Morino and Arling (No. 2)
[2021] FamCA 261
•11 May 2021
FAMILY COURT OF AUSTRALIA
Morino & Arling (No. 2) [2021] FamCA 261
File number(s): ADC 5318 of 2020 Judgment of: BERMAN J Date of judgment: 11 May 2021 Catchwords: FAMILY LAW – CHILDREN – With whom a child lives and spends time with – Best interests of a child – Interim arrangements – Where the father has had three supervised visits with the children since separation – Where the parties agree the father should spend regular unsupervised time with the children – Where the mother opposes overnight time – Where the supervisor’s report indicates time spending has been without issue – Where there needs to be a transition to an increase in time spending – Orders. Legislation: Family Law Act 1975 (Cth) s 60CC Number of paragraphs: 62 Date of hearing: 28 April 2021 Place: Adelaide Counsel for the Applicant: Ms Dickson QC Solicitor for the Applicant: Howe Jenkin Counsel for the Respondent: Ms Miller Solicitor for the Respondent: Norman Waterhouse Lawyers ORDERS
ADC 5318 of 2020 BETWEEN: MR MORINO
ApplicantAND: MS ARLING
Respondent
ORDER MADE BY:
BERMAN J
DATE OF ORDER:
11 MAY 2021
IT IS ORDERED UNTIL FURTHER ORDER:
1.That X born … 2013 and Y born … 2018 (“the children”) live with the mother.
2.That the children spend time with the father as follows:
(a)Until 4 June 2021 from the conclusion of school and Early Learning Centre (“ELC”) to 5.45 pm on each Tuesday and Friday with the father to return the children to the G School after school care program;
(b)Until 4 June 2021 each Saturday from 9.00 am until 12 noon with handover to occur at H Park, Suburb K between the father and Ms L or such other person as may be nominated by the mother;
(c)From the conclusion of school and ELC on Friday (or 9.00 am if a non-school day) until 4.00 pm on Saturday commencing 4 June 2021;
(d)From the conclusion of school and ELC on Wednesday (or 3.00 pm if a non-school day) until the commencement of school and ELC on the following Thursday (or 9.00 am if a non-school day) commencing 14 July 2021; PROVIDED THAT when handover does not occur to or from school and ELC then it shall take place at H Park, Suburb K between the father and Ms L or such other person as the mother may nominate;
(e)From the conclusion of school and ELC to 6.00 pm on 18 May 2021;
(f)From 9.00 am to 6.00 pm on Father’s Day.
3.That the party with the care of the children is to inform the other of any serious illness or injury suffered by either of the children and of any medical or dental treatment required by the children while the children are in their care as soon as reasonably practicable.
4.That the parties be permitted to liaise directly with the children’s school and ELC in order to receive notices, reports, newsletters and other information or documentation relating to the children (at their own expense).
5.That the parties are permitted to attend parent/teacher interviews (but not at the same time), and other school, sporting and extracurricular activities and events to which parents are ordinarily invited to attend.
Note: The form of the order is subject to the entry in the Court’s records.
Note: This copy of the Court’s Reasons for judgment may be subject to review to remedy minor typographical or grammatical errors (r 17.02A(b) of the Family Law Rules 2004 (Cth)), or to record a variation to the order pursuant to 17.02 Family Law Rules 2004 (Cth).
IT IS NOTED that publication of this judgment by this Court under the pseudonym Morino & Arling has been approved by the Chief Justice pursuant to s 121(9)(g) of the Family Law Act 1975 (Cth).
REASONS FOR JUDGMENT
BERMAN J
INTRODUCTION
Following an extensive interim hearing on 26 March 2021, orders were made on 13 April 2021 which provided for X born in 2013 and Y born in 2018 (“the children”) to live with the mother and spend time with the father on 16, 19 and 21 April 2021 from 9.00 am until 11.30 am with such time to be supervised by Mr B, a professional supervisor.
The orders provided for Mr B to prepare a report as to his observations of the children’s time with the father in preparation for the adjourned interim hearing of the competing parenting applications of the parties on 28 April 2021.
By oral application, the husband’s counsel sought to amend paragraphs 4.1 and 4.2 of the interim orders sought in the Amended Initiating Application filed 24 March 2021, to the following:
(a)from the conclusion of school and the Early Learning Centre (ELC) on Friday (or 9.00 am if a non-school day) until 4.00 pm on Saturday;
(b)as and from the fifth week following the making of these orders each Wednesday from the conclusion of school and ELC (or 3.00 pm if a non-school day) until the commencement of school and ELC on Thursday (or 9.00 am if a non-school day) provided that where handover does not occur to or from school and ELC then it shall take place at H Park, Suburb K between the father and Ms L or such other person as the mother may nominate.
In addition, the father seeks one half of the school holidays and that he spend time with the children on X’s birthday from the conclusion of school and ELC to 6.00 pm and then on Father’s Day.
Over and above the children spending time with the father, he seeks an order that they communicate with him by telephone or video call every third night that they are in the mother’s care and at such other times as the children may request.
For her part, the mother does not now oppose unsupervised time and seeks orders that the father spends time with the children on each Tuesday, Friday and Saturday as follows:
(a)from the conclusion of school and E-L-C to 5.45 pm on each Tuesday and Friday with the father to return the children to the G School after school care program; and
(b)each Saturday from 9.00 am until 12 noon with handover to occur at H Park, Suburb K between the father and Ms L.
It does not appear that the mother is opposed to the children spending time with the father on X’s birthday and the orders as currently promoted by her would have the children with the father on X’s birthday in any event.
Given the proposed frequency of time spent with the father, the mother does not consider that the children’s interests would benefit from additional telephone or FaceTime communication.
Neither party opposes the continuation of the order made 13 April 2021 that they have equal shared parental responsibility for the children. On an interim basis, the father concedes that the children should live in the primary care of the mother.
By orders made 26 March 2021, the outstanding interim financial applications of the parties are listed for hearing on 9 June 2021. The parties have agreed to attend a private mediation to explore a resolution.
The mother has a strong belief that the children, but in particular X, are frightened of the father. At paragraph 55(f) of the mother’s affidavit filed 5 March 2021, she refers to X screaming and hiding under the bed when he saw the father’s name appear on the mother’s phone. The mother considered that X looked scared and did not want to see the father.
At paragraph 55(o) the mother again records X’s fear of returning home and being scared of the father and his gun.
The mother’s concern for X resulted in her obtaining psychological support for him, in circumstances where she was informed by her general practitioner that “X was displaying signs of potential trauma”.[1]
[1]Affidavit of the mother filed 5 March 2021, paragraph 64.
On 18 November 2020, the mother received an email from X’s psychologist, Ms D stating that:
(a)“X verbalised to me in our session that he does not feel safe with his Dad and does not want to see him. He said it was because he has a gun, swears and yells, and his ‘bad behaviour;’ ”…[2]
(Original emphasis)
[2]Affidavit of the mother filed 5 March 2021, paragraph 68(a).
The mother considered that the children’s relationship with the father was so fractured that they should attend reunification therapy to assist the children to resume a relationship with the father and to be appropriately supported.
The mother was prepared to support supervised time between the children and the father, providing it was supervised by a female psychologist or social worker in order to lessen the children’s potential to experience trauma in seeing the father.
It is a relevant consideration that up until the orders of 13 April 2021 the children had not seen the father since August 2020.
Following submissions, I did not consider that the children would be at risk of psychological harm if the father’s time with them was supervised by a male supervisor. For the reasons as set out in the earlier judgment,[3] I considered that Mr B would be an appropriate professional supervisor.
[3] See Morino & Arling [2021] FamCA 195
Mr B observed and supervised time spent between the father and the children on 16, 20, and 22 April 2021 and published his report on 23 April 2021 which appears as annexure “A” to the affidavit of the husband’s solicitor filed 27 April 2021.
CHILDREN’S CONTACT SUPERVISION REPORT
Mr B operates an independent private practice that provides specialist children’s contact supervision.
He holds general registration as a psychologist and is a member of the Australian Psychological Society. He is admitted to the Bachelor of Laws degree course and the Graduate Diploma in Psychological Sciences at N University. In addition, he is also admitted to the Graduate Diploma of Psychological Science from M University and holds the equivalent of Second Class Honours. He has completed the 4+2 Internship in Psychology.
He has undertaken supervised contact in a large number of matters before the Family Court of Australia and the Federal Circuit Court.
There was no challenge to the admission of Mr B’s report.
The report properly details matters relating to confidentiality, report references, screening and the documents provided by way of background assistance.
Mr B considered that the report should be undertaken within the parameters of the Family Law Rules 2004 (Cth) (“the Rules”) and in particular Chapter 15 as to provisions of the Family Law Act 1975 (Cth) (“the Act”) and the Rules relevant to a single expert.
The report published by Mr B was not intended to be clinical in nature or by way of an assessment as to issues of child protection.
There was nothing that arose from the separate interviews of the parties which adversely impacted upon Mr B’s preparedness to undertake the observed interaction of the children with the father.
The following paragraphs in Mr B’s report are relevant:
66.The [mother] said that the [father] was sexually abusive to her. She did not want to discuss the details of this abuse and became teary when discussing this point. Further, she explained that the [father] wanted to shower with X and have him share his bed. The [mother] said that she stopped sharing a bed with the [father] before this time and that she co-slept with X as long as she could to protect him. She was not sure if the [father] had sexually abused X.
67. The [mother] also reported that [the father’s] behaviour would be worse if he consumed alcohol.
68. The [mother] reported that X was specifically ““very scared”” about the [father’s] rifle because he would walk around the house with it and put it ““in the kids’ faces””. X reportedly said to the [mother], ““Daddy would get the gun and get us””. The [mother] left the marriage and the P Town home on 28 August 2020 because of X’s comment.
Notwithstanding the uncertainty expressed by the mother to Mr B that the father may have sexually abused X, it is not currently the mother’s case that the children and in particular X are at risk of sexual abuse from the father. The issue has potential relevance in that Mr B may well have considered that a significant allegation of sexual abuse would speak against his involvement in supervising the time spent.
The mother reported to Mr B that X remained very scared of the father’s ownership of a rifle. X’s fear was apparently heightened by an assertion that the father would walk around the house with the gun and put it “in the kids’ faces”[4]. Whilst there is an allegation that the father had a rifle in the home on 11 August 2020, there is no allegation raised by the mother that he was in the practice of brandishing the rifle nor making a point of pointing it at the children. It is assumed that Mr B was aware that the father no longer retained the rifle. Certainly as at the date of interview with the mother, there would have been no reason for X to consider that the father would use the gun and harm the mother and the children. Such an assertion by X is not supported by any allegation of the mother other than the incident on 11 August 2020.
[4] Report of Mr B published 23 April 2021, paragraph 68.
In the child familiarisation stage of the preparation process, before the observed interaction was to take place, Mr B notes the following at paragraph 78 of his report:
X asked specifically for [the father] (1) not to bring his ‘gun’ in ‘public’, (2) not to be ‘mean’, and (3) for [the father] to call [the mother] if he wanted to go home.
Notwithstanding the above, Mr B considered that the children were willing to spend time with the father.
It is a convenient summary that the interaction between the children and the father on the three visits were uneventful.
Mr B observed that the children were generally excited to spend time with the father and there was no demonstrable fear exhibited by X at seeing his father.
X did not seek to bring the visits to an early conclusion.
Mr B observed that X was quick to greet the father, the father was able to share genuine affection and both children were comfortable in his care.
At the conclusion of the first visit X expressed interest in when he would see the father again. As part of the activities undertaken, Y completed a drawing of “Mummy and Daddy”[5] which was assisted by the father.
[5] Report of Mr B published 23 April 2021, paragraph 94.
Mr B summarised the visits as being without significant issue and absent any dangerous or extreme events.
X was observed to be excited to spend time with the father and Mr B recorded that much of the feedback from X reflected his enjoyment.
Mr B did not observe any behaviour on the part of X and to a lesser extent Y, consistent with fear or anxiety at seeing the father, particularly after such a long period.
PARENTING CONSIDERATIONS
The mother has given careful thought to the recorded observations of Mr B and as a consequence proposes limited unsupervised time with the father.
The mother remains concerned that the orders now sought by the father may well overwhelm the children, particularly as his proposal contains two overnight periods in each week.
For his part, the father considers that he had a close relationship with the children prior to separation and that in the absence of any reason to the contrary, the children should resume their time with him in a manner that promotes a meaningful relationship and importantly, allows the father to participate in their curricular and extracurricular activities.
The primary consideration is to promote a meaningful relationship between a child and his or her parents provided it is undertaken in circumstances where it is safe to do so. If the child is at risk of physical or psychological harm or abuse then those considerations must be given more weight.
I am satisfied that the children are not fearful of the father and that despite the long absence, when reunited with the father under the supervision of Mr B, the children’s reaction was spontaneous and devoid of any anxiety or fear.
That does not ignore the significant issues raised by each party against the other in respect of allegations of family violence, allegedly perpetrated by the father, and the conduct of the mother that unwittingly or otherwise may have the consequence of alienating the children from him.
The separate proposals of the parties at least recognise that the children should spend regular time with the father and that it should be unsupervised.
As discussed, the father does not seek on an interim basis that the children spend equal time with him.
All applications for final orders have been listed for hearing on 18 October 2021. The parties have agreed for a family report to be prepared and it likely to be published in July 2021.
I propose to make orders until further order unless something arises either from the family report or for other good reason which will promote a party to seek a variation of the interim arrangements.
I consider that the demonstrable anxiety of the mother needs to be given recognition in circumstances where the children’s relationship with the father will be enhanced and therefore to the children’s benefit if she is able to support the children’s time with him. An indication of the ability of the mother to support the children’s time with the father is apparent from her change in position that the father’s time should be unsupervised. That arises by the mother having reflected upon the observations of Mr B.
Equally, there is merit in the father’s application that the children should spend time with him in a manner that enables him to be involved in a range of activities that currently involve the children.
It is always a difficulty to identify why an overnight component should not be ordered in the absence of any good reason. I do not consider that there is anything of particular moment in respect of overnight time, other than that the total time spent by a child in the care of a parent is more extensive.
Prior to August 2020 the family was intact and generally functional. To a greater or lesser degree each of the parties were involved in an extensive range of parenting activities.
I consider that there is merit in the orders sought by the father but there needs to be a transition to bring to account that at present the children have spent a total of 7.5 hours with the father since August 2020.
The initial excitement of the children being reunited with the father may well be tempered by the reality of the children spending significantly longer periods of time away from the mother and with the father.
Accordingly, I bring to account the primary and additional considerations pursuant to s 60CC of the Act and consider that the children’s interests will be best served by the father spending time with the children, as promoted by the mother for a period of four weeks, and then the orders should reflect the father’s proposal.
At this stage I do not consider that there should be any additional time that would coincide with the June/July school holidays.
Given that there appears to be some level of communication between the parties, albeit by text messaging, it may be possible for the parties to agree additional time, particularly as they contemplate a mediation process with the genuine hope of resolving their differences.
It is worth noting that consequent upon the provision by each of the parties as to their separate statement of costs, the estimate of the wife’s costs to trial is potentially as high as $375,220 and the husband’s estimate of costs is at least $120,000.
The parties should carefully reflect upon their circumstances and explore whether the current litigation is likely to assist the children in their development and welfare.
I make orders as appear at the commencement of these reasons.
I certify that the preceding sixty-two (62) numbered paragraphs are a true copy of the Reasons for Judgment of the Honourable Justice Berman. Associate:
Dated: 11 May 2021
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