MENARD & MENARD
[2019] FCCA 1493
•7 June 2019
FEDERAL CIRCUIT COURT OF AUSTRALIA
| MENARD & MENARD | [2019] FCCA 1493 |
| Catchwords: FAMILY LAW – Parenting – interim hearing – whether the father poses an unacceptable risk to the children if he spends unsupervised time with them – whether the children should live with the mother – whether the children should spend time with the father in accordance with their wishes. |
| Legislation: Family Law Act 1975 (Cth), ss.4AB, 11F, 60B, 60C, 60CA, 60CC, 61C, 61DA, 61DB, 65D, 68L Evidence Act 1995 (Cth), s.140 Crimes Act 1900 (NSW), s.61AA |
| Cases cited: Briginshaw v Briginshaw (1938) 60 CLR 336 |
| Applicant: | MS MENARD |
| Respondent: | MR MENARD |
| File Number: | SYC 3667 of 2018 |
| Judgment of: | Judge Morley |
| Hearing date: | 21 March 2019 |
| Date of Last Submission: | 21 March 2019 |
| Delivered at: | Sydney |
| Delivered on: | 7 June 2019 |
REPRESENTATION
| Counsel for the Applicant: | Ms Kennedy |
| Solicitors for the Applicant: | Marks Griffiths & Bova Solicitors |
| The Respondent appeared in person |
| Solicitors for the Independent Children’s Lawyer: | Mr Grooby of Legal Aid NSW Sydney Central Family Law |
THE COURT ORDERS, PENDING FURTHER ORDER, THAT:
The children, [X], born … 2003 (‘[X]’); [Y], born … 2006 (‘[Y]’); and [Z], born … 2008 (‘[Z]’) (collectively ‘the children’) live with the mother.
The child, [X], spend time with the father in accordance with her wishes, expressed from time to time.
The children [Y] and [Z], spend time with the father:
(i)Each alternate Saturday from 9:00 a.m. until 5:00 p.m.;
(ii)On 24 December 2019 from 9:00 a.m. until 5:00 p.m.;
(iii)On 25 December 2020 from 10:00 a.m. until 5:00 p.m.;
(iv)On Easter Monday, 22 April 2019 from 9:00 a.m. until 5:00p.m.;
(v)On Easter Sunday 2020 from 9:00 a.m. until 5:00 p.m.;
(vi)On Father’s Day from 9:00 a.m. until 5:00 p.m.;
(vii)On the father’s birthday, …, from the end of school until 7:30p.m.;
On all occasions that the father is spending time with the children, except on his birthday when changeover at the start will be at the children’s schools, the father will collect the children from the mother’s residence at the start of his time with the children and deliver the children to the mother’s residence at the end of his time with the children.
All occasions of the father spending time with the children will be supervised by either of the paternal grandmother, Ms A, or the father’s current girlfriend, Ms B, until such time as the father has complied with the subsequent order in relation to engaging in and completing an anger management course and the subsequent order in relation to completing the “Parenting After Separation” course.
Before either the paternal grandmother, Ms A, or Ms B supervise the father’s time with any of the children, they will complete, and the father will file with the Court, an undertaking as to supervision in a form approved by the Independent Children’s Lawyer.
The father have telephone contact with [Z] and [Y] by calling a telephone number nominated by the mother each Thursday and Monday between 7:00 p.m. and 8:00 p.m.
The father be restrained from contacting the children by electronic communication at all other times.
For the purpose of communicating information between the parties about matters relating to their children’s welfare only, the mother and the father shall communicate by telephone, including text messages, to personal telephone numbers for matters of an urgent nature only and communicate by email to personal email account regarding day-to-day matters, and for this purpose, each of the parties will notify the other in writing within three clear working days their current mobile telephone number and email address and keep each other informed of any change thereto within 24 hours of such change.
Both parties are restrained from:
(i)Denigrating the other parent, any member of the other parent’s family or any member of the other parent’s household in the presence or hearing of the children, and each of the parents are further restrained from permitting any of the children to remain in the presence or within a child’s hearing of any other person who is denigrating the other parent, any member of the other parent’s family or any member of the other parent’s household;
(ii)Discussing these proceedings or any allegations raised in these proceedings with any of the children or permitting any other person to discuss these proceedings or any allegation raised in these proceedings with any of the children;
(iii)Permitting any of the children to have any access to any of the documents filed in these proceedings;
(iv)Communicating any information intended for the other parent through any of the children;
(v)Causing any of the children to be a medium in any way as to adult matters between the mother and the father or between the mother, the father and any other person;
(vi)Discussing major long-term matters with any of the children, including the living arrangements and schooling until such issues have been raised and discussed in meaningful consultation between the parents and a mutual decision has been reached and consent given by both parents to those matters being discussed with the child or children;
(vii)Physically punishing any of the children by pushing, pulling, hitting or any like or similar action;
Within seven days of completing the “Parenting After Separation” course currently being undertaken by the father, the father provide a certificate of completion of that course to the Independent Children’s Lawyer and to the mother’s solicitors.
The father undertake and complete such anger management course as is identified for him in writing by the Independent Children’s Lawyer, and for this purpose, the Independent Children’s Lawyer will so identify and communicate such course to the father within two months.
Within 21 days of the date of these orders, the father will engage in family counselling with a family counsellor nominated to him by the Independent Children’s Lawyer for that purpose, and the purpose of that family counselling is for the improvement of his relationship with his children, and leave is granted to the Independent Children’s Lawyer to provide a copy of the Child Inclusive Conference memorandum, prepared by family consultant Ms C and dated 12 October 2018, to the family counsellor with whom the father engages.
Each party will ensure that the other parent is advised promptly of any medical emergency or significant illness suffered by or relating to any of the children, including sufficient details to enable both parents to be consulted and fully advised regarding any such illness, condition and treatment.
Each of the parents will keep each other informed as to any significant events occurring in the children’s lives such as parent teacher interview occasions, sporting events through the school, extracurricular sporting events, and invitations received by or on behalf of the children, but such that the father will not attend any of those occasions other than parent teacher meetings and parent teacher meetings can be attended by the father at a time separate to attendance by the mother.
The parties shall do all acts and things and sign all documents necessary to ensure each of the parents receives a copy of each of the children’s school reports and any newsletters and other relevant notices that are not provided by the school on school website.
The mother will do all things necessary to see that the children continue to consult with the clinical psychologist, Dr D, until Dr D indicates to the mother that consultation between he and any of the children is no longer necessary.
All extant applications be adjourned to this Court on 26 July 2019 at 10:00 a.m. for directions (“the directions hearing”) before Judge Monahan.
Any Application in a Case or Objection to Subpoena made returnable by the Registry from the date of these orders until the date of the directions hearing will not be heard on that date without the express leave of Judge Monahan, however directions in respect of that Application or Objection may be given.
Liberty to restore the matter on 7 days’ notice.
IT IS NOTED that publication of this judgment under the pseudonym Menard & Menard is approved pursuant to s.121(9)(g) of the Family Law Act 1975 (Cth).
| FEDERAL CIRCUIT COURT OF AUSTRALIA AT SYDNEY |
SYC 3667 of 2018
| MS MENARD |
Applicant
And
| MR MENARD |
Respondent
REASONS FOR JUDGMENT
Background
This matter proceeded to an interim hearing on 21 March 2019 before me in relation to parenting issues between the Applicant mother, Ms Menard born … 1971 (‘the mother’), and the Respondent father, Mr Menard, born … 1972 (‘the father’), concerning their children [X], born … 2003, [Y], born … 2006, and [Z], born … 2008 (‘the children’).
The parties commenced cohabitation at the time of their marriage on … 1996. They separated, on the father’s evidence, on 28 January 2018, and on the mother’s evidence in about February 2018 (incorrectly stated as February 2017 in paragraph 3 of the mother’s affidavit of 5 February 2019).
At the time of separation, the mother vacated the matrimonial home and she and the children commenced living with the maternal grandmother at her home in Suburb R.
The proceedings were commenced by an Initiating Application filed by the mother on 12 June 2018 seeking final orders in relation to both parenting issues and property settlement, and seeking interim orders in relation to parenting issues, property issues, and spouse maintenance.
The mother’s Initiating Application was filed in the Family Court of Australia at the Sydney Registry. With the Initiating Application, the mother filed a Notice of Risk in which she asserted a risk to the children consequent upon her assertions that the father had physically assaulted the child [X] in October 2017 and October 2018, that all three children were scared of the father as a result of family violence during the course of the marital relationship by the father towards the mother and the child [X], and a risk to the children on the part of the father on the basis of mental health issues.
The father filed his Response on 24 July 2018 seeking interim and final orders in relation to parenting and property matters. The father filed with his Response a Notice of Risk asserting that there were no risk issues in the matter.
On the first return date of the matter in the Family Court of Australia, the matter was listed before Registrar Aitken, who transferred the matter to the Federal Circuit Court duty list at 9:30am on 31 July 2018.
On 31 July 2018, the matter was before Judge Boyle and on that day, relevantly to this interim hearing, her Honour made an order under section 11F of the Family Law Act 1975 (Cth) (‘the Act’) for the parties to attend a Child Inclusive Conference with a Family Consultant on 16 August 2018. Her Honour also made an order pursuant to section 68L(2) of the Act that the children be independently represented in the proceedings. The matter was adjourned to 17 December 2018 for further directions.
On 17 December 2018, the matter was before Judge Monahan. On that occasion, his Honour adjourned the matter to 21 March 2019 for interim hearing and made directions for the filing of any further material including Affidavits to be relied upon by the parties on interim hearing. His Honour listed the matter for a Conciliation Conference with a Registrar of the Court on 25 June 2019 at 2:00pm.
The parents and each of the children attended a Child Inclusive Conference with Family Consultant Ms C on 16 August 2018. The Family Consultant provided a Child Inclusive Conference Memorandum to Court dated 12 October 2018 which was available at the interim hearing.
In due course, Mr Grooby, solicitor of the Sydney office of Legal Aid NSW was appointed as the Independent Children’s Lawyer in the matter.
The interim hearing that took place on 21 March 2019 before me was in relation to interim parenting orders sought by the mother in her Initiating Application and by the father in his Response.
Following the interim hearing on 21 March 2019 I made interim orders. These are the reasons for those orders.
The Parties’ Proposals
On interim hearing, the mother was represented by Ms Mary-Clare Kennedy of Counsel. Ms Kennedy provided a Case Outline document that included the orders sought by the Applicant mother as follows:
a)That the children live with the mother.
b)That [Z] and [Y] spend time with the father:
i)Each alternate Sunday from 10:00am until 4:00pm;
ii)24 December 2018 from 10:00am until 4:00pm;
iii)Easter Monday from 10:00am until 4:00pm;
iv)Father’s day from 10:00am until 4:00pm;
v)The father’s birthday from the conclusion of school or 3:00pm until 7:30pm;
c)For the purpose of this order the father is to collect the children from the mother’s address at the commencement of time and to deliver the children to the mother’s address at the conclusion of the time and to be supervised at all times by the paternal grandmother or the father’s current girlfriend Ms B.
d)The father have telephone contact with [Z] and [Y] calling a telephone number nominated by the mother each Thursday and Monday between 7:00pm and 8:00pm. The father be restrained from contacting children by electronic communication at all other times.
e)That for the purposes of communicating information between the parties about matters relating to the children only, the mother and father shall:
i)Communicate by telephone including text messages to personal telephone numbers for matters of an urgent nature only; and
ii)Communicate by email to personal email account regarding day to day matters.
f)That both parties are restrained from:
i)Denigrating the other parent or a person with whom the other parent has a relationship, in the presence or hearing of the child, or permitting the child to remain in the presence or hearing of any other person denigrating the other parent or person with whom the other parent is in a relationship with, with the parents knowledge or in their presence;
ii)Discussing the proceedings or any allegations raised in these proceedings with the child or permitting any other person to do so with their knowledge or in their presence;
iii)Permitting the child having access to any of the documents filed in these proceedings;
iv)Communicating any information intended for the other parent through the child;
v)Causing the child to be a medium in any way to adult matters between the mother and father between the mother and father and any other person;
vi)Discussing major long-term matters with the child including living arrangements and schooling, until such issues have been raised and discussed with the other parent, a mutual decision has been reached and consent is given by both parties to those matters being discussed with the child or the parties agree to the matter being raised and discussed with the child.
g)That within 12 months of the date of these orders the father attend a “Parenting After Separation” course and provide evidence of completion to the mother and Independent Children’s Lawyer within 28 days of completion.
h)That within 12 months of the date of these orders the father attend a “Taking Responsibility” course and provide evidence of completion to the mother within 28 days of completion.
i)The children continue to see clinical psychologist Dr D and the father to pay the costs thereof.
j)That the father spend time with [X] in accordance with her wishes.
On interim hearing, the father appeared on his own behalf and provided to the Court a Case Outline document that attached a form of Response setting out the interim parenting orders sought by him as follows:
a)That the wife’s application for interim orders be dismissed.
b)That the parties have equal shared parental responsibility for the long-term care, welfare and development of the children [X], born … 2003, [Y], born … 2006 and [Z], born … 2008.
c)That the children shall live with the father.
d)That the children shall spend time with the mother as agreed between the parties and failing agreement, as follows:
i)During the children’s school term time, in a two-week cycle commencing the first Friday following the making of these orders, as follows:
(1)Week one: from the conclusion of school (or 3:00pm if a non-school day) on Friday until 6:00pm on Sunday; and
(2)Week two: from the conclusion of school (or 3:00pm if a non-school day) until 8:00pm on Tuesday.
ii)During the children’s school holiday periods, when order (d)(i) shall be suspended, as follows:
(1)In even-numbered years, for the first-half of the children’s school holiday periods; and
(2)In odd-numbered years, for the second-half of the children’s school holiday periods.
e)That for the purpose of facilitating change over other than on those occasions when either party collect or returns the children to or from school, the party who is about to start their time with the children shall collect them from the other party’s residence, unless otherwise agreed between the parties in writing.
f)That the parties shall keep each other informed of any change to their residential addresses, landline numbers, mobile telephone numbers and personal email addresses within 24 hours of such change taking place.
g)That the parties shall communicate and promptly respond to each other by phone, email or text message in a respectful and conciliatory manner as and when reasonably practicable or necessary and limit such communication to issues concerning the children.
h)That each party shall ensure the other is advised promptly of any medical emergency or significant illness suffered by, or relating to, the children including sufficient details to enable both parties to be consulted and fully advised regarding such illness or condition and any treatment.
i)That the parties shall keep each other informed as to significant events occurring in the children’s lives, including (whenever applicable) but not limited to parent/teacher interviews, sporting events, invitations received by or on behalf of the children.
j)That the parties shall do all acts and things and sign all documents necessary to ensure each of them (whenever applicable) receives a copy of the children’s school reports, newsletters and other relevant notices issued by their school.
k)That neither party shall denigrate the other party or anyone associated with that party in the presence or hearing of the children, and shall forthwith remove him from any third party doing so.
l)That within 6 months of the date of these orders the mother attend a “Parenting After Separation” course and provide evidence of completion to the father and Independent Children’s Lawyer within 28 days of completion.
m)That within 28 days of the date of these orders the mother attend upon a psychologist and obtain a report as to her current condition and attend upon said psychologist as recommended, such report to be provided to the father and the Independent Children’s Lawyer within 5 days of receipt.
n)That the children attend upon clinical psychologist Ms E with the costs to be shared thereof.
o)That each party has liberty to apply as to implementation or enforcement of these orders upon the giving of seven days written notice to the other.
p)That the wife shall pay the husband’s costs of, and incidental to, these interim proceedings.
Mr Grooby appeared at the interim hearing on his own behalf as the Independent Children’s Lawyer, and provided to the court a Case Outline document, which set out the orders he sought on interim hearing as follows:
a)That the children shall live with the mother.
b)That the children shall spend time with the father as follows;
i)Each alternate Sunday from 10am until 4pm;
ii)On 24 December from 10am until 4pm;
iii)On Easter Monday from 10am until 4pm;
iv)On Father’s Day from 10am until 4pm;
v)On the Father’s birthday from the conclusion of school or 3:00pm until 7:30pm.
c)That for the purpose of this order the father is to collect the children from the mother’s address at the commencement of time and to deliver the children to the mother’s address at the conclusion of the time;
d)That without admissions, the father’s time with the children shall be in the presence of the father’s current partner, Ms B, or the paternal grandmother.
e)That in the event that [X] informs the mother she does not wish to spend time with the father during a time provided for in accordance with Order (b) above, then the mother will advise the father of the same and [X] shall not spend time with the father on that occasion.
f)That the father have telephone contact with the children by calling a telephone number nominated by the mother each Thursday and Monday between 7:00pm and 8:00pm.
g)That for the purposes of communicating information between the parties about matters relating to the children only, the mother and father shall:
i)Communicate by telephone including text messages to personal telephone numbers for matters of an urgent nature;
ii)Communicate by email to personal email account regarding day-to-day matters.
h)That the parties are restrained from:
i)Denigrating the other parent or a person with whom the other parent has a relationship, in the presence or hearing of the children, or permitting the children to remain in the presence or hearing of any other person denigrating the other parent or person with whom the other parent is in a relationship with, with the parents knowledge or in their presence;
ii)Discussing the proceedings or any allegations raised in these proceedings with the children or permitting any other person to do so with the knowledge or in their presence;
iii)Permitting the children having any access to any of the documents filed in these proceedings;
iv)Communicating any information intended for the other parent through the children;
v)Causing the children to be a medium in any way to adult matters between the mother and father or between the mother and father and any other person;
vi)Discussing major long-term matters with the children including living arrangements and schooling, until such issues have been raised and discussed with the other parent, a mutual decision has been reached and consent is given by both parties to those matters being discussed with the children or the parties agree to the matter being raised and discussed with the children.
i)That within 12 months of these orders the parents attend a “Parenting After Separation” course and provide evidence of completion to the Independent Children’s Lawyer within 28 days of completion.
j)That without admissions, within 12 months of the date of these orders the father is to attend an anger management course and provide evidence of completion to the Independent Children’s Lawyer within 28 days of completion.
k)That within 21 days of the date of these orders, the father engage in family counselling with a family counsellor nominated by the Independent Children’s Lawyer for the purpose of improving his relationship with the children, and that the Independent Children’s Lawyer provide a copy of the Children Inclusive Conference memorandum of Ms C dated 12 October 2018 to the family counsellor that is engaged.
Evidence
The Mother’s Evidence
According to her Case Outline, the mother relied upon her affidavit sworn 5 June 2018 and filed 12 June 2018 (‘the June affidavit’) and her affidavit sworn 5 February 2019 and filed 14 February 2019 (‘the February affidavit’). The sum of the evidence in the June affidavit is repeated in full in the February affidavit, with some additional material to bring the matter up to date.
In the February affidavit, the mother gives evidence of incidents of family violence perpetrated by the father against herself and against the children. This alleged family violence is inclusive of physical violence against herself and against the child [X], and incidents of family violence within the definition of ‘family violence’ in section 4AB of the Act.
Section 4AB is in the following terms:
Definition of Family Violence etc.
(1) For the purposes of this Act, family violence means violent, threatening or other behaviour by a person that coerces or controls a member of the person's family (the family member ), or causes the family member to be fearful.
(2) Examples of behaviour that may constitute family violence include (but are not limited to):
(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) For the purposes of this Act, a child is exposed to family violence if the child sees or hears family violence or otherwise experiences the effects of family violence.
(4) Examples of situations that may constitute a child being exposed to family violence include (but are not limited to) the child:
(a) overhearing threats of death or personal injury by a member of the child's family towards another member of the child's family; or
(b) seeing or hearing an assault of a member of the child's family by another member of the child's family; or
(c) comforting or providing assistance to a member of the child's family who has been assaulted by another member of the child's family; or
(d) cleaning up a site after a member of the child's family has intentionally damaged property of another member of the child's family; or
(e) being present when police or ambulance officers attend an incident involving the assault of a member of the child's family by another member of the child's family.
The mother refers to multiple incidents of such family violence in the February affidavit.
In paragraph 14, the mother deposes:
… after our first year of marriage … Mr Menard grabbed [me] on the shoulders and roughly pushed me against the wall and pinned me there with one hand pushing each shoulder into the wall.
In paragraph 16, from the time of the incident referred to in paragraph 14 until the parties’ separation, the father “belittled” the mother.
In paragraph 18, the mother deposes:
Mr Menard would frequently pin me against the wall, shove me when he walked past me.
In paragraph 27, in or after 2009, the mother deposes that:
Mr Menard continued to physically pin me against the wall or punch the wall next to my face and yell at me. On occasions he said to me
“I’ll kill you.”
The children regularly saw and heard these incidents and [X], who was then about 6 years old, would call my mother-in-law Ms A at least once a month to come to our house to intervene.
In paragraph 31, the mother deposes that:
In October 2013 Mr Menard and I had an argument at home in front of [X], [Y] and [Z]. We were in the kitchen sitting at the table. I got up and Mr Menard came towards me holding a carving knife and said to me words to the effect
“I will kill you.”
I was terrified and I walked away out of the room and [X] called Ms A, my mother in law.
In paragraph 36, the mother deposes that:
… in October 2017, I had sworn in front of him and he yelled at me:
“I’ll be putting soap in your mouth.”
In paragraph 37:
In October 2017 ... [X] came running around to me and said to me words to the effect:
“Dad grabbed me by the neck it was really hurting me, I’m scared.”
[X] was hyperventilating. I had to calm her down. I saw her neck was pink.
In paragraph 38:
… in January 2018 .... Mr Menard became increasingly angry with [X] and the computer set up and started punching himself and then the wall. .... [X] ran out of the house. The two younger children came to me and said to me words to the effect:
“[X] is scared and has run to the neighbours.”
I went outside and saw [X], brought her inside, comforted her and tried to calm her down.
In paragraphs 42 and 43, the mother asserts that the father was financially controlling, though not necessarily to the point where he unreasonably withheld financial support needed to meet the reasonable living expenses of the mother and the children.
In paragraph 44, the mother asserts:
Mr Menard paid for and obtained all our mobile phones and he tracked my whereabouts.”
On the basis of the assertion without factual basis “he tracked my whereabouts”, I cannot find that the father by any method, including by use of mobile phones as inferred in the paragraph, tracked the mother’s whereabouts.
In paragraph 61, and being an occasion occurring after the parties’ separation and while father was spending time with the children:
On Sunday, 5 August 2018 Mr Menard took the girls after church. On their return [Y] said words to the effect:
“[X] had a huge argument with dad ...Me and [X] ran next door.”
[Y] said she was “frightened”. [X] said words to the effect:
“[Z] was in the house with dad, so I went back to [Z] to see if she was okay.”
The girls said that Mr Menard said to them words to the effect:
“get your stuff or I will get rid of it!”
[Z] was so upset it was extremely difficult to get her to sleep as she was sobbing.
In paragraph 29 the mother asserts:
It was also around this time [referring to April 2011 per paragraph 28] that I realised that the children were copying their father’s behaviour towards me; they were rude, would not do what I asked, would belittle me and had no respect for me. I took them to counselling. This was extremely helpful and their behaviour improved.
In paragraph 32 the mother deposes:
In late October/early November 2013 on two occasions I heard loud noises in the night. I went to investigate and heard a loud noise that I thought was Mr Menard jumping down from [Y]’s bunkbed. [Y] confirmed that he had been in her bed. I reported this to the police.
If this evidence is meant by the mother to raise an inference that the father has or may have dealt inappropriately with the child [Y], and thereby raise an unacceptable risk of that nature, on the basis of that evidence alone, I cannot so find.
In paragraph 50, the mother relates that following the mother and children vacating the matrimonial home in February 2018, the father made requests that he spend overnight time with the children. The mother deposes that, initially, she consented to him having overnight time with the children if the maternal grandmother or the father’s then-girlfriend was present. She deposes that she subsequently found out that there were occasions when the children were spending time with the father without the presence of the father’s then-girlfriend, and on this basis, the mother withdrew her consent to overnight time.
In paragraphs 51 to 57, 62, 67 and 70, the mother asserts that there are occasions of each of the children having made statements to her to the effect that they are frightened of the father and that they do not want to spend time with him unless there is someone else, presumably another adult person, present.
I have read and carefully considered all of the evidence contained in the mother’s February affidavit.
On interim hearing, the mother also tendered certain documents that were marked as Exhibits. The mother also relied on those documents as part of her evidence.
Exhibit A1 is a document dated 27 October 2016, being medical notes made by Dr F (‘Dr F’) of Suburb G General Practice in relation to a consultation with the child [Y], including:
Thank you for seeing [Y], age 10 yrs, for help regarding her depression for six sessions as part of a MHCP [mental health care plan]. Some social withdrawal, negative thinking and some TOSH.
Exhibit A2 consists of two documents contained in materials produced on subpoena by H School. The first document consists of two pages of typed notes from H School, being a school counsellor’s notes of consultations with [Y] from 5 February 2018 to 18 June 2018. In particular, on 18 June 2018, the document contains the following:
Spoke about dad being away at present ([in] Country S for work, couple of weeks), she says this feels more peaceful. She talked about feeling safe and comfortable at Grandma’s and Mum’s, says she doesn’t feel like that at Dad’s (also said they haven’t visited for a while). She mentioned sometimes wanting to talk with him on the phone when he called, but not always wants to.
The second document is a single page dated 12 February 2018 and headed ‘Notes from session with [X]’. It contains the following note:
[X] then disclosed that Dad would sometimes get really stressed and angry, and that he would be verbally and physically “violent” towards her. She said he was sometimes verbally abusive towards younger sisters but not physically. She explained physical behaviour as usually hitting her on the arm. She mentioned incident at the end of last year when the family were on a family holiday in Country T. ... She asked him to hurry up and then said that Dad pushed her against the wall and put his hand around the front of her throat. She described feeling scared and frightened. She told mum about it and said she had also told mum other times when Dad had hit her. …
She also mentioned another incident where Dad was really angry with her and she left the house because she felt frightened and went to the neighbour’s home.
Later in that document is the following:
She says Mum wants her to report to the police and that if they go to court with divorce proceedings that she should explain what has happened. She said that Mum has told her she will need to make a choice about who she stays with once custody proceedings take place.
Exhibit A3 is in material produced on subpoena by Ms E clinical psychologist (‘Ms E’) and is page 3 of a document dated 1 August 2018, prepared by Ms E in relation to the father, and containing the following:
Over time Mr Menard began to experience further stress, and feeling overwhelmed, panicky, hyped up and having difficulty letting go of stressful events. This was exacerbated after his wife left with the children suddenly. Mr Menard’s mental state began to deteriorate during this time and as a result may have contributed to the deterioration of his physical health. (abdominal pain, tiredness and gastrointestinal symptoms) and he became depressed, anxious and increasingly stressed. …
Overall Mr Menard has been able to manage with his day-to-day life and work but has significantly been impacted both mentally and physically by the whole process of separation and an accusation by his wife.
Under a heading ‘Recommendations’ is:
I recommend that Mr Menard continue to have psychological support to assist him with this difficult time in his life and help him manage his stress, and anxiety and depression as a result of the separation and accusations by his wife.
Exhibit A4 is in material produced on subpoena by ‘The Mindspace’ at Suburb J. It is a copy of a handwritten document dated 18 January 2018, headed ‘[X]’ and containing the words:
I’m probably the only one in a high school who has been hit by dad.
Thereafter is a relation of the incident occurring during the family holiday in Country T in October 2017 referred to above. It contains the words:
He came over and pushed me up against the wall with hand around my throat and said:
“you better watch yourself”
The document also contains the words:
Overall indicating some fear of dad but also feeling ‘stuck’ and pressure from mum to talk about negative things related to father
Exhibit A5 is the Child Inclusive Conference Memorandum by the Family Consultant, mentioned above and to which I will refer later in these reasons.
The Father’s Evidence
The father relied on his affidavit sworn 27 February 2019 and filed 28 February 2019. Both prior to and following the interim hearing I have carefully read and had regard to the whole of the contents of that affidavit.
Of particular relevance to the issues to be decided in the interim hearing, I have had regard to the following evidence in that affidavit.
In paragraph 28, the father deposes that:
Throughout our relationship I have continued to work full-time to support the family. After work I would come home and assist Ms Menard with the care of [X], [Y] and [Z].
In paragraph 32:
During this time [November 2013 per paragraph 31], Ms Menard started to leave the children at home with me without consulting me or acknowledging I had to go to work. Virtually every Friday night she would stay at her parents’ residence and left the children with me without any explanation.
In paragraph 33, the father deposes:
On one occasion when I was tucking [Y] and Ms Menard into bed after reading a story and praying with them as that was our usual routine Ms Menard came to [Y] and Ms Menard’s room and bizarrely accused me of being in [Y]’s bed. I was horrified Ms Menard would accuse me of possibly harming or being inappropriate with [Y]
The father continues in paragraph 34 as follows:
After some time, Ms Menard and I attended marriage counselling at Suburb K Church during which she said to me, in the presence and hearing of the minister and his wife, words to the effect:
“The accusation I made against you regarding interfering with [Y] was false. I only did that to gain your attention as we are experiencing marital issues. I’m sorry.”
In paragraph 45, the father deposes:
I have never been physically or verbally abusive towards Ms Menard and/or the children. I have also never threatened her and/or the children’s lives ...
The father continues on in paragraph 46 as follows:
I have taken responsibility and have been actively involved in the parenting and care of the children. I regularly attended their medical appointments, bathed them, dressed them, cook regular meals for them, assisted with their homework and prepare them for school and bed time.
In paragraph 55, the father deposes:
On 28 January 2018 I was returning to Sydney from a conference in Queensland when I phoned Ms Menard to let her know I arrived she said to me words to the effect:
“I moved out of the home with the children and you’re not to see them.”
In paragraph 58:
On 23 February 2018 we agreed for the children to spend overnight time with me. When Ms Menard delivered the children to me at about 9.05pm she entered the Suburb L property and proceeded to tell the children what they should be doing and remained in the house wanting to put [Y] and [Z] to bed. I politely asked Ms Menard to leave so I could commence my time with the children, which she only did 30 minutes later.
In paragraph 65:
Up until on or about 18 May 2018 Ms Menard had no issue for the children to spend all day with me without supervision and some supervised overnight time. Ms Menard now insists that I must only spend time with the children under the supervision of my mother or one particular friend during the day and no overnight time.
In paragraph 69, in reference to paragraph 61 of the mother’s February affidavit, the father deposes:
The assertions by Ms Menard that I frightened and threatened the children on 5 August 2018 is completely fabricated. I was not in the presence of the children on that day. Ms Menard continues to make false and misleading statements about me to the children and others.
In paragraph 73, the father deposes:
Up until the 18 December 2018 I was in regular contact with the Children most evenings between 7:00pm and 8:30pm. I usually contacted them through their maternal grandmother’s house phone or their own mobile phones. Since that time phone calls mostly go unanswered and Ms Menard does not respond to calls to her mobile phone and rarely responds in a timely manner to any text messages or emails.
In paragraph 81, the father deposes:
I have never threatened nor demanded the children to spend time with me or speak to me over the phone.
In paragraph 85, the father deposes:
The Children have only spent five nights with me after separation due to Ms Menard’s self-imposed restrictions.
The father annexes as Annexure ‘D’ to his affidavit a schedule of the times that he asserts that the children or any of them have spent time with him between 29 January 2018 and 16 February 2019.
The father tendered certain documents that were admitted as exhibits in the interim hearing and the father relied on those Exhibits in evidence.
Exhibit R1 is a document from the material produced on subpoena by Suburb G General Practice being consultation notes made by Dr F on 30 November 2018 and on 15 February 2019 in relation to his consultations on those dates with the mother. That document was referred to by the father at the start of his submissions to the Court as evidencing the existence of “conflict in the mother’s house” and of the mother “couch surfing”.
The notes of the consultation on 30 November 2018 are as follows:
Working through court issues.
Close to issuing of court ordered parenting plan.
Mentally well
Not letting ex husband Mr Menard get under her skin
Able to see big picture.
Still seeing Dr D psychologist occasionally.
Not seeing Ms M
Good support from her church and friends.
Overall has done very well.
Discussed immunisations for [Y].
Would be good idea
Benefit far outweighs risk.
The notes of the consultation on 15 February 2019 are as follows:
Conflict while staying at her mother’s house.
Not tolerating fighting amongst girls
Has left her mum’s house.
Couch surfing at friend’s house.
Suggest contacting Centrelink.
Offered assistance with sleep.
Not interested.
I note that the consultation on 15 February 2019 is after the date of swearing of the mother’s February affidavit relied on at the interim hearing (being 5 February 2019) in which the mother deposed in paragraph 7:
The children and I vacated the former matrimonial home in Suburb L in February 2018 and are currently residing at my mother’s home in Suburb R.
Exhibit R2 is a copy of an email contained in material produced on subpoena by H School. The email was sent on Friday 9 February 2018 at 10:15am by Mr N, the Deputy Principal at H School to Mr O, with a carbon-copy sent to Mr P. The body of the email contains the following text:
Ms Menard is worried that Mr Menard [sic] her husband will come and try to get the kids. I am out for a bit today and so is Mr U. In the unlikely event that he turns up while I am out the Office might get you. Mr Menard is a bit unpredictable and if he comes we need to not let him get the kids. No legal right to do so however.
In that case
·Get someone to call Ms Menard straight away
·Delay Mr Menard
·Get Q as there are 2 in JS
·Reason with him
·If he gets aggressive call the Police
Mr P: Mr U and I are out from 10.30 to 12.30. I think this fear is unfounded but can’t be ignored.
Sorry to you both.
Mr N
The document was not referred to by the father in his submissions.
Exhibit R3 is from material produced on subpoena by Ms E, and is a handwritten document dated 6 September 2018. The document was not referred to by the father in his submissions and I do not find any of the contents to be of any relevance to the issues to be decided in the interim hearing.
Exhibit R4 is from material produced on subpoena by ‘The Mindspace’ and being a copy of a handwritten document containing notes of an interview with the child [Z], though not specifically dated and with no indication of who was conducting the interview.
It contains the note referred to by the father in his submissions, being:
No indication of being fearful of father.
Exhibit R5 consists of three documents contained within the bundle of material produced on subpoena by Suburb G General Practice:
The first document is a letter dated 31 August 2012 from Dr D, clinical psychologist (‘Dr D’), to Dr F in relation to the mother and, from the context of the letter, some therapy that the mother was undertaking with Dr D in relation to difficulties in the marriage.
The context suggests that the father had participated in the therapy on occasions. Neither the text of this letter nor the text of the other tendered letters in the Exhibit to which I will refer assist me to know whether the factual statements contained in the letters upon which the doctor bases some expressions of opinion have been conveyed to Dr D by both parties, or by the mother alone.
The letter contains the following comment:
As you are aware Ms Menard tends to be quite emotionally reactive, and Mr Menard is not the easiest husband for her, both in terms of his perfectionism and control issues, and his difficulty in emotionally supporting her with the children. Overall, she seems to cope, albeit with the occasional setback when she feels overwhelmed.
The second document is a letter dated 26 November 2013, also from Dr D to Dr F, in relation to the mother. It contains the following comment:
More recently she has had to leave the marital home with the children, in order to enable things to calm down. As you are aware, her husband Mr Menard can be very controlling and angry which frightens Ms Menard. Beneath his behaviour pattern there is a history of physical abuse as a child and considerable anxiety whenever things feel out of control, so his primary emotion is really anxiety although it shows up as anger. For her part, Ms Menard is very reactive with the histrionic flavour to her personality, so she can escalate conflicts quickly, well beyond a “balanced response”. These two patterns of personal functioning obviously clash and escalate quickly.
The third document is a letter dated 31 January 2014 from Dr D to Dr F in relation to the mother. I do not find anything contained therein that assists me in this current matter.
Exhibit R6 consists of documents in material produced on subpoena by New South Wales Police Force, being COPS entries relating to the father on 9 November 2013, 26 January 2018 and 19 May 2018.
The COPS entry for 9 November 2013 records the occasion when the mother attended at Suburb J Police Station to express concern about the father’s mental health.
Per the COPS entry, the mother had requested of the father that he see a doctor about his mental state, and the father refused to seek that help. This occurred when the parties were separated and the mother was residing with the children at the mother’s brother’s home. The mother alleged to police that:
Mental health runs in Mr Menard’s family
The police note that they are not able to confirm this as the mother requests the police to not contact the father.
The mother also reports to police on this occasion the incident where she asserts that the father went to:
…his daughter’s room to sleep with her
The COPS entry continues:
No offences disclosed by [the mother] nor did she state her daughter disclosed anything suspicious occurred. The [mother] mentioned an incident that occurred 6 months ago where the [father] allegedly put his hands to her neck. Police asked for a statement however the [mother] was reluctant in supplying details. … The [mother] wanted advice about where she stood by leaving the [father] as she stated he controls her by finances, where she goes, checking her phone etc.
The incident on 26 January 2018 relates to the mother’s attendance at Suburb G Police Station for some advice in relation to the issuance of an Apprehended Domestic Violence Order (‘ADVO’). Police formed an opinion that the mother was attempting:
To try and criminalise the [father] to advantage her and her position when it came to family court and marriage proceedings.
The third incident on 19 May 2018 refers to an attendance by the mother at Suburb G Police Station, accompanied by the child [X]. The purpose of the attendance was to make a complaint about an incident occurring at [X]’s school athletics carnival, which had occurred that day at Suburb L Sports Club.
When the father came to collect [X], she told him that she was not going with him but was going to youth group with family friends, and the father then left. The police explained that no offences were disclosed by the narrative and so they would not be applying for an AVO.
The mother then informed the police of the incident occurring during the family holiday in Country T in October 2017 when, the mother asserted, the father attempted to strangle [X].
The COPS entry continues:
Police informed [the mother] that as there was no offence detected in the recent incident, no pattern of intimidation or threats and the last reported incident as from seven months ago in another country, the threshold for applying for an AVO could not be met.
The mother then referred to:
Another previously unmentioned assault which allegedly occurred late 2017 in which [the father] has allegedly punched [[X]] while in his car.
The police again formed an opinion that the mother was attempting to use police to her advantage in order to discredit the father.
The father referred to the materials in exhibit R6 in his submissions in support of his assertion that:
I believe I am a low risk to the children.
The Child Inclusive Conference Memorandum to the Court
The Family Consultant interviewed each of the parents separately and each of the children separately on 16 August 2018.
In the Child Inclusive Conference Memorandum, the Family Consultant details the allegations of family violence perpetrated by the father towards the mother and towards the children, as detailed by the mother.
The Family Consultant opines that the type of family violence the mother has alleged would be categorised as family violence of a coercive and controlling nature, which has the potential to continue following separation, and that some of the behaviours the mother alleges of the father may indicate that the alleged family violence is of a high risk nature.
The Family Consultant records that the father denies the mother’s allegations of family violence and that he makes certain allegations of family violence against the mother. She indicates that the father believes that conflict in their marriage was characteristic of normal conflict that couples encounter.
The father denies that he had been violent or intimidating towards the children. The Child Inclusive Conference Memorandum records that the mother believes that the children are not safe with the father and that it is detrimental to their emotional well-being to spend time with him. It records that the father believes that the mother is unreasonably trying to prevent children from enjoying a relationship with him.
The Child Inclusive Conference states that the child [X] says:
… she is happy that her parents separated as she believes that the relationship was not very good. She said that her parents frequently argued and that her father would call her mother names like “fat”, “dumb”, and “stupid” and push and punch her mother. She said that her mother would not retaliate but would go outside and cry. [X] also said that she once witnessed her father hold a knife up and threatened to kill her mother.
[X] said that her father was also violent and abusive towards her and her siblings. She described her father often becoming very angry over minor issues and she said that he would yell and criticise her and her siblings and be physically violent towards them.
[X] provided detailed accounts of several occasions when the father was allegedly violent and abusive towards her. …
[X] said that, since her parents’ separation, her father has continued to behave in a very threatening and abusive manner at times, although she said that her father’s girlfriend is often present and he “pretends” to be nice when she is present. …
[X] said that she is unsure if she wishes to spend time with her father on an ongoing basis in the future. She said she will feel “mean” if she cuts him out of her life completely, but that she is also fearful of him and would prefer not to spend time with him as a result of his violent and abusive behaviour.
As the Child Inclusive Conference Memorandum continues, the child [Y]:
… also indicated that she was not upset by her parents separation as she feels life is better now that her parents have separated. …
[Y] said that she feels “awkward” with her father and that she does not like spending time with him. [Y] said that she feels this way because her father is “scary” because he has “mood swings” and she feels she cannot trust him.
[Y] said that her father is scary because he can become very angry. She said that when her father is angry he will yell loudly, stomp, and hit things like walls and desks. [Y] said that her father also sometimes hits her and her siblings. She said that her father would occasionally give her and her siblings a whack on the leg or bottom, although he was more violent with [X]. She said that her father would also call her names sometimes such as “slow”.
[Y] said that she is unsure how she feels about spending time with her father on an ongoing basis in the future. She said that she does not mind seeing her father sometimes when she is with her sisters, and also said that she might miss her father she never sees him. She said, however, that she finds it very stressful to spend time with him and she was clear that she does not want to spend any overnight time with her father.
In relation to the child [Z], the Child Inclusive Conference Memorandum states:
[Z] indicated that she has mixed feelings about her parents’ separation. She said that she is sad that her parents separated but she is also happy because she knows her father was “bullying” her mother.…
[Z], like her sisters, also indicated a reluctance to spend time with her father but said that she still wants to see him sometimes, such as the current arrangement of one day each weekend.
[Z] voiced a reluctance to spend time with her father because she said that her father does not spend much time with her and her sisters when they are with him, because he lies to her and her sisters, and because her father can get very angry and used to hit her and her sisters. … In relation to her father becoming angry and hitting her and her siblings, [Z] did not provide any detailed accounts but said that, in general, her father is “really scary” when he gets angry and he will almost break things and that he has smacked her a number of times on the bottom and that it “really hurts”. …
[Z] indicated that she had heard some information from her mother which may also be causing her to feel badly towards her father. For example, [Z] said that her father is going to sell the house and her mother was annoyed because her father did not tell her. She also believes that one of their pet birds died because her father did not feed it adequately, although it is unclear where she got this information.
The Family Consultant noted that the children have indicated some desire to keep spending some time with their father, but that given the concerns raised about the children’s safety and well-being with the father, safety measures may need to be put in place to reduce concerns about the children’s safety, at least on an interim basis until more comprehensive assessment of the safety concerns can occur. These possible safety measures include his time with the children being supervised by a supervised contact service or a trusted family member or friend, or by spending time with the father at a public location.
The Family Consultant notes that given [X] and [Y]’s ages, their views about spending time with their father should be given considerable weight:
Given that they have expressed a reluctance to spend time with their father and that [Y] is particularly against spending overnight time with her father, it may be distressing for the children if interim orders were made to spend any more time with their father than they are currently spending with him.
Submissions
Mr Grooby, as the Independent Children’s Lawyer, indicated that he had twice met with [Y] and [Z] individually, that he had met with all three children together, that he had spoken to persons at the children’s schools, and that he had spoken to Dr D.
Mr Grooby reviewed the evidentiary material, particularly the Child Inclusive Conference Memorandum and noted that there had been no structure in the father’s time with the children since the parties separated and that there was a need to reintroduce a structured arrangement for that time.
Mr Grooby submitted that an order should be made for the father to engage in an anger management course as identified to the father by the Independent Children’s Lawyer and that the father would benefit from engaging with the children in some family counselling to help improve his relationship with his children.
In submissions on behalf of the mother, Ms Kennedy reviewed the evidentiary material including the material and Exhibits A1, A2, A3, A4, and A5 detailed above.
Ms Kennedy referred to the primary and additional considerations in section 60CC of the Act and submitted that the children’s wishes should be given precedence due to their ages, with [X] being 15 years of age, [Y] being 12 years of age and [Z] being nine years of age at the time of the interviews for the Child Inclusive Conference Memorandum.
Ms Kennedy submitted that there were serious questions in relation to the father’s parenting capacity in that his focus was very much in pursuit of his relationship with the children, rather than the difficulties being experienced by the children consequent upon what the mother asserts had been their lived experience of the father and his the lack of insight into what children were going through.
The father made submissions on his own behalf referred to the evidence contained in the exhibited documents tendered by him as showing that he presented what he believed to be a low risk to the children, and asserting that he believed that the mother was exaggerating the risk. Ultimately, the father indicated his agreement to an order that his time with [X] being in accordance with [X]’s wishes.
Interim Hearing
In Goode & Goode,[1] the Full Court of the Family Court of Australia set out a framework to be adopted on the hearing of interim parenting applications, found in paragraphs 81 and 82 of the judgment:
[1] Goode & Goode (2006) FLC 93-286.
[81]In making interim decisions the court will still often be faced with conflicting facts, little helpful evidence and disputes between the parents as to what constitutes the best interests of the child. However, the legislative pathway must be followed.
[82]In an interim case that would involve the following:
(a) identifying the competing proposals of the parties;
(b) identifying the issues in dispute in the interim hearing;
(c) identifying any agreed or uncontested relevant facts;
(d)considering the matters in section 60CC that are relevant and, if possible, making findings about them (in interim proceedings there may be little uncontested evidence to enable more than a limited consideration of these matters to take place);
(e)deciding whether the presumption in section 61DA that equal shared parental responsibility is in the best interests of the child applies or does not apply because there are reasonable grounds to believe there has been abuse of the child or family violence or, in an interim matter, the court does not consider it appropriate to apply the presumption;
(f)if the presumption does apply, deciding whether it is rebutted because application of it would not be in the child’s best interests;
(g)if the presumption applies and is not rebutted, considering making an order that the child spend equal time with the parents unless it is contrary to the child’s best interests as a result of consideration of one or more of the matters in section 60CC, or impracticable;
(h)if equal time is found not to be in the child’s best interests, considering making an order that the child spend 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;
(i)if neither equal time nor substantial and significant time is considered to be in the best interests of the child, then making such orders in the discretion of the court that are in the best interests of the child, as a result of consideration of one or more of the matters in section 60C;
(j)if the presumption is not applied or is rebutted, then making such order as is in the best interests of the child, as a result of consideration of one or more of the matters in section 60CC; and
(k)even then the court may need to consider equal time or substantial and significant time, especially if one of the parties has sought it or, even if neither has sought it, if the court considers after affording procedural fairness to the parties it to be in the best interests of the child.[2]
[2] Goode & Goode (2006) FLC 93-286, [81]-[82].
I have identified above competing proposals of the parties and including the proposals put to the Court by the Independent Children’s Lawyer.
The issues in dispute in this interim hearing are as to the amount of time that the children should spend with their father and the conditions, if any, that should be placed on that time.
Though orders relating to the father having telephone communication with the children were proposed by both the mother and the Independent Children’s Lawyer, being each Thursday and Monday between 7:00pm and 8:00pm, and the mother’s proposal being confined to [Z] and [Y], no telephone communication order was sought by the father.
Other than agreeing as to the date of the parties’ marriage, … 1996, there are very few, if any, other agreed or uncontested relevant facts between the parties.
The mother asserts that the parties separated in February 2017. The father asserts that the parties separated, at his request, on or about 3 January 2018 and that the parties:
Separated on a final basis on 28 January 2018 when Ms Menard left the matrimonial home with [their] three children.
As summarised above, the wife asserts multiple incidents of family violence perpetrated by the father against her and against the children.
In paragraph 45 of his affidavit, the father asserts:
I have never been physically or verbally abusive towards Ms Menard and/or the children. I have also never threatened her and/or the children’s lives and find any and all such alleged behaviour abhorrent.
In Marvel & Marvel,[3] the Full Court, comprising Faulks DCJ, Boland and Stevenson JJ, discussed the problems associated with making findings on disputed evidence in interim hearings, as follows:
[3] Marvel & Marvel (2010) 43 Fam LR 348.
[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 (section 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 [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.[4]
[4] Marvel & Marvel (2010) 43 FamCAFC 101, [120], [122]-[123].
The Full Court in Eaby & Speelman[5] said at paragraph 19:
As would be immediately apparent, this approach enables the court to appropriately and carefully deal with contentious issues relevant to the welfare of the child, and for those issues to not be ignored.[6]
[5] Eaby & Speelman (2015) FLC 93-654.
[6] Eaby & Speelman (2015) FLC 93-654, 80 332.
In George & George[7] the Full Court cited Deiter & Deiter[8] in confirming that the mere fact that matters are in dispute does not mean the Court can ignore concerns that are raised in the material before it.
[7] George & George [2013] FamCAFC 182.
[8] Deiter & Deiter [2011] FamCAFC 82.
In Deiter,[9] the Court was particularly concerned with the situation where the contested facts related to an assessment of risk and where it was said at paragraph 61:
… Risk assessment comprises two elements - the first requires prediction of the likelihood of the occurrence of harmful events, and the second requires consideration of the severity of the impact caused by those events. In our view, the assessment of risk in cases involving the welfare of children cannot be postponed until the last piece of evidence is given and tested, and the last submission is made. We accept, however, that it is always a question of degree depending on the evidence that is before the court.
[9] Deiter & Deiter [2011] FamCAFC 82.
This is a matter where it is necessary for the Court to examine the asserted facts, disputed as almost all of the relevant facts are, and make an assessment in relation to any risk to the children, or any of them, asserted to arise from those facts.
In relation to the assessment of risk in this matter, I am mindful of the following authorities.
In M v M,[10] the High Court said, when discussing allegations of abuse:
[23]No doubt there will be some cases in which the court is able to come to a positive finding that the allegation is well-founded. In all but the most extraordinary cases, that finding will have a decisive impact on the order to be made respecting custody and access. There will be cases also in which the court has no hesitation in rejecting the allegation as groundless…
[24]In resolving the wider issue the court must determine whether on the evidence there is a risk of sexual abuse occurring if custody or access be granted and assessing the magnitude of that risk. After all, in deciding what is in the best interests of a child, the family court is frequently called upon to assess and evaluate the likelihood or possibility of events or occurrences which, if they come about, will have a detrimental impact on the child's welfare. The existence and magnitude of the risk of sexual abuse, as with other risks of harm to the welfare of a child, is a fundamental matter to be taken into account in deciding issues of custody and access. In access cases, the magnitude of the risk may be less if the order in contemplation is supervised access…
[25]Efforts to define with greater precision the magnitude of the risk which will justify a court in denying a parent access to a child have resulted in a variety of formulations… this imposing array indicates that the courts are striving for a greater degree of definition than the subject is capable of yielding. In devising these tests the courts have endeavoured, in their efforts to protect the child's paramount interests, to achieve a balance between the risk of detriment to the child from sexual abuse and the possibility of benefit to the child from parental access. To achieve a proper balance, the test is best expressed by saying that a court will not grant custody or access to a parent if that custody or access would expose the child to an unacceptable risk of sexual abuse.[11]
[10] M v M (1988) 166 CLR 69.
[11] M v M (1988) 166 CLR 69, [23] – [25].
At paragraph 18, the High Court also said:
[18] In considering an allegation of sexual abuse, the court should not make a positive finding that the allegation is true unless the court is so satisfied according to the civil standard of proof, with due regard to the factors mentioned in Briginshaw v Briginshaw (1938) 60 CLR 336 at page 362.
In Johnson & Page,[12] at paragraph 72, the Full Court agreed that reference to the Evidence Act 1995 (Cth) rather than Briginshaw[13] is the appropriate standard, particularly having regard to section 140(2)(c) of that Act.
[12] Johnson & Page [2007] FamCA 1235.
[13] Briginshaw v Briginshaw (1938) 60 CLR 336.
A party making an assertion of fact carries an onus to prove that fact. A recipient of such an assertion carries no onus to prove to the negative.
The Full Court in A & A[14] observed:
… the primary question which the court should have addressed was, looking at the whole of the evidence whether the contact (or contact which was not strictly supervised) might expose the children to an unacceptable risk because, although it is almost impossible to quantity in any precise way, it may place those children in circumstances of potential jeopardy in the future in their father’s care.
[14] A & A (1998) FLC 92-800.
Murphy J in Harridge & Anor & Harridge[15] provided a helpful list for trial Judges determining matters where unacceptable risk is raised, as follows:
(a)what harmful outcome is potentially present in this situation?
(b)what is the probability of this outcome coming about?
(c)what risks are probable in this situation in the short, medium and long term?
(d)what are the factors that could increase or decrease the risk that is probable?
(e)what measures are available whose deployment could mitigate the risks that are probable?
[15] Harridge & Anor & Harridge [2010] FamCA 445.
The Full Court in Napier & Hepburn[16] emphasised that it is not for the Court to find a solution which will eliminate any chance of serious harm. Rather, it is to balance the harm that will follow if the risk is not minimised or removed, as against a normal, healthy relationship between a parent and a child not being permitted to prosper.
[16] Napier & Hepburn (2006) FLC 93-303.
In Deiter[17] at paragraph 61, the Full Court said as follows:
The assessment of risk is one of the many burdens placed on family law decision makers. Risk assessment comprises two elements – the first requires prediction of the likelihood of the occurrence of harmful events, and the second requires consideration of the severity of the impact caused by those events. In our view, the assessment of risk in cases involving the welfare of children cannot be postponed until the last piece of evidence is given and tested, and the last submission is made. We accept, however, that it is always a question of degree depending on the evidence that is before the court.
[17] Deiter & Deiter [2011] FamCAFC 82.
In SS & AH,[18] at paragraph 100, the Full Court considered the context of discussing the obligations of the Court whilst conducting interim children’s proceedings in circumstances where the evidence available was contradictory in nature, but nonetheless raised significant welfare concerns for the children concerned as follows:
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.
[18] SS & AH [2010] FamCAFC 13.
In Eaby & Speelman,[19] the Full Court endorsed this approach as enabling:
… the court to appropriately and carefully deal with contentious issues relevant to the welfare of the child, and for those issues to not be ignored.
[19] Eaby & Speelman (2015) FLC 93-654.
The Court should not ignore child protection issues, merely because those issues are incapable of definite resolution at the interim stage. This is the position in the matter currently before the Court.
What Harmful Outcome is Potentially Present in this Situation?
The mother asserts a risk to the children consequent upon the father’s asserted failure to manage his anger and her assertion that on such occasions the father has resorted, and will potentially resort, to violence towards the children or violence toward others in the presence of the children.
What is the Probability of this Outcome Coming About? What Risks are Probable in this Situation in the Short, Medium and Long term?
On the basis of the contested facts and in the context of an interim hearing this is difficult to answer. As referred to by the Full Court in both Deiter[20] and SS & AH,[21] I must weigh the probabilities of the competing claims and the likely impact on the children in the event that the asserted risk is real.
[20] Deiter & Deiter [2011] FamCAFC 82.
[21] SS & AH [2010] FamCAFC 13.
I take note of the comments made by the children to the Family Consultant as recorded in the Child Inclusive Conference Memorandum as summarised above, and in particular the statements by [X] and [Y] to the effect that they had both witnessed and been subjected to the father’s anger and, whilst angry, physical violence.
[X] said:
… that her father then went to punch her, but her mother shielded her from this.
She also said, in relation to another occasion during the family holiday in Country T:
… he became angry with her and grabbed her by the neck pushed into the wall.
She could describe another occasion when she asserted that:
… her father punched her twice in the shoulder.
She said:
…that her father would.... Push and punch her mother.
[Y] said that:
… her father is “scary” because he has “mood swings” and she feels she cannot trust him.”
She said:
… that her father is scary because he can become very angry.… [Y] said that her father also sometimes hits her and her siblings.
[Z] said:
Her father can get very angry and used to hit her and her sisters.
The hitting referred to by [Y] and [Z] is not described so as to be able to distinguish it between lawful chastisement as defined in section 61AA of the Crimes Act 1900 (NSW) and ‘hitting’ amounting to an unlawful assault.
Based on that evidence, I find that there is some probability of risk asserted by the mother being real and sufficient that the parenting orders to be made should address that risk.
What are the Factors that Could Increase or Decrease the Risk that is Probable?
On the available evidence as summarised above, it would seem that the relevant factor is the possibility of the father’s resort to verbal and/or physical violence should he become angry while the children are in his care.
What Measures are available whose Deployment would Mitigate the Risks that are Probable?
Orders that are sought by the mother are that the father attend a “Parenting After Separation” course and a “Taking Responsibility” course, and that any time that the father spend with the children is to be supervised at all times by either the paternal grandmother Ms A, or the father’s current girlfriend, Ms B.
The Independent Children’s Lawyer also seeks an order that the father attend a “Parenting After Separation” course and, additionally, that he attend an anger management course and engage in family counselling with a family counsellor nominated by the Independent Children’s Lawyer for the purpose of improving his relationship with his children.
I find that in the event that the father is able to address any anger management issues that he has with the assistance of a suitably qualified health professional, the risk presented by his probable actions during unmanaged anger when the children are in his care can be mitigated.
I further find that until such time as the father has addressed his asserted anger management problems in that way, supervision of his time with the children by either the paternal grandmother, or the father’s current girlfriend will mitigate the asserted risk.
The Primary Considerations in Section 60CC
In determining what parenting orders are to be made in the children’s best interests I must consider the matters set out in subsections (2) and (3) of section 60CC of the Act.
Subsection (2) of section 60CC sets out the primary considerations, being:
(a) the benefit to the children of having a meaningful relationship with both of the children’s parents, and
(b) the need to protect the children from physical or psychological harm from being subjected to, or exposed to, abuse, neglect or family violence.
Pursuant to subsection (2A), the Court must give greater weight to the need to protect the children from physical or psychological harm, as set out in paragraph (b), over the benefit to the children of having a meaningful relationship with both of their parents, as set out in paragraph (a).
The consideration of the weighting between the two primary considerations is at the crux of this case on an interim basis.
What is Meant in the Section by “Meaningful Relationship”?
In Mazorski & Albright,[22] Brown J considered ordinary definitions of the term “meaningful” and observed:
What these definitions convey is that “meaningful”, when used in the context of “meaningful relationship”, is synonymous with “significant” which, in turn, is generally used as a synonym for “important” or “of consequence”. I proceed on the basis that when considering the primary considerations and the application of the object and principles, a meaningful relationship or a meaningful involvement is one which is important, significant and valuable to the child. It is a qualitative adjective, not a strictly quantitative one. Quantitative concepts may be addressed as part of the process of considering the consequences of the application of the presumption of equally shared parental responsibility and the requirement for time with children to be, where possible and in their best interests, substantial and significant.
[22] Mazorski & Albright, [2007] FamCA 520.
In McCall & Clark,[23] the Full Court accepted as appropriate this interpretation by Brown J of ‘meaningful relationship’.
[23] McCall & Clark, (2009) FLC 93-405
Kay J, sitting in the appellate jurisdiction of the Court as a single Judge in the case of Godfrey & Sanders,[24] an appeal involving a mother’s relocation application, agreed with Dessau J’s decision in M & S (formerly E)[25] and said:
The Act sets out in section 60CC several matters for the Court to consider in determining what is in the child’s best interests but does not seek to mandate that any one or other matter becomes determinative in any particular case. For the purposes of this case the legislation requires that there be a primary consideration given to the benefit of the child of having a meaningful relationship with both of the child’s parents but it does not purport to prescribe how that meaningful relationship is best promoted in the circumstances of any one case.
[24] Godfrey & Sanders (2007) FamCA 102.
[25] M & S (formerly E) (2007) FLC 93-313.
Later, at paragraph 36, his Honour said:
It seems to me that the final conclusion reached by the Federal Magistrate that the proposed relocation would jeopardise the relationship between the children and their father to an unacceptable extent was not at all consistent with the evidence that was before the Federal Magistrate. Even if the move results in a diminution of quality of the relationship, what the legislation aspires to promote is a meaningful relationship, not an optimal relationship.
Once again, the best assistance the Court has in assessing the quality of the relationship currently between each of the children and the father is found in the Child Inclusive Conference Memorandum.
Under the heading ‘Future Directions’, the Family Consultant reports:
Despite the children stating that Mr Menard has been violent and abusive to them and their mother and their expressing a reluctance to spend time with him, the children have indicated some desire to keep spending some time with their father.
[X] is reported as saying that she is unsure if she wishes to spend time with their father on an ongoing basis in the future. She said she will feel ‘mean’ if she cuts him out of her life completely, but that she is also fearful of him and would prefer not to spend time with him as a result of his violent and abusive behaviour.
In the event that an order is made that [X] not spend time with her father, then it is almost certain that the relationship between them such as it now exists would deteriorate further [X]’s abiding memories, being those that have caused her to express the above-mentioned ambivalence towards spending time with him.
The orders sought by the Independent Children’s Lawyer allow for [X] to, in effect, make her own choice as to whether or not she spends time with her father.[26] The orders sought by the mother provide for the father to spend time with [X] in accordance with [X]’s wishes.[27]
[26] See Order (e) in the Independent Children’s Lawyer’s proposed Minute of Order at paragraph 16 of this Judgment.
[27] See Order (j) in the mother’s proposed Minute of Order at paragraph 14 of this Judgment.
The orders sought by the father are that all of the children live with him and spend time, defined by orders, with their mother.
[X] is 16 years of age and it is in all probability contra-indicated to the improvement of the relationship between [X] and her father to come to, at this stage, make her feel that she is forced or compelled to spend time with her father against her wishes by the making of a defined spend-time-with order that includes her.
[Y] said that she is unsure how she feels about spending time with her father on an ongoing basis in the future. She said that she does not mind seeing her father sometimes when she is with her sisters, and also said she might miss her father if she never sees him. She said, however, that she finds it very stressful spending time with him and she was clear that she does not want to spend any overnight time with her father.
As with [X], [Y] shows some ambivalence in relation to wishing to spend time with her father and this must reflect on the state of the relationship between [Y] and her father at the present time.
However, [Y] does go further than [X] and stating that she:
… does not mind seeing her father sometimes when she is with her sisters.
From the whole of the Family Consultant’s report of her interview with [Y], it would seem that [Y]’s concerns relate to her father’s behaviours and that absent those concerning behaviours it is likely that the relationship between them will improve, deepen, and increase in quality as a meaningful relationship.
I find that it is in [Y]’s best interest to spend time with her father in accordance with appropriate defined time orders, subject to appropriate orders also being in place to address the probable risk.
The Family Consultant reports that [Z], like her sisters, also indicated a reluctance to spend time with her father but said that she still wants to see him sometimes, such as the current arrangement one day each weekend. [Z]’s reported reasons for voicing a reluctance to spend time with their father are not as specific and incident-related as those reported by her sisters.
Unfortunately, it is reported that:
[Z] indicated that she had heard some information from her mother which may also be causing her feel badly towards her father. For example, [Z] said that her father is going to sell the house and her mother was annoyed because her father did not tell her. She also believes that one of their pet birds died because her father did not feed it adequately, although it is unclear where she got this information.
[Z] is 10 years of age and it would seem from the material that, as with [Y], once questions or concerns in relation to her father’s behaviour are addressed, it is likely that the relationship between them will improve, deepen, and increase in quality as a meaningful relationship.
Accordingly, I find that it is in [Z]’s best interests to spend time with her father in accordance with appropriate defined time orders, subject to appropriate orders also being in place to address the probable risk.
Even the ambivalence shown by [X] and [Y] about spending further time with their father would indicate that there is some meaningful relationship between each of them and their father, though the quality of that meaningful relationship cannot be judged on the available evidence any more than I have attempted above.
It is with a view to preserving those meaningful relationships such as they currently are and providing opportunity for them to be developed and improved that I find it is appropriate to make orders for defined time between the father and [Y] and [Z] and an order that [X] spend time with her father in accordance with her wishes.
I have found that on the balance of probabilities, there is currently a risk to the children presented by the father’s propensity to violent verbal and physical behaviour on occasions when he fails to manage his anger appropriately. Accordingly, there is a need to protect the children from the physical and psychological harm of being subjected to, or exposed to, abuse or family violence.
I intend to make orders for the father to engage in and complete an anger management course identified to him by the Independent Children’s Lawyer, for the father to complete the “Parenting After Separation” course that, on the evidence, was being undertaken by him at the time of the interim hearing, and for the father to engage in family counselling with a family counsellor nominated to him by the Independent Children’s Lawyer.
This family counselling is for the purpose of improving his relationship with his children, and with the aim that such family counselling will assist the father to understand the effect of his behaviours on his relationship with his children, and the serious danger of losing that relationship consequent upon those behaviours, particularly with [X].
In giving weight to the need to protect the children over the benefit of having a meaningful relationship with their father, I will make an order that the father’s time with the children be supervised by either the paternal grandmother or the father’s current girlfriend until such time as the father has complied with orders in relation to engaging in and completing the anger management course and completing the “Parenting After Separation” course.
The Additional Considerations in Section 60CC
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
I have summarised above the views as expressed by the children to Family Consultant and reported in the Child Inclusive Conference Memorandum.
[X] is 16 years of age and I find that significant weight should be given to the views she has expressed. There is nothing to indicate that [X] is anyone other than a normal 16 year old girl of appropriate level of maturity.
[X] is described by the Family Consultant as a:
Friendly, confident, independent and forthright young woman
[X] has already suffered the stress, distress, and burden of the behaviours she describes in her parents relationship, particularly the behaviour by her father described by her in terms that would fit well within the definition of ‘family violence’ in the Act. Accordingly, her views as expressed are explicable, and I find that in giving them appropriate weight any order that is made should respect those wishes and that any time she spends with her father on an ongoing basis would be in accordance with her wishes.
The views expressed by [Y] and [Z] indicate some ambivalence about spending time with their father and, on [Y]’s part, include a strong view against spending overnight time with her father. I find that those views should be given some weight in considering what orders should be made in the best interests of [Y] and [Z] and particular in relation to spending any overnight time with their father.
The nature of the relationship of the child with: (i) each of the children’s parents; and (ii) other persons (including any grandparent or other relative of the child)
I made comments and findings in relation to the nature of the relationship of each of the children with their father in my consideration of the primary considerations set out in section 60CC of the Act.
It is with a view to protecting those relationships as they currently stand from any further deterioration, and hopefully providing an opportunity for those relationships to improve that I propose to make defined orders for [Y] and [Z] to spend time with their father in the daytime only, with appropriate safeguards until the father has undertaken the necessary steps to address the probable risk.
I propose to make an order that any time between [X] and her father be in accordance with her wishes.
I find on the available evidence that each of the children has a meaningful, close, and loving relationship with their mother and that she should remain their principal carer, in which case I find that it is not in the best interests of any of the children to make an order as sought by the father that the children live with him and spend time with the mother as agreed between the parents or, failing agreement, as defined by orders.
The extent to which each of the child’s parents has taken, or failed to take, the opportunity: (i) to participate in making decisions about major long-term issues in relation to the child; and to spend time with the child; and (iii) to communicate with the child
This additional consideration does not assist me to any significant extent in deciding what parenting orders should be made in the best interests of the children.
The relationship between the parents is poor. The co-parenting relationship is poor.
In the Child Inclusive Conference Memorandum, the Family Consultant notes:
Both Ms Menard and Mr Menard have identified difficulties in their co-parenting relationship and a parenting after separation program may assist both of them to help their communication and cooperating about the children.
There is some comment made by Ms Menard to the effect that the father has not availed himself of every opportunity to spend time with the children. [Z] is reported in the Child Inclusive Conference Memorandum as saying:
Her father does not spend much time with her and her sisters when they are with him
Ms Menard does not give any specific examples.
It is inherent in the father’s application before the Court on the interim hearing that he seeks to spend far more time with the children than he currently does, or has done since the parties’ separation.
For the reasons referred to above, in relation to the primary considerations, it is currently in the children’s best interests that the father’s time is curtailed to daytime only.
The extent to which each of the child’s parents has fulfilled, or failed to fulfil, the parent’s obligation to maintain the child
The father deposes in paragraph 89 of his affidavit that there is currently no formal Child Support Administrative Assessment between the parents, but that in lieu of child support payments he currently pays regular expenses for the children as well as other incidental items as required.
This includes school fees to H School of $266 per week, mobile phone plans of $49 per week and children’s activities, including school camps and excursions in the amount of $30 per week.
The mother deposes in paragraph 63 of the February affidavit that in September 2018, the father ceased paying for the children’s Medibank Private health insurance.
In paragraph 45 of that affidavit, the mother deposes that the father is not paying child support or maintenance. She deposes that she does not have enough money to meet her own expenses and the children’s expenses, and that her mother is helping her by purchasing groceries and supplies and paying all the bills.
In the mother’s Financial Statement sworn 5 June 2018 and filed on 12 June 2018, at paragraph 13 the mother indicates that at that time, being 5 June 2018, there was no child support assessment for the father to pay child support to her for the children. The ‘required to be paid’ space being left blank in relation to income by way of child support.
In the father’s Financial Statement sworn 24 July 2018 and filed that day, at paragraph 31, the father also indicates that at that time, being 24 July 2018, there was no child support assessment. He does so by leaving blank the field for ‘amount of assessment, agreement or order’ for personal expenditure on child support.
It would seem, on the evidence, that the father is maintaining payments on the loan account secured by way of mortgage over the matrimonial home and payment of the principal outgoings relating the matrimonial home, which is occupied by the mother and the children.
The likely effect of any changes in the child’s circumstances, including the likely effect on the child of any separation from: (i) either of his or her parents; or (ii) any other child, or other person (including any grandparent or other relative of the child) with whom he or she has been living
In the event that orders are made as sought by the father, that the children live with him and spend time either by agreement or as defined with the mother, I find that it is virtually certain, on the basis of the available evidence, that each of the children will be seriously unhappy and even grieving for the loss of their day-to-day care by their mother. That cannot be in the children’s best interest.
The last occasion on which the children spent overnight time with their father was on 5 May 2018. That time was, by arrangement between the parties, supervised by the maternal grandmother. The father deposes in paragraph 85 of his affidavit that the children have only spent five nights with him since the parties separated.
The father attaches as Annexure ‘D’ to his affidavit a ‘log of actual times that the children spend with their father’ between 29 January 2018 and 16 February 2019, most of the time being for periods of some hours during daytime-only occasions.
I find that the making of orders defining the time [Y] and [Z] will spend with their father during daytime only will be not so much a change in their circumstances as a regularisation of the pattern that has existed since separation, and that the separation from their mother for those times will have no detrimental effect on the children but will, it is hoped, have a beneficial effect for the relationship with their father.
The practical difficulty and expense of a child spending time with and communicating with a parent and whether that difficulty or expense will substantially affect the child’s right to maintain personal relations and direct contact with both parents on a regular basis
I find that this additional consideration is not of any real relevance in the consideration of what orders are in the best interests of the children.
The capacity of: (i) each of the child’s parents; and (ii) any other person (including any grandparent or other relative of the child) to provide for the needs of the child, including emotional and intellectual needs
The mother has proven her capacity to provide for the needs of the children, including their emotional and intellectual needs, by her day-to-day care of the children since the parties’ separation.
The only caution is found in the comment made by [Z] as reported in the Child Inclusive Conference Memorandum:
[Z] indicated that she had heard some information from other which may also be causing her to feel badly towards her father.
This could be addressed by an injunctive order restraining both parties from discussing these proceedings and allegations raised in these proceedings with any of the children, or permitting any of the children have access to any of the documents filed in these proceedings.
The father’s capacity to provide for the emotional and intellectual needs of the children is called into some question by the matters referred to in detail above which lead to the finding that there is a current probable risk to the children consequent upon the father’s failure to appropriately manage his anger and the consequences that can arise from that failure.
On the basis of this additional consideration, I consider it in the best interests of the children to limit the father’s time with them to supervised daytime until such time as he has completed an anger management course and thereafter to be limited to daytime pending further consideration by the Court and the outcome of his engagement with family counselling.
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 children that the court thinks are relevant
[X] is 16 years of age and is described by the Family Consultant as:
A friendly, confident, independent and forthright young woman.
I have made comment and findings above in relation to the significance to be given to [X]’s views in relation to spending time with her father only in accordance with her wishes.
[Y] was 12 years of age at the interim hearing and [Z] is 10 years of age. [Y] is described by the family consultant as presenting:
As a very friendly, gentle and docile young girl.
[Z] is described as presenting as:
Quite a happy and playful young girl.
They are of an age where, despite the ambivalence expressed by them in relation to spending time with their father, they are not of sufficient maturity for their expressed wishes to be a determining factor in parenting orders, which are made in their best interest.
An exception to this is the strong wish expressed by [Y] that she not spend overnight time with her father at the present time, which should be respected given the current state of the relationship between [Y] and her father as discussed above.
I do not currently find that there are any other considerations relating to any of the children’s maturity, sex, lifestyle or background that require particular consideration in formulating parenting orders to be made in their best interest.
The attitude to the child, and to the responsibilities of parenthood, demonstrated by each of the child’s parents
The father’s attitude to the children and to his responsibilities as a parent must be under some question given the comments of the children reported in the Child Inclusive Conference Memorandum.
It is principally in consequence of those comments, and their reflection on the father’s approach to parenthood, that in conjunction with other primary and additional considerations orders should be made limiting the father’s time with [X] to time in accordance with her wishes and time with [Y] and [Z] to supervised daytime only pending his completion of an anger management course and the “Parenting After Separation” course.
The father’s application for an order that the children live with him should be rejected.
The only comment necessary at this stage in relation to the mother’s attitude to the children and the responsibilities of parenthood is in relation to the concern raised in the Child Inclusive Conference Memorandum that she may be inappropriately discussing matters with [Z] and perhaps the other children about the father’s behaviour or these proceedings.
In the best interests of the children this will be addressed by a mutual injunctive order.
Any family violence involving the child or a member of the child’s family
I have examined this consideration above in relation to the assertions by the mother of family violence perpetrated by the father and the corroboration, to some extent, of those assertions by the comments of the children reported in the Child Inclusive Conference Memorandum.
I have found that on the balance of probabilities, it is probable that the father has perpetrated family violence, that that family violence has had a consequent effect on the co-parenting relationship between the father and the mother, and that that family violence has had a consequent effect on the relationship between the father and each of the children.
It is in consequence of my findings in relation to family violence and the resultant element of risk to the children that the orders in relation to the time the father will spend with the children, being daytime only and initially supervised until completion by the father of an anger management course, are made.
It is not possible to make an order that is least likely to lead to the institution of further proceedings as these are interim parenting proceedings and the matter will go on until either a consent resolution is reached by the parties or a determination is made by the Court after final hearing.
Parental Responsibility in the Statutory Pathway
As is made evident in the cases, and in particular in Goode & Goode,[28] the statutory pathway applies in interim as well as in final hearings.
[28] Goode & Goode (2006) FLC 93-286.
As indicated in the above discussion of the cases on disputed or contested evidence in interim proceedings, the Court should be cautious in making findings of fact where there is contested evidence.
Section 60B of the Act sets out the objects of Part VII of the Act relating to children that inform the making of parenting orders and the principles behind those objects. I have considered those objects and the principles behind those objects in formulating these reasons and the parenting orders that result.
Section 60CA of the Act provides that:
In deciding whether to make a particular parenting order in relation to a child, a court must regard the best interests of the child or children as the paramount consideration.
Section 60CC of the Act provides that in determining what is in the child’s best interests, the Court must consider the primary considerations set out in subsection (2), noting the weighting requirement in subsection (2A), and the additional considerations set out in subsection (3).
Section 61DA(3) provides that when making a parenting order in relation to a child, the Court must apply a presumption that it is in the best interests of the child for the child’s parents to have equal shared parental responsibility for the child. When the Court is making an interim order, the presumption applies unless the Court considers that it would not be appropriate in the circumstances for the presumption to be applied when making that order.
Pursuant to section 65DAA, if the presumption of equal shared parental responsibility in relation to the child applies and is not rebutted, the Court must first consider whether the child spending equal time with each of the child’s parents would be in the best interests of the child and reasonably practicable, and if it is so in the best interests of the child and reasonable practicable, consider making an order for the child to spend equal time with each of the parents.
If equal time is found not to be in the child’s best interests, or impracticable, or is found to be in the child’s best interests and practicable, but the Court considers and rejects equal time with each parent, as a result of consideration of one or more of the matters in section 60CC, then the Court must consider making an order that the child spends substantial and significant time, as defined in section 65DAA(3) of the Act, with the parent with whom the child does not live, on the same triple-step basis as for the consideration of equal time.[29]
[29] MRR & GR [2010] HCA 4.
Under the combination of sections 60CA, 60CC, and 65D, if neither equal time nor substantial and significant time is considered to be in the best interests of the child, or is impracticable, or is considered to be in the best interests of the child and practicable but the Court, after considering making such an order does not do so, then the Court may make such orders in the discretion of the Court it thinks proper, being orders that are in the best interests of the child, as a result of consideration of one or more of the matters in section 60CC.
The process is one involving the exercise by the Court of a judicial discretion.
As was stated by the High Court in Bondelmonte v Bondelmonte,[30] at paragraph 32 of the joint judgment of the bench:
[32] A parenting order made under section 65D involves the exercise of a judicial discretion because it is made by reference to a paramount consideration of a general kind, the best interests of the child, which involves an overall assessment of a number of other considerations, either statutorily prescribed or considered by the court to be relevant. The primary considerations in section 60CC(2) are matters to be borne in mind as consistent with the objects of Part VII. The additional considerations in section 60CC(3) require assessments of the matters there listed by reference to the circumstances of the case. They involve value judgments in respect of which there may be room for reasonable differences of opinion [Norbis v Norbis (1986) 161 CLR 513 at 518] as does the overall assessment of what is in the best interests of the child.
[30] Bondelmonte v Bondelmonte [2017] HCA 8.
On interim hearing the father sought an order that the parties have equal shared parental responsibility for the children. The mother did not seek any order in relation to parental responsibility. The Independent Children’s Lawyer did not propose any order in relation to parental responsibility.
Pursuant to section 61C of the Act, the parents each have parental responsibility for each of the children from the time of their birth.
The co-parenting relationship between the parties is very poor with a lack of effective communication between them at the present time. I find that it is not appropriate to make an order in relation to parental responsibility on the basis of the evidence available to the Court on the interim hearing. Accordingly, the parents will continue to each have parental responsibility for the children pursuant to section 61C.
As I have not made an order for the children’s parents to have equal shared parental responsibility, I do not need to consider the matters referred to in section 65DAA of the Act in relation to equal time or substantial and significant time.
Decision
Based on my examination of the primary and additional considerations in section 60CC of the Act, I have made the orders as set out at the start of these reasons.
I certify that the preceding two hundred and forty nine (249) paragraphs are a true copy of the reasons for judgment of Judge Morley
Date: 7 June 2019
Key Legal Topics
Areas of Law
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Family Law
Legal Concepts
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Jurisdiction
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Procedural Fairness
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Standing
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Injunction
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