Mondy & Mondy

[2020] FCCA 3555

FEDERAL CIRCUIT COURT OF AUSTRALIA

Mondy & Mondy [2020] FCCA 3555

File number(s):	BRC 12654 of 2020
Judgment of:	JUDGE CASSIDY
Date of judgment:	10 December 2020
Catchwords:	FAMILY LAW – children – interim hearing - where father seeks supervised time – where the children have not spent any time with the father since 27 June 2020 – where point of difference between the parents is whether supervised contact occurs fortnightly or weekly
Legislation:	Family Law Act 1975 (Cth) s 60CC
Number of paragraphs:	41
Date of last submission/s:	27 November 2020
Date of hearing:	23 November 2020
Place:	Brisbane
Solicitor for the Applicant:	Bell Dixon Butler Lawyers
Solicitor for the Respondent:	Gold Law Town C

ORDERS

BRC 12654 of 2020

BETWEEN:

MR MONDY

Applicant

AND:

MS MONDY

Respondent

ORDER MADE BY:	JUDGE CASSIDY
DATE OF ORDER:	10 DECEMBER 2020

THE COURT ORDERS UNTIL FURTHER ORDER:

1.The parents shall have equal shared parental responsibility for the major long term care of the children X born in 2007 and Y born in 2010 (‘the children’).

2.That the parents are to consult with each other about decisions to be made in the exercise of their equal shared parental responsibility as follows:

(a)They shall inform the other parent about the decision to be made;

(b)They shall consult with each other on terms that they agree;

(c)They shall make a genuine effort to come to a joint decision.

3.That equal shared parental responsibility includes but is not limited to the major long term issues of:

(a)The children’s current and future education;

(b)The children’s religious and cultural upbringing;

(c)The children’s health, any medical, psychological or alternative health treatments to be administered to the children;

(d)The children’s names;

(e)Changes to the children’s living arrangements that make it significantly more difficult for the children to spend time with each parent. 

4.That notwithstanding the provisions of Orders 2 and 3:

(a)The Respondent Mother shall be responsible for the daily care, welfare and development of the children when they are living with or spending time with her;

(b)The Applicant Father shall be responsible for the daily care, welfare and development of the children when they are living with or spending time with him.

5.The children shall live with their Mother (unless otherwise agreed in writing) and spend time with their Father as follows:-

(a)Supervised time at B Contact Centre, Town C every Thursday or Friday afternoon for two (2) hours from 3:00pm to 5:00pm or as the Centre can accommodate each week.

(b)Both parties shall forthwith complete their intake to that facilities so as to commence time as soon as possible.

(c)That the parents and children shall forthwith engage D Counselling Centre, Town E to provide counselling services as recommended by Mr F pursuant to the Family Report dated 20 November 2020 and that leave has been granted by this Court to release a copy of the Family Report dated 20 November 2020 to the said counsellor to assist the children’s counselling.  The children shall be made available to attend sessions as recommended by the counsellor.

(d)The counsellor shall in the week prior to the April 2021 mention in the Bundaberg Sittings to provide recommendations in writing as to whether it is appropriate for the children to commence unsupervised time and if not, when a further review of the children’s readiness ought to be undertaken.  The parties shall comply with all reasonable directions of the counsellor in assisting the children.

(e)If the Counsellor has recommended unsupervised time commence then that shall be as agreed between the parents in writing and failing agreement then:

(i)every weekend Saturday 9:00am until Sunday 5:00pm for a further month; and

(ii)Then every second weekend from after school Friday to before school Monday until further Order of this Honourable Court. 

6.That both parents shall forthwith complete a Post Separation Program and an Anger Management Program and each will provide the other with the Certificates upon completion (noting courses are not available until 2021)within one (1) months of these Orders.

7.The parents shall use “Our Family Wizard” App for all electronic means of communication for the purposes of improving their communication.

Christmas School Holidays

8.During the Christmas school holidays enjoyed by the children, the children shall live with the Respondent Mother and shall spend time for Christmas 2020 at B Contact Centre in supervised time as it is available for a booking on either 20th or 21st December 2020 on New Years Day or the first available date thereafter and both parents shall facilitate those arrangements. 

Special Days

9.Unless otherwise agreed in writing, the Father shall be at liberty to telephone Y for her birthday in 2021 between the hours of 4.30 p.m. and 5.00 p.m. in accordance with the communication order 13 hereof.

Communication

10.That the children shall have telephone/Facetime/Skype contact with the Father each Tuesday between 4.30 p.m. and 5.00 p.m. with the parent who does not currently have care of the children to telephone the children and the other parent to ensure the children’s phones are unblocked to accept calls from the Father’s number, ensure the children are available for that call and have a quiet place in which to take the call. 

Specific Issues

11.That each parent is hereby authorised to obtain from the children’s school and day-care, all notices, letters, school reports, invitations and to attend/parent teacher interviews and other activities to which parents are invited. 

12.That each parent shall keep the other parent informed at all times of their mobile telephone number and shall advise the other of any change to their number within forty eight (48) hours of that change or of any alternate emergency contact number. 

13.That each parent shall keep the other parent informed of the names and addresses of any treating medical or other health practitioners who treat the children and authorise those practitioners to provide the other parent with information that they are lawfully able to provide about the children. 

14.That each parent shall forthwith and contemporaneously with the event, advise the other of any medical emergency or significant illness experienced by the children or either of them including sufficient information, consents and authorities to enable each party to speak with any treating doctor, to obtain information regarding the children's health, prognosis and treatment and to visit the children if hospitalised.

15.That each parent shall forthwith and if they have not already done so, do all things and sign all documents and give all consents and authorities necessary to enable each parent's details to be recorded with any school or after school or vacation care service attended by the child or children as both parent and emergency contact person such as to ensure that each parent can obtain directly from such school or service such information or reports written or oral or other information as they may desire from time to time.  

16.That during the time the children are with either parent, that parent shall:-

(a)Respect the privacy of the other parent and not question the children about the personal life of the other parent;

(b)Speak of the other parent respectfully;

(c)Not denigrate or insult the other parent in the hearing or presence of the children and use their best endeavours to ensure that others do not denigrate or insult the other parent in the hearing or presence of the children;

(d)Each parent shall be and is hereby restrained from discussing with the children at any time, these proceedings even once concluded and they shall remove the children from the presence of any person who is doing so (save for any treating medical or health practitioner). 

17.Neither parent shall or allow anyone else to, physically discipline the children.

18.Both parents acknowledge that the proceedings and all documents created in connection with these proceedings are “confidential” and are not to be discussed in the presence of or shown to the children. 

Appoint Independent Children’s Lawyer

19.That the children be represented in these proceedings and it is requested that Legal Aid Queensland arrange such representation, and that the Independent Children’s Lawyer be at liberty to peruse and/or take copies of all documents filed in these proceedings upon the making of an appointment to do so with the Registrar of the Family Court of Australia at Brisbane.

Next Return Date

20.That this matter be adjourned for mention only at 9:00am on 20 April 2021 in the Federal Circuit Court of Australia at Bundaberg.

Section 121 of the Family Law Act 1975 (Cth) makes it an offence, except in very limited circumstances, to publish proceedings that identify persons, associated persons, or witnesses involved in family law proceedings.

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

REASONS FOR JUDGMENT

Judge Cassidy

INTRODUCTION

1. This is a matter where I have been asked to decide on an interim basis some parenting arrangements for two children;

   ·X born in 2007 (herein ‘X’); and

   ·Y born in 2010 (herein ‘Y’ or collectively with X ‘the children’).

   Father’s Proposal

2. The father’s proposal is set out in annexure A to his outline of case that was filed by leave on 27 November 2020.

3. The father seeks equal shared parental responsibility, that the children live with their mother and spend supervised time at B Contact Centre with him each Thursday and Friday for two hours from 3:00pm until 5:00pm.

4. There are additional orders in relation to the parents attending a post-separation parenting program, an anger management program and that the parents use the Family Wizard app.  There is a provision for Christmas holidays for supervision on 20 or 21 December 2020 and on New Years Day or the first available date.

5. There are some special days in relation to the father being at liberty to telephone Y on her birthday.  The father also seeks orders in relation to communication each Thursday by telephone, but that is inconsistent with the time that he is seeking so I have changed that to Tuesday.

6. Specific issues relate to;

   (1)the authority for the schools;

   (2)authority for medical practitioners;

   (3)keeping the other informed of phone number and address;

   (4)advise of any medical emergency;

   (5)do all things and give all consents necessary to enable the parents to be recorded at the school;

   (6)a non-denigration order;

   (7)that neither parent physically discipline the child; and

   (8)both parents acknowledge that these matters are confidential and not to be discussed with the children or in the presence of the children.

7. The father’s proposal would therefore have the children spending supervised time at B Contact Centre with him on Thursday and Friday afternoon as the point of difference with the mother’s proposal. 

   Mother’s Proposal

8. The mother has sought supervised time once a fortnight at B Contact Centre on a Sunday.

9. I asked the parties to make some inquiries of B Contact Centre and somewhat curiously I got two different answers from the solicitors.  Ms G indicated that Sundays weren’t available, Mr H suggested they were.  But no one seemed to suggest that Thursday and Friday weren’t available, so I’m comfortable to be able to make orders with respect to those days.

   BACKGROUND

10. The background facts in this matter are that the father was born in 1986, he is 34 today, and the mother was born in 1986, she is also 34.

11. The children live in Town C. The mother is unemployed and currently not with a partner.  The father works as a tradesman with a company called Employer J and he has a new relationship that has been in place for about five months.  The parents live a short distance apart, it is only about a seven minute drive, and the children attend the K School at Town C.

12. At the moment there are no parenting arrangements for the children and they have not spent any time with their father since June of 2020 and had no contact with him for the last three months.

    Post Separation Parenting Arrangements

13. The parenting arrangements post-separation have been that the children have primarily lived with the mother and solely with the mother since July of 2020.  The father, as I have indicated, has not spent any time with the children since the weekend of 27 June 2020.

14. On 29 July 2020 the children also stopped attending sports, and this was a sport they attended that was paid for by the father and it was something that the father attended to watch the children.  It seems the children enjoy the sports but somewhat unfortunately the mother stopped this.

    Domestic Violence

15. The domestic violence in this matter is a question that will have to be heard and determined at the trial, and I cannot make any findings today.

16. The family report records that there are reciprocal Domestic Violence Orders between the parties made in the Town C Magistrates Court on 18 August 2020 and they are in force until 17 August 2023. The mother applied for a variation of those orders in the Town C Magistrates Court on 15 October 2020 to include Mr Mondy not being able to approach within 100 metres of her or the children, and the children to be included on the order.

17. Ms Mondy reports multiple acts of domestic and family violence perpetrated by the father on her and the children.  I note the mother has been charged and placed on probation for physical violence against the father.

18. By contrast the father, while acknowledging that the parties were verbally abusive towards each other, says that there has been no other incidents of domestic violence.

19. I have no evidence at the moment to be able to make findings, as I have said, but it seems to me that it is a matter that will be an important matter and need to be determined at the trial. I will list the matter for trial later this year.

20. Whether there is any issues of risk for the children is another matter I need to consider and the family report raises some concerns in relation to the dispute in this matter. In the family report Y and X both express concerns for their safety with the father, however, X identified concerns with the father’s behaviour but appeared to have a positive relationship with the father.

21. The other concern that has been raised is that Y demonstrated what appears to be a co-dependent relationship with her mother and an adversarial relationship with her father, which may just be a protective factor for Y.  This is not uncommon for children who are caught in their parent’s conflict, according to the expert, especially where they are exposed to the parent’s adversarial positions.

22. It has been the mother who has had the care of these children so I have real concerns about her capacity to protect the children from this conflict.  That potentially poses a risk to these children.  Again, these are matters that I have raised as issues that need to be heard and determined, I cannot make findings at this stage.

    LEGAL PRINCIPLES

23. The principles that I have to consider when coming to a decision are set out in the Family Law Act1975 and the best interests of the children are my paramount consideration.  The primary and additional considerations are factors that I need to take into account.

    Primary Considerations

24. The primary considerations are the benefit to the children having a meaningful relationship with both of their parents and I have no doubt there is a benefit to these children in that happening.  I have to look at protecting the children from physical or psychological harm and being exposed to the risk of abuse, neglect or family violence.

25. As I have already indicated, there are some very serious issues raised in terms of domestic violence where the mother has been put on a probation order, and that is a serious order to be put on.

26. With respect to the concerns I have about the mother and the father, the exposure that these children, and particularly Y, seem to have had to the proceedings is something I am very troubled by and this will no doubt need to be explored at a trial.

    Additional Considerations

    Views of the Children

27. I have to look at the children’s views, and they are recorded by Mr F. 

28. The views of X are that he, from the observations of the expert, has a positive relationship with his father and he informed the expert that he would like to spend every second weekend with his father and live with both parents.  It was only after Y expressed her wishes did X’s view vary.

29. I note the contrast that was set out in the report is that Y was adamant that she would only spend time with the father supervised at a contact centre.  Mr F observed that this raised concerns for the writer, given Y’s age, that she was even aware of such a service.  Again, a concern about what these children have been exposed to in the mother’s household.

    Children’s Relationship with Significant Person’s

30. I have to look at the children’s relationship with both parents.  It seems that X has a positive relationship with his father.  Y’s relationship with her father obviously needs some assistance through perhaps some counselling.

31. I have some reservations about the mother’s relationship with Y given this description that Mr F raises of a co-dependent relationship, which is not always a healthy relationship.

32. I do note that these siblings seem to have a very positive and secure relationship with each other.  That is of a great deal of assistance for the children given they seem to be in the firing line of a very hotly contested parenting dispute.

    Parenting and the Discharge of Parenting Responsibilities

33. I have to look at the parenting and discharge of parenting responsibilities, and I will list a couple of the section 60CC(3) factors under that;

    (1)the extent to which the children’s parents have taken or failed to take an opportunity to participate in making decisions about long-term issues or;

    (2)spending time with the child or communicating with the child.

34. The fact that these children have had no time with their father since July and that the sports activities was stopped when there does not seem to be any evidence that there was any risk to the children while they were attending, it’s very concerning.

35. I have some real concerns about both parties being able to provide for these children’s emotional and intellectual needs, and it will be a matter for trial to determine that.

    Effect of Any Change in Circumstances

36. I have to look at the effect of any change in circumstances.  Both parties agreed that the children should live with the mother and that the time with the father should initially be supervised.  The question is whether it should be every week or, as rigidly set out by the mother, alternate Sundays.

37. The family report recommended supervised time going to unsupervised time through therapeutic assistance.  I consider that one afternoon each week would give the children regular time with their father.

38. Given that it is only two hours it is my view that it should be weekly and it should be on the Thursday and Friday, given the conflicting evidence I had about the Sundays.  It would also leave the weekends free and particularly the Saturdays free given that X seems to have a part-time job. 

    Equal Time or Substantial or significant time

39. With respect to the matter, I hope it will be only for a short time while this relationship is established.  I note both parties agree there should be equal shared parental responsibility. Given that there is no dispute that caused me to consider equal or substantial and significant time, as mandated by the legislation, I don’t intend to consider those.

    CONCLUSION

1. I am satisfied that the father’s proposals as set out in annexure A are in the children’s best interests.  The supervised time, as I have indicated, should be weekly and that will provide regular time.

2. It also supports X’s relationship with the father and will assist Y to re-establish her relationship with the father.  Given that it is not a long-term arrangement, with the therapeutic assistance it should move relatively quickly to unsupervised time.

I certify that the preceding forty-one (41) numbered paragraphs are a true copy of the Reasons for Judgment of Judge Cassidy.

Associate:

Dated:       14 January 2020