Niem and Tong - [2018] FamCA 1072

FAMILY COURT OF AUSTRALIA

NIEM & TONG

[2018] FamCA 1072

FAMILY LAW – CHILDREN – Interim Parenting – Where significant change in children’s circumstances following fire in father’s home – Consideration of applicable principles – Orders made in best interests of the subject children.

Family Law Act 1975 (Cth) ss 60B, 60CA, 60CC, 61DA, 65DAA, 69ZL

Deiter & Deiter [2011] FamCAFC 82
Goode & Goode [2006] FamCA 1346,
Marvel & Marvel [2010] FamCAFC 101
MRR v GRR [2010] HCA 4
Niem & Tong [2016] FamCA 1089
SS & AH [2010] FamCAFC 13

APPLICANT:

Ms Niem

RESPONDENT:

Mr Tong

INDEPENDENT CHILDREN’S LAWYER:

Legal Aid NSW

FILE NUMBER:

PAC

3572

2014

DATE DELIVERED:

14 December 2018

PLACE DELIVERED:

Parramatta

PLACE HEARD:

Parramatta

JUDGMENT OF:

Foster J

HEARING DATE:

16 November 2018

REPRESENTATION

COUNSEL FOR THE APPLICANT:

Mr Givney

SOLICITOR FOR THE APPLICANT:

Maclarens Lawyers

COUNSEL FOR THE RESPONDENT:

Mr Campton SC

SOLICITOR FOR THE RESPONDENT:

Steven Stefanou & Co

COUNSEL FOR THE INDEPENDENT CHILDREN’S LAWYER:

Mr Sperling

SOLICITOR FOR THE INDEPENDENT CHILDREN’S LAWYER:

Legal Aid NSW Bankstown Family Law

Orders

That parenting orders 1 to 6 inclusive and 11 made on 19 December 2016 be discharged.

That Pending Further Order:

That the mother have sole parental responsibility for the children C born … 2005 and D born … 2010.
That the children C and D live with the mother.
That the child C spend time with the father in accordance with her wishes.
That the child D spend time with the father as agreed between the mother and father in writing, such writing to include SMS or email communication and in default of agreement the father shall spend supervised time with the child D at the DD Contact Service or such other community based contact service agreed to by the Independent Children’s Lawyer on each alternate Saturday for three hours commencing on the first Saturday after these orders with the cost of any such service to be paid for equally by the father and mother and provided that:
(a)In the event that the contact centre or service offers supervised time only at times which are less regular than specified then contact shall occur at the times that are offered by the contact centre or service.
(b)The mother must deliver the child D to and collect the child D from the contact centre or service at the times specified by the contact centre or service and on each occasion promptly leave the vicinity.
(c)If the contact centre or service during the currency of these orders declines or is unable to continue to provide its services, or the director of the contact centre or service recommends in writing to the parties a variation of these orders, then either party (or the Independent Children’s Lawyer) may on seven days written notice to the other party and the Court restore the matter to the list.

Note: The form of the order is subject to the entry of the order in the Court’s records.

IT IS NOTED that publication of this judgment by this Court under the pseudonym Niem & Tong has been approved by the Chief Justice pursuant to s 121(9)(g) of the Family Law Act 1975 (Cth).

Note: This copy of the Court’s Reasons for Judgment may be subject to review to remedy minor typographical or grammatical errors (r 17.02A(b) of the Family Law Rules 2004 (Cth)), or to record a variation to the order pursuant to r 17.02 Family Law Rules 2004 (Cth).

FAMILY COURT OF AUSTRALIA AT PARRAMATTA

FILE NUMBER: PAC 3572 of 2014

Ms Niem

Applicant

And

Mr Tong

Respondent

REASONS FOR JUDGMENT

The present application for determination relates to interim parenting in the context of long running parenting proceedings.
Proceedings as to final parenting orders were listed for hearing before this Court commencing 23 April 2018. The final hearing continued on 24, 26 and 27 April and 4 June 2018 on which date judgment was reserved.
The mother made an application to reopen her case.
On 24 August 2018 orders were made by consent granting leave to the mother to reopen her case. The resumption of the final hearing awaits the receipt of an updated Chapter 15 Expert Report and on present indications is likely to be in mid-2019, about six months hence.
On 21 August 2018 the mother filed an Application in a Case seeking interim parenting orders pending final determination of parenting. That application was before the Court on 24 August 2018 and on that date was adjourned for judicial case management to 16 November 2018 with directions made for the further conduct of the matter.
The interim proceedings as to parenting were heard on 16 November 2018 with judgment reserved. Otherwise, on 16 November 2018, orders were made as follows:
IN RELATION TO THE OBJECTION TO SUBPOENA LODGED BY THE NSW DEPARTMENT OF EDUCATION TO A SUBPOENA ADDRESSED TO THE PRINCIPAL, [CC SCHOOL], BY CONSENT, IT IS ORDERED THAT
(1)     The Independent Children’s Lawyer, the parties and their legal representatives have access to inspect documents produced on subpoena being the whole of the contents of subpoena packet S42.
IT IS FURTHER ORDERED THAT
(2)     Pursuant to section 68B and/or section 67ZC of the Family Law Act 1975, the Applicant, [Ms Niem], and the Respondent, [Mr Tong], are restrained by injunction from discussing or otherwise disclosing the contents of the school counselling records produced under subpoena on behalf of [CC School], or otherwise disclosing any information regarding those records which are obtained through discussions with their legal representative or are obtained otherwise in connection with the conduct of these proceedings, with the children, [B] and [C] and [D].
(3)     Should there be any application to restore the matter in accordance with any liberty to apply, the Department of Education is to be notified of any such application through their legal representatives by the person or parties seeking liberty to apply in relation to the orders made today.
(4)     The Orders made today in no way limit the obligation of the Independent Children Lawyers to provide relevant material to any appointed single expert for the purposes of the preparation of a Chapter 15 single expert report in these proceedings.
(5)     The parties, other than the Independent Children’s Lawyer, are not granted photocopy access to documents produced by the Principal, [CC School] in subpoena packet Sleeve 42 noting that the Independent Children’s Lawyer has previously been given leave to have photocopy access to all documents produced on subpoena.
(6)     Orders made by the Registrar on 5 November 2018 be discharged.
BY CONSENT, IT IS FURTHER ORDERED THAT
(7)     Leave is granted to the Independent Children’s Lawyer to provide to B’s counsellor, [Ms EE] at [FF Group], the following:
(a)   Copy of the Child Inclusive Memorandum prepared by [Ms GG] dated 14 November 2016;
(b)   Copy of the Expert Report prepared by [Dr HH] dated 5 June 2017.
The Court notes that B is currently attending upon [Ms EE] at [FF Group] for counselling and has had 4 to 5 counselling sessions to date.
(8) Pursuant to Division 15.5.2 of the Family Law Rules 2004, [Dr HH], Child, Family and Adult Psychiatrist, be appointed as a Single Expert Witness (“the Expert”) to enquire into and provide an updated report upon matters relating to the welfare of the children [C], born on … 2005, [D], born on … and [B], born on … 2001.
(9)     That in preparing the updated report to the Court, the Expert be requested to consider matters in the same terms as outlined in Order 2 of the Court Orders dated 4 April 2017.
Expert’s costs
(10)The parents shall be jointly liable for the costs of the updated expert report and the Expert’s preparation and court attendance for the purpose of cross examination.
(11)By 4.00 pm 23 November 2018, each parent shall pay into the Trust account of Legal Aid NSW the sum of $6,000.00 for payment to the Expert upon completion of the updated expert report and the Independent Children’s Lawyer is authorised to make such payment to the Expert upon receipt of the memorandum of fees from the Expert.
(12)In the event that there remain monies available subsequent to the receipt of the memorandum of fees from Expert, these monies shall remain in the Trust Account of Legal Aid NSW and are to be returned to the father and the mother in equal shares upon the conclusion of the Court proceedings.
(13)In the event that there is a shortfall, the father and the mother are to pay in equal shares such additional sum to meet the costs of the Expert within 7 days of a request by Legal Aid NSW and the Independent Children’s Lawyer is authorised to make such payment to Expert.
(14)In the event that the Expert is required to appear for the purpose of cross examination at any hearing in these proceedings, then the mother and father shall pay, in advance, in equal shares such additional sum to meet the costs of the Expert’s preparation and attendance at Court within 7 days of a request by Legal Aid NSW and the Independent Children’s Lawyer is authorised to make such payment to Expert upon receipt of the memorandum of fees from the Expert.
Miscellaneous
(15)The parties shall facilitate the preparation of the report including attending on and arranging for the children and any other significant persons to attend upon the Expert and comply with all reasonable directions and requests made by the Expert to assist him in the preparation of the Report.
(16)Leave be granted to the Independent Children’s Lawyer to uplift and have photocopy access to material produced under subpoena for the purpose of providing the same to the Expert and that the fees in respect of that photocopying be waived.
(17)That the Expert shall be authorised and at liberty to speak to the schools that the children and currently attending, any medical/mental health practitioners and/or therapists/counsellors of the children and/or the parents if he wishes to do so.
NOTATIONS
(a)   The Independent Children’s Lawyer is under no obligation to brief the Expert until there has been compliance by the parties with Order 11.
(b)   The Independent Children’s Lawyer is under no obligation to book and confirm the Expert’s attendance at Court for the purpose of cross examination until there has been compliance by the parties with Order 14.
(c)   From enquiry made by the Independent Children’s Lawyer, [Dr HH] anticipates conducting interviews on 5 December 2018 and the updated report prepared within two weeks thereafter.
IT IS FURTHER ORDERED THAT
(18)The husband and wife do all necessary things and sign all necessary documents so as to authorise [LL Lawyers] to make funds available to the Trust Account of Legal Aid NSW as provided for in these orders.
(19)The parties and the Independent Children’s Lawyer are granted leave to issue such subpoena as they consider relevant to the issues before the Court with such subpoena to be returnable by no later than Thursday, 18 January 2019.
Earlier interim orders were made following a defended interim hearing with orders made on 19 December 2016. Orders were made on that day as follows:
(1)That the mother and father have equal shared parental responsibility for the children [B] born … 2001, [C] born … 2005 and [D] born the … 2010.
(2)That the child [B] live with the father and spend time with the mother in accordance with his wishes.
(3)That the child [C] live with the father.
(4)That the child [C] spend time with the mother as agreed between the mother and father in writing such writing to include SMS or email communication and in default of agreement each alternate weekend commencing on the first weekend after the date of these orders from after school (or 3.00 pm on a non-school day) Friday to before school (or 5.00 pm on a non-school day) the following Tuesday.
(5)That the child [D] live with the mother.
(6)That the child [D] spend time with the father as agreed between the mother and father in writing such writing to include SMS or email communication and in default of agreement each alternate weekend commencing on the second weekend after the date of these orders from after school (or 3.00 pm on a non-school day) Friday to before school (or 5.00 pm on a non-school day) the following Tuesday.
(7)That the mother and father be and are hereby restrained from physically disciplining the children.
(8)That the mother and father are at liberty to attend on occasions significant to the welfare of the children and each of them in relation to the children’s schooling, religious education, extracurricular activities, and such other occasions significant to the welfare of the children where the attendance of either or both parents is to be reasonably expected.
(9)That the mother and father keep each other informed at all times of their respective mobile telephone numbers and landline telephone numbers, if applicable, and notify the other in the event of any change within 24 hours of any such change occurring.
(10)That the mother and father keep each other informed at all times of any general practitioner or other health practitioner on which any of the children attend and do all necessary things so as to authorise the other to be provided with any reasonably requested information in relation to the attendance on such practitioners.
(11)That for the purposes of changeovers where not at school the father as necessary shall deliver the child [C] to the mother’s residence or any other venue agreed to and reasonably nominated by the mother for the commencement of the mother’s time with the child and the mother shall deliver the child [D] to the father’s residence or any other venue agreed to and reasonably nominated by the father for the commencement of the father’s time with the child and that at the conclusion of each parent’s time with [C] or with [D], as applicable, the parent with whom the child has been spending time shall return the child to the other parent’s residence or any other venue agreed to and reasonably nominated by that other parent.
These reasons assume familiarity with the reasons for judgment delivered that day: Niem & Tong [2016] FamCA 1089.
In the present application the mother relied upon the following documents:
a)her Application in a Case filed 21 August 2018;
b)her Affidavit filed 21 August 2018;
c)her Affidavit filed 20 September 2018;
d)her Affidavit filed 15 November 2018.
The father relied upon the following documents:
a)his Response filed 30 October 2018 to the Application a Case;
b)his Affidavit filed 30 October, 2018.
It was common ground at the interim hearing that the eldest child, B born in 2001 had elected to reside with the father. By reason of his age no formal orders were sought in relation to him.
Otherwise, it was common ground that the two youngest children C born in 2005 and D born in 2010 had not seen the father for some time.

The mother’s evidence

Subsequent to interim orders referred to above, the two elder children had continued to live with the father until 28 June 2018.
On that day the father was seriously injured in a fire that occurred at his residence. The father was admitted to hospital suffering third degree burns. Subsequent to his admission to hospital, the father suffered a heart attack.
The mother had some reservations as to the father’s mental health prior to the fire and more particularly after the fire.
Consequently, the older two children moved to reside with the mother and joined the child D in her home.
Subsequent to moving into the mother’s care, the child B exhibited aberrant behaviour including suicidal ideation. In early July 2018 the mother met with the child B’s school principal and school counsellor in the context of the child threatening to kill the mother and the child C. The child B was taken by ambulance to hospital where he was seen by a psychiatrist, not admitted and later permitted to return home with the mother. The child B was subsequently absent from school for about two months
Subsequently, the mother has observed a significant change in the behaviours of both the children B and C towards her when compared with their behaviour and attitudes when living with the father. The mother has observed that her daughter is now progressing better at school and appears to be happy and content living in the mother’s household.
To the mother’s observation the child B has adopted much of his father’s behavioural traits in being bullying and aggressive towards the mother and his sister.
As at 20 August 2018 the child B had not been permitted to return to school although he appears to have had settled into the mother’s household.
On 21 August 2018 the child C told the mother that “daddy said he was going to hang himself in front of the house if I don’t live with him”.
On 20 September 2018 the mother received a text message from the father informing her that he would be discharged from hospital soon and he wished previous arrangements in relation to the children to be resumed. Subsequently, the mother received a communication from the father indicating that his residential address would be at the II Hotel at Suburb JJ.
The father was discharged from hospital on 20 September 2018 on which date the mother was informed by the father’s solicitor “my client will reassess his position where the children are concerned. Suffice to say, I will provide you with prior written notice of those intentions and I confirm that my client will not take any unilateral actions with the children without first providing you with written notice”. It turns out such was an empty assurance.
On 29 September the mother returned home to find the father’s car out the front of her property. She returned a short while later to find the car gone but observed that the father’s belongings that were packed at the back of her house had been removed together with the children’s pet cat and dog. This was distressing to the two younger children who were with the mother.
On 30 September 2018 the child B told the mother “I’m going to live with dad”. With that she observed the father at the front of the premises and waiting for the child and his belongings. They both then left the property. Subsequently, the mother has had no contact with the child B.

The father’s evidence

The father confirms the circumstances of the fire on 28 June 2018. He sustained burns to about 48 per cent of his body. The father was placed in an induced coma not gaining consciousness again until early July. After intensive treatment over a period of about three months the father was discharged on 20 September 2018.
The father complains about the mother’s reluctance to take the children to see him in hospital. He asserts that the child B took public transport to the hospital to see him at the KK Hospital. The father’s hospital discharge records are in evidence: Exhibit “H”.
The father asserts that the child B has repeatedly requested that he be able to live with him.
The father is aware of the child B’s mental health issues with the child having said to him “I made a few comments at school that made some people concerned. They think I’m hearing voices and that I want to kill myself. I did not mean what I said I was just acting out because I was upset over your accident and I am pissed off that we all have to be forced to live with mum now.”
The father complains that the child C has been influenced by the mother against him. He asserts that following a telephone conversation with the child on 4 August 2018 he has had trouble contacting the child. He denies the alleged conversation with the child C as to him hanging himself.
He was unable to have any telephone contact with the younger children during August and September whilst in hospital. He asserts that the mother was obstructive.

He asserts that he had no intention of removing any of the children from the mother’s care as he was yet to secure long-term accommodation.
He asserts that his collection of the child B from the mother’s home was as a consequence of the child’s expressed wishes.
The father has subsequently obtained rented premises at Suburb CC. The property provides comfortable accommodation and is reasonably proximate to the older children’s school.
The father asserts that since the older child B commenced living with him he has been attending school as required and his behavioural issues “have decreased”. The father asserts he has a physical capacity to perform normal household tasks for himself and the child B. Yet the father provides no updating medical evidence as to his physical health generally and as to his mental health subsequent to the traumatic events of the fire.
The father acknowledges that he has been interviewed by New South Wales Police in relation to circumstances of the fire. It is his understanding that the police have finalised their investigation and it is now closed.

The objective documents

Documents produced on subpoena by CC School attended by the child C reveal that in 2018 whilst in the care of the father until the date of the fire on 28 June 2018 the child C missed 42 mostly whole or partial days of school. Such an attendance record is appalling. After coming into the mother’s care the child has missed one day of school and six partial days.
Documents produced by the Department of Family and Community Services reveal the engagement of that Department subsequent to the fire. It is readily apparent that some notifications to the Department have been precipitated by the mother, it appears, out of her concern that it was the father who set the fire. That circumstance no longer appears to be the case.

The Independent Children’s Lawyer and submissions

The Independent Children’s Lawyer was of the view that in relation to the youngest child D that the father should have supervised time. The Independent Children’s Lawyer informed the Court that the child B was now attending FF Group for therapeutic intervention.
There are significant historical allegations as to both parents seeking to alienate the children one against the other. Such seems to be the case in relation to the eldest child subsequent to the father’s release from hospital.
The Independent Children’s Lawyer considered it somewhat problematic in relation to the child C now 13 years of age who does not wish to have contact with the father. It appears that the child has settled well into the mother’s household and is now appropriately attending school.
Counsel for the mother relied upon the mother’s evidence as to the wishes of the child C and sought that no order be made in relation to her time with the father. Otherwise, the mother remains concerned as to the father’s physical and mental health following the traumatic circumstances of the fire and his hospitalisation. That concern overshadows her view as to the child D spending unsupervised time with the father.
The Single Expert Report of Dr HH dated 5 June 2017 (Exh “C”) is significantly critical of the father, see at [144], [149], [153] in particular the following:
The father was identified to have a significant psychiatric history. Underpinning this, was his narcissistic personality disorder. This had impacted upon his family relationships, intimate relationships, approach to parenting, work performance and state of mind. He had previously abused prescription medication resulting in his deregistration as a medical practitioner …
He will remain vulnerable to narcissistic insults given it is evident personality vulnerabilities. ... He lacked insight into his underlying personality vulnerabilities and its impact on his general functioning and approach to parenting.
There are significant concerns in circumstances where the child B had settled reasonably well into the mother’s household but subsequent to ongoing contact with the father, the father manufactured a circumstance with the child B where he without notice to the mother in effect secreted the child B back into his full-time care. Subsequently, the child B has had no contact with the mother. It is readily apparent that the father has again facilitated the child becoming aligned with him.
Counsel for the father refers to the mother’s evidence at trial where she did not oppose an order that the child D have regular time with the father. Such a circumstance was, of course, prior to the traumatic events of late June 2018.
It was, otherwise, conceded by counsel for the father that the express wishes of the child C were a real impasse in relation to making an order in respect of that child C for time with the father.

Interim Parenting

Short Reasons for judgment

In Goode & Goode [2006] FamCA 1346, the Full Court set out the pathway to be followed in saying that 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 must 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 went on to say the legislative pathway in an interim case to determine the best interests of the child would involve the following:
a)identifying the competing proposals of the parties;
b)identifying the issues in dispute in the interim hearing;
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.
Since Goode (supra), s 69ZL of the Family Law Act 1975 (Cth) (“the Act”) has been enacted which provides that a court may give reasons in short form for a decision it makes in relation to an interim parenting order. In relation to the interim parenting orders, these are the Court’s short form reasons for decision.
In Marvel & Marvel[2010] FamCAFC 101 the Full Court discussed the difficulties associated with making findings on contested evidence in the following terms:
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).
121.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.”
122.Later, at paragraph [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.”
In Deiter & Deiter [2011] FamCAFC 82 the Full Court was particularly concerned with the situation where the contested facts related to an assessment of risk and said at [61]:
… Risk assessment comprises two elements - the first requires prediction of the likelihood of the occurrence of harmful events, and the second requires consideration of the severity of the impact caused by those events. In our view, the assessment of risk in cases involving the welfare of children cannot be postponed until the last piece of evidence is given and tested, and the last submission is made. We accept, however, that it is always a question of degree depending on the evidence that is before the Court.

The Law

The relevant principles in relation to parenting and interim proceedings are well settled Goode and Goode [2006] FamCA 1346. The High Court in MRR v GRR [2010] HCA 4 affirmed those principles.
Section 60B of the Act outlines the objects and principles underlying Part VII of the Act.
Section 60CA provides that in deciding whether to make a particular parenting order, the Court is to regard the best interests of the child as the paramount consideration.
Section 60CC then outlines the primary (sub-s (2)) and additional (sub-s (3)) considerations that the Court is to take into account in determining what is in the best interests of the child.
Section 61DA of the Act provides that when making a parenting order, 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. The presumption does not apply where:
a)there are reasonable grounds to believe a parent (or a person who lives with the parent) has engaged in abuse of the child or family violence [s 61DA(2)],
b)in interim proceedings where the Court considers that it would not be appropriate in the circumstances for the presumption to be applied when making that order [s 61DA(3)].
The presumption may be rebutted if the Court is satisfied that an order for equal shared parental responsibility would not be in the child’s best interests [s 61DA(4)].
In this matter there is unequivocal evidence of family violence as a consequence of the father’s criminal convictions. Such violence was perpetrated in the presence of the children. The presumption shall not apply.
If the presumption in s 61DA were to apply and the Court makes an order for equal shared parental responsibility, this “triggers” the operation of s 65DAA which requires the Court to consider whether equal time or substantial and significant time with each parent is in the child’s best interests and reasonably practicable. Such is not the case here.

Best Interests

The Primary Considerations: s 60CC(2)

The primary considerations are:
a)the benefit to the child of having a meaningful relationship with both of the child's parents; and
b)the need to protect the child from physical or psychological harm from being subjected to, or exposed to, abuse, neglect or family violence.
There is no doubt that these children have established relationships of sorts with each parent. As to the younger children C and D the nature and extent of those relationships moving forward into the future with both parents will be a matter for evidence following conclusion of the final hearing.
No orders are sought in relation to the eldest child B. It appears that he has self-determined his circumstances. The success or failure of his final years in high school and his future health will be matters for the father to ponder upon whilst the child B is in his care.
At present the child C has, in effect, self-placed herself with the mother and is now attending school on a meaningful basis as distinct from when she was residing with the father. Her residence with the mother into the foreseeable future pending final hearing would present a meaningful relationship with the child C going forward. The child C has determined that at present she does not wish to see the father and as his counsel conceded that represents a significant impasse in making an order that might recommence the father daughter relationship at present.
The child D remains in the mother’s full-time care and she has significantly been his primary carer in the past. It is important that that relationship with the mother remain in place. The circumstances of the child D’s relationship with the father are problematic in that there are significant underlying circumstances relating to the father’s health including mental health and the father’s unilateral actions in relation to the child B that cause some concern as to what might develop should the father have unsupervised time with the child D, particularly, if brought into contact with the child B who has demonstrated significant behavioural concerns. Supervision in the short-term of the father’s time with the child D would be protective of the child and represent an appropriate meaningful relationship for the child D with the father going forward.
In applying the considerations set out in subsection (2), the Court is to give greater weight to the consideration set out in paragraph (b). In the circumstances of this matter, the protective concerns as to the child D are of prime concern. The father’s health and mental health and his conduct subsequent to his discharge from hospital give rise for some concerns that recommend protective circumstances for his time with the youngest child D.

The Additional Considerations: s 60CC(3)

Section 60CC(3) sets out the additional considerations. Regard has been had to all. More relevantly:
a)The child C now aged 13 has strong wishes as to her contact with her father at least in the short term. It is appropriate to have due regard to those wishes particularly in circumstances where she appears to be in a much more settled circumstance with the mother than with the father. There is no evidence as to the wishes of the child D. He is only eight years of age and any express wishes would have little weight in all of the circumstances of this matter.
b)The nature of the children’s relationships with both parents is referred to above at least in the context of this interim hearing. They will be explored to a much greater extent at the completion of the final hearing. The father in the context of this interim hearing presents a complex circumstance in relation to his relationship with the child B that demonstrates a most unhealthy alignment and his relationship with the child C who for whatever reason is now estranged from him. The mother at present remains the primary carer of the two younger children, C and D, with D having been in her care long-term and C for the last six months. They appear to have a meaningful and established relationship now with the mother.
c)Neither party seeks a significant change in the children’s present circumstances save for the father seeking time with the two younger children, C and D, but conceding the circumstance in relation to C. The father seeks to have time with the youngest child, D, and provided same is in a protected circumstance such would be beneficial for the child D to restore his relationship with his father.
d)The mother has demonstrated an appropriate capacity to provide for the children in her care. The father presents as problematic in terms of his capacity to appropriately provide for the well-being of the child B who is in his care but has expressed significant wishes to remain with the father. The father’s underlying mental health issues and probably his injuries are yet to be tested in terms of their impact on his capacity to provide for the needs of the children particularly their emotional and intellectual needs in circumstances where he has facilitated the child C missing a most significant period of schooling.
e)Both parents present as extraordinarily conflictual and determined to adopt a set of behaviours in relation to the other parent that seek to align the children with each of them. As such they present with a poor attitude to the children and their responsibilities of parenthood that will be explored further at final hearing.
f)It is inappropriate to consider making orders in the context of this interim hearing that would lead to further proceedings. A final hearing as to parenting awaits resumption following the release of an updated Chapter 15 Expert Report.
In the circumstances of this matter, particularly in the context of the ongoing conflict between the parents and having regard to the expressed wishes of the child C, it is appropriate that the presumption as to equal shared parental responsibility not apply as to the two youngest children, C and D. In the circumstances outlined above, it is clearly appropriate that the mother hold sole parental responsibility for those children pending further order.
Having regard to the matters discussed above and following a consideration of the factors relating to the best interests of the children, it is appropriate that there be no order made as to the eldest child B in all of the circumstances.
Otherwise, orders will be made for the two youngest children, C and D, to reside with the mother pending further order. As to the child D orders will be made for the father to spend supervised time with the child D either in a contact centre or at his election in community-based supervision at his expense.

Interim orders will be made accordingly.

I certify that the preceding seventy (70) paragraphs are a true copy of the reasons for judgment of the Honourable Justice Foster delivered on 14 December 2018.

Associate:

Date: 14 December 2018