2015) that he would like to spend time with the father but only if someone was with him who can keep him safe and so that the father could not do anything wrong.

5. The child Y told the Family Report writer that she was worried about seeing the father if it was not at a contact centre.

6. Both children told the Family Report writer that they were frightened of the father and referred to an incident when the father allegedly took Y from her pre-school.

7. The children X and Y told the Family Report writer that they missed their brother W and enjoyed their telephone time with him at the interviews. The child Z chose not to speak with W on this occasion.

8. The Court notes that since the above stated views of the children to the Family Report writer on 11 July 2015, that those children spent regular fortnightly supervised time with the father and that such supervised time was very positive. Again, the Court refers to the various contact reports for each supervised visit contained within the subpoenaed records from the contact centre.

(b) 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 Court refers to its discussion above under the meaningful relationship primary consideration.

2. The child Z, according to the Family Report writer, appears to have a partnership relationship with the mother.

3. Again, the Court notes the children X and Y stated to the Family Report writer that they missed their brother W.

4. The child Z’s relationship with W may well be presently strained, noting that the child W appears to be presently aligned with the father.

(c) The extent to which each of the child’s parents has taken, or failed to take, the opportunity to participate in making decisions about major long-term issues in relation to the child; and to spend time with the child; and to communicate with the child

1. Both parties appear to have so taken such opportunities, however noting the legal proceedings in this Court and the father’s supervised time with the children since early June 2015.

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

1. In the mother’s affidavit filed 22 July 2014, she asserts that the father is not paying child support. In the mother’s affidavit filed 18 March 2016, she asserts that the father tries to bribe the children with gifts and will not pay their private education and everyday needs. She asserts that the father pays no child support as he claims he does not work.

3(d) 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; or any other child, or other person (including any grandparent or other relative of the child), with whom he or she has been living

1. The Court is of the view, at this interim stage, that the children X and Y should not be detrimentally affected, emotionally or otherwise, if they begin to spend some unsupervised time with the father, during the day time. Again, the Court notes the positive experience of these children with the father during the previous regime of supervised time at the contact centre.

3(f) The capacity of each of the child’s parents; and 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

1. At this interim stage, both parties would appear to have such capacity, although the Court notes the father’s alleged actions some time ago in seeking to remove Y from her pre-school would indicate a likely lack of insight into the emotional effects of such a course of action on that child. Further, the father’s past admitted family violence towards the mother does not yet appear to be the subject of any significant insight by him. The Court again refers to the positive evidence of the father’s new partner in her affidavit in relation to the father.

3(g) 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

1. The Court notes the Family Report writer’s commentary in relation to the father’s personality following her interview with him in July 2015, including commentary as to the father’s agitation and his seeming to exhibit some paranoid thinking. The Court notes the Family Report writer referred to the mother’s psychological review (a report of 12 November) with the mother describing symptoms of depression, fear, insomnia, avoidance, concentration difficulties and mood and appetite difficulties.

2. The Family Report writer noted the child, Z, had reported alleged bizarre behaviours by the father, such as opening the bedrooms of the children during arguments between the parties so that the sleeping children would hear them.

3. The Family Report writer noted that the child W presented as angry with his sister Z and the mother; W blamed the mother for the family’s difficulties, including the mother having kept their cousins and other family members away.

4. The mother told the Family Report writer that she is a strict mother and W did not like this sometimes.

5. In contrast to the comments of the Family Report writer in relation to the father, again the Court notes the affidavit evidence of the father’s new partner speaking quite positively about the father since her relationship with him commenced in 2014.

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

1. The Court refers to its discussion above under subparagraph 3(f).

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

1. The Court refers to its discussion above under the “need to protect” primary consideration. The Court has considered and read the mother’s affidavit filed 22 July 2014 in which she makes allegations of family violence committed by the father towards her in the presence of the children during the relationship. Again, the mother in that affidavit made allegations of illicit drug use by the father. Again, the mother asserts that she “is aware” that the father is using the illicit drug ice but again without giving detailed factual particulars of the basis of her alleged awareness. The Court notes that the mother asserts in her affidavit that despite early apprehended domestic violence orders against the father, she would always return to the father to keep face with the family and the community.

2. The father, for his part, denies significant family violence, although he admitted to the Family Report writer that he pulled the mother’s hair on one occasion, however, stating that he was not a violent person.

3. The Court, at this interim hearing, is unable to resolve in any meaningful manner the significant factual disputes between the parties relating to family violence.

3(k) 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, taking into account the following: the nature of the order; the circumstances in which the order was made; any findings made by the court in, or in proceedings for, the order; any other relevant matter.

1. The Court notes that there appears to have been numerous Apprehended Domestic Violence Orders taken out against the father in favour of the mother. There were such orders in 2011 in favour of the mother and the child Z, in 2012 in favour of the mother and all children, in 2013 (the mother alleges, inter alia, that the father was swearing and yelling at her in front of the children). In 2013 there appears to have been a provisional ex parte Apprehended Domestic Violence Order in April 2013, with a final order on 6 June 2013. There was an interim Apprehended Violence Order on 24 October 2013, which became final on 5 November 2013.

2. Apparently an Apprehended Violence Order was taken out on behalf of the mother in April 2015 for her protection in relation to the child W, following a dispute between the mother and that child.

3(l) Whether it would be preferable to make the order that would be least likely to lead to the institution of further proceedings in relation to the child.

1. It is too early, at this interim stage, to meaningfully consider this additional consideration.

3(m) Any other fact or circumstance that the court thinks is relevant

1. Again, the Family Report writer described the child, Z, as being supportive and very loyal to the mother. The Court notes that her affidavit was sought to be filed and served on the morning of the interim hearing. The mother’s solicitor informed the Court at the commencement of the interim hearing that the child, Z, had insisted on making the affidavit. Again, in the view of the Court at this interim stage, to allow Z, in these circumstances in particular, to be present during any unsupervised time spent by the children with the father would carry the real risk of conflict between Z and the father occurring in the presence or near vicinity of the children and which would not be in their best interest.

2. The Family Report writer noted that the mother has not yet met the father’s new partner.

3. At this interim stage, the Court notes that neither party seeks an equal time parenting order. In any event, at this interim stage, this Court is of the view that it would not be in the best interests of the children Y and X to be subject to such an arrangement, noting the continuing conflict and apparent hostility that exists between the parties.

4. At this interim stage, neither party seeks a parenting order representing substantial and significant time under the Act. In any event, the Court, at this interim stage, is of the view that it would probably not be in the children’s best interest for interim parenting orders representing substantial and significant time under the Act to be ordered, noting that since early June 2015 (and post-separation to June 2015) the children have only spent limited time with the father. Ultimately, parenting orders for substantial and significant time to be spent by the children with the father may well be practicable between the parties who live relatively close to each other. However, at this interim stage, it is probably premature to make any firm prognosis in this respect.

5. Evaluating the above section 60CC considerations, the Court is of the view that it is in the best interests of the children, X and Y, to make interim parenting orders as follows:

   a)The interim orders made by the Court on 23 September 2014 are discharged.

   b)The children, X and Y, shall live with the mother.

   c)On Saturday, 21 May 2016, and Saturday, 28 May 2016, the children, X and Y, shall spend unsupervised time with the father from 2:00pm until 5:00pm.

   d)On Saturday, 4 June 2016, and each fortnightly Saturday thereafter, the said children shall spend unsupervised time with the father from 11:00am until 5:00pm.

   e)The parents’ daughter, Z, is not to be present during the time that the said children spend with the father.

   f)Changeovers, in respect to the above unsupervised time to be spent by the said children with the father, shall occur outside the ticket office of the (omitted) Railway Station.

   g)Pursuant to section 68L of the Family Law Act 1975 the interests of the children Y born (omitted) 2009 and X born (omitted) 2004 shall be independently represented by a lawyer and the Legal Aid Commission of NSW is requested to arrange the appointment of a lawyer to do so.

   h)The solicitors for the parties shall forthwith forward to the Legal Aid Commission of NSW copies of the documents filed in the proceedings on behalf of their respective clients.

   i)Both parents shall refrain from denigrating the other parent whilst the children are in their respective care and further, both parents shall take all reasonable steps to ensure that no other person, including children of the relationship, so denigrates the other parent.

   j)The proceedings are adjourned for mention to 18 August 2016, 9:30am.

I certify that the preceding eighty (80) paragraphs are a true copy of the reasons for judgment of Judge Newbrun

Date:     19 July 2016