NAMVAR & PALES
[2018] FCCA 2470
•6 September 2018
FEDERAL CIRCUIT COURT OF AUSTRALIA
| NAMVAR & PALES | [2018] FCCA 2470 |
| Catchwords: FAMILY LAW – Interim parenting – poor co-parenting relationship – where the father is spending supervised time with the child. |
| Legislation: Family Law Act 1975 (Cth), ss.4, 4AB, 60B, 60CA, 60CC, 61DA, 62G, 65D, 65DAB, 68L |
| Cases cited: Banks & Banks [2015] FamCAFC 36 In the Marriage of A (1998) FLC 92-800) Johnson and Page [2007] FamCA 1235; (2007) FLC 93-344 Jollie & Dysart [2014] FamCAFC 149 Jones v Dunkel (1959) 101 CLR 298 |
| Applicant: | MR NAMVAR |
| Respondent: | MS PALES |
| File Number: | SYC 3550 of 2017 |
| Judgment of: | Judge Harper |
| Hearing date: | 6 April 2018 |
| Date of Last Submission: | 17 April 2018 |
| Delivered at: | Sydney |
| Delivered on: | 6 September 2018 |
REPRESENTATION
| Counsel for the Applicant: | Ms Catherine Spain |
| Solicitors for the Applicant: | Marks Griffiths & Bova Solicitors |
| Counsel for the Respondent: | Mr John Longworth |
| Solicitors for the Respondent: | Barnes Law Group |
THE COURT ORDERS, PENDING FURTHER ORDER THAT:
Order 2 made on 3 October 2017 be discharged.
Time Spent with the Father
The child X, born in 2016 (“the child”) shall spend time with the Father, as agreed between the parties in writing, and in the absence of agreement, commencing on the first Sunday on which the Father has in his care any half-sibling of the child, as follows:
(a)For a period of four weeks from 9:00am to 1:00pm each Sunday; then
(b)For a period of four weeks from 9:00am to 1:00pm each Sunday and each Tuesday from 8:30am to 5:30pm;
(c)Thereafter from 9:00am to 6:00pm each Sunday, each Tuesday and each Thursday.
Changeover
Unless otherwise agreed between the parties in writing, for the purposes of Order 2:
(a)Changeovers shall take place at the B Playground at Suburb C;
(b)Changeovers shall be supervised by D Families;
(c)The parties shall take all necessary steps, including signing any necessary documents and payment of any necessary fees to appoint D Families to supervise and facilitate changeovers;
(d)The parties shall comply with all directions or requests of D Families necessary to give effect to these Orders.
School Holidays Term 4 2018
The child shall spend time with the father during the Term 4 school holidays 2018 as agreed between the parties in writing, and in the absence of agreement, as otherwise specified in accordance with these orders.
Special Occasions
The child shall spend time with the father at Christmas 2018 as the parties may agree in writing and in the absence of agreement, from 1:00PM until 6:00 PM on Christmas Day.
On the child’s and the parent’s birthdays, whosoever’s care the child is in, the other parent on that day shall spend time with the child from 2:00pm until 6:00pm.
Procedural Orders
Notwithstanding the terms of these orders, the parties may, at any time, agree in writing to vary the terms of these orders, including a variation to permit the child to spend overnight time with the father.
Pursuant to s.68L of the Family Law Act 1975 (Cth), an Independent Children’s Lawyer be appointed for the child X, born in 2016, and the Legal Aid Commission of NSW is requested to provide such representation.
The parties provide to the Legal Aid Commission of NSW forthwith all documents thus far filed in these proceedings by that party together with all existing orders and copies of any relevant reports.
Leave is granted to the Independent Children’s Lawyer to issue more than 5 subpoena.
All extant applications be adjourned to 28 February 2019 at 9:30am for mention.
Any Application in a Case or Objection to Subpoena made returnable by the Registry from the date of these orders until the adjourned date will not be heard on that date without the express leave of Judge Harper, however directions in respect of that Application or Objection may be given.
THE COURT NOTES THAT:
On the adjourned date, the parties are expected:
(a)To inform the court of the identity of an appropriate agreed single expert to prepare a family report, and
(b)To submit to the Court a proposed Consent Order for the appointment of the single expert.
IT IS NOTED that publication of this judgment under the pseudonym Namvar & Pales is approved pursuant to s.121(9)(g) of the Family Law Act 1975 (Cth).
| FEDERAL CIRCUIT COURT OF AUSTRALIA AT SYDNEY |
SYC 3550 of 2017
| MR NAMVAR |
Applicant
And
| MS PALES |
Respondent
REASONS FOR JUDGMENT
1.These are proceedings between the applicant father, Mr Namvar (“father”) and the respondent mother, Ms Pales (“mother”) concerning the child X, born in 2016 (“the child”).
Procedural history
2.The father commenced these proceedings by way of Initiating Application filed 8 June 2017. The mother filed a Response on 13 September 2017.
3.Proceedings first came before the Court on 3 October 2017. On 3 October 2017 the parties were ordered to a Child Dispute Conference and orders were made for the child to spend time with the father, supervised by a regulated agency, each Sunday from 3pm to 5pm until 31 December 2017 and each Sunday from 2pm to 5pm after 31 December 2017. Both parties were ordered to complete a post-separation parenting course within six months.
4.The matter was adjourned to 6 April 2018 at 11am for mention or possible interim hearing.
5.The father filed an Amended Initiating Application on 6 March 2018.
6.On 6 April 2018 the parties conducted an interim hearing. The orders sought by the father on an interim basis are set out in the Amended Initiating Application. The mother sought orders in accordance with her Response filed on 13 September 2017.
7.The last submissions in relation to the interim hearing were received on 16 April 2018.
Background
8.The father was born in 1966 and is currently 51 years of age.
9.The mother was born in 1973 and is currently 44 years of age.
10.The parties started dating around 2013 and, after an on again, off again relationship, stopped in 2014, and then again over four months from 2014 to February 2015.
11.The mother alleges the relationship officially ended on 7 February 2015. The father alleges the relationship resumed again in May 2015. It appeared to be common ground that the child was conceived in 2015. I return to the circumstances in more detail below. The father contends the relationship was ended by the mother about two months into the pregnancy. It is unnecessary to resolve the factual question of when the relationship ended for the purposes of this judgment.
12.The parties have never lived together.
13.The mother has three older children with her ex-husband aged eleven, nine and seven.
14.The father has also three older children from a previous relationship aged thirteen, twelve and nine.
15.The child has lived with the mother and her older siblings since she was born.
16.The parties attended a mediation at the Community Justice Centre on 25 October 2016 at which it was agreed the father would see the child on Monday at E Playgroup.
17.In 2017 the mother bought a home at Suburb F, and moved there in July 2017 with her children, including the child which is the subject of the proceedings.
18.The child has never spent anything other than supervised time with the father.
Competing Proposals
19.The father relied upon the interim orders sought in his Amended Initiating Application filed on 6 March 2018. They are as follows:
1) That during the NSW School Terms and commencing immediately the father spend the following time with the child for periods of 4 weeks running consecutively;
a) 9am to 6pm each Sunday
b) 9am Saturday to 6pm Sunday each alternate weekend and each Tuesday from 9am to 6pm; then
c) 9am Saturday to 6pm Sunday each alternate weekend and each Tuesday from 9am until 6pm Wednesday; then
d) 6pm Friday to 6pm Monday each alternate weekend; and from 9am Tuesday to 6pm Thursday each week.
2) That during the NSW long school holidays for 5 periods of 4 nights at times to be agreed between the parties and failing agreement as follows: (Mr Namvar to nominate 5 x 4 dates – not including Xmas day)
a) 21st December 2018 to 23rd December 2018 (this one is 3 nights);
b) 29th December 2018 to 1st January 2019;
c) 8th January 2019 to 11th January 2019;
d) 24th January 2019 to 27th January 2019.
3) That the child shall spend time with the mother and the father at Christmas each year as the parties may agree from time to time and in default of agreement as follows:
a) From noon on Christmas Eve until noon on Christmas Day, with the mother in years ending in an even number and with the father in years ending in an odd number; and
b) From noon on Christmas Day until noon on Boxing Day, with the mother in years ending in an odd number, and with the father un years ending in an even number.
4) That the child shall spend time with the mother and father for periods at Easter each year by agreement and failing agreement:
a) From 11am Good Friday to 11 am Easter Sunday in 2018 and each alternate year thereafter with the mother and odd years with the father; and
b) In odd years from 11am Easter Sunday until 11am on the first Tuesday after Easter or the commencement of school with the mother and in even years with the father.
5) That on the child’s, sibling’s and parent’s birthdays, whosoever care the child is in, the other parent on that day shall spend time with the child from 2pm until 6pm
International Travel
6) That within 14 days of requested to do so in writing by the father the mother to sign an application for an Australian Passport for the child.
7) That in 2018, the father be permitted to take the child to the Country G for a holiday for one week.
8) That in 2019, the father be permitted to take the child to the Country G for a holiday for 2 weeks.
9) That commencing in 2020, and in each even numbered year thereafter the father be permitted to take the child to the Country G for a holiday for 4 weeks.
20.The mother relied on her interim orders sought in her Response filed on 13 September 2017. They are as follows:
1) That the mother have sole parental responsibility for the child X (“X”) born in 2016.
2) That the child live with the mother.
3) That the father shall spend supervised time with X as follows;
3.1) Each alternate Sunday for one hour from 3:00pm until 4:00pm commencing on the first Sunday after the date of these Orders and continuing each alternate Sunday thereafter;
3.2) That for the purposes of Order 3.1 the parties shall do all acts and things and sign all necessary documents so as to appoint H Contact Services all and any supervision necessary to give effect to these Orders; and
3.3) That the father shall be solely liable for all and any costs associated with his supervised time with X in accordance with these Orders.
4) That all parties are restrained from posting pictures of X on social media including but not limited to Facebook, Instagram and Snapchat.
5) That the father be and is hereby restrained from the following;
5.1) Attending any property where the mother may reside from time to time.
5.2) Coming within 200m of any property where the mother may reside from time to time.
5.3) Approaching the mother or Skype except pursuant to these Orders.
6) That the father shall pay the mother’s costs of and incidental to this Application.
21.In summary, the dispute between the parties is the extent to which time with the father should be increased, how quickly such increase should take place and whether it should be supervised. I set out the law and the legislative framework.
Material relied upon
22.At the interim hearing the father relied upon his Amended Initiating Application and his Affidavit filed on 6 March 2018. He also relied upon the Child Dispute Conference Memorandum dated 3 October 2017.
23.The mother relied upon her Response, her Affidavit filed 5 April 2018, the Affidavit of Ms J filed 5 April 2018 and the Affidavit of Ms K filed 15 September 2017.
24.The following documents were received into evidence:
Document
Tendered by
A
Child Dispute Conference Memorandum
Father
1
Subpoena material produced by the NSW Criminal Records Section NOTING that “the Court will refer only to those pages that have been marked with a posted notes coloured yellow blue or red.”
Mother
B
Minute of Orders made by Judge Scarlett on 24 September 2013.
Father
C
Supervised Contact Reports by D Families.
Father
D
Email correspondence between the parties dated 6 April 2018
Father
E
Email correspondence between the parties’ legal representatives dated 19 September 2017
Father
The Law
The approach in Goode & Goode
25.The Full Court of the Family Court of Australia in Goode & Goode [2006] FamCA 1346 set out a number of procedural steps to be followed on an interim application, namely:
(a) Identifying the competing proposals of the parties;
(b) Identifying the issues in dispute;
(c) Identifying any agreed or uncontested relevant facts;
(d) Considering the matters in s.60CC that are relevant and, if possible, making findings about them (in interim proceedings there may be little uncontested evidence to enable more than a limited consideration of these matters to take place);
(e) Deciding whether the presumption in s.61DA that equal shared parental responsibility is in the best interests of the child applies or does not apply because there are reasonable grounds to believe there has been abuse of the child or family violence or, in an interim matter, the Court does not consider it appropriate to apply the presumption;
(f) If the presumption does apply, deciding whether it is rebutted because application of it would not be in the child’s best interests;
(g) If the presumption applies and is not rebutted, considering making an order that the child spend equal time with the parents unless it is contrary to the child’s best interests as a result of consideration of one or more of the matters in s.60CC, or impracticable;
(h) If equal time is found not to be in the child’s best interests, considering making an order that the child spend substantial and significant time as defined in s.65DAA(3) with the parents, unless contrary to the child’s best interests as a result of consideration of one or more of the matters in s.60CC, or impracticable;
(i) if neither equal time nor substantial and significant time is considered to be in the best interests of the child, then making such orders in the discretion of the Court that are in the best interests of the child, as a result of consideration of one or more of the matters in s.60CC;
(j) If the presumption is not applied or is rebutted, then making such order as is in the best interests of the child, as a result of consideration of one or more of the matters in s.60CC; and
(k) Even then the Court may need to consider equal time or substantial and significant time, especially if one of the parties has sought it or, even if neither has sought it, if the Court considers after affording procedural fairness to the parties it to be in the best interests of the child.
Factual determinations at interim hearings
26.The Full Court of the Family Court of Australia has established a number of propositions which guide the approach to disputed evidence and factual findings at interim hearings:
a)The procedure for making interim parenting orders will continue to be an abridged process where the scope of the enquiry is “significantly curtailed”. At an interim hearing the Court’s determination is based only on affidavits read, documents tendered and submissions of the parties. There is no provision at the interim stage for a more extensive hearing where evidence can be tested in cross-examination and where the Court can make findings of fact, after testing credibility and truthfulness. The Full Court in Marvel & Marvel [2010] 43 Fam LR 348 at [120] observed that interim hearings and consequential orders are “a necessary but temporary measure until all the evidence can be tested, evaluated and weighed at a final hearing” such that a conservative approach is adopted, and at [122], that findings made at an interim hearing should be “couched with great circumspection” following the Full Court of the Family Court of Australia in SS & AH [2010] FamCAFC 13 at [88].
b)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 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: Goode & Goode (supra) at 80,901; Salah & Salah (2017) 56 FamLR 299, at [36].
c)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. Merely because the facts are in dispute that does not mean the evidence on the topic must be disregarded, and the case determined solely by reference to the agreed facts. 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: SS v AH (supra) at [100]; Marvel & Marvel at [123] Eaby & Speelman [2015] FamCAFC 104; (2015) FLC 93-654 at [18]; Salah & Salah (supra) at [39]-[42].
Legislative framework and case law
27.The provisions of Part VII of the Family Law Act 1975 (Cth) (“the Act”) govern determination of this application. In Mazorskiv Albright [2007] FamCA 520; (2008) 37 Fam LR 518 at [3] Brown J referred to those provisions resting on “twin pillars”. The first is the importance to children of having a meaningful relationship with both parents; the second is the need to protect children from physical and psychological harm.
28.The best interests of a child are the paramount consideration (s.60CA of the Act).
29.Section 65D(1) of the Act provides that this Court may make such parenting orders as it thinks proper, subject to the provisions of s.61DA and s.65DAB of the Act.[1]
[1] There is no relevant parenting plan so s.65DAB of the Act does not apply.
30.Section 61DA of the Act requires the Court, when making any parenting order in respect of a child, to apply a presumption that it is in the best interests of a child for a child’s parents to have equal shared parental responsibility for the child.
31.The presumption, however, does not apply if there are reasonable grounds for the Court to believe that the child concerned has been subject to abuse or family violence (s.61DA(2) of the Act) or in the case of an interim hearing the Court considers it inappropriate (s.61DA(3) of the Act). The presumption may be applied but be rebutted by evidence which satisfies the Court that it would not be in the best interests of the child for his or her parents to have such equal shared parental responsibility (s.61DA(4) of the Act).
32.The application of the presumption has significant consequences. It may be that if the presumption is applied, the court is required to make an order for equal shared parental responsibility: Damiani & Damiani (No. 2) [2009] FamCAFC 215 at [133], [134]. Where the presumption applies, it conditions the court’s power to make parenting orders, including enlivening s.65DAA: MRR v GR (2010) 240 CLR 461 at [20]; Cox v Pedrana (2013) 48 FamLR 651 at [16], [17]. Therefore as the Full Court pointed in Cox v Pedrana at [19] (following MRR at [7]) if the presumption is not to apply or is rebutted, the relevant findings need to be made by reference to ss.61DA(2) or (4). Such findings will ordinarily be made in the course of, or informed by, conclusions as to the best interests of the children, reached by an assessment of the considerations set forth in s.60CC(2) and (3). In the case of an interim order, the question is whether application of the presumption is “appropriate” in the circumstances. S.61DA(3) is not to be applied in a broad exclusionary manner (Goode) but again findings as to appropriateness will ordinarily be made in the course of, or at least informed by, an assessment of the considerations set forth in s.60CC(2) and (3).
The best interests of the child
33.The best interests of a child are to be determined by an examination of the considerations set out in section 60CC of the Act, weighed and applied within the ambit of the objects and their underlying principles set out in section 60B of the Act.
34.In considering the role to be played by these objects and principles in the determination of parenting orders I follow what the Full Court of the Family Court of Australia said in Maldera & Orbel [2014] FamCAFC 135; 52 FamLR 24 at [74]-[75], particularly:
a)In its current form, s.60B of the Act does no more than provide context, indicate the legislative intention or purpose of the Part and otherwise operates as an aid to construction of the Part and the Act; and
b)The current s.60B of the Act cannot be used to change the ordinary and clear meaning of s.60CC of the Act nor where the s.60CC deliberations do not enable the court to determine whether or not a parenting order is in a child’s best interests, will s 60B be decisive.
35.Older authorities such as Smith and Smith (1994) FLC 92-488 (at 81,084) referred to a “preferable approach” involving the separate consideration of the statutory matters. In Jollie & Dysart [2014] FamCAFC 149 at [49] the Full Court called this a “guideline” and, in the context of what the Act now requires, “nothing more than an exhortation to apply system and order to that which the Act, and s 60CC in particular, mandatorily requires. What the Act mandates is a “consideration” – a mental process of analysis – that has proper regard to such of the enumerated matters as are judged to be relevant to the particular circumstances of the child H involved. Of course, the law also requires of a judge reasoning which is adequate to evidence that process of analysis (the required “consideration”) and to explain, consequently, the path to the ultimate result.”
36.Since this is an interim hearing, it is not necessary to go through each and every matter in section 60CC in coming to a determination about what is in the best interests of the child. What is required is a consideration, in a particular case, of the relevant matters which the case presents: Crouper & Mitchell [2014] FamCAFC 246 at [23]. I approach the task of assessing the primary and additional considerations in s.60CC, guided by what was said by the Full Court in Banks & Banks [2015] FamCAFC 36 at [47]-[50]:
As the Full Court pointed out in Goode, the fact there will often be little uncontested evidence in interim proceedings means that only limited consideration may be able to be given to the relevant s 60CC
It should also be said that in parenting proceedings, as in all civil litigation, it will be the issues that are joined that will dictate which s 60CC factors are relevant. By their nature, interim parenting proceedings should be confined to those issues which, in the best interests of the child, require determination prior to a proper determination at a trial. The fact such disputes are commonly dealt with in overcrowded court lists makes it even more desirable to identify with precision those issues which can, or should, be resolved on an interim basis.
Although the primary judge discussed all the potentially relevant factors in her ex tempore reasons, that luxury will not always be available. Furthermore, there is a risk that in discussing every s 60CC factor, the judicial officer may lose sight of the forest for the trees. It is also important to stress here that the requirement to “consider” each factor does not mean each must be discussed, especially where the evidence leads inexorably to a particular conclusion: SCVG & KLD (2014) FLC 93-582.
When it is obvious that the findings made as to some of the s 60CC factors will be determinative of the child’s best interests on an interim basis, it is a sterile and unnecessary exercise to address other factors. Moreover, it will be a sterile exercise to determine whether or not particular facts are disputed if they are relevant only to one of the non-determinative s 60CC considerations. Properly understood, we do not interpret what was said in Goode as meaning that in an interim case, each and every fact must be characterised as disputed or not; and that each s 60CC factor must be traversed where it is obvious on the facts and issues joined that there are only one or two decisive factors.
37.I will discuss the relevant s.60CC considerations in the course of these reasons.
Primary considerations
38.In order to determine the child’s best interests the Court must first have regard to the primary considerations set out in section 60CC(2).
Section 60CC(2)(a) the benefit of the child having a meaningful relationship with both of the child’s parents
39.There is no dispute that the child will benefit from a meaningful relationship with each parent. The central area of debate was how such a meaningful relationship is to be engendered and maintained in relation to the father. This question was substantially affected by a second primary consideration, namely, protection from physical or psychological harm. The parties focused their evidence and argument on the second primary consideration to which I now turn.
Section 60CC(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.
40.I have given consideration to the need to protect the child from physical or psychological harm, from being subjected to, or exposed to, abuse, neglect or family violence. As between the primary considerations, greater weight is to be given to this consideration (section 60CC(2)(A) of the Act) (set out then statutory definitions of abuse and family violence).
41.As to s.60CC(2)(b) of the Act, the terms “abuse” (see s.4 of the Act) and “family violence” (see s.4AB(1) of the Act) are defined in the Act as follows:
abuse, in relation to a child, means:
(a) an assault, including a sexual assault, of the child; or
(b) a person (the first person) involving the child in a sexual activity with the first person or another person in which the child is used, directly or indirectly, as a sexual object by the first person or the other person, and where there is unequal power in the relationship between the child and the first person; or
(c) causing the child to suffer serious psychological harm, including (but not limited to) when that harm is caused by the child being subjected to, or exposed to, family violence; or
(d) serious neglect of the child.
family violence means violent, threatening or other behaviour by a person that coerces or controls a member of the person’s family (the family member), or causes the family member to be fearful.
42.Section 4AB(2) of the Act provides examples of behaviour that may constitute family violence which include but are not limited to:
(a)an assault; or
(b)a sexual assault or other sexually abusive behaviour; or
(c)stalking; or
(d)repeated derogatory taunts; or
(e)intentionally damaging or destroying property; or
(f)intentionally causing death or injury to an animal; or
(g)unreasonably denying the family member the financial autonomy that he or she would otherwise have had; or
(h)unreasonably withholding financial support needed to meet the reasonable living expenses of the family member, or his or her child, at a time when the family member is entirely or predominantly dependent on the person for financial support; or
(i)preventing the family member from making or keeping connections with his or her family, friends or culture; or
(j)unlawfully depriving the family member, or any member of the family member’s family, of his or her liberty.
43.A child is exposed to family violence if the child sees or hears family violence or otherwise experiences the effects of family violence (see s.4AB(3) of the Act). The Act provides in s.4AB(4) examples of situations that may constitute a child being exposed to family violence which include but are not limited to the child:
(a)overhearing threats of death or personal injury by a member of the child’s family towards another member of the child’s family; or
(b)seeing or hearing an assault of a member of the child’s family by another member of the child’s family; or
(c)comforting or providing assistance to a member of the child’s family who has been assaulted by another member of the child’s family; or
(d)cleaning up a site after a member of the child’s family has intentionally damaged property of another member of the child’s family; or
(e)being present when police or ambulance officers attend an incident involving the assault of a member of the child’s family by another member of the child’s family.
44.A Court will not make orders placing a child in the care of a parent if to do so would expose the child to an unacceptable risk of abuse (M v M (1988) 166 CLR 69). That “test” of “unacceptable risk” requires assessments of risk of future physical and emotional harm. (In the Marriage of A (1998) FLC 92-800).
45.In Johnson and Page [2007] FamCA 1235; (2007) FLC 93-344, the Full Court of the Family Court of Australia (May, Boland and Stevenson JJ) at [68] considered the application of “unacceptable risk” principles following M v M (supra), and referred, with approval, to a number of factors expressed by the Hon. John Fogarty AM, formerly of the Family Court of Australia, inter alia, as follows:
a)The decisive issue is and always remains the best interests of that child. All other issues are subservient.
b)The nature of the risk is best expressed by the term ‘unacceptable risk’. It is an evaluation of the nature and degree of the risk and whether, with or without safeguards, it is acceptable.
c)The onus of proof in reaching the conclusion (that there is an unacceptable risk) is the ordinary civil standard.
d)...the components which go to make up that conclusion need not each be established on the balance of probabilities. The court may reach a conclusion of unacceptable risk from the accumulation of factors, none or some only of which, are proved to that standard.
46.In Donaghey & Donaghey [2011] FamCA 13 at [30] to [31], Murphy J adopted the statements of Mr Fogarty, including:
…the reality is that all courts deal with issues of “risk” and degrees of risk (however described) in various situations and that concept is increasingly used in legislation.
47.Murphy J also referred to Mr Fogarty in adopting the following at [261]:
...unacceptable risk in the High Court’s formulation in M v M (citation omitted) requires two separate steps. Is there a risk, and is it unacceptable? The concentration by the High Court is upon both the nature and the degree of risk in the particular case. Its formulation is all about balance. In some cases a risk is “acceptable” when balanced against other factors and other orders. The object of safeguards is to convert an unacceptable situation to an acceptable one where that is feasible and is of “benefit to the child”. It is, as I suggested earlier, calibrated to its use in individual cases. It is unrelated to the exoneration or otherwise of the alleged abuser; it is all about the bests interests of the child and protection from risk.
48.The mother made numerous allegations of concerning behaviour by the father.
49.I note here that the father also makes numerous allegations concerning the parenting capacity of the mother in his Affidavit. These allegations were generally to the effect that the mother was unable to parent her older children properly, and they frequently engaged in sexually suggestive or inappropriate behaviours. There was evidence in Exhibit 1 of an incident on 29 November 2010 when the police were called to the mother’s car because she had left two of her children unattended. However, I am unable to make any findings about these allegations at this stage. At the interim hearing before me, the mother’s parenting capacity was not put seriously in issue nor was it suggested that child should not continue to live with her. The area of debate was limited to the time to be spent with the father and whether it should involve overnight time.
50.In order to assess the mother’s allegations concerning the father it is necessary to recite some factual history in more detail.
51.As part of her case, the mother tendered police records, which became part of Exhibit 1, which showed the father was charged with common assault on 15 November 2011. The charge was dismissed pursuant to s.10 of the Crimes Act1900 (NSW). The events in question took place before the parties had ever met.
52.In her Affidavit the mother gives evidence that in early 2013 and later in 2013 she witnessed a number of instances where the father roughly disciplined his own sons, including grabbing them violently and forcefully throwing them onto a bench. She also gives evidence that the father was demeaning towards one of her children, who was five, and on an occasion in the summer holidays of 2014 and 2015 he grabbed the same child roughly by the arm. At this interim hearing I am unable to make findings about these events.
53.The mother had purchased L(1) Street, Suburb M in 2012 with her former husband. This is the top floor unit in a duplex. The mother had a long-term desire to acquire the lower duplex, being L(2) Street, Suburb M. In 2014 the owner of the lower duplex put her property on the market. The mother was interested in purchasing it, but did not want the owner to be aware of her interest. According to her evidence she asked the father to give his name to the agent as a contact and to do all the groundwork on her behalf.
54.According to the mother, the parties discussed her proposed purchase of the lower duplex. She arranged finance with her bank for a loan of $700,000. She informed the father of this loan approval. The property was to go to auction but the night before the auction the father informed the mother that he had put in an offer of $701,000 which had been accepted. This came as a surprise to the mother. She said she was disappointed, confused and upset. The father purchased the lower duplex and commenced living there.
55.In 2014, after purchasing the lower duplex, the father gave the mother an engagement ring. She says she accepted it just to see how things went, but it was never a true engagement. The mother gives evidence that she became pregnant to the father in 2014. The pregnancy was terminated on advice in circumstances where tests indicated the child was likely to be afflicted by abnormalities.
56.Although the relationship between the parties ended on 7 February 2015 according to the mother, on her own evidence she and the father engaged in further sexual relations at least once in mid-2015 when the child, the subject of these proceedings, was conceived. The mother describes this event as “a one night stand”.
57.According to the mother’s evidence, after the child’s birth in 2016, the father engaged in behaviour which could be characterised as stalking and was at times verbally abusive. This was alleged to occur when he felt he was being denied access to the child. She gives evidence that she felt she was being pressured by the father to reconcile with him.
58.The mother states that on 7 September 2016 she was chased by the father into her house. She says that on 15 September 2016 there was a conversation with the father in which he said, “The only reason I’m being nice to you is so that I can see X.” The mother then said, after discussing mediation, “I don’t want to fight over X” to which apparently the father replied “I’m not going to fight over her, I will cut her in half first.” On 26 September 2016 the mother changed the locks on her house and then the next day signed a lease on a three-bedroom rental property. She says she began looking for a new home in October 2016 and purchased the home in Suburb F in May 2017. Exhibit 1 also records that on 5 May 2017 the mother made allegations to the police about stalking and menacing behaviour by the father. The police gave the mother a victim card but took no further action.
59.The father gives entirely different evidence concerning most of these matters. He alleges that in the winter/spring of 2014 he and the mother got engaged. This is consistent with the mother’s evidence that she accepted an engagement ring. The father alleges the parties decided to have a baby. The father had had a vasectomy in 2008 so he had a reverse vasectomy in 2014. He agrees that the mother became pregnant shortly thereafter but that tests showed the baby had chromosomal abnormalities. He agrees that the parties decided to terminate the pregnancy. He says he offered to take the mother to the hospital for this procedure but she refused.
60.In relation to the purchase of the lower duplex the father agrees he purchased this property but that the purchase was discussed and agreed to by the mother. The father alleges that the mother did not get on with the previous owner who had made complaints to the police about her. It was for this reason, according to the father, that the mother encouraged him to make an offer to the previous owner. Then in February 2015 the mother ended the relationship.
61.According to the father their relationship recommenced in 2015. He contends that the parties consensually tried getting pregnant for the next several weeks but this did not happen. He says he went on holiday to the Country G with his older children in 2015 and while he was gone the mother attempted to get pregnant by IVF without success. According to the father, after the failure of IVF, the mother asked the father if he wanted to try again. Thus according to the father, rather than the mother becoming pregnant at a one night stand, her pregnancy was the result of a planned attempt by the parties.
62.The father gives evidence that during the pregnancy he looked after both the mother’s and his household. He alleges the mother barely communicated with him at all during the last two weeks of pregnancy. It seems to be common ground that the mother told the father she did not want him present at the birth. The father also contends that after the birth the mother took steps to exclude him from contact with the child.
63.The father otherwise denies the allegations of the mother.
64.I am unable to make findings at this interim stage concerning the many different factual allegations leading to the birth of the child. However, it does appear that the pregnancy leading to the birth of the child was achieved consensually in circumstances where there existed an ambiguous relationship between the parents, albeit a relationship characterised by some sexual activity.
65.The mother submitted that, although the assault charge against him took place six and a-half years ago, he has not explained the event. She submitted that in circumstances where he has not addressed such a question, an inference should be drawn adverse to him about unregulated and unsupervised time. The mother also gave evidence that the father was deemed unsuitable as a supervisor in a friend’s family law matter because he lied about his criminal record. She made this allegation at paragraph 49 of her Affidavit affirmed 5 April 2018. She also alleges at paragraph 87 that she “became aware” in late 2017 that the father’s ex-wife obtained an AVO against him for 18 months. No further detail was given of the source of these two allegations. No documents were tendered or annexed shedding any more light on them. The mother argued that the husband failed to address these allegations in his Affidavit filed 6 March 2018, even though they were raised in an Affidavit of the mother dated 13 September 2017.
66.The mother submitted that for the reasons given in paragraph 65 the evidentiary principles in Jones v Dunkel (1959) 101 CLR 298 should raise an inference adverse to the father. In my view there are three reasons to reject this submission.
67.Firstly, the Full Court has held the scope of the application of Jones v Dunkel in parenting proceedings is limited. In Murdock & Madden [2011] FamCAFC 219 the Full Court dealt with an appeal from final parenting orders made by a Federal Magistrate, in a decision in which Jones v Dunkel was applied to a failure to call a paternal grandfather. The Full Court said at [68]-[71]:
To the extent that his Honour accurately paraphrases, at [96], a submission that “it could only be presumed ... that the evidence ... would not be favourable ...” it is, we think, necessary to point out that, even in circumstances where the pre-conditions to the application of the rule are made out, a court is not compelled to draw an adverse inference. Nor can it be presumed “that the uncalled evidence would have been damaging” (LexisNexis Butterworths, Cross on Evidence, vol 1 (at Service 129) [1215], citing HML v R [2008] HCA 16; (2008) 235 CLR 334; Brandi v Mingot (1976) 12 ALR 551 at 559-560).
But, there are pre-conditions to the application of the rule. No inference should be drawn unless and until “enough has been proved to warrant a reasonable and just conclusion” against the person not giving evidence. Moreover, it is only where “the nature of the case is such as to admit of explanation or contradiction” that the inference can sought to be drawn. (Jones v Dunkel per Windeyer J at 321 citing R v Burdett [1814-23] All ER 80).
The satisfaction of each of those preconditions might be seen to be more difficult in a court without pleadings and in parenting cases where the issues are more forensically diffuse. Moreover, Division 12A of the Act and, in particular for example, the duties contained in s 69ZX might (and arguably should) more readily admit of more circumspection on the part of practitioners and parties as to the evidence that should properly be called in a parenting case. In any event, here it is by no means clear what evidence it is said the grandfather had to meet in the sense explained in Jones v Dunkel. There was evidence from which his Honour could have reached conclusions about relevant attitudes and the responsibilities of parenthood exhibited by the grandfather. The desirability of there being evidence before the Court does not found an inference arising from the application of the rule; it is the forensic need to answer, explain or contradict that founds its potential application.
As we have explained, the scope for the operation of the rule in Jones v Dunkel in parenting proceedings appears limited, and recourse to it potentially unhelpful. To the extent that the learned Federal Magistrate had regard to the rule in this case, we are not persuaded that his Honour erred by so doing, or that he erred in declining to draw inferences in reliance upon the rule.
68.Secondly, in my view, these observations by the Full Court have greater force in the context of an interim hearing, where there is no testing of evidence, and 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” and “looks to the less contentious matters, such as the agreed facts and issues not in dispute”. In such circumstances the precondition, as the Full Court has called it, that “enough has been proved to warrant a reasonable and just conclusion” against the person not giving the evidence may sometimes be satisfied, but the nature of an interim hearing makes it unlikely.
69.Thirdly, the Affidavit of the mother dated 13 September 2017 was not relied upon by the mother in interim hearing before me. It is not clear why any inference would be drawn adverse to the father in those circumstances. Furthermore, the allegations said to raise a Jones v Dunkel inference are so remote in time, vaguely expressed or unsupported by detail that not enough has been proved to warrant a reasonable and just conclusion against the father, which justified application of the principles in Jones v Dunkel.
70.As noted above, the father has three older children aged thirteen, twelve and nine with his previous partner. Final parenting orders made between the father and his previous partner by consent on 24 September 2013 became Exhibit B. Those orders specified that the parents had equal shared parental responsibility, with week about time arrangement for each parent. There were no orders made for the time with the father to be supervised. I infer the father has been successfully parenting his older children every other week in accordance with Consent Orders made on 24 September 2013, that is, for nearly 5 years.
71.The mother agreed that the child most likely enjoys the three hours she spends with the father under supervision. Exhibit C comprised a series of reports from D Families who provided supervised contact services between the father and the child. Those reports are dated between October 2017 and February 2018. They are positive and indicate that the father interacts well with the child and engages in appropriate parenting conduct. The child seemed to enjoy her time with the father and was generally happy. For example, the visit on 11 February 2018, the father and the child chatted about a kite that was being flown in a nearby park. The father suggested he should apply sunscreen to the child and the child went to where the father’s large pump bottle of sunscreen was located on a picnic mat and with encouragement from the father picked up the bottle and carried it to the father. The child offered her face for the application of sunscreen without hesitation and pointed to her cheeks and her nose, the father then applied the lotion. The child was observed to giggle a number of times during her interaction with the father. The report observes, “as observed in previous visits, X seemed to especially enjoy the dancing and water play games – initiating a ‘new’ feet washing game as she played with the water.” In summary, the existing reports of supervised time support a conclusion on an interim basis that the child enjoys her interactions with the father and is in no way is fearful of him. They also support a conclusion that the child finds the interactions with the father a positive experience.
72.The mother, even though she conceded at an interim hearing it was not possible to make findings about her allegations, submitted that there is clearly much that needs to be further investigated by the Court before a proper assessment can be made. Therefore the court should exercise considerable caution before ordering any further time with the father or overnight time. The mother also submits the father has an inability to control his temper.
73.I do not accept these submissions, for several reasons.
74.First, on any view the charge of common assault on 15 November 2011, did not involve either the mother or the child. It was, in any event, dismissed.
75.Second, the circumstances of the child’s conception, on the evidence of both parties, are not consistent with the mother fearing the father. It may well be that the mother formed the view at about the time of the child’s birth that she wished to have no more to do with the father, which distressed him or caused him anger, but this does not demonstrate that he engaged in the behaviours alleged.
76.Third, at this interim stage I am unable to find that the father engaged in stalking or menacing behaviour as alleged by the mother before or after the child’s birth. For example, in paragraph 78 of her Affidavit affirmed 5 April 2018 the mother alleges the father “has continued to track my movements and stalk me” and refers specifically to paragraph 57 of his affidavit sworn 6 March 2018 as evidence. However, in that paragraph the father lists a number of occasions when he had “some interaction with the mother and X.” Many of these occasions took place when the mother was at the duplex, where the father lives downstairs. The basis for characterising these occasions as stalking was not explained by the mother.
77.I do not ignore the other allegations of the mother because they are disputed. I have carefully considered them. However, for the above reasons and in light of the father’s history of successfully parenting of his older children, and the positive reports from the contact centre, I am not satisfied the father presents an unacceptable risk to the child.
78.I am satisfied on the evidence that the orders can be made for the father spending increased time with the child suitable for her very young age on an unsupervised basis.
79.I give weight to this consideration.
80.I turn to the additional considerations.
Additional considerations
81.The Court must have regard to each of the “additional considerations” set out under s.60CC(3) of the Act separately to consider how, together, they should give effect to either or both of the primary considerations in order to determine a child’s best interests. I will deal with the considerations that are relevant to these proceedings.
Any views expressed by the child and any factors (such as the child's maturity or level of understanding) that the court thinks are relevant to the weight it should give to the child's views;
82.Given the age of the child, this consideration is not a relevant consideration.
The nature of the relationship of the child with each of the parents and other persons (including any grandparent or other relative of the child);
83.The child is of a very young age, being only just over two years old. The child clearly has a close loving relationship with the mother. There is no dispute that the mother is the primary attachment figure for the child. The mother relied upon a number of academic articles concerning children in the age group zero to four years old, including an article by a highly experienced former judge of this Court, Judge Sexton. I am satisfied that the years zero to three are critical in a child’s life for the formation of a secure primary attachment.
84.A secure primary attachment is also critical for the child forming secure secondary attachments. By and large, the process of a child forming its secure primary attachment is not completed until the child attains the age of three years or thereabouts. Accordingly, a significant consideration is the need to make parenting orders which do not have the effect of disrupting the process of the child forming a secure primary attachment.
85.The child’s relationship with the father is clearly only at a very nascent stage, and the purposes of any orders at this stage in the child’s life are to enable a meaningful secondary attachment to be formed between her and the father. The contact reports in exhibit C, as described above, indicate that the father’s relationship with the child is currently warm and loving within the limitations of the supervised contact.
86.The mother further submitted that the child could simply not have established any form of secure attachment with father. This much seems self-evident. However, the reason for the absence of a secure attachment lies in the very limited time which the father has been able to spend with child. This is a consideration which would way in favour of increasing time with the father.
87.There is no evidence about the nature of the relationship between the child and any grandparents. It is clear from the evidence that there has hardly been any opportunity for the child to form a relationship with any members of her extended family except perhaps the older children of the mother.
The extent to which each of the child’s parents has taken, or failed to take, the opportunity:
(i) to participate in making decisions about major long-term issues in relation to the child; and
(ii) to spend time with the child; and
(iii) to communicate with the child.
88.Bearing in mind the child’s young age, there’s been limited opportunity for the father to participate in decision-making. He seeks a greater opportunity to spend tie with the child.
89.I am satisfied the mother has fulfilled her obligations to maintain the child and according to the evidence the father pays child support
The likely effect of any separation
90.The mother laid emphasis on this consideration by reason her role as the primary carer of the child. Any separation from the mother needs to take account of the primary attachment the child has to the mother, and any orders for time to be spent between the father and child should not interfere with or undermine the primary attachment. The mother submitted that it is entirely unknown what effect orders separating the child from the mother and her siblings would have. She submitted that the effect is likely to be deleterious, not so much because of the father’s capacity to parent but more because of the impact on the child at such a tender age being separated from her primary attachment.
91.There is force in these submissions. The importance of the development of a secure primary attachment is well-known and constitutes an important consideration. The father acknowledges this. In his Affidavit sworn 6 March 2018 gives evidence at paragraph 48 as follows: “I understand that due to X’s young age that she should not be removed for long periods from her primary carer.”
92.This has to be weighed against the deleterious effect separation from the father will have upon the development of a meaningful relationship with him.
93.The parties each relied upon several articles in academic literature in support of their contending positions. It is not appropriate to engage in a detailed analysis of this material for the purposes of this judgment. I have considered it closely. I do note however that that there can be found in this material support for the position of either parent in this matter. For example, counsel for the father submitted an article produced by Richard Warshak, emphasising that “There is no evidence to support postponing the introduction of regular and frequent involvement. Including overnights, of both parents with their babies and toddlers.” In response, counsel for the mother submitted an article by Jennifer McIntosh cautioning the reliance on Warshak’s article, stating at the outset that the article misrepresents research and has a questionable approach to consensus formation.”
94.Having said that, in my view, the academic literature is consistent with an approach that looks to promote overnight time with the non-custodial parent but also supports considerable caution. In the end, however, each case must be decided upon its own facts. The issue of increased time with a parent, or overnight time involving a child under the age of three, cannot be determined by reference to the conclusions of academic literature. Such material is but one factor to be taken into account.
95.I give weight to this consideration
Practical Difficulty and Expense of Child Spending Time with and Communicating with a Parent
96.Since the mother has moved to Suburb F and the father continues to live in Suburb M there is some practical difficulty and expense in a child spending time with the father, however, since both locations are, broadly speaking, on the Region N of Sydney, I am satisfied that orders can be made for the child to spend time with the father which overcome these practical difficulties.
97.I give weight to this consideration.
The capacity of each of the child's parents to provide for the needs of the child, including emotional and intellectual needs
98.The mother clearly has capacity to provide for the needs of the child.
99.The mother calls in question the ability of the father to care for a child of such a young age. However as the father submitted he has a demonstrated capacity to parent. As already noted, his three older children from his prior relationship live with him for seven nights a fortnight during the school term and for half school holidays.
100.He gave evidence that he has no doubt of his ability to look after a baby. He asserts that he was the primary carer of his son O who was born in 2004. At paragraph 45 of his Affidavit sworn 6 March 2018 he states: “I did everything for him from feeding, nappy changes, sleeping and everything else to raise a happy and healthy little person. This continued with my other two children.” He also gives evidence that his three older children are thriving at school. This was supported by their school reports which were annexed to his Affidavit (Annexures “C”, “D”, and “E”).
101.In his Affidavit sworn 6 March 2018 gives evidence at paragraph 48 as follows:
“I have been ready to care for X the day she was born. I have accumulated everything I need to look after the baby: bed, baby bath, stroller, carrier, car seats, toys, books, change table. When X was two months old, I bought a new, seven seat car to carry all the kids and their stuff. I understand that due to X’s young age that she should not be removed for long periods from her primary carer.”
102.I accept the submissions of the father that the evidence does not justify a conclusion that he is so incapable that his time with the child should be limited in the manner contended for by the mother.
103.The mother also submitted that the father gives no evidence about how he would house four children in his current accommodation. This submission seems to be directed more to orders which would provide for overnight time before the child turns three.
104.I am mindful of the effect of orders on the primary carer’s mental wellbeing where such effect may adversely impact on parenting capacity (see Russell & Close [1993] FCA (Unreported, Fogarty, Baker and Lindenmayer JJ, 25 June 1993) and A & A (1998) FLC 92-800 (1998) 22 Fam LR 756). The decision in A v A (supra) described the correct approach to weighing the impact on the primary carer’s mental health in cases involving allegations of unacceptable risk at 84,996 at [3.29]:
The first enquiry is whether there is objectively an unacceptable risk. If there is the Court must take steps proportionate to the degree of risk. If there is not, the Court may then need to consider whether the residence parent has a genuinely held belief that such a risk exists and whether that will have a significant impact on that party’s capacity as the resident parent and so impinge on the best interests of the children. The Court then needs to take steps proportionate to that circumstance.
105.This passage has been cited with approval many times (see, for example, Helbig & Rowe and Ors [2016] FamCAFC 117 at [212]). Although these remarks were made in relation to a final hearing, they provide some guidance at this interim stage.
106.I have already considered above the mother’s evidence that the father engaged in menacing or stalking behaviour. She alleged that he often engaged in behaviour left her feeling uncomfortable and she has serious concerns about the father’s ability to take care of a baby without supervision. She also gave evidence that she purchased her current home in Suburb F in response to the behaviour of the father. As already discussed I am unable at this interim stage to make any findings about these allegations.
107.The mother submitted that her presentation was such that she experiences serious psychological distress about having any face-to-face contact with the father, and this appears to impacting on her emotional wellbeing. The mother submitted that X is at a vulnerable age and is heavily reliant on the mother to meet all her needs. She further submitted that the psychological distress she suffered as a result of the father compromised her parenting capacity and adversely affects the child. In the absence of factual findings or medical evidence which would give support to the mother’s allegations about this state of mind, I am unable to conclude, even if it is genuine, that it is reasonably or rationally based.
108.I not am satisfied that the mother’s evidence demonstrates that her mental well-being would be so adversely affected by child spending more time with the father so such as to compromise her own parenting capacity.
109.I give weight to this consideration.
The attitude to the child and the responsibility of parenthood demonstrated by each of the child’s parents.
110.Both parents have demonstrated good attitude to the responsibilities of parenthood manifested in each successfully parenting of three older children.
111.In relation to the child, the subject of the proceedings, the mother has demonstrated a satisfactory attitude to the responsible needs of parenthood except in relation to facilitating time with the father. Her resolute desire to confine his time in the manner proposed is not, in my view, justified by the evidence.
112.The father has, overall, showed a reasonable attitude to the responsibilities of parenthood.
Any family violence involving the child
113.I would have nothing to add to my discussion in relation to section 60CC(2)(b).
Family violence orders
114.There are no outstanding family violence orders applicable to either party.
Orders least likely to lead to the institution of further proceedings in relation to the child
115.The child is extremely young. It would be highly desirable if the parenting proceedings could be finalised as soon as possible rather than subject a very young child to a long period of court proceedings. However, because of the child’s very young age it is highly likely that, by reason only of change of circumstances, it will be necessary for the parties to approach the Court for further determination in the event they are unable to reach agreement about parenting arrangements.
Parental Responsibility
116.The mother seeks an order for sole parental responsibility, whereas the father seeks the parties have equal shared parental responsibility for the child.
117.I have already referred to the presumption of equal shared parental responsibility set forth in s.61DA(1) of the Act.
118.The mother submitted it would be inappropriate to apply the presumption on an interim basis because she makes serious allegations of behaviour by the father which could be categorised as “controlling and coercive” or violent, and because the parties currently have no communication with each other but rely upon communication through solicitor tools.
119.The father made no particular submissions in support of an interim order for equal shared parental responsibility.
120.An order for equal shared parental responsibility would enliven the statutory obligations in s.65DAC of the Act for the parties to make decisions jointly about major long-term issues in relation to the children, consult and make a genuine effort to come to a joint decision. There is little current evidence that the parties could discharge this obligation effectively. The parties have not shown much capacity for co-operative co-parenting so far in the short life of the child.
121.In light of these considerations, and the discussion of the statutory considerations, I am satisfied for the purposes of s.61DA(3) of the Act that it is not appropriate to apply the presumption of equal shared parental responsibility at this interim stage. Accordingly, there will be no order for equal shared responsibility on an interim basis.
122.However, there is similarly no basis made out for an order for sole parental responsibility in favour of the mother. The mother made no particular submissions supporting such an order.
123.I will make no order allocating parental responsibility at this interim stage.
Time with the father
124.Since no order for equal shared parental responsibility will be made, s.65DAA is not enlivened. Nonetheless I have given consideration to substantial with the father.
125.The mother submits that it is unclear how the father will house four children in his own flat for three nights away from the mother. The evidence reveals that the father’s current accommodation is a three bedroom unit. It is not clear, as the mother submits, how a child younger than three can be adequately accommodated part overnight at times when the father’s older children are residing with him.
126.In light of all the considerations discussed above, and bearing in mind the fact that child has never spent overnight time with the father to date, I am not satisfied at this stage that it would be in the best interests of the child to progress to overnight time. On the material before me, it appears more appropriate for the child to progress to overnight time with the father when she has attained three years of age. When the child has attained three years of age the question of further parenting orders, including a progression to overnight time, should be addressed at that time.
127.Although I am not satisfied that overnight time, at this stage, would be in the best interests of the child, I am satisfied that the father does not pose an unacceptable risk to the child and therefore, his time should be unsupervised and should increase. I have taken account of the anxieties expressed by the mother. However, the child and the father should spend time together which is at least adequate to enable a meaningful relationship to develop between them in an unsupervised context.
128.In his proposed orders the father specifies each Sunday between 9AM and 6 PM for a period of four weeks initially. The child has spent only limited time with the father so far in her short life. In my view a block of nine hours commencing immediately may be difficult for a young child to manage. The child may still require a nap during the day. A graduated approach is more likely to be in the best interests of the child, particularly to enable her to adjust to longer periods of separation from the mother.
129.The father gave evidence that he works full time for Employer P but works from home. In his Affidavit sworn 6 March 2018 the father gives evidence that he does not work on Tuesdays “in order to be able to give X and me time together to establish a strong bond”. Accordingly, the father and the child could spend time together on Tuesdays. The father also gives evidence that he can be with the child on Thursdays during the day. I take account of the fact his proposal seeks to have time with the child when her older half-siblings are with the father.
130.The mother works full time as a professional. She gives no specific evidence of her hours of work. The child attends an early learning centre while the mother works. The mother does not specify which early learning centre. Since the mother lives in Suburb F and the father lives in Suburb M, changeover should take place at a location on the Region N area of Sydney.
131.Since the mother works full time, and it is in the best interests of the child to spend more time with the father which can take place on Tuesdays and Thursdays, on those days the father will have to care for the child during work hours.
132.The family consultant noted in the Child Dispute Conference memorandum that the mother suffers distress about having any face-to-face contact with the father. This observation supports an order for changeovers to take place at a contact centre, or in a manner so that the parties either avoid contact at changeover, or the changeover is facilitated by a third party. The father and child have already been spending time supervised by D Families, often at the playground at Suburb C. This organisation also provides a supervised changeover service. Their involvement at changeover would provide continuity for the child, as well as help to avoid the child witnessing conflict or other poor behaviour by the parents.
133.Pursuant to the orders made on 31 October 2017 the parties were to institute communication by a communication book. The evidence reveals this has not been successful. However, in light of the fractious nature of the parties’ interactions, this method of communication will have to be implemented.
134.The consultant also recommended that “it would also be in X’s best interest that her time with Mr Namvar occurs on the weekends in which she has the care of his children, it, in order to provide regular time for X to build relationships with her three older half siblings.”
135.The family consultant also recommended the appointment of an Independent Children’s Lawyer. In light of the high distrust and conflict between the parents, such an order is appropriate in the circumstances of this case.
Travel
136.I note that the father seeks orders for international travel in his Initiating Application. He gives evidence in his affidavit sworn 6 March 2018 that he regularly returns to Country G with his three older children to see his relatives. He gave evidence that the paternal grandmother and great-grandmother are in poor health and he plans to travel to the Country G in the period late 2018 to early 2019 and then again in mid 2019. This proposed travel was not the subject of any submissions and orders for overseas travel or not pressed at the interim hearing. I make no orders about overseas travel at this stage.
Conclusion
137.Having considered the matters referred to above, and having given such matters the weight referred to and for the reasons set out herein, I am of the view that the orders as set out at the commencement of these reasons are in the best interests of the children and accordingly, will so order.
I certify that the preceding one hundred and thirty seven (137) paragraphs are a true copy of the reasons for judgment of Judge Harper
Date: 6 September 2018
Key Legal Topics
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Administrative Law
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Statutory Interpretation
Legal Concepts
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Judicial Review
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Procedural Fairness
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Standing
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Statutory Construction
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