NADELMAN & NADELMAN
[2020] FCCA 1363
•29 May 2020
FEDERAL CIRCUIT COURT OF AUSTRALIA
| NADELMAN & NADELMAN | [2020] FCCA 1363 |
| Catchwords: FAMILY LAW –Interim parenting – father seeking order that mother relocate child’s residence back to former living region – proposed order not made – best interests of child-interim parenting orders made. |
| Legislation: Family Law Act 1975 (Cth), ss.60B, 60CA, 60CC, 61DA, 65D |
| Cases cited: Goode & Goode (2006) FLC 93-286 |
| Applicant: | MR NADELMAN |
| Respondent: | MS NADELMAN |
| File Number: | PAC 5247 of 2017 |
| Judgment of: | Judge Newbrun |
| Hearing dates: | 9 March 2020, 8 April 2020 |
| Date of Last Submission: | 8 April 2020 |
| Delivered at: | Parramatta |
| Delivered on: | 29 May 2020 |
REPRESENTATION
| Counsel for the Applicant: | Mr Blackah of Counsel |
| Solicitors for the Applicant: | Ms Haini - Amanda Little And Associates Pty Limited |
| Solicitors for the Respondent: | Mr Vincent - Kennedy & Cooke Lawyers |
| Solicitors for the Independent Children’s Lawyer | There was no appearance by the Independent Children’s Lawyer |
ORDERS PENDING FURTHER ORDER
That the child X born in 2013 (the child) reside with the mother.
That the child be permitted to reside in the Region A region.
That the child spend supervised time with the father at a supervised contact centre (“the centre), at such times, for such periods and with such frequency as can be accommodated by the centre, but in any event no less than 2 hours each alternate weekend. Should the centre not be presently able to facilitate supervised face to face time but be able to facilitate supervised videoconferencing then the child shall be permitted to spend such videoconferencing time with the father. The centre shall be agreed upon by the parties within 7 days and failing agreement as nominated by the Independent Children’s Lawyer.
To facilitate the above time arrangements each parent shall:
(a)Forthwith and within 72 hours of the centre being agreed upon or nominated by the Independent Children’s Lawyer, contact the centre and arrange and attend the first available and offered intake appointment with the centre to enable an assessment to be made as to suitability for attendance at the centre and inclusion within the centre’s program;
(b)Expeditiously provide all information or documents requested of them, complete all forms and do all things, sign all documents and give all consent, instructions and authorities as may be necessary to enable completion of all intake and assessment processes by the centre;
(c)Upon acceptance by the centre for the purpose of monitored/supervised time attend at such times, dates and places and pay such fees as are advised by the agency and continue to do so until that service is no longer required or is withdrawn;
(d)Present the above child to the centre at such times, dates and places as are advised;
(e)Follow all and any rules or directions of the centre.
In the event that the provision of service at the centre is determined to be inappropriate or service is withdrawn at any time then each of the parties is to advise the Court and Independent Children’s Lawyer of that circumstance as soon as practicable after being advised of such determination and the proceedings will be relisted on seven (7) days notice to review the matter and make such further orders as may be required.
The mother shall be restrained from permitting the child to attend on any therapy, counselling, psychologists or other similar services other than as nominated by the Independent Children’s Lawyer and being the subject of a referral from a medical practitioner.
The parties shall be authorised to obtain from the child’s school copies of relevant material produced by the school for the benefit of parents, including but not limited to school reports and newsletters.
The final hearing of these parenting proceedings is expedited.
IT IS NOTED that publication of this judgment under the pseudonym Nadelman & Nadelman is approved pursuant to s.121(9)(g) of the Family Law Act 1975 (Cth).
| FEDERAL CIRCUIT COURT OF AUSTRALIA AT PARRAMATTA |
PAC 5247 of 2017
| MR NADELMAN |
Applicant
And
| MS NADELMAN |
Respondent
REASONS FOR JUDGMENT
Introduction and background
This interim hearing relates to the child X born in 2013 (“the child”).
On 14 November 2018, final consent parenting orders were made in this court providing, inter alia, that the parties have equal shared parental responsibility for the child; that the child live the mother; that the father spend time with the child for four nights each fortnight and half school holidays and on special occasions; and both parties be restrained from saying bad or unkind things about the other parent or their partners in the presence or hearing of the child and from allowing any third party to do so.
The father commenced proceedings on 12 December 2019 seeking, inter alia, interim parenting Orders that the mother return the child to him; that the parties be restrained from moving the child’s residence more than 20 km of Suburb B Council’s office in Suburb B; that the father be authorised to an shall forthwith re-enrol the child in C School; that the child live with him and spend regular time with the mother.
The mother moved with the child to the Town F area on about 24 December 2019.
The mother, on an interim basis, seeks orders, inter alia, for:
a)sole parental responsibility for the child;
b)that the child live with her;
c)that the child be permitted to reside in the Region A region;
d)that the father undertaken complete a course known as Taking Responsibility-a course for men provided by D Counselling Services, or an equivalent program;
e)that the father undertake hair drug testing; and,
f)pending completion of the Taking Responsibility course (or equivalent) and drug testing, the father be restrained from approaching or communicating with the child.
At the interim hearing, the Court asked the mother’s counsel whether the mother had any proposal, in the alternate, if the Court was minded to make orders for the child to spent time with the father. In response, the mother’s counsel stated that he was without instructions in this context. However he did refer the Court to the mother’s statements to the family consultant that she proposed, inter alia, on an interim basis, that the child spend supervised time with the father at a contact centre (Region E area) each fortnight, albeit after the father had undertaken therapy and programs and had demonstrated change.
The father opposes the mother’s proposed interim orders, including that she be permitted to reside in the Region A region with the child.
The ICL sought interim orders, inter alia, that the child live with the mother in Town F; and that the child spend time with the father at the home of the paternal grandparents and supervised by the paternal grandmother.
Material relied upon by parties
The father relies on the documents set out in his case outline dated 7 April 2020.
The Respondent Mother relies on the documents set out in her case outline dated 22 November 2020, subject to one amendment: the second mentioned Affidavit of the mother “filed 8 November 2018”, is not to be relied upon but rather her Affidavit filed 22 November 2018 is to be relied upon.
The ICL relied upon the mother’s affidavit filed 22 November 2017.
The following documents became exhibits:
a)exhibit A being an entry dated 13 November 2019 from the subpoenaed records of Ms G, trauma counsellor.
b)exhibit B being the “Father’s Tenders”; the schedule refers to various subpoenaed documents relied upon by the father, together with an attached bundle of documents.
c)exhibit C being a tender bundle of documents relied upon by the mother and which includes, inter alia, various subpoenaed documents.
d)exhibit D being four date entries of Ms H, counsellor, from 9 December 2019 to 16 December 2019.
The parties and ICL also relied upon the Child Inclusive Conference Memorandum to Court dated 10 March 2020.
Agreed or undisputed relevant facts unless otherwise stated
The subject child is in Year 1 this year. He now attends the Town F Primary School. Previously, until about the end of 2019, he attended the J School.
The mother is aged 35 years. The father is aged 44 years.
The parties’ cohabitation commenced in 2011. The child was born in 2013. They separated in about July 2017.
The mother asserts that following separation she relocated to Town K with the child, and the mother and child resided with the maternal grandparents. The mother asserts that during this period the child was able to spend time with the father, despite the distance between their residences.
The mother asserts that in January 2018 she and the child moved to Suburb L.
A letter from the Town F Domestic Violence Intervention Service dated 19 February 2020 asserts, inter alia, that the father was served with an AVO on 4 September 2018 for the protection of the mother and child.
The father lives with his parents in Suburb M.
The father’s criminal record is in evidence through exhibited evidence. It refers to historical criminal convictions for, inter alia, aggravated robbery with wounding/GBH (offence in 1999) (sentence, minimum term 2 years, with release subject to supervision, attend drug and alcohol counselling and rehabilitation); aggravated robbery with wounding/GBH (offence on in 2003) (sentence, non-parole period with conditions: 4 years and 37 weeks, release subject to supervision); plea of guilty to alternative offence assault occasioning actual bodily harm (offence in 2002) (sentence, alternative imprisonment: 18 months); driving offence (drive recklessly/furiously or speed/manner dangerous) (sentence $1,500; disqualification driver: 15 months), offence in 2016.
The father’s affidavit does not refer to his criminal record and incarcerations. However he did inform the family consultant, inter alia, that he was incarcerated from 1999 to 2001 and again from 2003 to 2009 for certain of the above offences.
The mother asserted to the family consultant, inter alia, that she sought for the father to attend rehabilitation to “come back into society and live a normal life” after his incarceration. She asserted to the family consultant that the father never completed any type of program or rehabilitations while he was incarcerated and was not involved with Probation and Parole following his release. The father disputed these assertions to the family consultant. The mother asserted to the family consultant that she sought for the father to attend a parenting program specifically targeting the support of children with trauma who have been exposed to family violence.
The mother had been living at Suburb B with the child until about 24 December 2019 when she moved to the Town F area with the child to live.
In her affidavit filed 19 December 2019, the mother refers to her “current fiancé”, Mr N. In her affidavit filed 27 March 2020, she asserts that she and Mr N amicably ended their relationship on 21 December 2019. In annexure K to the mother’s affidavit filed 19 December 2019, being a letter from Mr N’s employer dated 17 December 2019, the employer states, inter alia, that the employee has been working for the past five years as a full-time tradesman with the employer, that he has been appointed with the leading supervisory role for the employer’s Region E contract with Employer O commencing in 2020, and that the employee and the mother are moving to Town F on 20 December 2019. In exhibit B, the police record the mother informing them that Mr N, on 2 March 2020, had left the mother’s residence to speak to a man taking photos of him.
The mother has not facilitated the child spending time with the father since early November 2019.
There is a dispute between the parties as to whether or not on 20 December 2018 at P’s restaurant in Suburb B the mother told the father that she would be purchasing land on the Region E of New South Wales and she would be building a home there for the child and herself to live in. The mother asserts that she did so inform the father, however the father asserts he was simply told at this time that the mother had purchased land, and he assumed it was in the area that they lived.
The mother also asserts that the father, in the above context, told the mother that he was currently living away for work on the Region E, that all his work was there, that he was presently performing work at Town Q, and eventually he was going to move to Town R. These assertions are not expressly denied by the father. (The Court observes in this context that the father told the family consultant that he was currently working in Victoria for a period of four weeks. He identified to the family consultant that he intends on working locally after that period.)
Further, the mother asserts that throughout 2019 she continued to inform the father of her progress in finding land on the Region E. She asserts that she recalls in late January (the court infers 2019) she advised the father that she was house sitting at Town F and that she had seen a block of land that she liked in the estate.
The mother asserts that in early May 2019 she exchanged contracts to purchase land in Town F. She asserts that at that time she was entirely satisfied that the father had agreed to the child relocating. She asserts that at no stage prior to or after purchasing the land did the father communicate to her that he was not agreeable for the child relocating to Town F.
On 6 December 2019 the mother sent the father a text message stating, “As you are aware I’ve purchased land on the Region E. I advised you of this on 20 December 2018 when I told you at P’s restaurant - Our build starts after Christmas. X is enrolled to start school at Town F Public school in 2020. We are leaving Sydney on 19 December to move to the Region E.”
The father asserts that the mother unilaterally decided to move to the Town F area, with the child, on 19 December 2019, without consultation with him and without his consent.
The father asserts that his parents are retired and assist him with caring for the child when he is at work. The father asserts he intends to continue to live with his parents. He asserts his parents have been very involved in the child’s care and will continue to support the father when needed. The father asserts that he works weekdays from usually 7 AM to 5:30PM. He asserts he does not work on weekends that he has the child, except in an emergency.
The father asserts that, pursuant to the court’s orders of 14 November 2018, he attended at S Counselling and participated in sessions as required by those orders. However, the annexed letter from S Counselling dated 3 December 2019 merely refers to the father attending an initial assessment on 7 December 2018, and also completing the Talking with Kids course on 1 February 2019. Further, in this context, the mother asserts, through her solicitors, that the father only attended one family counselling session with S Counselling. She asserts that the father told her, “it’s fucking stupid and a waste of time.”
Relevant legal principles
The relevant principles in relation to parenting proceedings, including interim proceedings, are well settled: see Goode & Goode (2006) FLC 93-286.
In Marvel & Marvel [2010] FamCAFC 101 the Full Court (Faulks DCJ, Boland and Stevenson JJ), discussed the problems associated with making findings on disputed evidence as follows:
[120] As has frequently been emphasised interim parenting proceedings, and orders made as a consequence, are a necessary but temporary measure until all the evidence can be tested, evaluated and weighed at a final hearing by the making of final parenting orders. Decisions judicial officers have to make in interim proceedings are difficult and, often for very good reason, a conservative approach, or one which is likely to avoid harm to a child is adopted. This is often to the understandable distress of a party who may not achieve the outcome he or she desires, or thinks to be in the best interests of their child or children. Interim parenting orders are frequently modified or changed after a final hearing, and any allocation of parental responsibility made at an interim hearing is disregarded at the final hearing (s 61DB).
…
[122] In SS & AH [2010] FamCAFC 13 the majority (Boland and Thackray JJ) discussed at paragraph [88] of their reasons the care necessary to be exercised in making findings in interim parenting proceedings. Their Honours said:
In our view, findings made at an interim hearing should be couched with great circumspection, no matter how firmly a judge’s intuition may suggest that the finding will be borne out after a full testing of the evidence.
[123] Later, at [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.”
Of this, the Full Court in Eaby & Speelman [2015] FamCAFC 104 said at [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.
In Salah & Salah [2016] FamCAFC 100, the Full Court said:
37.It is very common in interim parenting proceedings to see factual disputes which cannot be determined without the evidence being tested in the context of a trial. His Honour recognised this and indeed at [14] referred to “the usual pathway as highlighted in Goode & Goode (2006) FLC 93-286”. A paragraph relevant to this appeal in the Goode decision is as follows (at 80,901):
68.… the procedure for making interim parenting orders will continue to be an abridged process where the scope of the enquiry is “significantly curtailed”. Where the Court cannot make findings of fact it should not be drawn into issues of fact or matters relating to the merits of the substantive case where findings are not possible. The Court also looks to the less contentious matters, such as the agreed facts and issues not in dispute and would have regard to the care arrangements prior to separation, the current circumstances of the parties and their children, and the parties’ respective proposals for the future.
The Full Court in Cimorelli & Wenlack [2020] FamCAFC 58 said:
80. In interim hearings, where the evidence remains untested, disputed facts cannot be the subject of definitive findings, but simply because material facts have been put in issue does not mean the contested evidence must or should be ignored, since such evidence may have a significant bearing upon the determination of orders which promote the children’s best interests ([Salah] at [35]-[45]; Eaby & Speelman (2015) FLC 93-654 at [18]-[19]). Despite the limitations which constrain findings at interim hearings, aside from those “couched with great circumspection”, certain provisions within Part VII of the Act direct judges to consider risks which are pertinent to the welfare of children and their carers (for example: ss 60B(1)(b), 60CC(2)(b), 60CC(3)(j), 60CC(3)(k) and 60CG). It would constitute an error of law to ignore the statutory mandate and, correctly, the primary judge did not ignore it.
81. Naturally, the concept of risk encompasses the possibility of harm, not just the probability of harm (M v M (1988) 166 CLR 69). The primary judge was conscious of the need to evaluate the available evidence to determine whether or not it capably vindicated the submissions made by both the father and the ICL that the mother poses a tangible risk of psychological harm to the children. Her Honour’s finding that the evidence did do so was appropriately circumspect and does not foreclose the issue being revisited at final trial, when the evidence will be properly tested. Her Honour was obliged to resolve the issue at an interlocutory stage, albeit provisionally rather than definitively, because it underpinned the parties’ contest over the children’s residence.
The Court also refers to the decision of the Full Court of the Family Court of Australia in Banks & Banks [2015] FamCAFC 36, especially at paragraph 46 to 52.
Section 60B of the Family Law Act 1975 (Cth) (“the Act”) sets out the objects of Part VII of the Act relating to children that inform the making of parenting Orders.
In deciding whether to make a particular parenting Order in relation to a child, a Court must regard the best interests of the child as the paramount consideration: section 60CA of the Act.
Section 60CC of the Act provides that in determining what is in the child’s best interests, the Court must consider the matters set out in subsections (2) and (3).
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: section 61DA of the Act. When the Court is making an interim Order, the presumption applies unless the Court considers that it would not be appropriate in the circumstances for the presumption to be applied when making that Order: section 61DA (3).
If the presumption of equal shared parental responsibility in relation to the child applies, and is not rebutted, the Court must firstly consider whether the child spending equal time with each of the parents would be in the best interests of the child and reasonably practicable.
If equal time is found not to be in the child’s best interests, or impracticable, as a result of consideration of one or more of the matters in section 60 CC, the Court must consider making an Order that the child spends substantial and significant time (as defined in section 65 DAA (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 60 CC, or impracticable.
If neither equal time nor substantial and significant time is considered to be in the best interests of the child, or impracticable, then the Court may make such Orders in the discretion of the Court that it thinks proper, being Orders that are in the best interests of the child, as a result of consideration of one or more of the matters in section 60CC: sections 60CA, 60CC, 65D.
As to relevant legal principles relating to interim relocation applications, the Court respectfully refers to Foster J’s discussion of relevant legal principle in Saif & Saif [2020] FamCA 119 at paragraphs 78-79 as follows:
“78. Relocation is but one aspect of parenting. It falls to be determined in the best interests of the children.
79.Recently in Franklyn & Franklyn [2019] FamCAFC 256 the Full Court took the opportunity to review the applicable principles in the context of the subject interim relocation appeal. The Full Court said at [27] – [28]:
There is an inherent tension between, on the one hand, separated parents being able to establish new homes wherever they like and, on the other, their restraint by injunction from living too far apart to avoid any impingement of their children’s ability to retain meaningful relationships with both parents. The conflict is between the best interests of the children to know and have regular personal contact with each parent and the interests of the parents to enjoy a high measure of freedom of movement which is not lost by reason only of their parental responsibility for the children (see AMS v AIF (1999) 199 CLR 160 (“AMS v AIF”) at 196, 206, 207-208, 210). The tension at the intersection of those conflicting interests is even greater when an order is sought, not just to restrain one parent’s move further away, but to compel the parent who has already moved away to return and establish a new residence closer to the other parent.
While the children’s interests are paramount, their interests are not the sole determinant of parenting orders under Part VII of the Act (AMS v AIF at 207, 225, 230; U v U [2002] HCA 36; (2002) 211 CLR 238 (“U v U”) at 282). Parents enjoy as much freedom to live where they please as is compatible with their obligations pertaining to the children (see AMS v AIF at 223-224, 231-232; Sampson and Hartnett (No.10) [2007] FamCA 1365; (2007) FLC 93-350; Zanda & Zanda [2014] FamCAFC 173; (2014) FLC 93-607 at [132] - [136]). Only when the children’s welfare would be adversely affected must a parent’s right to freedom of mobility defer to the paramount consideration of the children’s best interests (see U v U at 262).”
The best interests of the children
Section 60CC considerations
(2)(a) (the benefit to the child of having a meaningful relationship with both of the child’s parents: a primary consideration)
In Saif & Saif [2020] FamCA 119, above, Foster J stated:
“95. The reality is, in the context of this interim hearing, that the Court is obliged to have regard to the maintenance and promotion of the children’s relationships with both parents. A relationship may be less than optimal but nonetheless meaningful: (Godfrey & Sanders [2007] FamCA 102 at [33]-[36]; Sigley & Evor (2011) 44 Fam LR 439 at [182]).
96. In Mazorski v Albright [2007] FamCA 520, Brown J considered ordinary definitions of the term “meaningful” and observed:
[26] 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 quantitive one. Quantitive 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.
97. In McCall & Clark [2009] FamCAFC 92 at [121] the Full Court accepted as appropriate this interpretation by Brown J of “meaningful relationship”.
The child has a meaningful relationship with the mother and would benefit from a continuance of that relationship.
The child appears to have had a meaningful relationship with the father at the time he last spent time with the father in November 2019. The child has spent unsupervised time with the father following the parties’ separation and after the court’s orders of 14 November 2018 until 4 November 2019. The child had telephone time with the father until 7 November 2019. It is possible that this relationship has become strained or has dissipated to some extent since about this time. The child would benefit from the continuance or re-development of that relationship provided it is safe, emotionally and physically, for the child to do so.
The mother wants the child to have a meaningful relationship with the father, albeit not until some significant changes are made in the father’s life.
There is a significant suggestion on the material before the Court that the mother has been the child’s primary carer from birth to date. Taking into account this primary care, and also the concerns of the family consultant in relation to the child spending time with the father, there is a real risk that the mother’s emotional wellbeing will be adversely compromised should the child be required to live with the father in Suburb M, and which may impact upon her parenting capacity and thereby her meaningful relationship with the child.
Should the child continue to live with the mother in Town F and spend regular supervised time with the father, there is a significant prospect that the child’s meaningful relationship with the father can be redeveloped or maintained.
(2)(b) The need to protect the child from physical or psychological harm from being subjected to, or exposed to, abuse, neglect or family violence.
The mother alleges that the father was psychologically, physically and sexually abusive towards her during their relationship. She alleges that the father was also controlling and intimidating/threatening towards her during their relationship. She alleges that the child witnessed the mother being subjected to family violence by the father during the relationship. The mother alleges that in or around May 2019 she observed that the child would return from his weekends with the father in a very heightened state and would exhibit aggressive and violent behaviours to her. The mother alleges that post separation the child has been subjected to excessive corporal punishment at the instance of the father and the paternal grandfather, and that the child has been verbally abused by the father and threatened with excessive corporal punishment.
In this context, the court refers, inter alia, to the mother’s allegations against the father made to the family consultant. The court also refers to the mother’s allegations against the father referred to in the “Reasons for making this application” and forming part of an application for an ADVO by the mother against the father in early 2020 (pages 44 – 45 in exhibit B). And the Court refers to the mother’s allegations of family violence in her affidavit filed 22 November 2017.
The mother alleges that the father was exposed to family violence in his family during his childhood and that family violence is tolerated within the paternal family. She alleges that the father has been verbally abusive towards his mother and alleged that the father had thrown a large rock through the front window of the paternal home on one occasion.
The father denies verbally, physically or otherwise abusing the mother. He asserts that he has not intimidated, harassed or engaged in any behaviours of a controlling or coercive nature.
The mother asserts that in July 2017, the father commenced proceedings in this court for a recovery order for the child to relocate to the Suburb B area. She asserts that the parties agreed on interim orders for the father to spend supervised time with the child whilst the mother remained in the Town K area.
A Patient Health Summary in relation to the child from the Town T Family Practice dated 1 August 2017, under the heading “social and family history”, states, “Recently moved with mother from Sydney to Town K to grandparent’s house. We have moved due to leaving a domestic violence household. My marriage has come to an end. Trying to build a new life on the Region E.”
The mother asserts that, post separation, she felt exhausted trying to communicate with the father her concerns around his alleged erratic behaviour in the way he would (allegedly) use intimidation and scare tactics as a way to parent the child. The mother asserts that she resorted to communicating her concerns to the paternal grandmother who allegedly endorsed on many occasions she and her husband stated: “we give up, you simply cannot reason with (the father) he is out of control.”
The mother asserts that the father had told a friend of the mother, following the mother’s move back to Sydney with the child in January 2018, “Tell your friend (the mother) to watch her back because I’ll fucking kill her.”
The mother asserts that on 21 January 2018 she met the paternal grandmother to collect the child after a supervised visit with the father. The mother asserts she related to the paternal grandmother the substance of what her friend had told her (see above) in relation to a threat from the father. The mother asserts that the paternal grandmother responded with words to the effect, “if he was going to kill you, he would have already done it by now.” The mother asserts that she recalls feeling even more terrified and anxious with these words coming from the paternal grandmother.
An entry in the DOCJ subpoenaed records, tab M3.3, dated 12 June 2018, records the mother reporting that the child’s behaviours are apparently always noticeably worse after he returns home from visiting the father every second weekend.
The mother asserts that in November 2018, at a meeting for the child’s enrolment at a primary school, the mother raised concerns that she had in relation to the child, including an incident at preschool where the child had pushed the teacher and told the teacher, words to the effect, “I will get my dad to come here and punch you in the face.”
The mother asserts that the child began attending a new primary school at the beginning of term 2, 2019. The mother asserts that whilst at this school, the child was under supervision from the school psychologist, Ms H from U Counselling, Suburb V.
The mother asserts that in about May 2019, she began to observe that the child would return from his weekends with the father in a very heightened state, and would exhibit aggressive and violent behaviours to the mother. She had observed during her relationship with the father that the father is very firm with the child. The mother asserts that the child requires a lot of settling and nurturing when he returns to the mother’s care.
The mother asserts that in about October 2019, she organised a meeting with the father to discuss the child’s behavioural concerns. The mother asserts these concerns had been brought to her attention by the school principal of the child’s primary school, Ms H and the trauma counsellor Ms G. The mother asserts that those persons reported to her that the child had been engaging in frequent violent behaviour and swearing, including physically abusing his female teachers. She asserts that the father was reluctant to meet with her.
On 3 November 2019, the mother alleges that she discovered a voicemail message from the father. In the message the mother alleges that she could hear the father calling the child a “fucking idiot.” In the mother’s solicitor’s letter dated 28 November 2019 to the father’s solicitors, the author of that letter states, inter alia, “We can confirm that (the mother’s solicitor) was provided with a voicemail message dated 3 November 2019, whereby your client (the father) could be heard verbally abusing the child and shouting profanities at him.”
The paternal grandmother’s affidavit states that she spoke to the father after the mother complained to her about the child being allegedly sworn at by the father. The paternal grandmother asserts that she told the father to stop swearing in front of the child with the father stating in reply, “I wasn’t calling him a fucking idiot I was calling her that.” The paternal grandmother then said to the father that he shouldn’t say that about the mother either. The paternal grandmother stated that the father does regularly swear however she asserts that he does not swear at the child.
The mother asserts and alleges that on 4 November 2019 the child informed her that the father had struck him on his left hip with a sport shoe as punishment because he did not pack away quick enough. The child is recorded to have stated to the trauma counsellor, Ms G, on 13 November 2019, in relation to bruising on his torso (referred to by the mother to the counsellor) that, “I don’t want to talk about it. If I tell dad will be charged.” The counsellor asked him why and the child stated, “because I wasn’t supposed to be on the motorbike and it was dad’s friends.” In the counselling notes from the child’s school dated 3 December 2019, it would appear the mother is recorded to have stated to the counsellor that the child had told her, in relation to the bruising on the child’s hips, that “Dad said it’s a secret and to say I fell off a bike.” On the other hand, the police, having investigated this issue, concluded the child had likely fallen from a bike.
Following these events, including the child’s alleged own increasingly violent behaviours upon returning from his time with the father, the mother asserts that she suspended contact between the father and the child. In this context, the mother’s solicitors wrote a letter to the father’s solicitors dated 15 November 2019.
The mother’s solicitor’s letter of 28 November 2019 to the father’s solicitors asserted and alleged, inter alia, that following the making of the final orders (by consent, on 14 November 2018) the father continued to verbally and physically abuse the child, which the mother described as a reflection on the father’s past behaviour towards the child and herself prior to separation.
The letter alleged that the child has for years suffered from psychological trauma caused by the father’s verbal and physical abuse towards him and his experiences in witnessing the mother being verbally and physically abused by the father. The letter alleged that the child’s psychological trauma is now extremely exacerbated as a result of the continuation of the father’s abusive behaviour towards the child. The letter asserted that the child is now seeing a trauma specialist and a school psychologist to treat his psychological condition.
The letter alleged that the father recently drove the child to the mother’s residence whilst intoxicated and the child was unrestrained in the front seat, and on another occasion the child was left in the care of strangers at an RSL whilst the father was drinking to the point of intoxication.
The letter asserts that the mother made the decision to suspend contact as she could no longer tolerate the father’s behaviour towards the child. The letter asserts, “(The mother) has spoken to (the father) about his behaviour towards the child on numerous occasions. (The mother) has given (the father) countless chances to correct himself as she genuinely thought this would be in the best interests of the child, by allowing the child and (the father) to continue to have a meaningful relationship. Unfortunately, (the mother’s) kindness and leniency were misunderstood as silence by (the father).”
The letter states that contact between the child and the father will remain suspended until proper arrangements are put in place to address the father’s behaviour.
The mother asserts that on 12 December 2019 there was an incident at her residence involving the paternal grandmother. The mother alleges that the paternal grandmother attempted to force entry into her home to remove the child. The mother alleges that the paternal grandmother did not gain access to the house and that she had locked all the doors.
The subpoenaed police COPS record for the above incident refers to the police receiving conflicting versions from the mother and paternal grandmother. The COPS entry asserts that the paternal grandmother stated to the police that she engaged in a verbal argument with the mother before the mother slammed the door on her, and further, the paternal grandmother stated to police that she did not attempt to remove the child from the location.
The mother alleges that in about February 2020, the child noticed a man was taking photographs of him whilst at school. The mother alleges that she later noticed that a man was on her property taking photos of herself and the child. The mother alleges that she went to the police. She alleges that the man was identified by police as Mr W and he was contacted by the police. The mother alleges that the man confirmed that he had been employed by the father to take photos of and follow herself and the child. The mother asserts that this incident has left herself and the child extremely anxious.
In this context, the father told the family consultant that the paternal grandparents had organised a private investigator (who is an associate of the paternal family) to “check up on (the child)”. The father denied to the family consultant that he had been getting people to follow the mother and the child.
The father in his affidavit refers to the alleged incident involving the father swearing at the child. He admits using the words “fucking idiot” but asserts that these words were not directed to the child and that the child could not hear him. The father asserts that he did not intend for the mother to hear these swear words. The father asserts he has never left the child alone at the RSL. The father denies being an alcoholic.
In the father’s affidavit he refers to a message from the mother on 10 November 2019 with the mother alleging that the child was petrified because the father might “flog him”. The father asserts that he has never flogged or hit the child, has never intended to do so or would do so, however he acknowledges that on occasions that, “I have said that in the context of getting him to behave but I put him into his room or he has time out or I have removed his iPad from him.”
The affidavit of the paternal grandmother states, inter alia, that she had previously, in early November 2019, talked to the father telling him that he had to stop swearing in front of the child. She asserts that the father had told the paternal grandmother that he wasn’t calling the child a fucking idiot but that he was calling the mother that. The paternal grandmother states that the father does regularly swear and she has spoken to him about that many times. She asserts that the father does not swear at the child. She asserts that she has heard the father state to the child words to the effect, “If you keep going, I’ll give you a flogging.”
The mother asserts that she caused an interim ADVO to be issued against the father on 20 March 2020; a copy of this order is annexed to her last affidavit. The interim order contains certain injunctions against the father in relation to the mother and child. A Local Court fixture at Town Q was fixed for 3 April 2020.
The mother asserts that family violence perpetrated against her by the father during the relationship was witnessed by the child. She asserts that the child is fearful of the father and believes the father has the right to abuse him because the father says so.
The mother alleges that the child is scared of the paternal grandfather. She alleges that the child has told her that the paternal grandfather hits him with a pipe and locks him in the back shed until he calms down. The mother alleges that the child has told her that the paternal grandparents just yell at him if he is not quiet on the iPad.
The subject child has received counselling from trauma counsellor Ms G since August 2018. The mother attaches to her affidavit a two-page report from Ms G dated 16 December 2019. The court has taken into account the content of that report noting that it is presently untested, and that is based upon histories provided by the child and the mother to the counsellor, Ms G.
Inter alia, the counsellor refers to the child being treated on a fortnightly basis in counselling since August 2018.
In October 2018 the counsellor refers to the child describing having angry feelings after which he burst into tears and stated “my brain is out of control”.
The counsellor states that therapy with the child was progressing well until she saw the child on 13 November 2019 when he informed the counsellor that he had some bruising. When the counsellor asked how this occurred the child said he didn’t want to talk about it. He stated to the counsellor “if I tell dad will be charged”. The counsellor observed in that session that the child’s play regressed to significant levels of violence. He was unable to follow instructions and was defiant when asked to do certain tasks. This was not behaviour that the counsellor had previously seen in him.
The counsellor states that she saw the child a week later (20 November 2019) and whilst the child’s play was still very aggressive he was much calmer and he was polite. (The Court notes from the counsellor’s clinical notes of 20 November 2019 that the mother had reported to the counsellor that the child has had no contact with the father.)
The counsellor referred to a session with the child one week later (this would appear to be a session held on 4 December 2019). The counsellor refers to observing a dramatic improvement in the child presentation. He was calm, engaged with boardgames, was able to concentrate for extended periods, and he was able to follow some direction without becoming overwhelmed or dysregulated. (The Court notes from the counsellor’s clinical notes of 4 December 2019, she records the child stating to her that he has not seen the father but would like to, “but Dad is working a lot”. The counsellor asked the child how he was feeling about that and the child replied, “it’s okay dad is working.”)
The counsellor referred to the last session with the child on 12 December 2019. The counsellor stated that the child was highly distressed and agitated. The child discussed with the counsellor an incident involving the paternal grandmother coming to his home. He said that there was a lot of shouting and he felt very scared presently.
The counsellor stated that it was her professional opinion that the paternal family are having a negative impact on the child’s emotional state. She stated that further investigation was required into the father’s behaviour towards the child before contact between the child and the paternal family resumes.
The subpoenaed clinical notes of Ms G are in evidence.
The clinical notes for 24 August 2018, inter alia, state that the mother is in a relationship with her partner living with herself and the child. The mother asserts that the child gets on well with her new partner.
The clinical notes for 26 September 2018, inter alia, refers to the child stating he has a lot of angry feelings. When the child was asked about his family, the child told the counsellor that the father was a tradesman and was working away in City Y. At one point he suddenly burst into tears telling the counsellor that “my brain is out-of-control; thinking something bad; there is something wrong with my brain”.
The clinical notes for 9 October 2018, inter alia refer to the child telling the counsellor, “I’m not a scaredy-cat-I’m like dad – he’s the hulk.”
The clinical notes for 21 November 2018 records the father attending with the child. The clinical notes record very aggressive play from the child including the child flicking sand at the counsellor and hurling balls at her.
The clinical notes for 27 February 2019 refer, inter alia, to the child stating to the counsellor “Mum is happy all the time dad turns into a hulk when angry”. The counsellor asked the child what that was like for him when that happens with the child stating, “I feel scared.”
The clinical notes for 26 June 2019, 7 August 2019, 30 October 2019, 13 November 2019, 20 November 2019, refer to the child’s violent play at times (in the presence of the counsellor). The notes for 30 October 2019 refer to the child’s threat to kill the counsellor. The notes for 14 January 2020, inter alia, record the child seeming quite positive about starting a new school and making new friends.
The court has significant concerns in relation to the child’s adverse presentations to trauma counsellor Ms G, behavioural difficulties observed of the child at preschool and school, and such difficulties allegedly observed by the mother. There is a significant suggestion, on the material before the court, that there is a real possibility that these presentations of the child, including behavioural difficulties, may have significantly arisen by reason of his alleged exposure to family violence, including coercive and controlling family violence, perpetrated by the father during the parties’ relationship.
And further, the court has significant concerns that the child may have been exposed post separation to verbal abuse, threats of excessive corporal punishment by the father, and excessive corporal punishment by the father and paternal grandfather. There is a significant suggestion, on the material before the court, that there is a real possibility that the child’s above referred adverse presentations and behavioural difficulties may also have significantly arisen by reason of his alleged exposure to such alleged verbal abuse and other behaviour by the father and paternal grandfather.
In this context, the court refers to the comments of the family consultant that the allegations made by the mother regarding abuse perpetrated by the father against her and the child are, if valid, suggestive of a coercive controlling family violence dynamic and family violence with a higher level of potency and risk to both the mother and to the child, physically and psychologically. The family consultant recommended that consideration be given to the allegations made by the mother on both an interim and final basis in determining the appropriateness of parenting arrangements for the child, particularly relating to any time the child spends with the father.
The family consultant stated that it was of significant concern that the father and/or the paternal family organised for the mother and child to be monitored. The family consultant stated that this was likely to have been experienced as frightening by the child, if he was aware of it, and was highly likely to have a detrimental impact on the parenting relationship between the parties, including undermining trust. The family consultant opined that if there was veracity to the allegations regarding the father perpetrating family violence, significant concerns would be raised that this was indicative of a continuation of the coercive controlling dynamic. In this context of monitoring, the court refers to the mother’s assertions that by reason of the monitoring of herself and the child, they have become extremely anxious.
The court takes into account the comments and recommendations of the family consultant, whilst acknowledging that her memorandum is untested. In this context, the Court also takes into account Ms G’s opinion that the paternal family are having a negative impact on the child’s emotional state and that further investigation was required into the father’s behaviour towards the child before contact between the child and the paternal family resumes, whilst acknowledging that her report remains untested.
In the view of the court, based upon the material before the court, there is an unacceptable risk of physical and psychological harm posed to the child in spending unsupervised time with the father.
In the view of the court, formal supervision of the child’s time with the father at a contact centre would minimise the risk of the child experiencing harm if spending time with the father.
In this context supervision, the court observes, inter alia, that ultimately the child easily separated from the mother when the mother accompanied the family consultant to interview. Whilst the mother alleges that the child has expressed wishes not to see the father, on the other hand there is material suggesting that the child has been missing the father. The court is of the view that there is a real chance that formal supervision of the child’s time with the father could proceed without significant emotional harm to the child. In this context the Court has not overlooked the concerns of the family consultant.
The Court has a significant doubt that the above identified unacceptable risk of harm to the child could be minimised by the Court imposing restraints upon the father’s behaviour as proposed by the ICL; the court has a significant doubt that the father would personally be able to reliably comply with such restraints.
The Court has a concern as to supervision occurring other than at a contact centre. The Court has a concern that supervision through a professional supervisory service, affording supervision with a single supervisor, for example, in a public place or private residence, may expose the child to a risk of harm. For example, the child might be exposed to conflict at changeover, or the child might misbehave or act out in some adverse manner; these potential issues would be better managed at a contact centre.
The court recognises the present closure of certain contact centres in NSW. It would appear to be unclear as to when such centres will reopen. Should any agreed or ICL nominated contact centre offer supervised videoconferencing between the child and the father, pending reopening of the centre, this would be beneficial to the child redeveloping or maintaining his meaningful relationship with the father.
The Court has considered whether the paternal grandparents could adequately supervise the child’s time with the father. The court has a significant concern that the paternal grandparents may not be able to act impartially as supervisors, particular noting their commissioning of a private investigator to conduct surveillance in relation to the mother and child. Again, the court refers to the family consultant’s significant concerns in relation to this surveillance.
The Court also has a concern in relation to the paternal grandmother’s ability to control the father’s behaviour towards the child. The paternal grandmother has stated that the father regularly swears and there is a significant suggestion that he swears in the presence of the child. There is a significant suggestion that she has acquiesced in the father saying to the child, words to the effect, “If you keep going, I’ll give you are flogging.” In this context, the court notes the mother’s allegation that the paternal grandmother has told her, in relation to the father, “we give up, you simply cannot reason with (the father) he is out of control.” In this context, the Court has not overlooked the mother’s positive comments about the paternal grandparents to a counsellor in about August 2019, however the court’s concerns remain.
The Court also has concerns in relation to the past alleged adverse behaviour of the paternal grandfather (discussed above) towards the child.
The Court has considered whether its above concerns in relation to the paternal grandparents could be minimised and addressed by appropriate written undertakings and/or injunctions imposed upon the father in relation to them, but its concerns still remain because of their behaviour (including alleged behaviour) referred to above.
The court has considered the father’s submissions and reference to material before the court, in opposition to the mother’s contentions. The court now refers to certain of those submissions of the father.
The Court has not overlooked the reference, in the subpoenaed records of the trauma counsellor Ms G, on 30 October 2019, to the mother being very distressed and reporting that she was severely anxious having had a complaint from two female colleagues which was being investigated. The court observes that the letter from the Employer U dated 30 October 2019, in relation to the mother and certain workplace issues investigated in relation to her, refers to the mother being a valued member of the employer and that he states that he looks forward to the mother’s return to work. The court refers to the letter dated 20 December 2019 to the mother from a claims officer in relation to the mother’s related workplace injury claim, with the date of psychological/psychiatric injury alleged being 14 October 2019. That letter refers to the mother’s claim being disputed.
The court has not overlooked the maternal grandmother, who lives on the Region E, becoming ill in about early December 2019 and receiving medical treatment at the Town Z hospital. The father contends that this event was a significant reason for the mother moving to the Region E. Based upon the material presently before the court, there is a significant suggestion that, whilst this event may possibly have been relevant in the mother’s decision to relocate to the Region E with the child, the mother had significant other concerns that prompted her to relocate including the effects of alleged family violence perpetrated by the father in the presence of, and against, the child.
The court has not overlooked positive remarks by the mother in relation to the paternal grandparents expressed to a school counsellor on 22 August 2019. Nevertheless, the court’s concerns remain in relation to the father and paternal grandparents, as discussed above.
The court has not overlooked, on the one hand, the mother’s historical and more recent concerns in relation to the father’s conduct towards both herself and the child, with the fact that the mother facilitated the child spending time with the father post separation and up until about November 2019. Based upon the material before the Court, there is a significant suggestion of the real possibility that the mother has been conflicted between her desire to facilitate the child’s relationship with the father and her desire to ensure the child is physically and emotionally safe in relation to the father.
The parties are in dispute as to whether the mother has indeed ended her relationship with Mr N. The court recognises, inter alia, the material referring to this person’s apparent new employment position on the Region E. The father contends that he is still in a relationship with the mother and still lives with her and the child. He asserts that the child’s behavioural problems stem from the commencement of the mother’s relationship with Mr N.
In this context, the Court also refers to the police COPS entry for 5 May 2019 referring to deteriorating behaviour “of late” by the mother’s partner of 11 months which would appear to be a reference to Mr N, together with the father’s statements to the family consultant in relation to Mr N. The behaviour referred to by the police appears to be verbally abusive behaviour. The Court, on the other hand, also refers to the mother’s assertions to Ms H of 22 August 2019 that “her partner” is gentle with the child and the child “adores him”.
Despite the contents of this dispute regarding Mr N, and the material relating to that dispute, the court’s concerns in relation to the father, expressed above, still remain, and in this regard the Court refers to its discussions above under this need to protect primary consideration.
The mother alleges that the father has a significant problem with alcohol consumption. The father, in response, inter alia, refers to a negative urine drug screen in late October 2019 and a negative alcohol test in late February 2020, and asserts, through his solicitor, that these tests were undertaken for his employer. He asserts that he does not drink to excess. Whilst the Court has a concern in relation to the mother’s allegations relating to the father’s consumption of alcohol, the Court’s above view relating to there being an unacceptable risk of harm posed to the child in spending unsupervised time with the father does not relate to the father’s alleged alcohol consumption.
As supervised time between the child and the father should occur, as discussed above, such supervision need not necessarily occur in close proximity to the father’s residence in Suburb M.
The Court gives significant weight to this need to protect primary consideration.
Section 60CC(3) additional considerations
(3)(a) Any views expressed by the child and any factors (such as the child maturity or level of understanding) that the court thinks are relevant to the weight it should give to the child’s views
There is material before the court suggesting that the child, since last spending time with the father in about November 2019, has stated that he is missing the father. The mother alleges the child is presently reluctant to spend time with the father.
The child is now aged six years. The child has been receiving psychological treatment and counselling since at least about August 2018. There is a significant suggestion on the material before the court that he has exhibited, and continues to exhibit, significant emotional and behavioural difficulties.
The court does not place any significant weight upon his views.
(3)(b) The nature of the relationship of the child with each of the child’s parents; and other persons (including any grandparent or other relative of the child)
The child would appear to have positive relationships with the maternal grandparents, in particular with the maternal grandmother, and the paternal grandparents.
The Court also refers to its discussion above under the meaningful relationship primary consideration.
(3)(c) The extent to which each of the child’s parents has taken or failed to take the opportunity; to participate in making decisions about major long-term issues in relation to the child; and to spend time with the child; and to communicate with the child
The parties are in dispute in relation to the issue of whether the mother had previously informed the father, in December 2018 and thereafter, of her plans to relocate.
They are in dispute in relation to the extent to which the father engaged with the mother in respect to the treatment of the child’s behavioural difficulties. Subject to these matters, in particular, both parents would appear to have taken such opportunities
(3)(ca) The extent to which each of the child’s parents has fulfilled, or failed to fulfil, the parent’s obligations to maintain the child
The parents would appear to have maintained the child when the child was in their respective care.
(3)(d) The likely effect of any changes in the child’s circumstances, including the likely effect on the child of any separation from either of his or her parents; or any other child, or other person (including any grandparent or other relative of the child), with whom he or she has been living
As to the child potentially spending supervised time with the father, the Court refers to the meaningful relationship primary consideration discussed above. It also refers to its discussion below under s60CC(3)(m).
As to the child living with the father on an interim basis, again, there is a significant suggestion, on the material before the court, that the mother has been the child’s primary carer from birth to date. Were the child to live with the father on an interim basis, again, the court would have a significant concern that the child would experience emotional unwellness not being in the primary care of the mother. The Court would also have a significant concern that the child might be exposed to harm in his care, and in this regard, the court refers to its discussions above under the need to protect primary consideration.
(3)(e) The practical difficulty and expense of a child spending time with and communicating with the 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
See the discussion below under the section 60CC(3)(m).
(3)(f) The capacity of each of the child’s parents; and any other person (including any grandparent or other relative of the child), to provide for the needs of the child, including emotional and intellectual needs
The parties would appear to have such capacities, subject to the Court’s discussion above under the need to protect primary consideration.
(3)(g) The maturity, sex, lifestyle and background (including lifestyle, culture and traditions) of the child and of either of the child’s parents, and any other characteristics of the child that the court thinks are relevant
The child is aged 6 years. Again, the child has been receiving psychological treatment and counselling since at least about August 2018. There is a significant suggestion on the material before the court that he has exhibited, and continues to exhibit, significant emotional and behavioural difficulties.
The Court refers to its discussion above under the need to protect primary consideration.
(3)(h) If the child is an Aboriginal child or a Torres Strait Islander child: the child’s right to enjoy his or her Aboriginal or Torres Strait Islander culture (including the right to enjoy that culture with other people who share that culture); and the likely impact any proposed parenting order under this Part will have on that right
The mother asserts that the maternal grandmother is a proud AA woman. The mother asserts that she is having the child engage in his aboriginal culture. The father’s Initiating Application filed 12 December 2019 does not identify the mother as aboriginal.
(3)(i) The attitude to the child, and to the responsibilities of parenthood, demonstrated by each of the child's parents
The Court refers to its discussions above under the need to protect primary consideration. Subject to these discussions, the parents have demonstrated appropriate attitudes.
(3)(j) Any family violence involving the child or a member of the child's family.
The Court refers to its discussions above under the need to protect primary consideration.
(3)(k) If a family violence order applies, or has applied, to the child or a member of the child’s family – any relevant inferences that can be drawn from the order, taking into account the following: the nature of the order; the circumstances in which the order was made; any findings made by the court in, or in proceedings for, the order; any other relevant matter.
The Court refers to its discussions above under the need to protect primary consideration.
(3)(l) Whether it would be preferable to make the order that would be least likely to lead to the institution of further proceedings in relation to the child.
Whilst these are interim proceedings, should the Court accede to the father’s interim parenting proposal that the child live with him, it has a significant concern that the child will be exposed to harm in his care, potentially resulting in further proceedings. In this context, the court refers to its discussions above under the need to protect primary consideration.
(3)(m) Any other fact or circumstance that the court thinks is relevant.
Inter alia, the child’s adverse presentations to counsellors Ms G and/or Ms H, from at least August 2018 to about December 2019, suggesting significant emotional and behavioural difficulties in the child, indicate that there has likely been a significant change in circumstances since the consent parenting orders of 14 November 2018, such that it will be in the child’s best interests to permit the parties to seek fresh parenting orders in relation to the child; the threshold requirements set out in the decision of Rice & Asplund (1979) FLC 90-725, are probably met. Neither party nor ICL submitted otherwise.
As discussed previously, the child has received counselling through, inter alia, Ms G. The mother asserts that she taken certain steps to engage counselling for the child on the Region E. The father seeks an interim restraining order against the mother that she shall “not arranged for the child to attend on any therapy, counselling, psychologists or other similar services without the written consent of the father.” In the view of the court, at this interim stage, it will be in the best interests of the child, appropriate and proper, to order that the mother be restrained from permitting the child to attend on any therapy, counselling, psychologists or other similar services other than as nominated by the Independent Children’s Lawyer and being the subject of a referral from a medical practitioner. It is important that any counselling or other psychological assistance afforded the child be arranged objectively.
It will be in the best interests of the child to make an interim order that the parties be authorised to obtain from the child’s school copies of relevant material produced by the school for the benefit of parents, including but not limited to school reports and newsletters.
At the interim hearing, conducted over the telephone, the mother’s proposed interim orders that the father undertake a Taking Responsibility course and be the subject of hair drug testing was not the subject of any significant submissions by either party or the ICL. Affording procedural fairness to the parties and ICL, the court does not propose to determine such proposed orders by the mother within the current interim hearing.
The mother seeks the court’s permission, on an interim basis, to remain living on the Region E with the child, which is opposed by the father.
The parties are in dispute as to whether the father was aware of the mother’s intention to relocate to the Region E with the child as early as December 2018. The mother purchased land in Town F in 2019. The Court refers to its references above to the evidence in this context.
In early December 2019 the father communicated to the mother that he did not consent to the mother relocating to the Region E with the child, having been informed in early December 2019 by the mother, by way of text message, of her intention to so relocate in late December 2019.
The Court now addresses the advantages and disadvantages in respect to the child’s residence being maintained, on an interim basis, in the Region A region, as far as the evidence allows it to do so.
At the outset the Court should state that it proposes to expedite the final hearing of these proceedings; a final hearing could be appointed as early as about early September 2020. A suitable family report would need to be obtained for such expedited hearing.
The mother asserts that the child has complex mental health issues. She asserts that she has tried tirelessly to address the child’s mental health issues however she has minimal family support in Sydney and her parents and extended family reside in the Region E.
The mother asserts following her return to Sydney in January 2018 (the father asserts it was December 2017) she did not have enough family support that she felt was needed to help the child with his mental health issues. She asserts that during her stay at Town K her family provided her with ample support which she did not have in Sydney. She asserts she has always felt alone and isolated since moving back to Sydney.
The mother asserts that since relocating to the Town F area, the child has been thoroughly integrated into the school and health system and asserts that:
a)the child is enrolled at Town F Public School. A letter from the school principal of this public school dated 6 March 2020 states, inter alia, that the child presented at the school at the beginning of 2020 and that, “Records indicated a significant trauma background. A case was presented for a place in a Multi-Categorical Support Unit class through Department of education protocols. This placement was immediately granted by a panel comprising of local principles, the senior psychologist education and the regional well-being officer.”
b)A letter dated 6 February 2020 from a counsellor with the Town T Counselling Team attached to the Domestic Family Violence Sexual Assault Service, asserts that the child requires routine and stability, in order for him to feel safe; that the child has started at a new school, and appears to be adjusting well. (The mother) has established some social supports, and has created a safe home for herself and her son.”
c)The child is engaged with a local GP in Town BB.
The mother asserts that she has ongoing support on the Region E. The mother annexes a letter dated 16 February 2020 from a therapist at Region CC Health (through Victims Services) who provided counselling therapy to the mother from August 2018. The letter from the therapist states, inter alia, that the mother is going to live down the Region E again in order to have a quieter and less stressful life and states, “I believe that this would be beneficial to (the mother and child) and their mutual mental health.” The author of the letter states further that she has closed in therapy with the mother and believes that the mother will seek counselling with a person in Town F with whom the mother has had previous therapy with.
The mother asserts that the child and herself both have the support of her extended family in the Town F region. The mother asserts that all her family reside in the Region E including the maternal grandparents, sister and nieces and nephews. She asserts that her brother is moving down in the next six months with his wife. She asserts that the child and herself have weekly support from the maternal grandparents and her sister also plays a vital role in the child’s life along with his cousins. The mother asserts that her family are vital in supporting and facilitating for the child and herself in their everyday life on the Region E. The Court has not overlooked that the maternal grandparents do not live in Town F but live in Town K.
By reference to the Court’s discussions above, in relation to the mother’s allegations of family violence, including her more recent assertion that the father’s family “are intimidating-their way of operating” (page 12, exhibit B), and the recent ADVO proceedings, the mother’s emotional wellbeing may well be assisted by remaining living in Town F.
The mother and child have now been residing on the Region E since late December 2019, about 5 months, and by reason of the above matters, including the child’s new schooling and supports, there is a not insignificant risk that the child’s routine and stability (including emotional stability) will be adversely compromised should the child be required to live with the father in Suburb M.
The father, should the child remain living in the Region A region on an interim basis, may experience some practical difficulty in spending supervised time with the child if it was to occur other in close proximity to his residence in Suburb M. Although it is not clear that the father would experience significant practical difficulty if it was to occur, for example, in City DD on a fortnightly basis.
The child has previously had a positive and significant relationship with the paternal grandparents, subject to the Court’s discussion above under the need to protect primary consideration. Should the child remain living in Town F, the paternal grandparents may well have practical difficulties in spending time with the child.
On balance, the Court is of the view at this interim stage, evaluating the above considerations under section 60CC of the Act, and other matters discussed above, and having regard to relevant legal principle, that it will be in the best interests of the child to remain living in the Region A region.
Parental responsibility
The mother seeks an interim Order for sole parental responsibility. The father seeks no Order in this regard. The existing order made by consent on 14 November 2018 is that the parties have equal shared parental responsibility for the child. At this interim stage, it will not be in the best interests of the child to change this order.
In view of the Court’s discussion above under the primary considerations, it will not be in the best interests of the child at this interim stage to be subject to an equal time arrangement nor to spend substantial and significant time with the father. Equal time and substantial and significant time may well not be reasonably practicable.
Summary
Evaluating the above discussed considerations under section 60CC of the Act, and other matters discussed above, the Court is of the view at this interim stage that it will be in the best interests of the child to make the following Orders:
That the child X born in 2013 (the child) reside with the mother.
That the child be permitted to reside in the Region A region.
That the child spend supervised time with the father at a supervised contact centre (“the centre), at such times, for such periods and with such frequency as can be accommodated by the centre, but in any event no less than 2 hours each alternate weekend. Should the centre not be presently able to facilitate supervised face to face time but be able to facilitate supervised videoconferencing then the child shall be permitted to spend such videoconferencing time with the father. The centre shall be agreed upon by the parties within 7 days and failing agreement as nominated by the Independent Children’s Lawyer.
To facilitate the above time arrangements each parent shall:
(a)Forthwith and within 72 hours of the centre being agreed upon or nominated by the Independent Children’s Lawyer, contact the centre and arrange and attend the first available and offered intake appointment with the centre to enable an assessment to be made as to suitability for attendance at the centre and inclusion within the centre’s program;
(b)Expeditiously provide all information or documents requested of them, complete all forms and do all things, sign all documents and give all consent, instructions and authorities as may be necessary to enable completion of all intake and assessment processes by the centre;
(c)Upon acceptance by the centre for the purpose of monitored/supervised time attend at such times, dates and places and pay such fees as are advised by the agency and continue to do so until that service is no longer required or is withdrawn;
(d)Present the above child to the centre at such times, dates and places as are advised;
(e)Follow all and any rules or directions of the centre.
In the event that the provision of service at the centre is determined to be inappropriate or service is withdrawn at any time then each of the parties is to advise the Court and Independent Children’s Lawyer of that circumstance as soon as practicable after being advised of such determination and the proceedings will be relisted on seven (7) days notice to review the matter and make such further orders as may be required.
The mother shall be restrained from permitting the child to attend on any therapy, counselling, psychologists or other similar services other than as nominated by the Independent Children’s Lawyer and being the subject of a referral from a medical practitioner.
The parties shall be authorised to obtain from the child’s school copies of relevant material produced by the school for the benefit of parents, including but not limited to school reports and newsletters.
The final hearing of these parenting proceedings is expedited.
I certify that the preceding one hundred and sixty nine (169) paragraphs are a true copy of the reasons for judgment of Judge Newbrun
Associate:
Date: 29 May 2020
Key Legal Topics
Areas of Law
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Family Law
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Civil Procedure
Legal Concepts
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Jurisdiction
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