Pan & Meng
[2021] FedCFamC2F 235
•22 October 2021
FEDERAL CIRCUIT AND FAMILY COURT OF AUSTRALIA
(DIVISION 2)
Pan & Meng [2021] FedCFamC2F 235
File number(s): PAC 2395 of 2021 Judgment of: JUDGE NEWBRUN Date of judgment: 22 October 2021 Catchwords: FAMILY LAW – interim parenting – best interests of children – Orders made Legislation: Family Law Act 1975 (Cth), ss 60B, 60CC, 60CA Cases cited: Goode & Goode [2006] FamCA 1346; (2006) FLC 93-286
Marvel & Marvel (No 2) [2010] FamCAFC 101
Eaby & Speelman [2015] FamCAFC 104Banks & Banks [2015] FamCAFC 36
Division: Division 2 Family Law Number of paragraphs: 75 Date of last submission/s: 13 October 2021 Date of hearing: 13 October 2021 Place: Parramatta Solicitor for the Applicant: Mr Roberts Solicitor for the Respondent: Ms Lawson Solicitor for the Independent Children's Lawyer: Ms Newland ORDERS
PAC 2395 of 2021 FEDERAL CIRCUIT AND FAMILY COURT OF AUSTRALIA (DIVISION 2)
BETWEEN: MR PAN
Applicant
AND: MS MENG
Respondent
INDEPENDENT CHILDREN’S LAWYER
ORDER MADE BY:
JUDGE NEWBRUN
DATE OF ORDER:
22 OCTOBER 2021
PENDING FURTHER ORDER THE COURT ORDERS THAT:
1.Orders 1, 2, and 3 in Annexure A to the Court’s Orders of 25 May 2021 are discharged.
2.That the children, X born in 2010 and Y born in 2014 ('the children") live with the Mother.
3.That the Father provide the child X to the Mother at 6pm on the date these Orders are made with changeover to occur pursuant to Order 5 herein.
4.That the children spend time with the Father as follows:
(a)Each Saturday from 10am to 3pm for a period of eight consecutive weeks; and then
(b)From after school or 3pm if not a school day each alternate Friday to 4pm Saturday on eight consecutive occasions; and thereafter
(c)From after school or 3pm if not a school day each alternate Friday to 4pm Sunday;
(d)On the children's birthdays from after school or 3pm if not a school day to 7pm;
(e)On Father's Day from 10am to 4pm;
5.That where changeover does not occur at school, then changeover shall occur inside McDonalds Restaurant B Street, Suburb C.
6.That the parents shall not communicate at changeover in the presence of the children and both parents shall do everything necessary to ensure that changeover occurs efficiently and without any exposure to conflict for the children.
7.That the parents shall communicate all issues in relation to the children by way of WhatsApp and that the parents within 24 hours of the date of these Orders will provide to each other all information necessary to open a private WhatsApp account.
8.That commencing on 24 November 2021 the children shall have electronic communication with the Father via WhatsApp each Wednesday from 6pm to 6.30pm and the Mother shall do all things necessary to facilitate that communication.
9.That the Father is restrained from feeding the children "Yam Porridge" or any other foods which contain herbal medicines or herbal ingredients.
10.That the parents shall continue to attend family therapy at the Relationspace until further Order of the Court and shall do all things necessary to comply with all recommendations of the family therapist and that the parents shall do all things necessary to engage the children with the family therapist at the recommendation of the therapist.
11.That the parents are to provide the family therapist with a copy of the Child Inclusive Child Dispute Memorandum to Court dated 27 August 2021 and a copy of these Orders.
12.That this Order is sufficient to allow both parents to obtain all information usually available to parents from the children's school and to attend all school events usually open to parental attendance
13.That if either of the children require urgent medical attention or are hospitalised, then the parent with care of the children shall contact the other parent as soon as reasonably practical and advise the other parent of the child's diagnosis and prognosis and both parents shall be at liberty to attend upon any hospital the children or either of them are admitted to.
14.That the parent with care of the children pursuant to these Orders will take the children to all extracurricular activities they are currently enrolled in and neither parent shall enrol the children in any further extracurricular activities without the written consent of the other parent.
15.That a single expert report be prepared in these proceedings.
16.The proceedings are adjourned to 28 October 2021 at 9:30am for mention.
Note: The form of the order is subject to the entry in the Court’s records.
Note: This copy of the Court’s Reasons for judgment may be subject to review to remedy minor typographical or grammatical errors (r 10.14(b) Federal Circuit and Family Court of Australia (Family Law) Rules 2021 (Cth)), or to record a variation to the order pursuant to r 10.13 Federal Circuit and Family Court of Australia (Family Law) Rules 2021 (Cth).
Section 121 of the Family Law Act 1975 (Cth) makes it an offence, except in very limited circumstances, to publish proceedings that identify persons, associated persons, or witnesses involved in family law proceedings.
IT IS NOTED that publication of this judgment by this Court under the pseudonym Pan & Meng has been approved pursuant to s 121(9)(g) of the Family Law Act 1975 (Cth).
REASONS FOR JUDGMENT
JUDGE NEWBRUN:
INTRODUCTION
This interim hearing relates to the children X born in 2010 (now aged 11 years), and Y born in 2014 (now 7 years).
Y lives with the Mother and X lives with the Father.
PROPOSALS
The Father’s proposed interim Orders are set out in his Amended Initiating Application filed 7 October 2021. Inter alia, he seeks Orders:
(a)That X lives with him and Y lives with the Mother;
(b)That the children spend time with the parties on a two-week rotational basis-effectively providing for Y spending time with the Father for some four nights each fortnight, and X spending time with the Mother for some four nights each fortnight.
(c)That the Court appoint a single expert child and family psychiatrist to prepare a report.
The ICL seeks interim Orders, significantly supported by the Mother, inter alia, that:
(a)the children live with the Mother;
(b)the Father provide the child X to the Mother at 6 PM on the date these Orders are made;
(c)the children spend time with the Father:
(i)commencing 26 November 2021 each Saturday from 10 AM to 3 PM for a period of 8 consecutive weeks; and then
(ii)from after school each alternate Friday to 4 PM Saturday on 8 consecutive occasions, and thereafter
(iii)from after school each alternate Friday to 4 PM Sunday, and
(iv)on special occasions.
(d)commencing 24 November 2021, the children have electronic communication with the Father each Wednesday from 6 PM to 6:30 PM;
(e)the parents be restrained from speaking with the children about these proceedings;
(f)the parents are restrained from speaking about the other parent or a member of that parent household in a derogatory fashion in the presence or hearing of the children;
(g)the parents continue to attend family therapy at the Relationspace and do all things necessary to comply with all recommendations of the family therapist, and the parents do all things necessary to engage the children with the family therapist at the recommendations of the therapist;
(h)the parents to provide the family therapist with a copy of the Child Inclusive Conference Memorandum dated 27 August 2021 and a copy of these Orders;
(i)that a single expert report be prepared in these proceedings.
MATERIAL RELIED UPON
The Mother relied upon the following documents:
(a)Affidavit of Ms J Meng filed 24 May 2021;
(b)Her Notice of Child Abuse filed 24 May 2021;
(c)Affidavit of Ms J Meng filed 11 October 2021;
(d)Affidavit of Ms K (Mother’s psychologist) filed 12 October 2021;
(e)Child Inclusive Conference Memorandum dated 27 August 2021;
(f)Her Tender Bundle.
The Father relied upon the following documents:
(a)Amended Initiating Application filed 7 October 2021;
(b)His Notice of Child Abuse, Family Violence or Risk filed 5 May 2021;
(c)Affidavit of Mr Pan together with the Annexures filed 7 October 2021;
(d)Affidavit of L together with the Annexures filed 19 August 2021;
(e)His Tender Bundle.
The ICL relied upon the following documents:
(a)Child Inclusive Conference Memorandum dated 27 August 2021;
(b)Her Tender Bundle.
EVIDENCE INCLUDING COMPETING ALLEGATIONS
Both parties were born in Country M. They met in Country N in 1999. They commenced cohabitation in 2003. They moved to Australia in 2006.
The Father lives in a residence at Suburb C. The paternal grandmother resides with the Father and X.
The Mother lives with Y in a residence at Suburb P. The maternal grandmother lives with them.
The Mother alleges that she suffered postnatal depression following X’s birth in 2010.
The Mother alleges that between 2014 and 2017 she was the primary carer of the children.
The Father alleges that prior to the parties’ separation he was significantly involved in the care of the children.
In 2016, a provisional ADVO was issued against the Father for the protection of the Mother and the Father was charged with assaulting the Mother. In 2016, a final ADVO was made for 12 months duration and the Father was given a section 10 in respect of the assault charge.
The Father alleges that in 2018 the paternal grandparents moved into the residence at Suburb C with the children, and the parties remained living at the residence at Suburb P, being the former matrimonial home. In this context, the Mother alleges that in 2018 she had moved out briefly from the Suburb P property with the maternal grandmother to avoid the tension at home and to allow the paternal grandparents to move into the Suburb C residence. She alleges that when she returned to the Suburb P property, the paternal grandparents had unilaterally removed the children and their belongings. She alleges she attended the Suburb C residence and begged for the children to return home, however, they refused. She alleges that the Father told her at this time that the children must stay in the Suburb C residence because the paternal grandparents would care for them the right way while the Father worked. He allegedly told the Mother at this time, inter alia, that the paternal grandparents were the children’s primary carers now because the Mother was working. The Mother alleges that from this time the children resided with the paternal grandparents and that the Father would only allow the Mother to spend time with the children from 7 PM to 10 PM during the weekdays, and then the Father would take the children to the Suburb P residence during the weekend.
The parties separated in 2019. The Father alleges that he then moved into the parties’ Suburb C residence with the paternal grandmother and the children. He alleges that the children then lived with him and spent time with the Mother during the week after work and on weekends during the daytime for a few hours. He alleges that in about mid 2019 the Mother commenced taking Y overnight. He alleges that by August 2020 the Mother refused to allow Y to stay overnight at Suburb C. He alleges that from January 2020 the Mother reduced his time further with Y. He alleges that he proposed for X to spend the night with the Mother and Y, but then the Mother would refuse to allow Y to spend the night with the Father and X.
The Mother alleges that from April 2019 to January 2021 she attended Suburb C residence every night after work to play with the children and put them to bed.
The Mother alleges that in about March 2020 during the coronavirus pandemic she began working from home, and she approached the Father about allowing the children to live with her as she could now care for them during the day. She alleges the Father refused but allowed the children to spend some time at the Suburb P residence. The Mother alleges that Y was permitted to come into her care but that the Father would not allow X to come into her care.
The Mother alleges that in about early 2021 an incident occurred at the Father’s residence in relation to the children. She alleges that the paternal grandmother intervened and verbally berated the Mother, inter alia, accusing her of being a bad Mother and never having taken care of the children. The Mother alleges that the paternal grandmother tried to slap her. The Mother alleges that since this time, she has had to reduce her visits to the Father’s residence and instead spend time with X away from the Suburb C residence.
The Mother alleges that from about January 2021 she has seen X around 2 to 3 hours per week on a Saturday night for dinner in public places. She alleges that only since April 2021, was she allowed to have unsupervised Saturday dinner time with X at her residence at Suburb P.
The Father and the Mother entered into consent interim parenting Orders on 25 May 2021, and which provided, inter alia, for the children to spend time with the parties on a certain two-week rotational basis. X was ordered to live with the Father and Y was ordered to live with the Mother. X’s time with the Mother was still quite limited under these Orders. It is relevant to observe in relation to these Orders the Registrar’s Notations which were as follows:
(a)The proceedings have been listed with urgency an agreement has been reached in the intervening period;
(b)The parties wish to avail themselves of the possibility of undertaking mediation after the release of a Child Inclusive Conference Memorandum;
(c)The Applicant sought and the Respondent opposed a CIC-the Registrar has Ordered a CIC in circumstances where the children are both of an age where their views will be important and where both parties assert that the other parties try to influence or talk to the child in relation to these proceedings;
(d)There are two children, each child lives with one parent and each child goes to the same school.
The Court observes that the Registrar ordered (Order 1) that the parties and the children of the relationship attend a Child Inclusive Conference on 24 August 2021, and further ordered (Order 2) that the proceedings are listed for interim hearing on 13 October 2021.
The Father alleges that since 29 May 2021, Y has spent each alternate weekend with the Father and X during the school term. He alleges that each other alternate weekend since 29 May 2021 X has then spent time with the Mother and Y during the school term. The Father alleges that he has sought to facilitate the children spending some increased time together since that time.
The Father alleges that since July 2021, X’s time with the Mother has improved, albeit that the Mother continues to call the Father and request his help with X when X is in her care. In an alleged conversation with the Mother on 11 September 2021, the Father alleges that he told the Mother, “Ms J Meng you need to be able to sort out your issues with X without calling me. You can tell X what she needs to do.”
The Father alleges that X is in good physical health and is progressing well. He alleges that outside of the Covid restrictions, X is engaged in numerous extracurricular activities. He alleges that Y is in good physical health and is progressing well also. She also participates in extracurricular activities. The Father alleges that in about June 2021 the parties’ commenced family therapy with clinical psychologist Ms Q. He alleges that given the progress that he felt the parties were making in family therapy, he sought to facilitate the children spending extra time together, inter alia, during school holidays. In the Father’s tender bundle he produces Relationspace therapy notes of the clinical psychologist. In relation to one therapy session, the clinical psychologist reports of a positive therapy session. In a therapy session with X, the clinical psychologist observed that X was quite anxious at the moment, with X stating, inter alia, that she had been thinking about why her Mother left and she had decided that it was probably all her fault (that is, X’s fault).
Both parties allege that at differing times the paternal and maternal grandmothers assisted with the care of the children.
The Father’s Notice of Child Abuse, Family Violence or Risk filed 5 May 2021 states the following reply, inter alia, in relation to question 34, “Do you have any other significant concerns about the safety and well-being of the child?”, “Yes…I am also concerned the siblings are separated and spending extremely limited time with their non-resident parent. Y and X need to be living together.”
RELEVANT LEGAL PRINCIPLES
The relevant principles in relation to parenting proceedings, including interim proceedings, are well settled: see Goode & Goode [2006] FamCA 1346; (2006) FLC 93-286.
In Marvel & Marvel (No 2) [2010] FamCAFC 101, the Full Court of the Family Court of Australia discussed the problems associated with making findings on disputed evidence as follows:
[120] As has frequently been emphasised interim parenting proceedings, and Orders made as a consequence, are a necessary but temporary measure until all the evidence can be tested, evaluated and weighed at a final hearing by the making of final parenting Orders. Decisions judicial officers have to make in interim proceedings are difficult and, often for very good reason, a conservative approach, or one which is likely to avoid harm to a child is adopted. This is often to the understandable distress of a party who may not achieve the outcome he or she desires, or thinks to be in the best interests of their child or children. Interim parenting Orders are frequently modified or changed after a final hearing, and any allocation of parental responsibility made at an interim hearing is disregarded at the final hearing (s 61DB).
…
[122] In SS & AH [2010] FamCAFC 13 the majority (Boland and Thackray JJ) discussed at paragraph 88 of their reasons the care necessary to be exercised in making findings in interim parenting proceedings. Their Honours said:
In our view, findings made at an interim hearing should be couched with great circumspection, no matter how firmly a judge’s intuition may suggest that the finding will be borne out after a full testing of the evidence.
[123] Later, at 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.
Of this, the Full Court in Eaby & Speelman [2015] FamCAFC 104 said at [19]:
As would be immediately apparent, this approach enables the Court to appropriately and carefully deal with contentious issues relevant to the welfare of the child, and for those issues to not be ignored.
Section 60B of the Family Law Act 1975 (Cth) (“the Act”) sets out the objects and principles of Part VII of the Act relating to children that inform the making of parenting Orders.
In deciding whether to make a particular parenting Order in relation to a child, a Court must regard the best interests of the child as the paramount consideration: section 60CA of the Act.
Section 60CC of the Act provides that in determining what is in the child’s best interests, the Court must consider the matters set out in subsections (2) and (3). In this context, the Court refers to the decision of the Full Court of the Family Court of Australia in Banks & Banks [2015] FamCAFC 36, especially at paragraphs 46 to 52. In that decision, the Full Court stated, inter alia, that (at paragraph 49), “It is also important to stress here that the requirement to “consider” each factor (under s60CC of the Act) does not mean each must be discussed, especially where the evidence leads inexorably to a particular conclusion: SCVG & KLD (2014) FLC 93-582”. Further, it stated, at paragraph 50, “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”.
THE BEST INTERESTS OF THE CHILDREN
Section 60CC Considerations
Subsection (2a): the benefit to the child of having a meaningful relationship with both of the child’s parents: a primary consideration
Y has a meaningful relationship with the Mother and will benefit from a continuance of that relationship.
It appears that each of the children have a meaningful relationship with the Father. They will benefit from the continuance of those relationships provided it is psychologically safe for them to do so. In this context, the Court has a significant concern, based on the material before the Court, that the Father is undermining X’s relationship with the Mother in circumstances where X remains living with the Father and is spending quite limited time with the Mother.
There is a significant suggestion, on the material before the Court, that X has previously had a meaningful relationship with the Mother but which relationship has become strained to some extent. By reason of the Court’s concern that the Father is undermining that relationship, the Court is further concerned that the repair of X’s relationship with the Mother is being adversely compromised.
Should the children now live with the Mother, with X being returned to the Mother’s primary care immediately, the children spending reduced time with the Father, with therapy at Relationspace continuing, there is a significant prospect that X’s previous meaningful relationship with the Mother can be restored in a timely fashion and thereafter maintained. The reduced time with the Father (see immediately below, and also below under the need to protect primary consideration) can address the Court’s concern that the Father is undermining X’s time with the Mother whilst X continues to live with him.
Should the Court make Orders that the children live with the Mother and spend reduced time with the Father as proposed by the ICL (but without any initial period of no time with the Father for some six weeks as proposed by the ICL as set out in her proposed Order 3) there is a real prospect that the children’s meaningful relationship with the Father can be maintained; the Father would spend time with the children each Saturday for five hours for eight consecutive weeks with the children, then he would spend each alternate Friday from after school to 4 PM Saturday for eight consecutive occasions, and thereafter from after school each alternate Friday to 4 PM Sunday, as well as special occasions.
In relation to the Court’s above views, the Court takes into account the contents of the Child Inclusive Conference Memorandum dated 27 August 2021, including the significant concerns of the family consultant therein, whilst acknowledging that that Memorandum is untested.
The Court gives significant weight to this meaningful relationship primary consideration.
Subsection (2b): the need to protect the child from physical or psychological harm from being subjected to, or exposed to, abuse, neglect or family violence.
The Court has a significant concern that X may experience psychological harm should she continue to remain living with the Father whilst spending quite limited time with the Mother. Again, there is a significant suggestion, on the material before the Court, that the Father is negatively influencing X’s relationship with the Mother whilst X remains in the Father’s primary care. In these circumstances, there is an unacceptable risk that X will experience psychological harm through the further deterioration of, or loss of, her former meaningful relationship with the Mother.
In this context, the Court would observe that these parenting proceedings will not reach a final hearing for in excess of 12 months, in particular noting that a family report has not yet been ordered and noting the delay in preparation of family reports.
The above unacceptable risk can be addressed and minimised by X now living primarily with the Mother and spending reduced time with the Father, so as to minimise the risk of the Father undermining X’s relationship with the Mother, affording X the opportunity to settle in and adjust to living with the Mother and Y, and facilitating therapy occurring productively.
In the above context, the Court has taken into account the content of X’s interview with the family consultant on 24 August 2021, and the family consultant’s significant concerns expressed in relation thereto. Specifically, the family consultant had stated that based on X’s interview, there were significant concerns regarding the Father seeking to negatively influence X’s relationship with the Mother. Again, the Court shares these concerns of the family consultant that the Father is undermining X’s relationship with the Mother.
The Court has not overlooked the Father’s allegations that has put in dispute the content of certain statements made by X to the family consultant, however, the Court’s concerns remain. In this regard, and again acknowledging that the Child Inclusive Conference Memorandum remains untested, the family consultant set out with some particularity the content of her interview with X and did not express any reservation as to the reliability of X’s statements to her (apart from her significant concerns, based on X’s interview, that the Father was seeking to negatively influence X’s relationship with the Mother). In any event, even if it were the case that X was mistaken as to certain of her statements to the family consultant, the Court’s concern remains that X was expressing certain adverse views of the Mother by reference to what she had stated the Father had told her, albeit not exclusively by reference to the Father.
The Court has considered the Father’s oral submissions at the interim hearing relating to what the Father contended were inadequacies in the family consultant’s Memorandum. In this regard, the Father submitted, inter alia, that in circumstances where there was a contended fractured relationship between X and the Mother, X’s emotional well-being would be placed at risk should she now be placed in the Mother’s primary care. The Father submitted that the children’s therapy with Relationspace should be allowed to continue with Y remaining living with the Mother and X remaining living with the Father and the children spending time with each other and with the non-live with parent as proposed by him.
However, the Court is of the view that in circumstances where there is a significant suggestion, on the material before the Court, that X’s fortnightly overnight time with the Mother has improved, where the Father has encouraged the Mother to parent X without contacting the Father, and where X is continuing to have therapy with Relationspace in relation to the restoration of her relationship with the Mother, there is a real prospect that X’s well-being will not be significantly adversely affected by living with the Mother.
Should X now live with the Mother, she will have the opportunity to experience the Mother’s care of her significantly less affected by (the significant suggestion of) the Father’s negative influences, as discussed previously. The family consultant in this context had stated that it did not appear that the significant issues in X’s relationship with the mother would be able to be resolved with the parenting current arrangements where X was spending limited time with the Mother. Further in this context, the Court takes into account the Mother’s allegations of her previous positive primary care of the children.
The Father submitted that the family consultant’s reasoning process in her Memorandum was deficient in that she had not clearly outlined why she was suggesting that X live with the Mother immediately and time with the Father be limited. The Court is of the view that this suggestion of the family consultant was made by reason of her significant concerns, based on X’s interview with the family consultant, that the Father was seeking to negatively influence X’s relationship with the Mother. The Court infers that the family consultant suggested that X live with the Mother immediately and spend limited time with the Father so as to minimise the risk of X being potentially further negatively influenced in her relationship with the Mother by the Father’s undermining behaviour.
The Court, under this need to protect primary consideration, should also deal briefly with the Father’s proposal that, effectively, the children continue not to live with each other but rather that Y continue to live with the Mother, and X continue to live with the Father, albeit that he proposes that the children effectively spend some fortnightly overnight time with each other. Again, the Court is of the view that, on the material before the Court, there is a significant suggestion that X’s well-being will not be significantly adversely affected should she now live with the Mother and spend reduced time with the Father. The Court, as with the family consultant, can discern no persuasive reason at this interim stage as to why the children should be separated. In this regard, the Court takes into account the family consultant’s opinion that the children’s present separation is likely to negatively impact their sibling relationship and her recommendation that the children live together. The Court shares the concern of the family consultant in this regard.
The parties have made significant family violence allegations against each other. The Court observes that there was an ADVO in place protecting the Mother from the Father in 2016 and the Father received a section 10 bond as a result of a charge of assaulting the Mother. In the ICL’s Tender Bundle there is a COPS report dated 2021 in which allegations are made that the Father, with the consent of the maternal grandmother, entered the Mother’s home and picked up the Mother’s mobile phone and looked through her emails containing private conversations between the Mother and her lawyer. The Father denied these allegations to the police. The police allege that the Father told the police that he was looking around the Mother’s house for any items that may have been purchased recently as he believed that the Mother was purchasing goods using their joint account that they have together. The Father had told the family consultant that he had slapped the Mother’s face once and her arm a few times in retaliation when the Mother hit him. He told the family consultant that he did damage property when he punched a wardrobe, albeit that he told the family consultant that the Mother had broken his bedroom door and lock and damaged his personal items.
Not without relevance, in this context of alleged family violence between the parties, the family consultant had stated that both parents reported to her a non-functional co-parenting relationship and had said that any communication between them becomes abusive; these statements of the parties to the family consultant, which the Court takes into account, suggest that conflict between the parties to the potential detriment of the children may be lessened by one parent having primary care of the children and the other parent spending less time with the children so as to avoid the parties needing to communicate more extensively relating to co-parenting the children.
The Father contends that the alleged risk of the Father negatively influencing X’s views of the Mother can be minimised by the Court making a non-denigration Order. However, the Court observes that a non-denigration Order was made by consent on 25 May 2021 and yet, by reference to X’s statements to the family consultant, there is a significant suggestion, on the material before the Court, that the Father was negatively influencing X against the Mother despite the existence of such Order noting the Child Inclusive Conference was held on 24 August 2021. There is also some force to the submissions of the Mother in this context that such a non-denigration Order is difficult to be policed in relation to the current parenting arrangements.
The Court is not persuaded by the Father’s submission that the Court requires expert evidence relating to the parties’ differing interim parenting proposals, including the disputed issue relating to the siblings being separated. The Court is entitled to take into account the Child Inclusive Conference Memorandum without it being tested, and the Court does so, and the Court is not persuaded that the family consultant’s reasoning process has not been sufficiently exposed in her Memorandum, whether directly or inferentially, in particular in relation to her suggestion that X should be returned to live with the Mother immediately and spend limited time with the Father.
The Father submitted that the Court would be concerned in relation to the Mother’s mental health and thereby the children living with the Mother. The material before the Court suggests that the Mother experienced postnatal depression in about 2010. The Court is not so concerned, noting the historical nature of such adverse mental health in the Mother and taking into account the family consultant’s view that the Mother’s treatment for postnatal depression many years ago did not appear to be likely to be a factor currently. The Court has considered the other allegations and concerns of the Father in this context of the Mother’s mental health and, taking into account all the material before the Court, including the Mother’s own allegations in this context, the contents of the family consultant’s Memorandum relating to the Mother’s mental health and the contents of the Mother psychologist’s report dated 6 October 2021 (whilst acknowledging that that report is untested at this interim stage), is of the view that there is not a significant suggestion that the Mother’s mental health is presently unsatisfactory.
In relation to the Father’s allegations and contentions in relation to the children being placed at risk in either living with or spending time with the Mother, by reference to the Mother’s alleged adverse behaviour, there is some force to the Mother’s submission that such allegations and contentions should be seen in the light of the Father proposing that Y live with the Mother.
The Court gives significant weight to this need to protect primary consideration.
Section 60CC(3) - Additional Considerations
(a) Any views expressed by the child and any factors (such as the child maturity or level of understanding) that the Court thinks are relevant to the weight it should give to the child’s views
The Court, at this interim stage, does not place any weight on X’s views because, and again, there is a significant suggestion, on the material before the Court, that the Father has been negatively influencing X’s relationship with the Mother. The family consultant’s views are consistent with this view of the Court, and which the Court takes into account.
(b) The nature of the relationship of the child with each of the child’s parents; and other persons (including any grandparent or other relative of the child)
See above under the meaningful relationship primary consideration. The children would appear to have positive relationships with the maternal and paternal grandmothers.
(c) The extent to which each of the child’s parents has taken or failed to take the opportunity; to participate in making decisions about major long-term issues in relation to the child; and to spend time with the child; and to communicate with the child
There is a significant suggestion, on the material before the Court, that both parties have sought to take such opportunities.
(ca) The extent to which each of the child’s parents has fulfilled, or failed to fulfil, the parent’s obligations to maintain the child
It would appear that each party has sought to maintain the children whilst they were in their respective care.
(d) The likely effect of any changes in the child’s circumstances, including the likely effect on the child of any separation from either of his or her parents; or any other child, or other person (including any grandparent or other relative of the child), with whom he or she has been living
The Court refers to its discussions above under the primary considerations. Again, the Court is of the view that X’s wellbeing should not be significantly adversely affected if living in the Mother’s primary care and spending reduced time with the Father.
(e) The practical difficulty and expense of a child spending time with and communicating with the parent and whether that difficulty or expense will substantially affect the child’s right to maintain personal relations and direct contact with both parents on a regular basis
Not applicable.
(f) the capacity of:
i) each of the child’s parents; and
ii) any other person (including any grandparent or other relative of the child);
to provide for the needs of the child, including emotional and intellectual needs
Subject to the Court’s discussions above under the primary considerations, each parent would appear to have such capacities.
(g) The maturity, sex, lifestyle and background (including lifestyle, culture and traditions) of the child and of either of the child’s parents, and any other characteristics of the child that the Court thinks are relevant
Not applicable.
(h) If the child is an Aboriginal child or a Torres Strait Islander child: the child’s right to enjoy his or her Aboriginal or Torres Strait Islander culture (including the right to enjoy that culture with other people who share that culture); and the likely impact any proposed parenting Order under this Part will have on that right
Not applicable.
(i) The attitude to the child, and to the responsibilities of parenthood, demonstrated by each of the child's parents
Subject to the Court’s discussions above under the primary considerations, each parent would appear to have demonstrated appropriate attitudes to the children and their responsibilities of parenthood.
(j) Any family violence involving the child or a member of the child's family
The Court refers to its discussions above under the need to protect primary consideration.
(k) If a family violence Order applies, or has applied, to the child or a member of the child’s family – any relevant inferences that can be drawn from the Order, taking into account the following: the nature of the Order; the circumstances in which the Order was made; any findings made by the Court in, or in proceedings for, the Order; any other relevant matter
The Court refers to its discussions above under the need to protect primary consideration.
(l) Whether it would be preferable to make the Order that would be least likely to lead to the institution of further proceedings in relation to the child
The ICL’s proposed Orders, as discussed above under the meaningful relationship primary consideration, as compared to the Father’s proposed Orders, would be least likely to lead to the institution of further proceedings in relation to the children because they would significantly lessen the risk of X’s relationship with the Mother deteriorating or being lost.
m) Any other fact or circumstance that the Court thinks is relevant
The ICL’s proposed Orders in relation to changeover, communication between the parties, electronic communication with the Father via WhatsApp, and Yam Porridge and other certain foods, shall be Orders in the best interests of the children because they will minimise the risk of conflict occurring between the parties to the detriment of the children.
The ICL’s proposed Orders in relation to family therapy continuing shall be Orders in the best interests of the children because they will assist, in particular, in the restoration of X’s relationship with the Mother.
The ICL’s proposed Orders 14, 15 and 16 will be Orders in the best interest the children.
An Order for equal time or substantial and significant time will not be in the best interests of the children and in this regard the Court refers to its discussions above under the primary considerations. Such Orders may be reasonably practicable by reason of the parties’ geographic proximity to each other.
SUMMARY
Evaluating the above discussed relevant considerations under section 60 CC of the Act, it will be in the best interests of the children to make the following interim Orders:
1.Orders 1, 2, and 3 in Annexure A to the Court’s Orders of 25 May 2021 are discharged.
2.That the children, X born in 2010 and Y born in 2014 ('the children") live with the Mother.
3.That the Father provide the child X to the Mother at 6pm on the date these Orders are made with changeover to occur pursuant to Order 5 herein.
4.That the children spend time with the Father as follows:
(a)Each Saturday from 10am to 3pm for a period of eight consecutive weeks; and then
(b)From after school or 3pm if not a school day each alternate Friday to 4pm Saturday on eight consecutive occasions; and thereafter
(c)From after school or 3pm if not a school day each alternate Friday to 4pm Sunday;
(d)On the children's birthdays from after school or 3pm if not a school day to 7pm;
(e)On Father's Day from 10am to 4pm;
5.That where changeover does not occur at school, then changeover shall occur inside McDonalds Restaurant B Street Suburb C.
6.That the parents shall not communicate at changeover in the presence of the children and both parents shall do everything necessary to ensure that changeover occurs efficiently and without any exposure to conflict for the children.
7.That the parents shall communicate all issues in relation to the children by way of WhatsApp and that the parents within 24 hours of the date of these Orders will provide to each other all information necessary to open a private WhatsApp account.
8.That commencing on 24 November 2021 the children shall have electronic communication with the Father via WhatsApp each Wednesday from 6pm to 6.30pm and the Mother shall do all things necessary to facilitate that communication.
9.That the Father is restrained from feeding the children "Yam Porridge" or any other foods which contain herbal medicines or herbal ingredients.
10.That the parents shall continue to attend family therapy at the Relationspace until further Order of the Court and shall do all things necessary to comply with all recommendations of the family therapist and that the parents shall do all things necessary to engage the children with the family therapist at the recommendation of the therapist.
11.That the parents are to provide the family therapist with a copy of the Child Inclusive Child Dispute Memorandum to Court dated 27 August 2021 and a copy of these Orders.
12.That this Order is sufficient to allow both parents to obtain all information usually available to parents from the children's school and to attend all school events usually open to parental attendance
13.That if either of the children require urgent medical attention or are hospitalised, then the parent with care of the children shall contact the other parent as soon as reasonably practical and advise the other parent of the child's diagnosis and prognosis and both parents shall be at liberty to attend upon any hospital the children or either of them are admitted to.
14.That the parent with care of the children pursuant to these Orders will take the children to all extracurricular activities they are currently enrolled in and neither parent shall enrol the children in any further extracurricular activities without the written consent of the other parent.
15.That a single expert report be prepared in these proceedings.
16.The proceedings are adjourned to 28 October 2021 at 9:30am for mention.
I certify that the preceding seventy-five (75) numbered paragraphs are a true copy of the Reasons for Judgment of Judge Newbrun. Associate:
Dated: 22 October 2021
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