PARFREY & YEATMAN

[2019] FCCA 3713

FEDERAL CIRCUIT COURT OF AUSTRALIA

PARFREY & YEATMAN [2019] FCCA 3713

Catchwords:
FAMILY LAW – Interim proceedings regarding care arrangements for twins aged seven years – allegations of exposure to family violence and abuse – nature of interim hearing – assessment of risk – best interests – meaningful relationship.

Legislation:

Family Law Act 1975 (Cth), ss.4(1); 4AB; 60B; 60CA; 60CC; 61DA; 65DAA; 67Z; 67ZBA; 67ZBB

Cases cited:
B & B (1993) FLC 92-357
B v B: Family Law Reform Act 1995 (1997) FLC 92-755
Deiter & Deiter [2011] FamCAFC 82
Eaby & Speelman (2015) FLC 93-654
Goode & Goode (2006) FLC 92-286
Russell & Russell & Anor [2009] FamCA 28
Slater & Light [2013] FamCAFC 4
SS v AH [2010] FamCAFC 13

Applicant: MR PARFREY

Respondent: MS YEATMAN

File Number: ADC 5228 of 2017

Judgment of: Judge Brown

Hearing date: 10 December 2019

Date of Last Submission: 10 December 2019

Delivered at: Adelaide

Delivered on: 19 December 2019

REPRESENTATION

Counsel for the Applicant: Mr McQuade

Solicitors for the Applicant: Howe Jenkin

Counsel for the Respondent: Ms Cocks

Solicitors for the Respondent: Barnes Brinsley Shaw Lawyers

ORDERS

UNTIL FURTHER OR OTHER ORDER:

Upon the written undertaking of the father and Ms B handed to the Court on 10 December 2019;

1. The children X and Y both born in 2012 (hereinafter referred to as “the children”) live with the mother.

2. The children spend time with the Father as follows:

   (a)During the summer holiday period at the conclusion of term four 2019, from 3.00pm on Friday 20 December 2019 until 3.00pm on Friday 27 December 2019, and each alternate week thereafter.

   (b)During school terms (noting that the following pattern will resume after each set of school holidays as if it had been maintained during holiday periods):

   (i)Each alternate weekend from the conclusion of school (or 3.00pm if not a school day) on Friday until the commencement of school (or 10.00am if not a school day) on Tuesday, commencing Friday 31 January 2020; and

   (ii)Each intervening Tuesday from the conclusion of school until 7.00pm, commencing Tuesday 11 February 2020.

   (c)During the school holiday period at the conclusion of term one 2020, from the conclusion of school on Friday 10 April 2020 until 3.00pm on Friday 17 April 2020 (with the children's time referred to in paragraph 2(b)(i) above to then recommence on Friday 24 April 2020).

3. In addition to paragraphs 1 and 2 herein, the children do spend time with the parties on special occasions as follows:

   (a)With respect to Christmas:

   (i)With the mother from 2.00pm on 24 December 2019 until 2.00pm on 25 December 2019; and

   (ii)With the father from 2.00pm on 25 December 2019 until 2.00pm on 26 December 2019.

   (b)On the children's birthday in 2019, with the father from 11.00am until 4.00pm.

4. The parties do facilitate the said children communicating with the other parent by telephone on two occasions each week at times to be agreed by the parties and, if the parties fail to reach agreement, on Tuesday and Sunday at 5.30pm.

5. The parties each be retrained by way of injunction from:

   (a)Discussing these proceedings with or in the presence, or within hearing, of the children,

   (b)Showing or making accessible to the children any documents related to these proceedings;

   (c)Denigrating the other parent to or in the presence, or within hearing, of the children;

   (d)Questioning the children about the other parent, or that parent's partner, or that parent's household; and

   (e)Permitting or allowing any other person to engage in the foregoing behaviours.

6. The parties do all things necessary to obtain an Update Family Assessment Report from Ms A, with such report to be released by 30 April 2020, with the costs of the Report to be equally shared by the parties.

7. Following receipt of the Update Family Assessment Report, the parties do participate in a without prejudice informal settlement conference with their legal representatives, which is to take place by 29 May 2020.

8. Further consideration of the matter is adjourned to 16 June 2020 at 9:30am.

IT IS NOTED that publication of this judgment under the pseudonym Parfrey & Yeatman is approved pursuant to s.121(9)(g) of the Family Law Act 1975 (Cth).

FEDERAL CIRCUIT COURT
OF AUSTRALIA
AT ADELAIDE

ADC 5228 of 2017

MR PARFREY

Applicant

And

MS YEATMAN

Respondent

REASONS FOR JUDGMENT

Introduction

1. This is a case concerned with risk and its assessment in the context of an interim hearing.  Given the truncated nature of such hearings, this necessarily must be an imprecise exercise. 

2. However, given the paramountcy of child protection concerns, the task cannot be deferred merely because the available evidence is incomplete and untested and, as a consequence, controversial and uncertain in nature. 

3. Most usually, the process of risk assessment involves the examination and comparison of affidavit material, which is untested through any form of cross-examination.  Invariably, the respective positions of the parties concerned are polarised. 

4. In such circumstances, it is naïve to think that either party’s account of and view of the implications of various controversial events is not affected, in some ways, by aspects of subjectivity and perhaps by either direct or unconscious animosity for the other person concerned.

Background

1. Mr Parfrey “the father” and Ms Yeatman “the mother” are the parents of twins, Y and X born in 2012.  The parties began a relationship in 2009; married in 2011, and separated in May of 2016.  They are now divorced. 

2. Following their separation, Mr Parfrey and Ms Yeatman were able to agree on arrangements for the care of X and Y, which were reduced to a parenting agreement, dated 4 July 2016.  It is a simple document, which provided that the children would live with their mother and spend from Friday to Tuesday morning of each fortnight with their father. 

3. In December of 2017, the parties were also able to agree on how their matrimonial property and superannuation was to be divided between them.  From the father’s perspective, it is noteworthy that the parties were able to make consensual arrangements in respect of such significant matters.

4. The father commenced the current round of proceedings on 21 December 2018.  He wished to move on from the parenting agreement and work towards what is commonly called an equal time arrangement, for the children, from the start of the school year in 2021. 

5. In order to reach this outcome, he proposed that his time with the children be increased in 2019 and 2020.  This was in recognition of the fact that, up to this stage, the mother had been the children’s primary carer and the parties had separated when the children were less than four years old. 

6. In support of his application, the father deposed that he and the mother had been involved in a process of family dispute resolution and he himself had a close and loving relationship with X and Y, which had resulted in him playing a significant role in parenting them hitherto.

7. Mr Parfrey is a professional in the Employer J.  It is his evidence that he enjoys a flexible workplace and is available to provide care for the children.  He is currently 39 years of age. 

8. The mother responded to this application on 15 February 2019.  She wished to curtail, rather than extend, the father’s time with the children.  She is 44 years of age.  She was previously a member of the Employer J but is currently employed as an administration assistant.  She works family friendly hours.

9. The mother alleged that, during the parties’ relationship, Mr Parfrey had abused alcohol and had been physically violent towards her, particularly if he had been drinking.  She alleged that the children had been exposed to the father’s violent conduct towards her. 

10. In this context, Ms Yeatman alleged that she had not properly consented to the earlier parenting agreement, but had been coerced and intimidated into acquiescing to it, as a consequence of the father’s overbearing and bullying behaviour towards her.  In addition, she asserted that X was becoming increasingly distressed at the prospect of spending time with her father. 

11. Section 67Z and section 67ZBA of the Family Law Act 1975 (“the Act”) mandate that a party to proceedings who alleges that a child has been exposed to abuse or the risk of abuse, including a risk of exposure to family violence, is required to file a notice providing precise details of such risk. 

12. The father does not allege that there is any such risk arising for either Y or X whilst they are in the mother’s care.  On the other hand, in support of her application, the mother made extensive and detailed complaints, in respect of the father’s conduct towards both children.  These can be summarised as follows:

    ·On 22 January 2018, X returned from spending time with her father with a finger sized bruise at the bottom of her torso;

    ·In May of 2018, X returned from spending time with her father with a hand sized bruise on her upper thigh;

    ·On 15 May 2018, X reported that her father had strangled her teddy bear and thrown it in the laundry;

    ·Since December of 2016, X had become emotionally distressed at the prospect of spending time with her father, which behaviour included crying, vomiting, dry reaching and wetting herself;

    ·On 13 May 2018, Y had reported that he had been hit in the head by his father; and

    ·In April of 2017, Y had reported his father as having made threatening comments concerning her (the mother).

13. The father responded to these various allegations in a number of subsequently filed affidavits.  In addition, the mother also filed more affidavit material.  However, neither of the parties’ assertions or their counters were supported by any independent evidence.  At this stage, the proceedings were characterised by a significant number of lengthy affidavits, in which allegations were met by denial and counter allegation.

14. Essentially, the father asserted that it was not likely that the mother would have agreed to him spending extended periods of time, with the children, if he was the violent and coercive person she described.  On the other hand, it was the mother’s position that she had been bullied into these arrangements which reflected a deep-seated power imbalance between the parties, both before and after their separation. 

15. It was her case that she was the person best placed to report upon the issues of violence and control, arising from the parties’ relationship, given that they occurred behind the closed doors of the parties’ former family home and so could not be verified by any independent form of corroboration.

16. The parties’ competing applications first came into court in February 2019 (before Judge McGuire) and were referred for interim hearing on 22 March 2019 (before Judge Heffernan).  Ultimately, the matter came before me.

17. Clearly, given the polarised nature of the parties’ positions and the contested nature of the evidence then available, I was not in a position to make findings of fact about the serious controversies arising between them. 

18. On the one hand, I was not in a position to dismiss the mother’s claim that she and the children had been exposed to serious and protracted levels of family violence and that this had the potential to be deleterious to both their psychological and physical wellbeing.

19. On the other hand, it was also clear that X and Y must have had a significant level of relationship with their father, given the extent that each had interacted with him, including during the lengthy period following the parties’ final separation. In these circumstances, it might be detrimental if they were deprived of a meaningful level of relationship, with a parent who loved them, on the basis of serious but contested allegations.

20. Against this difficult background, the parties sensibly agreed on some provisional orders, during the currency of which they would jointly commission an independent expert to provide an assessment of their family, including the nature of the relationship between each of the parents concerned and X and Y. 

21. It was agreed that the children would continue to live with their mother but spend alternate weekends, during term time with their father, from after school on Friday until the recommencement of school the following Tuesday; as well as on each intervening Tuesday, for the purposes of an after school catch up. 

22. In addition, the consent orders envisaged the children spending a continuous week in the Easter and mid-year school holidays with their father.  Ultimately, it was agreed that Ms A would prepare the family assessment report.  The case was then adjourned until late August. 

The family assessment report

1. Ms A, who is an experienced psychologist, has a considerable advantage over me in these proceedings, in the sense that she has met the children and observed them interacting with each of their parents.  I have not.  In addition, she has professional expertise and is independent of the parties.  Ms A has no axe to grind.

2. Neither party has challenged Ms A’s expertise in this case nor challenged the methodology adopted by her in preparing her report.  In these circumstances, notwithstanding the fact that her opinion has not as yet been subject to scrutiny through cross-examination, her report and the recommendations provided in it, must be regarded as having some significance in the case, at this stage. 

3. In interview with Ms A, X reported that she lived with her mother for ten days and her father for four days and it was going good.  Y reported a similar arrangement and indicated it’s good, I like it how it is. 

4. Neither child reported any concerns about the level of care provided to them by their parents.  X alluded to her teddy being removed from her, by her father, because it had been sprayed with perfume.  She indicated, to Ms A, that she was over the incident. 

5. The parties agree that Y is a child with some issues regarding delayed speech.  His relationship with his twin sibling is somewhat competitive in nature.  He has been referred to a speech pathologist.  He and X have seen a counsellor at their school.  Ms A sought information from each of these professionals. 

6. The counsellor indicated that the parties’ separation had been a significant emotional event for the children.  Otherwise, she did not report any significant concerns raised by either child with her.  The speech pathologist reported an on-going course of treatment with Y, in which both parents had been involved.

7. In respect of the children’s interaction with each of their parents, Ms A reported as follows:

   “The children’s presentation was similar during both play sessions where they presented as happy and relaxed and eager to engage with their parents and their respective partners in play.”[1]

   [1] Ms A’s report dated 17/6/2019 at 9

8. The father has re-partnered.  His current partner is Ms B.  Ms B has two children from an earlier relationship.  They are C who is eleven and D, who is aged eight.  These children live with each of their parents on a week about basis.  The father and Ms B have a recently born child.  He is E, born in 2019.

9. Ms Yeatman has also re-partnered.  The mother and Mr F married in 2019.  Mr F has two children from an earlier relationship.  They are G aged 15 and H aged 9.  These children live with the mother and Mr F on five nights of each fortnight.

10. In interview with Ms A, the father reported his perception that Ms Yeatman did not support the children’s relationship with him to such a degree that the children could easily feel comfortable in his care.  Subsequently, his counsel Mr McQuade has voiced concerns that the mother may be either consciously or unconsciously inclined to influence the children against their father.

11. For her part, Ms Yeatman reported to Ms A her concerns regarding the father’s past drinking and her anxiety regarding the children spending time with their father, given her view that Mr Parfrey had issues controlling his temper and a need for control.  The mother was also concerned that the children, particularly X, were liable to try to please their parents rather than to pursue what made them feel happy and secure. 

12. Ms A’s report is a closely typed document of some 21 pages.  In addition to interviewing and observing the parties and their children, she also administered a battery of psycho-metric tests to them.  I am aware that the summary, which I have provided, of her report, in these reasons for judgment, does not necessarily reflect the detail and nuance of Ms A’s lengthy report. 

13. However, in my view, Ms A’s conclusions and recommendations can be summarised as follows:

    ·The children currently shared meaningful time, with their father, who was involved in their schooling, Y’s speech therapy and other of their extra-curricular activities;

    ·Given the lack of a cooperative parenting relationship between the parties, a shared care regime was contraindicated;

    ·As a consequence, the mother should remain as the children’s primary carer, particularly given that her work schedule was not as onerous as that of the father;

    ·The children reported positively on their relationship with each of their parents and their parents’ respective partners;

    ·The parties were advised to complete the Kids Are First program and engage in reportable co-parenting counselling as a priority;

    ·The mother was advised to address her anxiety issues via personal counselling and consider the impact of her own emotional presentation on the children, but particularly X;

    ·In this context, the mother was urged to discontinue excessive questioning of X about what happened in her father’s household and encourage increased independence of both children;

    ·At the same time, the father was urged to consider the impact of his anger on the children and seek his own personal counselling in respect of it; and

    ·It was considered that each of the parents met the children’s physical needs appropriately.

14. Essentially, Ms A recommended a maintenance of the current care arrangements until the parties had each addressed their own issues – the father’s anger management and the mother’s anxiety – and the parties themselves consensually work on their parenting relationship together. 

15. After these therapeutic interventions had been completed successfully, Ms A recommended a gradual increase in the father’s time with the children, during school terms, with a week about arrangement during school holidays, and the sharing of special occasions 

What happened next

1. Shortly before the matter was due to return to court, the parties jointly submitted a consent order, which was headed by the notation that the parties were in the process of negotiating in respect of arrangements for X and Y’s care, following the release of Ms A’s report. 

2. In this context, the parties agreed, on an interim basis, that they would be conferred with equal shared parental responsibility for X and Y and that the existing arrangement would continue, namely that the children would live primarily with their mother and spend time, with their father, on alternate weekends and the intervening Tuesday evening during school terms.  The October school holiday was to be divided equally between them.

3. Orders to this effect were made on 28 August 2019 and the case was administratively adjourned until 31 October 2019.  Shortly afterwards, the family was enveloped in crisis, which occurred on 3 October 2019.  This crisis was precipitated as a consequence of some form of altercation occurring between the father and Ms B.  The parties are in vehement disagreement about this incident and its implications for the emotional and physical safety of X and Y.  The behaviour of Ms B, both during and after the incident has heightened the controversy.

The events of 3 October 2019

1. On 21 October 2019, the mother filed an application in a case, in which she sought the discharge of the earlier consent order and in lieu thereof she have sole parental responsibility for X and Y.  In this context, she proposed that the children should spend only supervised time, with their father, to be provided by a Commonwealth funded children’s contact centre. 

2. In support of this application, she filed an affidavit in which she reiterated her earlier complaints that the father had drunk alcohol to excess, during the parties’ relationship, which had led him to push her and be verbally abusive in the presence of the children.  She further asserted that Mr Parfrey had mislead Ms A about the extent of his and Ms B’s drinking, during the family report process.  She made this assertion in the light of information provided to her by Ms B.

3. As a consequence of the August consent orders, X and Y were in the father and Ms B’s care during the first week of the October 2019 school holiday.  During this week, the mother and Mr F had taken a holiday in Country K with Mr F’s children. 

4. On 3 October 2019, shortly prior to her embarking on her return flight to Australia, Ms Yeatman received a telephone call from Ms B advising her that the father had been arrested as a consequence of assaulting her (Ms B).  She further advised that X and Y were in her (Ms B’s) care. 

5. Against this background, the two women arranged to meet, once the mother had returned to Australia, so that Ms Yeatman could resume the care of the children concerned.  The meeting was arranged to take place in the early morning of 4 October, after Ms Yeatman’s plane had landed, at the L Caravan Park.

6. At this meeting, Ms B informed the mother that she (Ms B) and the father had been staying at the caravan park, with X, Y, D, C and the newly born E, where they had been having a family holiday together. 

7. In her affidavit, the mother goes on to allege that Ms B informed her that she had been assaulted by the father the previous night, who had grabbed her around the throat and held her against the wall, as a consequence of an argument relating to some complaint referrable to D’s behaviour.  She further alleged that Mr Parfrey had punched her in the shoulder, whilst she was on the ground attempting to escape from him.

8. The mother has further deposed that she observed Ms B to have a bruise on her neck and to be upset.  The police had been called to the incident, at the caravan park, on the night in question and Mr Parfrey had subsequently been arrested and charged with aggravated assault.  He was apparently lodged in police cells, at this time, due to his intoxication. 

9. The discussions between Ms B and the mother occurred at the caravan park, where Mr Parfrey and Ms Yeatman had been staying.  In this context, Ms Yeatman deposes that she observed approximately 30 empty mixed vodka drink cans, an empty champagne bottle and two other empty wine bottles.  She also deposed that she observed a significant amount of unopened alcohol containers.

10. The mother’s current husband, Mr F, was also present at the caravan park on 3 October and has prepared his own affidavit as to what occurred.  He confirms the mother’s evidence that Ms B had bruising on her left collar bone of approximately 3 to 4 centimetres in length.  He describes Ms B as being “very upset” and Y being aware that the police had taken his daddy.

11. It is Mr F’s evidence that Ms B indicated she was frightened to go home because Mr Parfrey might come there.  Mr F asked her what had happened.  He reported her response to this question in the following terms:

    “I asked Ms B if she was okay and she stated she was frightened to go home as she thought Mr Parfrey may be home. I asked her what happened that night. Ms B stated to both Ms Yeatman and me that Mr Parfrey was extremely drunk and had been verbally abusing her daughter D.

    Ms B said that the argument between her and Mr Parfrey escalated when Mr Parfrey pushed her. Ms B said she then threw a cup of tea on Mr Parfrey and he then grabbed her in a headlock and threw her against the wall. Ms B said to us that when she got up, Mr Parfrey then grabbed her by her clothing near her throat and pushed her to the floor. She said Mr Parfrey pushed over the table next to her and then verbally abused her.

    Ms B said to us that earlier in the night Mr Parfrey had punched her in the leg, saying words to the effect of “he can punch her because he can”.

    Ms B said that Mr Parfrey had briefly exited the cabin but he returned violently banging on the door at which point Ms B called the police.

    Ms B also said to us that the children were in the bedroom during the assault but X had heard the fight and hid under her quilt. X has also told us she was awake and hiding in bed and was scared and crying.

    Ms B was extremely upset and said several times that she was scared that Mr Parfrey would come back. I assured her she was safe with us.”[2]

    [2] See affidavit of Mr F filed 28 October 2019 at [12] – [17]

12. In addition, the mother alleges that Ms B disclosed to her that the father had been drinking alcohol excessively during their relationship, including on a surreptitious basis.  She also alleged that he was taking excessive amounts of prescription pain killers, which he obtained through a process of doctor shopping.  In this context, Ms B disclosed that the father was combining alcohol and analgesic medication, along with sleeping tablets. 

13. Finally, the mother alleges that Ms B detailed to her that she (Ms B) had been the subject of numerous incidents of family violence, during the course of her relationship with Mr Parfrey.  These had included having objects thrown at her; being the subject of verbal abuse; and Mr Parfrey punching holes in the wall of their home.  Significantly, Ms B alleged that the father had grabbed her by the throat, whilst she was pregnant and had later thrown E onto the bed, whilst he had been angry. 

14. In this context, the mother deposed as follows:

    “The father’s abusive behaviour towards Ms B that she had described to me is the same type of behaviour that the father demonstrated towards me during our relationship.  Based on what Ms B has told me the violence seems to have escalated.”[3]

    [3]  See mother’s affidavit filed 21 October 2019 at [48]

15. Essentially, if what Ms B has described has occurred, she has been the subject of protracted family violence of an extremely serious kind.  In this context, Ms B also alleged that the father was modifying a plastic children’s toy gun, with metal parts, in order to make some form of firearm; the implication of this evidence being that the father was potentially an extremely dangerous person. 

16. From the mother’s perspective, the account provided by Ms B indicated that the father’s violent behaviour, to which she had been subject during the parties’ relationship, had not changed and, in fact, might be getting worse.  It is as a consequence of what she had been told that the mother instigated the current round of proceedings, on the basis that the risk of the children being further exposed to their father’s violent behaviour was one which was unacceptable for the court to countenance.

17. In addition, on the basis of what X subsequently disclosed to her, it is Ms Yeatman’s view that the children are likely to have been aware of the incident between their father and Ms B and this has caused each of them to be unsettled.

18. Needless to say, Mr Parfrey and Ms B now vehemently disagree with Ms Yeatman’s view of what happened on the night in question.  In particular, although Ms B does not disagree that she was highly critical of Mr Parfrey’s behaviour in the account she provided to Ms Yeatman, it is now her position that what she said to her has been manipulated, misconstrued or exaggerated by Ms Yeatman in an attempt to discredit Mr Parfrey. 

19. Ms B’s affidavit does not provide a chronological narrative of what she says occurred on the night in question.  Rather she has elected to respond to each paragraph of Ms Yeatman’s affidavit.  By this mechanism she has denied that she said some of the specific things attributed to her by the mother.  She does, however, concede she called the police to the caravan park because of the father’s behaviour towards her.

20. Ms B deposes as follows:

    “I was feeling very angry and emotional that morning. I had maybe slept for an hour that night. I was upset that the father had been taken away by the police. I was in shock by everything that had happened. When the incident happened, I was angry, intoxicated, and emotional. I did not realise that by calling the police that the father would be arrested. I had just wanted him to get told off. I portrayed the situation to the police in a bad light because I wanted them to explain to him how I felt, but I did not realise how seriously this issue would be taken. He is not a criminal or a violent person. I felt very upset that things had played out this way. As is referred to in the following paragraphs, I was in a very vulnerable frame of mind. I thought that the mother was being supportive towards me, rather than fishing for information so as to stop the children seeing the father.”[4]

    [4] See Affidavit of Ms B filed 29 October 2019 at [18.1]

21. Ms B denies that she has ever been scared of the father or that he has previously behaved in an aggressive manner towards her.  It is her position that she and the father have the sort of disagreements which characterise most relationships but these are not characterised by abuse.  She acknowledges the use of alcohol over the period of the holiday at the caravan park but denies that alcohol abuse is a habitual part of her relationship with Mr Parfrey.  It is her position that what she and Mr Parfrey told Ms A about their level of alcohol use was correct.

22. She further asserts that she in particular and Mr Parfrey were each under a significant level of emotional stress at the time because they had learnt that D and C’s father had been diagnosed with terminal cancer.  This precipitated an unusual level of alcohol consumption, in the context of a more relaxed holiday setting in which she (Ms B) precipitated an altercation with Mr Parfrey to which she reacted precipitously by calling police.

23. The father filed an extensive affidavit, in response to the mother’s application, on 29 October 2019.  It is his position that he has taken on board the various recommendations of Ms A, as they pertain to him.  In particular, on 19 September 2019, he began individual counselling with Mr M, who is a mental health social worker specialising in behaviour change in the context of family violence.  Mr Parfrey committed to have regular consultations with Mr M over a six month period. 

24. Mr Parfrey’s evidence is consistent with that of Ms B.  It is his position that on the evening of 2 October 2019, he and Ms B drank more alcohol than usual.  In part, this was attributable to the stresses relating to the advent of E and the diagnosis of D and C’s father. 

25. Mr Parfrey’s evidence in respect of the altercation between him and Ms B is as follows:

    “When Ms B and I got back to the cabin, we stayed up whilst the children all went to sleep. Over the course of that night, we got into an argument. There were a lot of stressors for us at this time, as we have a young baby, D's father has recently been diagnosed with cancer, and D had been having some behavioural issues. Coupled with the fact that we were drinking, which is unusual for us, we had a heated argument. During the argument, in which we were standing facing one another, Ms B threw a full cup of tea that she had just filled up from the kettle onto me. It was extremely hot and I reacted by recoiling and pushing her away.”[5]

    [5]  See para 28.3 of the father’s affidavit filed 29 October 2019

26. In this context, the father denies punching Ms B or grabbing her by the throat.  In addition, he asserts that both X and Y were asleep at the time and did not witness what occurred, including the arrival of the police.  He concedes that he was arrested and charged with aggravated assault against Ms B and an interim intervention order issued.  However, the charges were not laid and the order was withdrawn on 16 October 2019. 

27. The father’s solicitor has issued a subpoena seeking production of the relevant police documents in respect of their attendance, at the caravan park, on the night in question.  I have been provided with these records.

28. The relevant portions of the police apprehension report read as follows:

    “The protected person stated that at about 11.00 pm on Wednesday the 2nd of October 2019 she just got back to their accommodation at the L Caravan Park after having gone to dinner with the defendant.

    The protected person states there was a verbal argument which occurred she states the argument became heated when the defendant pushed the protected person backwards causing her to fall over and hit her arm on the glass door in the cabin which they were staying at.

    She states they had both been drinking and she was scared as the defendant had never assaulted her before and was scared that in his intoxicated state that he was unpredictable.

    The protected person at the time did not wish to provide a statement in relation to this matter but stated she would be willing to provide a statement at a later date.

    The protected person did not have any visible physical injuries.

    The protected person was moderately affected by alcohol at the time of the offence.

    The protected person did not give permission for the defendant to assault her.”[6]

    [6]  See annexure B to the father’s affidavit filed 29 October 2019

29. In addition, the father has provided extensive denials in respect of the other allegations of misconduct levelled against him by the mother.  These can be summarised as follows:

    ·He suffers from a degenerative spinal condition and suffers pain as a result;

    ·As a consequence, he has been prescribed pain killers, by his general medical practitioner, which he takes as prescribed, when in pain;

    ·He does not doctor shop;

    ·He did not disclose to the mother his use of analgesia because it does not impact upon his parenting capacity and is therefore presumably none of her business;

    ·He and Ms B are occasional drinkers;

    ·He confirms what was recorded in the police apprehension report as detailed by Ms B that he has never assaulted her; and

    ·He owns a gel blaster.  It is a plastic toy, which shoots small gel projectiles.  He is not modifying it, rather he has replaced some plastic parts with metal ones to make it look more visually appealing. 

30. Essentially, Mr Parfrey characterises what happened on 2 October 2019 as being an embarrassing and out of character event, which was precipitated by alcohol use and emotional stress.  He acknowledges that he behaved inappropriately by pushing Ms B but only because she had thrown some tea over him.  On this basis, his counsel, Mr McQuade submits that the incident does not form a proper basis on which to curtail his client’s relationship with X and Y to any significant degree. 

Subsequent Events

1. The mother’s application in a case, at her request, was listed urgently before the court on 31 October 2019.  Mr Parfrey had not spent any time with X and Y since his arrest.  Against this background, it was agreed that he would resume spending day time only with them, on the Saturday and Sunday of each weekend, with the time to be supervised by Mr N.  Mr N is Ms B’s father.

2. The case was then adjourned for an interim hearing scheduled for 19 November 2019.  Subpoena were issued to Mr M and to the Department for Human Services, which is the Commonwealth instrumentality administering the pharmaceutical benefits scheme.  Ms Yeatman sought the production of all prescriptions issued and filled on behalf of Mr Parfrey. 

3. On 26 November 2019, Mr Siklich, the father’s solicitor filed an affidavit in which he deposed that the subpoena issued on Ms Yeatman’s behalf to obtain information regarding his access to the pharmaceutical benefits scheme was misconceived and it was not possible for the Department of Human Services to provide the information sought. 

4. Mr Siklich did however point to the fact that the records which were produced indicated that Mr Parfrey had only accessed one Medicare service provider for the past two and a half years, which he asserted put to rest any allegation that his client had been engaged in doctor shopping to obtain access to analgesic medication. 

5. Mr N has also filed an affidavit detailing his involvement with the father and X and Y.  From his perspective, the time ordered progressed happily and the children were able to be returned to their mother without incident.  He refutes any assertion made by Ms Yeatman that the children returned in a distressed state to their mother as a consequence of them spending time with their father.

6. The interim hearing scheduled for 19 November 2019 did not proceed.  This was due to my personal indisposition as a result of contracting Shingles.  In my absence, the proceedings were adjourned to 27 November 2019. 

7. The hearing did not proceed on this date but was further adjourned on the application of counsel for the father.  This was because on 25 November 2019 Ms Yeatman filed a further affidavit in which she alleged Y had indicated his father had made disturbing comments regarding E to Y and Y himself had further reported that his father had smacked him and sent him to his room. 

8. Ms Yeatman also indicated her intention to make further inquiries of the pharmaceutical benefits scheme and indicated her view that it was possible that the father had had analgesic prescriptions filled via the Employer J pharmacy.

9. In these circumstances, Mr McQuade indicated that his client wished to file a responding affidavit refuting the allegations made against him concerning both E and Y.  This affidavit was filed on 29 November 2019.  In it, Mr Parfrey denied the behaviour attributed to him in respect of Y and E. 

10. In the hiatus provided by the adjournment, Ms Yeatman’s solicitor, Ms Thomas filed an affidavit to which were attached copies of the records maintained by Mr M in respect of the father’s attendance upon him.  These records have been subject to a significant level of scrutiny, although Mr M has not himself been asked to interpret them.

11. Counsel for the mother, Ms Cocks has submitted that Mr M’s records indicate that Mr Parfrey trivialised the incident of 2 October 2019 to him, when he described the matter to Mr M as having been insignificant.  In these circumstances, Ms Cocks characterises the father’s involvement with Mr M as being at an embryonic stage and Mr Parfrey himself as displaying a marked lack of insight in respect of the seriousness of his conduct.

12. For his part, the father does not resile from his use of the word insignificant but asserts that he adopted this expression because it remains his view that what occurred on 2 October 2019 has been blown out of proportion to what actually occurred.  It is his position that he regrets what has happened and it is not likely to reoccur as he has not been violent towards Ms B in the past. 

13. As is apparent from this summary of the proceedings thus far it is clear that each party has committed significant resources to advancing his/her respective cases.  As a consequence, multiple affidavits have been filed; subpoena issued; and, in effect, no stone left unturned, in the search for supportive evidence. 

14. As a consequence of these endeavours, it is axiomatic that the positions of the parties are polarised in the extreme and the prospect of them being able to reach any consensual and managed outcome, in the case must be regarded as extremely remote.  This case, in my view, represents one of the more extreme examples of adversarial litigation.  For obvious reasons, it is not likely to be conducive to the parties sharing parental responsibility for their children.

The current orders sought by each of the parties

1. The mother seeks orders that X and Y continue to live with her and spend time with their father, on alternate Saturdays and Sundays, between the hours of 10:00am and 5:00pm.  She proposes that this arrangement continue during school holidays, as well as during the rest of the year.  In respect of special occasions, she proposes that the children spend from 10:00am until 5:00pm with their father on Boxing Day and on their birthday, from 11:00am until 4:00pm.  She seeks that all these periods be subject to the supervision of Mr N.

2. In addition, she would want Mr Parfrey to continue his counselling with Mr M.  She is willing to participate in some form of co-parenting counselling with the father.  She also agrees that it is necessary for Ms A to update her family assessment report in the New Year.

3. Ms Yeatman is opposed to any application of the presumption of equal shared parental responsibility.  It is her case that the presumption is rebutted by issues of family violence. 

4. Counsel for Mr Parfrey has provided an extensive minute of the interim orders sought by his client.  He agrees that X and Y should continue to live with their mother.  However, he seeks much more significant time spending arrangements with them. 

5. Essentially, he seeks a week about arrangement, during all school holidays, including the forthcoming 2019/2020 period; and during school terms that the children be in his care from after school on Friday until the recommencement of school on Tuesday, on an alternate weekly basis.  In addition, he proposes reintroducing the Tuesday afternoon catch up with the twins. 

6. In respect of the forthcoming celebratory days of Christmas, he proposes that the children spend time with their mother from 2:00pm on Christmas Eve until 2:00pm on Christmas Day and with him from 2:00pm on Christmas Day until 2:00pm on Boxing Day.  He falls in with the mother’s proposal for the twins’ birthday. 

7. In addition, Mr Parfrey formally seeks an injunction restraining the parties and those related to them from discussing the proceedings with X and Y or denigrating the other in the children’s presence or hearing.  Ms Yeatman agrees that this is a sensible order to be made. 

8. In addition, the father proposes that Ms A be retained to update her report on or before 30 April 2020 with its costs to be shared equally by the parties.  Thereafter he proposes they engage in an informal settlement conference. 

9. Given the issues raised by the mother, in respect of his and Ms B’s consumption of alcohol, which both agree was a factor in the unfortunate altercation arising between them on 2 October 2019, in response to a query made by me, both Mr Parfrey and Ms B have provided an undertaking that they will not consume any alcohol whatsoever, during any period of time the court orders that the father spends with the children.

The legal concept of family violence

1. Before turning to the principles, which must be applied in this case, in the context of a truncated interim hearing, it is necessary to outline the legal definition of family violence and the considerations, which apply to it. 

2. Essentially, exposure of family violence represents a grave threat to the emotional and physical integrity of children as well as their carers.  As such, the court is required to take prompt action in respect of any allegations of child abuse or family violence [see section 67ZBB]. 

3. However, family violence is a complex human phenomenon, which is not easily subject to detailed and independent scrutiny because it frequently occurs in private.  In addition, its victims may find themselves subject to all manner of competing and contradictory emotions.  They may be ashamed or blaming of themselves from allowing themselves to be subject to it. 

4. As a consequence, victims may minimise its seriousness, not least because they fear the consequences of reporting it and the implications this may have for their relationship with a perpetrator with whom they remain emotionally entwined.  In other cases, there may be collateral issues relating to the care of children. 

5. In addition, it is not unknown for individuals to make exaggerated claims of violence, either for tactical reasons or out of malice.  In addition, where a person relies on second hand accounts of violence, there may arise risks of innocent misrepresentation of what has been said as a consequence of a lack of objectivity in respect of the account provided or relied upon.

6. All of these factors are present in the present case.  On the one hand, it is the underpinning of Ms Yeatman’s case that Ms B cannot be regarded as an honest witness because of her emotional enmeshment with Mr Parfrey, who is the father of her newly born child and whom she continues to love.  As such, there is a grave risk that she is attempting to protect him or minimise his conduct towards her because she fears losing her relationship with him and the consequence this may have for E.

7. On the other hand, Mr Parfrey and Ms B assert that Ms Yeatman has jumped to unwarranted conclusions as a consequence of either her poor regard for Mr Parfrey or her over-protective attitude towards the children and in these circumstances, has either consciously or unconsciously jumped to an unwarranted conclusion about the father because she does not want him to play any significant role in the children’s lives on account of her own emotional neediness. 

8. These diametrically opposing views represent the dilemma, which faces the court, at the current stage.  As I have already indicated, I have not as yet had the opportunity to see and hear the various protagonists of the events of 2/3 October 2019 and make my own assessment as to their respective veracity.  Rather, in the context of the largely untested evidence, I must make an assessment of risk.

9. There must be a risk arising from exposing the children to a person who potentially cannot control his anger and displays it in a violent and volatile manner.  At the same time, there is a risk of depriving children of the benefits of having a meaningful level of relationship with a person whom they love and with whom they have a significant connection on the basis of uncertain and contested assertions.  These mutually exclusive risks must be balanced in the context of the overall best interests of X and Y.

10. Family violence is defined by section 4AB(1) of the Family Law Act.  It means:

    “violent, threatening or other behaviour by a person that coerces or controls a member of the persons family, or causes the family member to be fearful.”

11. The legislature has provided a list of examples of behaviour which may constitute family violence in section 4AB(2) of the Act. Some of these examples are:

    ·an assault;

    ·a sexual assault or other sexually abusive behaviour;

    ·stalking;

    ·repeated derogatory taunts;

    ·intentionally damaging or destroying property; and

    ·the withholding of financial support.

12. Accordingly, family violence means not only violence, which causes a family member to be fearful, such as a direct assault to the person, but also encompasses behaviour that unreasonably coerces or controls that person.  Both parties have made allegations, against the other, which fall within the examples listed in sub-section (2).

13. Abuse, in respect of a child, is defined by section 4(1) of the Act. It 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.”

1. Accordingly, if it is established that a child has suffered serious psychological harm, as a consequence of being either directly subjected to it or exposed to it, such behaviour can constitute child abuse.  Axiomatically, the legislature places significant emphasis on protecting children from both abuse and the consequence of family violence.

2. Pursuant to section 4AB(3) of the Act, a child is exposed to family violence if he or she “sees or hears family violence or otherwise experiences the effects of family violence”.  Again, in section 4AB(4) the legislature has included examples of conduct which may amount to such exposure, which include:

   ·overhearing threats;

   ·seeing or hearing an assault;

   ·comforting or providing assistance to a member of the child’s family, following an assault;

   ·cleaning up after property has been damaged; and

   ·being present when police attend an incident involving an assault.

3. It is Ms Yeatman’s case, as I understand it, that both children have been assaulted by their father and exposed to family violence both before and after the parties separated.  It is also her position that the children were deleteriously affected by what occurred on 2 October.  On the other hand, Mr Parfrey denies ever having hurt the children and asserts that they were oblivious of what happened at the caravan park because they were asleep.

4. It is difficult to resolve the issue of whether X and Y were aware, in some way, of the admitted conflict between their father and Ms B.  It would seem more likely than not that there would have been some level of noise and concertation in what both Mr Parfrey and Ms B describe.  Each acknowledge that they were intoxicated at the time.  The incident was serious enough for the police to be called.

5. Mr Parfrey was not present when the children woke up the next morning.  Their mother appeared; Ms B acknowledges she was upset.  Police officers in uniform were present late at night.  Although I cannot make definitive findings about the matter, the prospect of the children having been at the very least peripherally exposed to this unseemly conflict between their father and Ms B cannot be definitively ruled out.

6. In assessing cases involving family violence, the court needs to be aware of the nature of family violence, in general terms.  Family violence, by its nature, is something that frequently occurs behind closed doors in the private confines of a family home. 

7. Accordingly, it is very often difficult if not impossible for there to be independent verification that it has occurred.  However, “the absence of corroborating evidence does not necessarily undermine a person’s evidence on that topic.”[7]

   [7]  See Eaby & Speelman (2015) FLC 93-654 at 80,322 [21] per Ryan J

8. Family violence is not homogenous in its qualities and can arise in a variety of contexts.  It is also well recognised, including by the legislature through the provisions of the Family Law Act, that family violence is prevalent in all walks of Australian society and represents a great threat to the wellbeing of children. 

9. Family violence can place children at actual physical risk of being hurt.  It also has the potential to do them emotional harm, if they are subjected to exposure to a well-loved family member being hurt or frightened.  For obvious reasons, individuals who use force to coerce or control another person are not appropriate role models for children. 

10. Family violence can range in character from impulsive behaviour that arises as a result of a stressful situation, such as a relationship breakdown, and is instantly regretted, to more systematic and deliberate behaviour arising from a clear power imbalance between the parties concerned.  Obviously, the latter type of behaviour is more damaging, so far as children are concerned.  But not all incidents of family violence will be damaging for a child. 

11. This is Mr Parfrey’s view.  He and Ms B characterise the caravan park incident as an isolated one, which was precipitated by stress and an unusual consumption of alcohol.  On the other hand, Ms Yeatman characterises Mr Parfrey as a bully, who subjected her to control and coercion during their relationship.  By necessary implication, she contends that Mr Parfrey is now subjecting Ms B to a similar level of control and this has inhibited her from truthfully recounting her experiences with Mr Parfrey.  This is fundamentally an issue of fact, which cannot be resolved in the context of the current proceedings.

The nature of an interim hearing

1. Interim hearings very often arise against a background of serious family crisis and controversy.  Obviously this is the situation in the present matter.  Given the nature of the particular crisis involved, the court may be required to make any necessary determination expeditiously.

2. The need for such expedition dictates that the hearing concerned should be truncated.  As a consequence, such a shortened hearing does not allow any extensive examination of the relevant evidence, particularly through a process of cross-examination.

3. Given the nature of the hearing, the various factual issues in dispute, between the parties, cannot be resolved in the context of these interim proceedings.  I am in a better position than in many other interim hearings, in the sense that I have available to me the detailed family assessment of Ms A.  Accordingly, I do have some independent and expert assessment of the children’s relationship with each of their parents.  This is significant.

4. The Full Court has described the nature of the hearing, at the interim stage, as being significantly curtailed.  In these circumstances, it has cautioned first instance courts, such as this one, about being drawn into issues of fact or matters relating to the merits of the substantive case where findings are not possible.[8]

   [8]  See Goode & Goode (2006) FLC 92-286 at 80,901 [68]

5. Accordingly, at the interim stage, the court is directed to look to less contentious matters, such as any facts which are either agreed or obvious and issues which are not in dispute, particularly prior care arrangements and the current circumstances of the parties and any children concerned.  In a case, such as the present one, there are few issues not in dispute between the parties.

6. In the present matter, the major issue in contention between the parties concerns the exposure of X and Y to family violence and abuse, both during the relationship of the parties themselves and more recently during the incident of 2 October 2019.  As indicated at the outset, these are issues which cannot be definitively resolved in the context of the current proceedings. 

7. However, the concerns raised by the mother cannot be ignored merely because the court faces evidentiary issues in respect of the resolution of these issues.  Rather, the task facing the court is one involved with the assessment of risk.  Fundamentally the court must make the decision, after having assessed the risk factors involved, which it considers will best regulate the situation, so far as Y and X are concerned, according to the relevant principles contained in the Family Law Act 1975.

8. In this context, it is clear that the court is required to consider child protection issues, in its decision making processes as a priority, and should not defer its responsibility, in this regard, because of deficiencies in the evidence before it or, more importantly, because it is not in a position to resolve definitively controversies arising between the parties, including in respect of potential child abuse issues. 

9. In Deiter & Deiter[9] the Full Court said as follows:

   “The assessment of risk is one of the many burdens placed on family law decision makers.  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.”

   [9]  See Deiter & Deiter [2011] FamCAFC 82 at [61]

10. In SS v AH[10] the Full Court indicated, in the context of discussing the obligations of the court, whilst conducting interim children’s proceedings, in circumstances where the evidence available was contradictory in nature but nonetheless raised significant welfare concerns for the children concerned, as follows:

    “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.”

    [10]  See SS v AH [2010] FamCAFC 13 at [100]

11. In Eaby & Speelman[11] the Full Court endorsed this approach as enabling “the court to appropriately and carefully deal with contentious issues relevant to the welfare of the child, and for those issues to not be ignored.”  In essence, the court is not in a position to ignore child protection issues, merely because those issues are incapable of definite resolution, at the interim stage.  This is the position in the matter currently before the court.

    [11]  See Eaby & Speelman (2015) FLC 93-654 at 80,332 [19]

12. As indicated above, in Deiter, the Full Court has directed that, in assessing the degree of risk incumbent in any particular parenting scenario, the court must look to the degree of probability that a harmful event will occur in future and what will be its severity, to any individual, particularly any child, who will be potentially affected by it.

13. Essentially, the court is required to assess risk and put in place a proportionate response to the degree of risk involved.  Risk arises in every aspect of human endeavour.  No individual’s life, including the life of a child, can be rendered entirely free of all risk.  In this court, as with life, it is a question of balancing and assessing the degree of risk arising, on an objective basis. 

14. The court is frequently called upon to assess all manner of potential risks to the children concerned in proceedings coming before it.  These risks include the risk of exposing a child to a parent, who is incapacitated by the consumption of drugs or alcohol; compromised parenting, as a result of psychological illness or personality disorder; possible risks relating to the exposure of a child to an angry and unpredictable parent; and, as in the present case, the risk of children being exposed to a violent and coercive relationship between one of their parents and their current partner.

15. The Full Court in Slater & Light expressed the task of assessing risk in the following terms:

    “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.” [12]

    [12]  Slater & Light [2013] FamCAFC 4 at [37]

16. Against the background of polarised and contradictory evidence regarding what happened on 2 October, and the diametrically opposing views of the parties regarding Mr Parfrey’s past conduct, both towards the mother and the children, I must attempt to evaluate the risk arising for X and Y of spending extended and unsupervised time with their father.  I must also consider what are the appropriate safeguards, if any, which should be applied to such time?

17. The mother’s position is that the risk is best managed by retaining Mr N as a supervisor and restricting the time to daylight only.  The father’s position is that such a response is grossly disproportionate to what he would characterise as an isolated incident. 

18. In addition, he contends that if the court does accede to the mother’s position, it will have deleterious consequences for his relationship with the twins, which Ms A has assessed as being central to them.  In these circumstances, he would contend his and Ms B’s undertaking and his continuation of his involvement with Mr M is a commensurate response to whatever factual uncertainty remains regarding what occurred on 2 October.

1. Whatever is the outcome of these interim proceedings, Ms Yeatman will remain as X and Y’s principle provider of care.  Accordingly, how she copes psychologically with whatever orders are made and the implications of this for her capacity to provide care for the children concerned cannot be regarded as being irrelevant considerations at this stage of proceedings.

2. In B and B [13] the Full Court said as follows:

   “…It is not unreasonable for the Court to take into account in assessing whether an unacceptable risk exists, the need of a custodial parent to be assured of the children’s protection.  As primary caregiver, anxiety about the children’s exposure to potential harm is likely to impact adversely on that parent’s ability to care for the children.”

   [13] B & B (1993) FLC 92-357 at 79,780

3. Ms A regarded Ms Yeatman as being a highly anxious parent and recommended that she undertake some form of therapy to address her anxiety.  For her part, Ms Yeatman would contend that her anxiety is reasonable and rational as it is based on her own personal experience of Mr Parfrey, whom she knows well.

4. From the court’s perspective, it is apparent that Ms Yeatman did present as an extremely anxious person.  As previously indicated, neither party can be regarded as having made any concessions whatsoever, in these bitterly contested proceedings.

5. However, apart from Ms A’s view, there is, as yet, no independent expert evidence in respect of how Ms Yeatman is likely to cope emotionally with the reinstatement of the children’s time with their father.  In this context, it should also be noted that as recently as August of 2019, Ms Yeatman consented to X and Y spending extended overnight time with their father and there has been a history of this since the parties separated in 2016.

The applicable legal principles

1. At the outset, it is to be noted that, although the nature of the hearing is different at the interim stage, as opposed to the final hearing stage, the legal principles to be applied are the same. 

2. In deciding whether to make any particular parenting orders, in relation to a child, the court must regard the best interests of that child as the paramount or most important consideration [Family Law Act 1975, section 60CA].

3. The matters which the court must take into account, in deciding how a child’s best interests are to be served, are set out specifically, in list form, in section 60CC.

4. The section creates two classes of considerations which are relevant – primary considerations and a longer list of additional considerations.  Generally speaking, the court should give greater weight to the primary considerations, which closely tie in with the overall objects and principles of the Family Law Act 1975 set out in section 60B.

5. There are two primary considerations, which are as follows:

   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.

6. As a result of the insertion of section 60CC(2A) into the Act, the court is now directed in applying the primary considerations “to give greater weight” to the primary consideration relating to protective concerns applicable to the children who are the subject of the relevant proceedings. 

7. In the words of the relevant explanatory memorandum; where child safety is a concern, this new provision will provide the court with clear legislative guidance that protecting the child from harm is the priority consideration.  Future protective issues for a child are the court’s priority. 

8. Other specific criteria, relating to how the court is directed to consider how the best interests of any children concerned may be served, by any order which is made, are set out in section 60CC(3).  There are fourteen such criteria, which are categorised as being additional considerations.  Depending on the circumstances of the case concerned, one or more of these factors may come to the fore.

9. Pursuant to section 60CC(3)(m), the court is empowered to have regard to any other fact or circumstance, which it considers relevant.  This ensures that the infinite variety of individual children’s circumstances may be addressed in any order which the court makes.

10. Although the court is directed to consider many factors, in discharging its duties under Part VII of the Act, the best interests of the children concerned remain paramount. The court’s duty is to deliver individual justice, for the child affected, in every case.[14] 

    [14]  See B v B: Family Law Reform Act 1995 (1997) FLC 92-755

11. In this sense, the court’s inquiry is a “positive one tailored to the best interests of the particular children and not children in general …”[15]  As such the various factors, in section 60CC, are inclusive but not exclusive of one another.[16] 

    [15]  See B v B: Family Law Reform Act 1995 (ibid) at 84,220

    [16]  See Russell & Russell & Anor [2009] FamCA 28 at [141] per Ryan J

12. In general terms, subject to child protective concerns and the overall best interests of the children concerned, the objects of Part VII of the Act and the principles underlying them, place an emphasis on the co-involvement of parents, in the lives and development of their children.

13. As a consequence of this emphasis, the legislation contains a presumption that it is in a child’s best interests for his or her parents to have equal shared parental responsibility for him or her [Family Law Act 1975 section 61DA].

14. The presumption contained in section 61DA is subject to rebuttal. As such, it is not to be automatically applied in every case. The court is directed to apply it only if it considers that it has not been negated by other considerations specified in the section.

15. The presumption of equal shared parental responsibility is rebutted if it is found, on reasonable grounds, that one of the child’s parents has abused the child concerned or exposed him or her to family violence [section 61DA(2)].

16. The presumption is also rebutted if evidence is provided which satisfies the court that it would not be in the child’s interests for his or her parents to have such equal shared parental responsibility for the child concerned [section 61DA(4)].

17. Significantly, at the interim stage, the court has a discretion not to apply the presumption if it considers it would not be appropriate to do so, in all these circumstances prevailing [section 61DA(3)].

18. The pathway, which the court is mandated to follow in determining parenting matters, as delineated by the Full Court in Goode & Goode can be summarised as follows:

    ·consider the section 60CC matters that are relevant;

    ·decide whether the presumption in section 61DA should be applied or, if it is rebutted because:

    ·there are reasonable grounds to believe abuse or family violence has occurred;

    ·or in an interim matter only, it is not considered “appropriate” for it to be applied;

    ·If the presumption is rebutted or found not to apply, then make the orders considered to be in the best interests of the child, again as a result of applying the relevant section 60CC matters;

    ·If the presumption does apply, decide whether it should be rebutted because it would not be in the child's best interests;

    ·If the presumption applies, consider first making an order that the children spend equal time with each parent, then second, an order that the child spend substantial and significant time with each parent unless it is contrary to the children's best interests as a result of the consideration of any relevant section 60CC matter, or is impracticable in the terms specified by section 65DAA(5);

    ·If neither equal time nor substantial and significant time are considered to be in the best interests of the child, then make the orders which are considered to be in the best interests of the child when considering applicable matters in section 60CC;

    ·Even in this latter situation, it is open to the court to make an order for equal time or substantial and significant time, if the court considers it to be in the best interests of the child concerned.

Consideration

1. On the basis of Ms A’s report and given the past care arrangements for X and Y, it seems probable that the children have a meaningful level of relationship with their father.  Clearly, it must be the case that they know him well and love him.  As a consequence, the court is required to consider the benefits which X and Y are likely to derive from having a meaningful level of relationship with their father.

2. It is the father’s position that to continue the current regime of time – daylight only and subject to supervision – will lead to X and Y having an artificially curtailed relationship with him, which is not consistent with what has happened in the past and so will not provide them with the benefits of a paternal relationship with him, to which they are entitled.  In this context, I accept that to be meaningful, parental relationships require both sufficient temporal quantity and quality of shared time to sustain them. 

3. However, the applicable legislation requires the protective considerations, entailed in section 60CC(2)(b) to be prioritised over paternal relationship considerations.  This does not mean, in my view, that the court can disregard these matters.  It is, as section 60CC(2A) recognises, a question of weight, which must depend on the extent of the need to provide protection for the children concerned.

4. Accordingly, as previously indicated, it will be necessary for the court to assess, as best as is able, given the limited and untested nature of the evidence available to it, the degree of risk, which is likely to arise for the children of being subject to, or exposed to abuse or family violence in future.  This must entail an assessment of any previous such abuse of family violence.  For obvious reasons, what has happened in the past is the most accurate predictor of what may happen in the future.

5. It seems more likely than not that X and Y were exposed to at least some of the sequellae of an unpleasant and vitriolic altercation between their father and Ms B on 2 October.  Regardless of who of them precipitated the incident, it involved mutual and excessive consumption of alcohol and a shared level of physicality – there was some pushing and shoving.  It seems likely that their voices would have been raised.  The incident was serious enough for Ms B to call the police.

6. In these circumstances, it seems to me improbable that the children were oblivious of the whole affair.  Even if they were, when they awoke the next morning, they were exposed to a situation in which their father had disappeared; Ms B, on her own case, was highly distressed; and their mother had arrived unexpectedly and she too was upset.  The children must have been aware that something significant had happened.

7. In this context, it seems probable that there would have been an intense level of discussion between Ms B, on the one hand and Ms Yeatman and Mr F on the other hand about what had happened the previous evening.  On any view, this situation, to which the children must have been exposed, to at least some degree, is likely to have been one of extreme emotional lability – a state of affairs which continues to the present time.

8. Accordingly, it seems to me to be more probable than not that the children were exposed to an incident of family violence, on 2 October 2019, in the sense envisaged by the legislation.    In making this finding, I acknowledge that the evidence regarding the incident is incomplete and the police record, notwithstanding the fact Mr Parfrey was arrested and placed in the cells, indicates no further action was warranted.

9. One of the major evidentiary controversies, arising from this finding, is whether the evidence is capable of determining whether Mr Parfrey or Ms Yeatman is to be regarded as being the more culpable for the incident.  This is potentially important in terms of assessing the degree of risk of the children being exposed to a similar incident in future.

10. It is Ms Yeatman’s case that what Ms B originally described to her was consistent with her own experience of Mr Parfrey and therefore the court’s assessment of the degree of risk arising for the children must be more acute.   Essentially, the incident provides obvious corroboration for her case that Mr Parfrey is a coercive and controlling spouse – both to her in the past and probably, in future, towards Ms B, posing a threat to the emotional integrity of X and Y.

11. Putting the most favourable gloss on Ms B’s evidence, namely that she was distressed and feeling fleetingly vindictive towards Mr Parfrey and therefore exaggerated his degree of culpability for what occurred, it would be naïve to consider that he played no part in what occurred.  Excessive alcohol consumption was clearly a major precipitating factor in what occurred. 

12. As a matter of evidence, the effect of any prior inconsistent statements made by Ms B, can be subject to cross examination.  As such, at a future stage of proceedings, the court may ultimately find that she is attempting to deflect responsibility from Mr Parfrey.  This is not an issue which can be definitively resolved at this stage.  Rather, it remains an ingredient in the assessment of risk.

13. In this context, it is not my function to attribute blame between Ms B and Mr Parfrey, at this stage of proceedings.  Rather, I must remain focussed on the assessment of risk.  In this context, I cannot dismiss Ms B’s evidence that the unpleasant incident was precipitated by the stress of learning of her former partner’s illness and an imprudent level of drinking, involving both her and Mr Parfrey, in the context of the different consideration arising from them being on holiday. 

14. In these circumstances, in my view, the undertaking provided by Ms B and Mr Parfrey, that they will not consume any alcohol whatsoever, whilst the children are in their care, provided the undertaking is kept, represents a very significant prophylactic factor.  This is particularly so given the significant level of relationship which the children enjoy with their father and the fact that, notwithstanding her previous criticisms of him, Ms Yeatman has been open to the children spending time with their father, including in an overnight setting.

15. To Ms A, the children expressed some level of contentment with the previous regime of care.  In this context, I also note that there are issues raised by Ms Yeatman as to how easily the children have transitioned between their parents, which may be attributable to the level of tension between them.   The children must be regarded as being developmentally immature.  As such, their views, which remain somewhat ambivalent, cannot be regarded as conclusive [section 60CC(3)(a)].

16. The children’s relationship with each of their parents is highly significant to each of them.  It is also likely to be important that X and Y be able to see their half-sibling E regularly.   There is no reason to consider the children do not also have significant levels of relationships with Mr F and Ms B and the complex blending family which they each bring into X and Y’s lives [section 60CC(3)(b)].

17. Mr Parfrey cannot be criticised for not wanting to be involved in X and Y’s care.  He wants to be spend as much time as possible with them [section 60CC(3)(c)].  In my view, the regime advocated by Ms Yeatman, which has been in place since October, represents a significant change in care arrangements for X and Y [section 60CC(3)(d)].

18. In these circumstances, I question the protective influence of Mr N.  It is not asserted that the children do not know or love their father or that Mr Parfrey needs direction as to how the physical needs of the children are to be met.  Rather his function is to prevent the children being exposed to some violent outburst emanating from their father.

19. I accept that individuals are more likely to become disinhibited at night time, particularly so far as the consumption of alcohol and drugs are concerned.  Children, particularly young ones, are also more likely to be demanding at night, if they are away from familiar carers and find themselves in a strange environment.  For such reasons, it is often considered appropriate to restrict time spending arrangements to daylight hours.

20. It is an essential component of the mother’s case that the father is incapable of attending to the children’s emotional needs because of his irascible temperament [section 60CC(3)(f)].  Although Ms A’s involvement with the family must be regarded as brief, this is not consistent with her assessment.  She recommended extension of time following the parties taking steps to improve their co-parenting relationship.

21. Currently there is no applicable family violence order in place [section 60CC(3)(k)].  The incident of 2 October was unpleasant and it is regrettable that it occurred in proximity to X and Y.  It provides no credit to either the father or Ms B.  I cannot condone their conduct.  However, I should also not overlook the possibility that what occurred was referrable to their human failings and each has learnt a salutary lesson from it.

22. In this case, the children concerned are familiar with engaging with their father, in the evening and at night, at his home.  This has been the pattern of their lives for a reasonably lengthy period of time.  In these circumstances, in my view, their relationship with their father should only be curtailed, to a marked degree, for a compelling reason.  Essentially, it would be unacceptable for the court to countenance the children continuing to interact with their father in an overnight and unsupervised setting because of what occurred on 2 October.

23. I do not consider that it would represent an unacceptable risk for the children to do so.  It may be the case that Ms B provided an account to Ms Yeatman, from which she later resiled, which nonetheless represented the tip of an enormous iceberg of otherwise concealed family violence.  It also may be the case that it was an isolated incident caused by relationship stress, which both now vehemently regret.  I am required to balance these competing possibilities, whilst assessing risk, within the overall context of the children’s best interests.

24. The children should not be deprived of the potential benefits of having a meaningful level of relationship with their father on the basis of a remote degree of risk or one based on an extreme degree of hypothesis.   In this context, I think it significant that the parties concerned have previously agreed on arrangements which saw the children spending substantial and significant time with their father and, in this context, so far as Ms A was concerned, X and Y have demonstrated that they are each comfortable in his care.

Conclusions

1. In my view, the presumption of equal shared parental responsibility is rebutted in this case both because it would not be in the children’s best interests and also because there are reasonable grounds for me to believe they have been exposed to family violence.

2. The parties’ parenting relationship is marked by a lack of trust and difficulties in communication.  As such, it would not be appropriate for the presumption to be applied at the interim stage.

3. I am, nonetheless, still required to consider the applicable section 60CC factors to come to the outcome, which I consider will serve the best interests of the children, whilst bearing in mind the limited and contested nature of the evidence available to me.

4. As will be apparent from the length of these written reasons for judgment, prepared in the busy time for the court leading up to the Christmas period, I have not found this to be an easy case.  The legislature requires me to take all allegations that a child has been exposed to family violence extremely seriously.

5. At the same time, I must be careful to avoid acting precipitously or prescriptively in regards to untested allegations, particularly in the context of vigorously contested proceedings, in which the parties concerned are striving to achieve an advantage over the other.

1. The evidence points to the likelihood of the children deriving benefits from maintaining a meaningful level of relationship with their father.  In the period of around three years, since the parties separated, Mr Parfrey has spent regular periods of time with X and Y, including overnight time and during school holidays.

2. Ms A recommended a continuation of these arrangements and the alternate weekend and Tuesday evening regime, whilst the parties each attended to forms of therapy directed to their respective issues – the father’s anger management and the mother’s anxiety – and the parties themselves addressed their co-parenting problems.

3. The incident of 2 October has derailed these recommendations and destroyed whatever green shoots of trust existed between the parties.  In order to restore some form of trust, in my view, it is essential that each party attend to the psychological interventions recommended for them. 

4. It is true that Mr Parfrey’s involvement with Mr M is in its nascent stages and Mr M was correct to point out that Mr Parfrey could have chosen to walk away from what he has reported as being Ms B’s provocative behaviour towards him.   

5. I would hope that Mr Parfrey has learnt some form of lesson from these proceedings.  In my view, his continued attendance on Mr M plays a protective function, so far as X and Y are concerned.  I acknowledge however that attendance alone is not necessarily a guarantee of behaviour change. 

6. However, I am also concerned that to await Mr M’s indication of insight, on Mr Parfrey’s part, may mean that the children have a severely reduced level of relationship, with their father, for a significant period of time, which is not an outcome calculated to be in their best interests.

7. There are possible risks arising from Mr Parfrey and Ms B having a further alcohol fuelled altercation, in the presence of X and Y, which has the potential to be deeply emotionally unsettling for them.  The question is whether the risk of some form of repetition of this incident is so great that the court should not consider the resumption of the agreed position arrived at following the release of Ms A’s report.

8. I have come to the conclusion that a proportionate response to the degree of risk of that occurring is to accept Mr Parfrey and Ms B’s undertaking that they will not consume alcohol during any periods of time, including the festive periods of Christmas, the children are in their care.  If the catalyst of alcohol is removed, I consider the risk of a further exposure of the children to some form of family violence is reduced to an acceptable level.

9. I have reached the view that it would be a disproportionate response to the degree of risk arising to restrict the father’s time to daytime only and require some form of lay supervision.  This in turn poses the question whether to allay issues of risk and to reduce the mother’s potential anxiety, there should be a dialling back of the time envisaged in the agreed position of 28 August 2019.

10. As previously indicated, no expert evidence has been provided in respect of the mother’s current level of psychological functioning.  It is clear that she mistrusts the father to a significant degree.  However, I do not consider that the risks identified by Ms Yeatman rise exponentially the longer the children are in the father’s care.  The evidence is that he can attend to the children’s physical needs and has a long history of doing so.

11. Ms A envisaged the children spending regular time, with their father, during the December/January school holiday of 2019/20.  This was against a background, during the currency of the current proceedings, of the parties agreeing on a week about basis for the April, July and October 2019 school holidays.

12. In this context, Ms A recommended a mechanism for the children to have some form of electronic communication with their other parent, during holiday periods.  I will make orders to this effect, with the children to speak with the other parent on two occasions each week at times to be agreed and failing agreement to be Tuesday and Sunday at 5.30 pm.

13. In all these circumstances, I have reached the conclusion that the regime proposed by the mother would represent too extreme a reaction to the level of risk arising in this case and may have the consequence of depriving the children unduly of the benefits of having a meaningful level of relationship with their father, with whom they have interacted, on a regular basis, since the parties separated over three years ago.

14. For all these reasons, the orders of the court will be as set out at the commencement of these reasons for judgment.

I certify that the preceding two hundred and five (205) paragraphs are a true copy of the reasons for judgment of Judge Brown

Date: 19 December 2019