Morino & Arling
[2021] FamCA 195
•13 April 2021
FAMILY COURT OF AUSTRALIA
Morino & Arling [2021] FamCA 195
File number(s): ADC 5318 of 2020 Judgment of: BERMAN J Date of judgment: 13 April 2021 Catchwords: FAMILY LAW – CHILDREN – With whom a child lives and spends time with – Where the father seeks to spend time with the children – Where the mother considers time should be supervised – Where the children have not spent time with the father since separation – Where there are allegations of family violence and emotional abuse – Where both parties consider it is in the children’s best interests for there to be a meaningful relationship with the father – Where a cautious approach should be adopted where evidence has not been tested – Where it is important for the children to resume a relationship with the father – Orders. Legislation: Family Law Act 1975 (Cth) ss 60B(1), 60B(2), 60CA, 60CC(2), 60CC(3) Cases cited: Marvel v Marvel (2010) 43 Fam LR 348
Starr & Duggan [2009] FamCAFC 115
Number of paragraphs: 60 Date of hearing: 26 March 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
Applicant
AND: MS ARLING
Respondent
ORDER MADE BY:
BERMAN J
DATE OF ORDER:
13 APRIL 2021
UPON NOTING that the father withdraws his undertaking made on 21 September 2020 and that the interim proceedings are listed for further hearing on 28 April 2021
THE COURT ORDERS UNTIL FURTHER ORDER:
1.That the parties have equal shared parental responsibility for X born … 2013 and Y born … 2018 (“the children”).
2.That the children live with the mother.
3.That the children spend time with the father as follows:-
(a)On 16, 19 and 21 April 2021 from 9.00 am until 11.30 am, with such time to be supervised by Mr B, with the father to initially be responsible for the payment of the professional fees as charged by Mr B.
4.That the parties will instruct Mr B to prepare a report as to his observations of the children’s time with the father with such report to be published and distributed by 26 April 2021.
5.That the parties be restrained and an injunction be granted restraining each of them from causing the children or either of them to consult with a psychiatrist, psychologist or social worker without the prior written consent of the other party.
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
Mr Morino (“the father”) and Ms Arling (“the mother”) are the parents of X born in 2013 X and Y born in 2018 (collectively “the children”).
The parties commenced cohabitation in 2007 and were married in 2012. The father considers the parties separated on 29 August 2020 when the mother and the children left the former matrimonial home. The mother considers the parties separated on 1 September 2020.
Since separation the father and the children have neither communicated nor spent time with each other.
The father contends that the mother is over protective of the children and has embarked upon a course of conduct that has resulted in there now being no relationship between the father and the children. The father highlighted what he considers was a close and emotionally attached relationship with the children prior to separation.
For her part the mother considers that the father’s pre-separation behaviour was abusive, aggressive and quick to temper which caused a deleterious impact upon the children but in particular X who presents with complex needs including sensory processing disorder, anxiety, emotional dysregulation and poor impulse control.
Whist not ignoring the significant allegations made by the mother in respect of the father’s pre-separation conduct, the catalyst for the separation appears to be an incident that occurred at the former matrimonial home on 11 August 2020 involving the father brandishing a .22 calibre rifle for the purposes of pest and in particular fox eradication.
The former matrimonial home is a farm. There are a small number of animals agisted on the property and the father contends that over the years there has been a problem with the animals being attacked by foxes. The father obtained a firearms license and thereafter acquired a rifle. He says that the purchase of the rifle was with the knowledge and consent of the wife. Her position was that she strongly opposed a firearm being brought into the house but that the father ignored her entreaty.
On 10 August 2020 the father observed a fox and told the mother that he intended to shoot the fox in order to protect new lambs. Five shots were fired.
It appears that the father was determined to kill the fox and on 11 August 2020 redoubled his efforts by staking out the fox from his bedroom. It was the father’s intention to shoot the fox if it came within range.
The parties are in stark disagreement as to the events that then followed. The father contends that the mother told him she was uncomfortable with having a gun in the house and asked him to go outside. At that point whilst the children did not see the rifle nor had there been any shots discharged, the mother took the children into the study and locked the door.
There then followed a discussion between the parties through the locked door. The father states that he then unlocked the door and following a further excursion to find the fox, he discovered that the mother and the children had left the property.
Moreover, there had been an escalation of the events in that the police attended and advised that the police had been tasked to search the former matrimonial home and the father’s car.
It was only on the following morning that the father received a text message from the mother advising that she and the children were okay. The father told the mother that he intended to remove the rifle from the home even though it had not been confiscated by the police.
The mother agrees that the father discussed with her the purchase of a gun but did not agree that it should be brought into the house. The mother’s concerns were further heightened by the purported conduct of the father in placing a dead lamb carcass in a fox trap in full view of the house.
The mother recollects that the parties argued about the father bringing the gun into the house, however, he appeared to dismiss the mother’s concerns. The mother considers that the father’s behaviour was troubling in that in the past when he was challenged by the mother he would react with anger, yelling, swearing and criticism. On the evening of 11 August 2020 he appeared silent, calm and quiet. According to the mother it was the unexpected demeanour of the father which caused her unease and fear.
The mother agrees that she took the children into the study and locked the door from the inside. It is not clear what she intended to do but again it appears that because the father appeared to react reasonably and did not criticise the mother, she became concerned.
The mother was in contact via social media with a Facebook group and told them of the father’s behaviour in brandishing a rifle in the home and unlocking the locked study door. It is assumed that the mother’s report sufficiently alarmed her Facebook friends that they made contact with the police. The mother and children left the matrimonial home and stayed at a friend’s house that evening.
Thereafter matters escalated between the parties. The mother and children returned to the matrimonial home on 12 August 2020, with the father staying overnight in his office. On 13 August 2020 the parties were able to negotiate a return of the father to the matrimonial home on the basis that the father would remove the gun and sleep in an onsite caravan as opposed to the bedroom.
It appears that the mother’s fear and anxiety was heightened by the father bringing home takeaway food and a bouquet of flowers. At paragraph 54 of the mother’s affidavit she describes the following two weeks leading up to the mother and the children vacating the former matrimonial home in the following terms:-
Over the next two weeks, the husband’s behaviour continued to be unusually helpful and he spent more time at home and helped care for the children with me. The husband challenged my attempts to have X sleep independently and he continued to try to find ways to convince X to sleep in his bed with him and shower with him. When I asked X to read his reader, the husband would snatch it and insist upon reading it to X. I explained that X’s homework involves him reading a reader independently each night but the husband ignored my explanation and read X’s reader to him.
Since September 2020 the mother has obtained advice from her general practitioner in respect of X’s behaviour and was referred to a psychologist, Ms C. The mother was not satisfied with the manner in which Ms C attempted to engage with X and did not consider that there could be a successful therapeutic relationship.
A further appointment was made with Ms D and apparently Ms D was unsuitable (although her continued involvement with X is supported by the father) because she was not prepared to assist if she may ultimately be involved with litigation.
A further referral was then made to Ms F who saw X on 18 February 2021.
The mother seeks an order that the children and the father attend for reunification therapy so that the children may resume a relationship with him. It is intended by the mother that Ms D and/or Ms F may well assist in preparing X to spend time with the father, providing it occurs in a supervised setting to provide X with safety and support.
For his part, the father considers that the mother is placing the children at emotional risk by involving them in ongoing and ill-considered therapeutic intervention. He does not agree to reunification therapy and considers that there is nothing amiss in his relationship with the children.
It is difficult to understand how a situation has developed wherein the father has not spent time with nor communicated with the children given that each of the parties acknowledge that it is in the children’s best interests for there to be a meaningful relationship with him.
The father does not accept that there is any substance to the mother’s allegations of his pre-separation behaviour and is concerned that the mother’s conduct is having the effect of fundamentally disrupting the children’s relationship.
ORDERS SOUGHT
By his Amended Initiating Application filed 24 March 2021 the father seeks interim orders that the parties have equal shared parental responsibility, that the children live with the mother and that forthwith the children should spend significant and substantial time with him.
The father seeks to re-engage with all aspects of the children’s care and in particular seeks an injunction that if granted would restrain the mother from taking the children or either of them to consult with a psychiatrist, psychologist or social worker without the father’s prior consent.
By her Response to Initiating Application filed 5 March 2021, the mother seeks sole parental responsibility for the children, that they live with her and that before there is any regular time spent with the father, there be reunification therapy comprising of not less than three appointments involving the children followed by a report.
The mother considers that in the alternative to reunification therapy the father should spend supervised time with the children with the supervisor to be preferably female and either a social worker or psychologist.
The mother wants to be able to attend with X upon Ms F.
The mother seeks that the father be restrained from:-
(a)Approaching either of the children at any location (save and except for the purpose of reunification therapy and/or in accordance with any order of this Honourable Court);
(b)Removing the children from their school, early learning centre, extra-curricular activity, vacation care or any other location other than in accordance with an order of this Honourable Court; and
(c)Approaching the wife at any location save and except in accordance with orders of the Court.
The proposed injunction is similar to the Undertaking signed by the husband on 21 September 2020. The husband is no longer prepared to be bound by the Undertaking in circumstances where it was intended to explore a reconciliation between the parties and to enable him to spend time with the children. The Undertaking was without admission by the father and he considers that in circumstances where he has now not seen the children it should be withdrawn.
INTERIM PARENTING
In Marvel v Marvel (2010) 43 Fam LR 348 the Full Court considered the approach to be adopted when presented with contested evidence on an interim hearing:-
[120]As has frequently been emphasised interim parenting proceedings, and orders made as a consequence, are a necessary but temporary measure until all the evidence can be tested, evaluated and weighed at a final hearing by the making of final parenting orders. Decisions judicial officers have to make in interim proceedings are difficult and, often for very good reason, a conservative approach, or one which is likely to avoid harm to a child is adopted. This is often to the understandable distress of a party who may not achieve the outcome he or she desires, or thinks to be in the best interests of their child or children. Interim parenting orders are frequently modified or changed after a final hearing, and any allocation of parental responsibility made at an interim hearing is disregarded at the final hearing: s 61DB.
I consider that a cautious approach should always be adopted in circumstances where the evidence has not been tested. That does not mean that the Court is not able to make an appropriate interim order. Whilst a court should generally be risk adverse and cautious, that does not mean I am obliged to only make orders consistent with the current practice of the parties or that mirror the earlier arrangements.
The competing applications of the parties must be considered pursuant to s 60B of the Family Law Act 1975 (Cth) (“the Act”) which outlines the objects and principles underlying Part VII of the Act.
Section 60CA of the Act requires that in deciding whether to make a particular order the best interests of the child is the paramount consideration. In order to determine what is in the child’s best interests, the Court must consider the provisions of s 60CC of the Act as to the primary considerations contained in s 60CC(2) and the additional considerations in s 60CC(3).
In Starr & Duggan [2009] FamCAFC 115 the Full Court gave clearer direction as to the co-existent principle that the best interests of the child is the paramount consideration and the legislative framework will of necessity involve some overlap of a consideration of similar factors pursuant to s 60CC of the Act. The approach is not meant to be rigid such that:-
38.… it is important to emphasise (as was made clear in Taylor & Barker and Sealey & Archer [2008] FamCAFC 142) that the legislation does not mandate consideration of the relevant sections in any particular order, although a logical approach is to:-
•first make findings concerning the relevant s 60CC factors;
•then consider (based on the s 60CC findings) whether equal time or substantial and significant time is in the child’s best interests; and
•then consider whether such arrangements are reasonably practicable by addressing the matters referred to in s 65DAA(5) - which may be done by referring back to the earlier s 60CC findings.
PARENTING CONSIDERATIONS
I propose to adopt the following approach:-
(1)Give consideration to the separate proposals put by each of the parties as they were identified and presented to the Court;
(2)Have regard to the objects expressed in s 60B(1) of the Act and the underlying principles in s 60B(2) of the Act;
(3)Have regard to the provisions of s 60CC of the Act in order to determine in each case what is in the child’s best interests;
(4)Have regard to the primary considerations under s 60CC(2) of the Act namely, the benefit to the child of having a meaningful relationship with both of the child’s parents and the need to protect the child from physical or psychological harm;
(5)Have regard to additional considerations under s 60CC(3) of the Act; and
(6)The evidence adduced by each of the parties in respect of the particular considerations pursuant to s 60CC(2) and s 60CC(3) of the Act are to be considered and if more weight is to be given to one or more of the matters raised then it must be the subject of delineation and comment.
The consideration of evidence adduced by each of the parties is necessarily tempered by the Court’s inability to test the evidence at an interim hearing and as such the evidence and issues raised by each of the parties is to be approached with caution.
The father seeks that he should forthwith spend significant time with the children. He argues that there is no substance in any of the allegations made by the mother and even at their highest, given his clear and trenchant denials, there is an urgent need for the children to resume spending time with him in order to re-establish and/or preserve his relationship with them.
The mother does not seek that the children’s time with the father be restored until she is satisfied that the father has undergone appropriate counselling and has gained therapeutic assistance for his aggressive conduct and to better manage his anger.
If time is to be restored then it must be under strict conditions involving supervision by a skilled and professionally qualified supervisor, preferably a woman.
I am entitled to find that both parties agree it is important for the children to maintain a relationship with the father providing it is safe to do so. The mother considers that there is a real and significant risk that the father currently poses to the children, whereas the father denies that he presents a risk but consistent with his Notice of Child Abuse, Family Violence or Risk is a concern that the mother’s conduct is placing the children at emotional and psychological risk.
Whatever ultimately may be the Court’s finding as to the extent of any risk posed by the father, at this stage it is not such that it should forestall or indicate that the children should not see the father.
The children have not spent time with the father nor communicated with him for a period of six months. Given the ages of the children and the circumstances in which they find themselves, I must consider their interests as the paramount consideration. I do not know their personal circumstances but it would be reasonable to find that they would have little understanding of the circumstances in which they find themselves. Six months ago the family was broadly intact and they had a close relationship with each of their parents. That state of affairs has now fundamentally changed.
I propose to place weight on the mother’s proposal that the father’s time with the children should be reinstated under professional supervision. Whilst the father strongly denies that there is any basis for supervision, it is important that the children’s time with him resume in circumstances where no question of risk would exist. The Court may be assisted by the observation of a professional supervisor as to the relationship that exists between the father and the children and the extent of any anxiety or distress that maybe occasioned to them by seeing their father for the first time in six months.
Each of the parties put forward their separate proposals involving a professional supervisor of choice.
I have given careful consideration to the submissions made on behalf of each of the parties and ultimately I consider that it is important that the children resume a relationship with the father at the earliest opportunity and that following three supervised visits an observational report can be prepared in preparation for a further hearing on 28 April 2021.
Accordingly, I propose to order that the children spend time with the father on 16, 19 and 21 April 2021 from 9.30 am until 11.30 am with such time to be supervised by Mr B and with the father to bear the costs of the supervised sessions at first instance. A report will be published by 26 April 2021 in preparation for the further adjourned hearing.
PARENTAL RESPONSIBILITY
The parties are agreed that at this stage it is appropriate for there to be an order of equal shared parental responsibility. Given my reasons, I do not need to further consider whether the children should spend equal time with the parties and if not, the significant and substantial time with the father.
The parties remain in conflict as to the extent to which the children and in particular X should undertake further therapeutic intervention and counselling.
At this stage I do not consider that there is good reason why any professional intervention should be able to be determined by one party in the absence of agreement of the other.
At present, the parties are agreed that Ms D could continue her therapeutic involvement with X. The father has spoken to Ms D and I assume, has gained some confidence in the purpose and focus of her continued involvement. The father is not prepared to agree to Ms F or any other health professional continuing to be involved with the children.
Ms D is prepared to continue a professional involvement providing it does not lead to her having an involvement in the ongoing litigation between the parties.
At this stage it should be a matter for the parties to determine therapeutically, what is in the children’s best interests.
If they are able to agree that one or both of the children should attend a health professional then that is a proper discharge of their parental responsibility.
If they are not able to agree then it is a matter for judicial determination upon the presentation of appropriate evidence as to the utility and efficacy of any proposed therapeutic intervention.
Accordingly, I propose to restrain each of the parties from engaging the children in any therapeutic process other than as may be the subject of their joint agreement.
I make orders as appear at the commencement of these reasons.
I certify that the preceding sixty (60) numbered paragraphs are a true copy of the Reasons for Judgment of the Honourable Justice Berman. Associate:
Dated: 13 April 2021
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