Paterson & Hamdy
[2022] FedCFamC1F 205
•1 April 2022
FEDERAL CIRCUIT AND FAMILY COURT OF AUSTRALIA
(DIVISION 1)
Paterson & Hamdy [2022] FedCFamC1F 205
File number(s): SYC 1229 of 2018 Judgment of: CAMPTON J Date of judgment: 1 April 2022 Catchwords: FAMILY LAW – REVIEW – Application by the father to review a senior registrar’s decision dismissing his interim application to spend time with the children – Where the father has spent no time with the children for many years – Where the father was incarcerated but has given limited evidence as to his criminal history – Where the children have expressed firm views as to not spending time with the father – Application for review dismissed – Costs ordered. Legislation: Evidence Act 1995 (Cth) s 135
Family Law Act 1975 (Cth) ss 117, 60CA, 60CC, 61DA, 62G, 65D, 69ZT
Federal Circuit and Family Court of Australia (Family Law) Rules 2021 (Cth) rr 14.07, 1.04, 5.06, 5.07, 5.08
Cases cited: Bass & Bass [2008] FLC 93-366; [2008] FamCAFC 67
Deiter & Deiter [2011] FamCAFC 82
Goode & Goode (2007) 26 Fam LR 422; [2006] FamCA 1346
McCall & Clark (2009) 41 Fam LR 483; [2009] FamCAFC 92
MRR v GR (2010) CLR 461; [2010] HCA 4
Division: Division 1 First Instance Number of paragraphs: 124 Date of hearing: 21 March 2022 Place: Sydney Solicitor for the Applicant: Litigant in person Solicitor for the Respondent: John Spence & Associates ORDERS
SYC 1229 of 2018 FEDERAL CIRCUIT AND FAMILY COURT OF AUSTRALIA (DIVISION 1)
BETWEEN: MR PATERSON
Applicant
AND: MS HAMDY
Respondent
ORDER MADE BY:
CAMPTON J
DATE OF ORDER:
1 APRIL 2022
THE COURT ORDERS THAT:
1.The orders made on 28 January 2020 facilitating the father spending time with the children, X born on 2005 and aged 16 (“X”), and Y born 2010 and aged 12 (“Y”), at the B Contact Service is discharged.
2.The father’s Application for Review filed on 10 January 2022 is dismissed.
3.The father pay the mother’s costs of and incidental to the Application for Review in the sum of $1,595 within 21 days of the date of this Order, and the mother remit such costs when recovered to Legal Aid.
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 Paterson & Hamdy has been approved pursuant to s 121(9)(g) of the Family Law Act 1975 (Cth).
REASONS FOR JUDGMENT
CAMPTON J:
INTRODUCTION
Mr Paterson (“the father”) and Ms Hamdy (“the mother”) are the parents of two children, X born in 2005 and aged 16 (“X”), and Y born in 2010 and aged 12 (“Y”). They were engaged in an interim defended hearing as to the parenting of the children before a senior judicial registrar on 23 December 2021 (“the interim hearing”).
The senior judicial registrar on 23 December 2021:
(a)Discharged the Independent Children’s Lawyer on application of the father and the Independent Children Lawyer, such application not being opposed by the mother; and
(b)Heard the balance of the relief sought by the father in his Amended Application in a Case filed on 30 July 2021, broadly being that he spend time with X in accordance with her wishes, that he spend supervised time with Y at a community-based service organisation, that the parents and the children engage in family therapy, and other relief as to a family report produced pursuant to s 62G of the Family Law Act 1975 (Cth) (“the Act”) being replaced by another such report to be completed by an alternative Court Child Expert. The senior judicial registrar dismissed all outstanding interim applications and hence refused the balance of relief sought by the father.
The father applies to review Order 2 of the senior judicial registrar’s orders dated 23 December 2021, the order dismissing all outstanding interim applications.
Rule 14.07(1) of the Federal Circuit and Family Court of Australia (Family Law) Rules 2021 (Cth) (“the Rules”) provides that such an application for review is to be heard as an original hearing.
The father prosecuted by way of his Application for Review the following:
(a)That he spend time with Y supervised by a professional supervision agency on each alternate Sunday, and that the mother facilitate a half-hour telephone call between him and Y on Sunday of the ‘off-week’;
(b)That he be permitted to spend time and communicate with X in accordance with her wishes; and
(c)The parties and children attend family therapy, to be funded by the father;
(d)That the Family Report of the Ms C dated 17 December 2020 be struck out; and
(e)That after a period of three months of supervised time with Y, a further Family Report be obtained to be completed by an alternative Court Child Expert.
The mother sought that the application for review be dismissed.
THE EVIDENCE
The father sought leave to rely on an affidavit comprising some 99 pages filed on 18 March 2022, being the Friday prior to the hearing of the Review listed on Monday 21 March 2022. This was his third affidavit in support of his interim parenting relief.
Rule 5.07 of the Rules requires any affidavit in support of a review application to be served at least two business days before the date fixed for hearing. Rule 5.08 limits affidavits for the purposes of an interlocutory hearing, subject to r 5.06, to one affidavit per party not exceeding 25 pages inclusive of a maximum of 10 annexures.
The mother contended that the contents of the affidavit comprised primarily of complaints about the Court process and criticism of the mother’s religious practices and beliefs. It was submitted that those matters were not relevant to the issues to be determined on review.
In circumstances where the solicitor for the mother did not identify any prejudice to the late filing of material sought to be relied upon by the father, and where the father considered the material was relevant, leave was granted for him to rely on his affidavit filed on 18 March 2022, and leave was granted for him to rely on more than one affidavit for the hearing of the review.
The father relied upon the following documents:
(a)Amended Application in a Case filed on 30 July 2021;
(b)Affidavit of the father filed on 30 July 2021;
(c)Affidavit of the father filed on 4 November 2021;
(d)Affidavit of the father filed on 18 March 2022,;
(e)Case Outline document filed on 21 December 2021; and
(f)Application for Review filed on 10 January 2022.
The mother relied upon the following documents:
(a)Response to an Application in a Proceeding filed on 10 December 2021; and
(b)Affidavit of Ms D solicitor filed on 14 July 2020;
(c)Affidavit of the mother filed on 10 December 2021;
There have been two expert parenting opinions prepared in this matter, each of which were tendered into evidence at the review hearing.
The first was the Child Inclusive Conference Memorandum of the Family Consultant, Ms C, dated 3 June 2019 (“the CIC Memorandum”). The father initially objected to the tender of this document. His objection was dismissed. The CIC Memorandum was marked into evidence as Exhibit “CRT-1”.
The second is a Family Report prepared by Ms C pursuant to s 62G of the Act dated 17 December 2020 (“the Family Report”). The Family Report was, absent objection, marked into evidence as Exhibit “CRT-2”.
BACKGROUND
The parents commenced a relationship in 2003 and married in 2004. The mother contends that they initially separated in 2005 and then engaged in an “on-off” relationship until early 2015. The father says their relationship continued absent interruption or change from 2003 until mid-2016. They are now divorced.
The father is Christian and the mother is Muslim. The father makes significant complaint in his material as to the mother’s religious identity and adherence and that of the children to the Islamic faith posing a risk for the children.
It was the mother’s case that the parties’ relationship was characterised by family violence perpetrated by the father against her and X, including what was described by Ms C as a “pattern of serious and sustained coercive controlling behaviour”.
There is limited evidence directly from the mother before me as to the specifics of the violent conduct. The mother’s affidavit recorded that she was “a victim of domestic violence from the [father]”. In support of that contention she directed the Court’s attention to a report obtained by her treating psychologist, Ms E, dated 8 July 2020.
Ms E’s psychological assessment of the mother was annexed to both Ms D’s affidavit of 14 July 2020 and the mother’s affidavit, and records allegations made by the mother that the father “was verbally abusive and would often swear at her… make threats to kill her, hurt her and frame her for various crimes”. In addition to the contended verbal and emotional abuse, the mother alleged that the father was “physically abusive” including on one occasion where he “held a knife to her throat threatening to ‘kill her’”. These allegations were not contained in the affidavit relied on by the mother for the purpose of the review hearing.
The CIC Memorandum records the mother reporting to Ms C that:
…the father continued to extend his control over [her] during his incarceration, by way telephoning her regularly to interrogate her, “who are you with” and, “Who’s your boyfriend”? She said that the father once threatened to kill her and held a large knife to her throat.
The Family Report records the mother expressing in her interviews with Ms C, that the father was “jealous and insecure in their relationship”, that he was “emotionally and physically abusive of her, including making threats to kill her and abscond abroad with X”, and that he “wielded considerable power and control over her”.
Ms C’s opined that if found to have occurred, the family violence of the father directed to the mother would be considered “high potency and potentially lethal”. She said that the mother’s allegations may find some corroboration in the subpoena material, by way of the mother making two contemporaneous reports to the police and a hospital social worker, both in 2005. That material was not before me for the purpose of the review hearing.
X, the parties’ oldest child, spoke to Ms C of her experience with the father prior to his incarceration. The Family Report records:
[X] said that she lives with her mother and brother. She said that she has not spent time with her father since 2016. When asked to describe her father, [X] said, “I just remember that he wasn’t ever around but I don’t know where he was”. She said that “what I can remember is that he is scary. I remember he hit me with a spatula and I’d hide under the table”. [X] said that she has memories of her father speaking “harshly”, “being mean” and “shaming” [the mother], although she could not remember specifically what he said.
X made similar reports to Ms C in the preparation of the CIC Memorandum, expressing that she experienced the father as “always angry” and that he would “come up and hit [her] out of the blue”.
The father denied in his affidavit perpetrating any form of physical violence against the mother. He labelled the mother’s allegations as “[totally] false and misleading” and “a total concoction”. His affidavit filed on 18 March 2022 records that:
8.There is no history of violence what so ever between me and the [mother] or my children [X] and [Y]. There is no AVO’s what so ever and I have never been in one fight in my entire life in Australia since I came to Australia when I was 17 years old around 34 years ago.
In submissions the father submitted that the fact of there being no AVO sought by the mother against him, was evidence of her allegations of family violence being untrue. I do not accept that submission for the purpose of this interlocutory determination.
It is the father’s case that any risk to the children is posed by the mother’s “Muslim violent family”.
The father was incarcerated in 2015 and was released in 2019. It is not clear as to the terms of the criminal conviction the father received landing him in gaol. There is some suggestion in the two reports of Ms C that the father (on his own account) was convicted of charges relating to the import and supply of drugs. In the preparation of the Family Report Ms C had access to some material produced under subpoena by the New South Wales Police Force. She recorded there being a case-note contained in that material which referred to the father being convicted of and sentenced for nine offences. It referenced that “the father’s plea of guilty” had been taken into account in the sentencing process.
The mother alleged to the Ms C that the father’s criminal record is “extensive” and also includes charges relating to fraud, drug importation and supply, and supplying monies to “counter-terrorism groups”. The father in the hearing before me submitted that he was never incarcerated for the supply of drugs nor for any “violent” crime. He did not elaborate on that submission.
The father filed an Application for Leave to Appeal some or all of his criminal convictions in 2017. He said that leave had been granted by the New South Wales Court of Appeal, and that he intended on pursuing the appeal. In submissions, he said that the appeal is yet to be heard or determined but that he believed the process may be concluded in about one to two years. Throughout these proceedings the father has refused to provide relevant detail about his ongoing criminal proceedings on the basis of legal advice.
The Family Report records as a limitation of the assessment that:
[The father] indicated that there is an appeal afoot concerning a criminal matter and he has been instructed by his legal representative to refrain from answering questions pertaining to [the mother], the allegations she has levelled against him during these legal proceedings, and his criminal record.
That the father has been evasive in response to questions about the criminal proceedings was not considered to be a consequential limit by Ms C in the preparation of her report, however it has clouded this issue for the purpose of my determination.
During the period of the father’s incarceration both children continued to live with the mother. The father last spent time with Y in 2015, and X when she visited him in gaol in February 2016.
Y reportedly lives with juvenile arthritis. The mother’s affidavit and the Family Report record that his mobility, speech and vision are impacted by this diagnosis. The father refutes the fact and impact of the diagnosis. This will be a matter for determination at trial although I note for the purpose of this interlocutory decision that Y appears to have some vulnerabilities.
Procedural history
The father commenced proceedings by way of his Initiating Application filed on 28 February 2018, while he was in gaol. He sought orders on an interim basis for him to have telephone contact with the children on two occasions each week, as well as on special occasions. He also sought an order that the mother facilitate the children attending gaol to spend time with him once per month for one hour on a Sunday.
He filed an Amended Initiating Application on 24 June 2019 upon his release from gaol, seeking orders that the children continue to live with their mother:
2.…under close supervision of a qualified psychologist and a qualified social worker to observe the mother’s conduct with the children and mental wellbeing and the children’s behaviour on a monthly behaviour.
He sought an order that if the mother’s “psychological state and mental wellbeing does not allow her to care for the children on a daily basis… or [impacts] on the children’s behaviour and development negatively, the children shall live with the father”. In addition, he sought to exercise unsupervised time with the children.
On 3 June 2019 the parties and children participated in a Child Inclusive Conference (CIC) with Ms C, after which the CIC Memorandum was produced.
As recorded later in these reasons orders were made on 23 October 2019 for the preparation of the Family Report.
On 28 January 2020, orders were made by a judge of Federal Circuit Court (as it was then) that the parties do all such things that were necessary to enrol in and obtain a position at B Contact Service (“BCS”). There was no specific order made for supervised time between the father and the children. Further orders were made on that date as to the parties being restrained from removing the children from Australia, that the father disclose to the mother a copy of his criminal record, and that the parties participate in random chain of custody urinalysis, attend upon a mental health professional to obtain a mental health assessment, and complete parenting courses.
On 19 August 2020, orders were made pursuant to s 102NA of the Act preventing the parties from cross-examining one another personally, and that the family report be “re-engaged” with interviews to be undertaken by the parties.
The father frustrated the process of attending scheduled interviews to facilitate the preparation of the Family Report by Ms C, including by lodging a formal complaint with the court about Ms C. On 5 November 2020, orders were made for the parties to attend upon Ms C for the purpose of interviews and dismissing an Application in a Case filed by the father seeking to delay the interviews and appoint a different expert.
The matter was transferred to the Family Court (as it was then) by orders of 22 April 2021.
PRELIMINARY MATTERS
The father sought an order “that the family report prepared by Ms C dated March 2021 (sic, the correct date of the report being 17 December 2020) shall not be further relied upon in these proceedings”. The father confirmed that this prayer of relief in reality sought that Ms C’s report be struck out.
In support of his application the father submitted that:
(a)Ms C was “against me”;
(b)Ms C’s report includes “things I didn’t say”;
(c)I have never been charged with selling drugs;
(d)He had complained about the content of Ms C’s report;
(e)Ms C was “rude to me”;
(f)Ms C exhibited bias against him;
(g)Ms C only interviewed the children for ten minutes and that is not a family report;
(h)Ms C’s report as to the children’s views ought not to be accepted because the children had been brain washed by the mother and what the children said was untrue; and
(i)That there were internal inconsistencies within Ms C’s reports.
By way of orders made on 23 October 2019, Ms C as a then family consultant was directed as nominated to prepare a report by way of s 62G (2) of the Act.
1.Pursuant to section 62G(2) of the Family Law Act 1975, the parties and the children of the relationship attend upon a Family Consultant nominated by the Child Dispute Section in this Registry on a date and at times to be advised for the purposes of the preparation of a Family Report addressing the issues identified in s.60CC of the Act.
2.The parties send copies of all of their court documents to the Family Consultant within 3 days of being requested to do so by the Family Consultant.
3.For the purpose of completing a Family Report, the Family Consultant is granted leave to inspect the court file and all documents produced on subpoena (once leave to inspect has been granted to at least one other party in the matter).
4.I DIRECT the legal representatives for the parties (or the parties themselves) confirm with the Family Consultant no later than 10 days prior to the scheduled interviews that the interviews will proceed on the dates allocated.
Pursuant to s 62G(4) of the Act the family consultant may include in the report any other matters they consider relevant to the care, welfare and development of the children.
Pursuant to s 62G(8) of the Act, a report given to the court pursuant to a direction under subsection (2) may be received in evidence in any proceedings under this Act.
In addition to contending bias and/or that the report is prejudicial to the father, the import of his submissions was that Ms C’s assertions as to fact or assumptions as to fact grounding her opinions were unreliable and that her conclusions and recommendations were also unreliable.
These are child-related proceedings pursuant to Part VII Division 12A of the Act. Section 69ZT of the Act provides that:
Rules of evidence not to apply unless court decides
(1)These provisions of the Evidence Act 1995 do not apply to child-related proceedings:
(a)Divisions 3, 4 and 5 of Part 2.1 (which deal with general rules about giving evidence, examination in chief, re-examination and cross-examination), other than sections 26, 30, 36 and 41;
Note:Section 26 is about the court's control over questioning of witnesses. Section 30 is about interpreters. Section 36 relates to examination of a person without subpoena or other process. Section 41 is about improper questions.
(b)Parts 2.2 and 2.3 (which deal with documents and other evidence including demonstrations, experiments and inspections);
(c)Parts 3.2 to 3.8 (which deal with hearsay, opinion, admissions, evidence of judgments and convictions, tendency and coincidence, credibility and character).
(2)The court may give such weight (if any) as it thinks fit to evidence admitted as a consequence of a provision of the Evidence Act 1995 not applying because of subsection (1).
Cast against the provisions of s 69ZT of the Act, although not identified by the father, the substance of his submissions went to the Court’s general discretion by way of s 135 of the Evidence Act 1995 (“Cth”) to strike out Ms C’s report. The section provides:
General discretion to exclude evidence
The court may refuse to admit evidence if its probative value is substantially outweighed by the danger that the evidence might--
(a) be unfairly prejudicial to a party, or
(b) be misleading or confusing, or
(c) cause or result in undue waste of time.
It was submitted on behalf of the mother that the application of the father to strike out Ms C’s report was absent merit and that such application to strike out ought to be made at the final trial. The solicitor submitted that she could not locate any inconsistencies between the two reports of Ms C as identified by the father.
As to the assertion of bias, be it apprehended or actual, any foundation for such assertion is not readily apparent from the reading of the exhibited reports. No basis was identified by the father in his submissions. A bald statement that the report writer has in reality prejudged or will prejudge an issue does not establish the proposition. It is to be remembered that it is the Court and not the expert who will make a determination in this matter. The father has not at this stage established that Ms C is not open to persuasion as to her foundations, conclusions or recommendations. There is no suggestion that she has not prepared her report in the context of her qualifications and experience. The order made by way of s 62G of the Act obliged the expert to express her conclusions, recommendations and opinions as are appropriate. If foundation as to bias exists it can be established through cross-examination of Ms C at the trial. Following that cross-examination all or parts of her report and opinion may be rejected or only given limited weight if bias is established.
As raised with the father during the course of his submissions, evidence is not unfairly prejudicial to a party merely because it tends to damage the case of the party or support the case of the opponent (see Ainsworth v Burden [2005] NSWCA 174). By way of cross-examination at trial the father can test any of the facts or assumptions of facts relied upon by the expert to ground her conclusions. By way of that process of cross-examination the weight to be attached to the expert’s conclusions and recommendations can be identified.
The importance of the evidence contained in Ms C’s reports for the purposes of the determination of this review and for the final hearing as to issues such as the children’s views and the other matters identified in s 60CC(3) of the Act, is self-evident. I am mindful as to the dicta of the Full Court in Bass & Bass [2008] FLC 93-366 as to the extreme difficulty to make findings in respect of the admissibility of a family consultant’s report prior to the family consultant being questioned through cross-examination.
The father’s application to strike out the CIC Memorandum and the Family Report of Ms C will be dismissed. In that circumstance the father’s application for a further family report process to be undertaken by a family consultant other than Ms C be prepared after a period of supervised time between he and Y has occurred will also be dismissed.
On 28 January 2020 a Judge made orders for the father to spend time with the children, supervised by CWCS. It was submitted by the mother that CWCS declined to assist this family in facilitating supervised time between the father and the children. The father agreed that CWCS had so declined. He said that the mother sabotaged the supervision of time by CWCS by advising the service that the father would “kidnap” the children should they attend the service with the father.
The cause of the failure to facilitate the process for the father to have time at CWCS is an issue that I cannot determine at this interlocutory stage of the proceedings but will be determined at the final trial where the evidence of each party can be tested and findings made accordingly.
It is appropriate that the orders relating to CWCS to be discharged in circumstances where I am satisfied that they are not capable of compliance.
On 19 August 2020 a Judge made an Order that s 102NA of the Act would apply to these proceedings. The father appeared before me representing himself. He submitted that he may be in a position to obtain legal representation for the purpose of the hearing in this matter. If he does not he will be unable to personally cross-examine the mother at that trial event.
THE INTERIM APPLICATION
The father’s case
The father’s case was that the mother’s allegations of violence are fabricated and that her assertion as to risk is unfounded. His submissions at the review hearing centred on the contention that “no parent can deprive children of the right to a meaningful relationship” with the other parent, and said that this was a case of the mother purposefully and maliciously excluding him from the children’s lives.
The father sought to exercise time with Y supervised by F Contact Service. He said that F Contact Service had provided their assurance that they would take on this family, but that in the event they did not or the mother did not consent to engaging F Contact Service, then he could nominate two other private supervision services for her selection.
He sought that a family therapist be appointed to facilitate therapy between him and the children. He said that he had not researched this option, but that he would do so and propose to the mother two suitable therapists for the mother to select her preference. He said the mother did not have to participate so long as she facilitated the children attending therapy.
As to the costs of implementing the father’s relief, he submitted that he would pay the costs of family therapy, of the supervision services, and of a phone to facilitate him speaking with the children via telephone.
The father in his affidavit and in submissions made a raft of unsubstantiated but serious allegations against the mother including:
(a)That she has attempted to defraud Centrelink by reporting that she was separated from the father when she was not, rendering her eligible for more government support;
(b)That she and her “strict Muslim violent family brain washed the children… and made them say false and misleading statements”;
(c)That she “is tampering with evidence” in the course of these proceedings, and has perjured herself by lying and making “misleading statements” to this Court; and
(d)That she is intentionally and maliciously preventing the children from having any relationship with their father.
As to the asserted risk posed by the mother’s family, the father told Ms C as recorded in the CIC Memorandum that “the maternal uncle and other extended maternal family members have threatened to kill him, and that many members of the extended maternal family have extensive criminal records”.
Notwithstanding the father’s various allegations against the mother he made no suggestion that the children should not continue to live with her on an interim basis or that any other protective measures be implemented against the mother.
The mother’s case
The mother sought that the father’s Interim Application be dismissed and that the children continue to live with her and spend no time with the father, consistent with her final relief sought.
The mother’s case is that the father’s conduct, including his physical violence occasioned against her, and he being “physically and psychologically abusive” of the children, falls within the definition of family violence as found in s 4AB of the Act. On the mother’s evidence, such violence includes the father:
(a)Levelling “life-threatening levels of abuse” against the mother, allegedly exacerbated upon his release from gaol;
(b)Hitting the children, including X on her legs and backside with a spatula;
(c)Throwing a tennis racket at the mother’s face in X’s presence; and
(d)Using harsh punishment against the children when they misbehaved.
It was further the mother’s case that the father presents a risk to the children by way of:
(a)Her suspicion as recorded in the Family Report that the father experiences “undiagnosed mental health problems or personality dysfunction”, which she contends has been amplified throughout these proceedings. In the mother’s view the father is “paranoid and obsessive”; and
(b)The father’s criminal history and the mother’s complaint that he is a “career criminal” with possible continued association with other criminals.
It was submitted on behalf of the mother that her position as to time spent by the father with the children exposing them to an unacceptable risk has been unwavering and is supported by each of Ms C’s reports prepared over the course of these proceedings. The mother’s “strenuous opinion” as recorded by Ms C is that “the children’s psychological and physical safety would potentially be severely compromised were such an introduction to occur.”
Against the background of alleged family violence and the children’s strongly held views, the mother resisted any order for family therapy, saying that it would be “inappropriate” and risked causing further harm to the mother’s mental health.
THE LAW
This Court has, on a number of occasions, described the difficulties of determining cases which concern children in interim proceedings, which are necessarily an abridged process wherein evidence cannot be tested.
The relevant principles in relation to parenting and interim proceedings are set out in Goode & Goode (2007) 26 Fam LR 422. The High Court in MRR v GR (2010) CLR 461 affirmed those principles.
Goode sets out a framework for the conduct of interim proceedings which involves identifying competing proposals, identifying the issues in dispute and identifying the agreed or uncontested relevant facts.
In Deiter & Deiter [2011] FamCAFC 82 (“Deiter”) the Full Court also said when making an interim order a Court should have regard to its likely duration, especially in cases where the interim order under consideration involves some disadvantages which may need to be endured by the children under consideration.
In applying the law to the facts, the Court must uphold the relevant objects and principles in the part of the Act dealing with parenting. Pursuant to s 65D(1), subject to certain sections, a court may make such parenting order as it thinks proper. Section 60CA of the Act provides that, in deciding whether to make a parenting order, the Court “must regard the best interests of the child as the paramount consideration”.
The matters which the Court must consider in determining what is in the child’s best interests are set out in s 60CC.
The primary considerations, which are contained in s 60CC(2), are:
(a)The benefit to the child of having a meaningful relationship with both of the child's parents; and
(b)The need to protect the child from physical or psychological harm from being subjected to, or exposed to, abuse, neglect or family violence.
Section 60CC(2A) provides that in applying these considerations, I am required to give greater weight to the need to protect the child from harm than to the benefit to the child of having a meaningful relationship with both parents.
The second primary consideration in determining the child’s best interests, as set out in s 60CC(2)(b) of the Act, is the need to protect the child from physical or psychological harm and from being subjected or exposed to abuse or violence. The relevant question is whether there is an unacceptable risk of physical and/or psychological harm in the child spending time with the father.
Parental responsibility
When making a parenting order, the Court is required to apply the presumption contained in s 61DA of the Act that it is in the best interests of the children for the parents to have equal shared parental responsibility.
The presumption does not apply if there are reasonable grounds to believe that a parent of the child (or a person who lives with a parent of the child) has engaged in abuse of the child or another child in the family or family violence. Further when making interim orders the presumption applies unless the court considers that it would not be appropriate.
I find that the presumption does not apply in the circumstances of this case. Each party makes serious allegations of family violence against the other. The evidence as to this matter is disparate but it is supported by Mr C. Irrespective of whether the allegations are proved upon a testing of the evidence, I am satisfied that it would not be appropriate to apply the presumption at this interlocutory stage, in circumstances where:
(a)The father has not spent any time with the children for many years now;
(b)The parties have no co-parenting relationship and do not communicate with one another; and
(c)Neither party seeks an interim order as to parental responsibility.
I am satisfied that no order as to parental responsibility ought to be made at this interim stage. It is not proposed by either party that I do so, nor is there evidence before me to suggest it is necessary to meet the children’s best interests.
Meaningful relationship
The Court’s enquiry should primarily be “prospective”, considering the prospect of the child having a meaningful relationship with the parent in the future. However, at the same time, the Full Court in McCall & Clark (2009) 41 Fam LR 483 recognised the reality that evidence concerning the current nature of a child’s relationship with a parent may have a significant bearing on the Court’s assessment as to the prospect of the child having a meaningful relationship with that parent into the future.
There is no doubt on the evidence that the children love and are cared for by the mother. On either parties’ proposal, the children will continue to live with the mother.
Y has not spent time with the father for nearing seven years, and X for about six years. Their relationship with their father at this time, if any, is at its highest tenuous. On the mother’s proposal, the nature of that relationship will not change.
The father proposes to spend time with X in accordance with her wishes. Those wishes are documented in the Family Report. On the father’s proposal it is unlikely he will have any form of meaningful relationship with X. His proposal as to spending time with Y on one view may promote him developing a meaningful relationship with Y. The father accepts by way of his Case Outline that any orders for time would be for his “reintroduction” to Y.
Protection from harm
The fact that matters are in dispute does not mean the Court can ignore concerns that are raised in the material before it (see Deiter).
The risks present on the material before the Court should an order be made permitting the father to spend time with the children as sought by him, are:
(a)A risk to the children arising from the father’s conduct meeting the definition of family violence and the likelihood of their exposure to further violence;
(b)The mother’s view as recorded at paragraph 50 of the Family Report that the father “lives in a criminal world” and her concern that the children would be exposed to such world;
(c)A risk to the psychological wellbeing on the children should they be ordered to spend time with their father against their very firmly held views that they do not want to do so;
(d)A risk to the children arising from an alleged impairment of parental capacity resulting from the father’s contended illegal substance use; and
(e)The risk to Y as identified in the Family Report that he will “decide with his feet whether or not he spends time with [the father]”, which has the potential to cause significant stress for each of Y and the mother, and create opportunity for further contact between the parties including by way of potential contravention and enforcement proceedings.
On the material before me, I could not make any safe finding at an interim hearing as to the mother’s allegations of family violence. I am mindful that the mother's evidence is not fanciful or inherently unreliable. I am required to give it weight for the purpose of the interim determination.
The father was incarcerated for a significant period of time. He has not been forthright about the reasons for his incarceration, nor has he adduced reliable evidence as to his criminal history. The family report records:
56.[The father] said that he would not answer any questions pertaining to illegal substance and alcohol misuse, as instructed by his legal representative, save wishing to note that he was “under duress in my criminal case” and that he has had “no other criminal problems my entire life”. He reiterated that there is an appeal afoot concerning his criminal matter.
In the circumstances I am cautious when considering the father’s evidence.
I am mindful of not exposing the children to a risk of psychological harm should they be thrust into a situation of spending time with their father which they may experience as traumatic.
Additional considerations
Section 60CC(3) sets out additional considerations in determining what is in the child’s best interests. They include issues relating to the children, being their views, level of maturity, culture and relationships, issues relating to the parents going to their capacity and attitude towards parenting, issues of family violence and practical issues.
There is a factual issue of the father’s engagement in the children’s life prior to his incarceration, and a further issue as to the parties being in dispute about Y’s diagnosis. The mother contends, and it is disputed by the father, that the father did not play a significant role in the parenting of the children prior to separation. That sentiment is consistent with X’s comment to Ms C that the father, “wasn’t ever around”.
The mother has been the primary carer for the children at least since the father’s incarceration in around 2015. I am satisfied that the children have a loving relationship with the mother and that the mother has been able to care for them proficiently in the father’s absence, including managing Y’s medical vulnerabilities. The Family Report reflects that X has made significant academic gains since commencing high school. She now participates in sports. Y also appears to be doing well at school and socially, telling Ms C that he enjoys reading and playing sports. Except for the father’s, there is no evidence before me that would cause concern as to the children’s current wellbeing or the mother’s capacity to meet their needs.
There is no meaningful relationship as between the father and the children at this point in time. Y is reported by Ms C to have no material memory of the father, and the CIC Memorandum records that he did not know his father’s name, that he could not recall ever spending time with the father, and that he could not recall what the father looked like.
Both of the children expressed to Ms C genuine distress at the possibility of spending time with the father. Y’s views as recorded in the Family Report include that he does not have a father, that he had no desire to meet him and that he would not attend if orders were made for a reintroduction to the father. It is apparent that Y has a real knowledge of the mother’s views about the father, as reflected in his statement to Ms C that if he were to spend time with the father “mum would be worried about me because he’s a stranger”. He said that he would not feel safe spending time with the father, even if that time was supervised.
The children’s views as expressed to Ms C were firm and unequivocal. It was the opinion of Ms C in reference to X that:
As a young person with agency and an ever increasing capacity for psychological autonomy, it is the Family Consultant’s opinion that [X]’s view concerning being reintroduced to her father be given significant weight and that the Court consider the option that [X] spend no time with [the father]. It is also noted that [X] has indicated that she will not comply with any Orders for time with her father, and therefore such a pathway is likely to lead to further litigation by way of contraventions. This would be an extremely unfortunate scenario as it would not in [X]’s best interest to be subjected to further involvement in family law proceedings.
Y’s view of his father, being younger than X, was that he is “scary”. I observe that Y has formed that view in the absence of any significant memory of him.
In the circumstances and in line with Ms C’s observation that “Y was firm in his conviction that he would not attend time, if ordered, and the reality is that he would potentially decide with his feet whether or not he spends time with [the father]”, I find that both of the children’s views attract significant weight.
I place significant weight on Ms C’s opinion in the Family Report that:
115.[Y] spending supervised time with a parent he perceives as frightening, regardless of the reliability of such a perception, would potentially be experienced by him as stressful and overwhelming, and challenging his perception of [the father] would possibly be difficult, whether he has been influenced by his mother or not…. It is the Family Consultant’s view that the Court may need to prioritise [Y]’s psychological safety above his relationship with his father and consider the possibility of him spending no time with [the father]. This would also be consistent with [Y]’s views.
At this stage, the Ms C’s opinions and evidence is unchallenged. I am minded to accept it for the purpose of the interlocutory hearing in light of her experience and expertise.
While I accept the father seeks to challenge the children’s views as recorded and opined about by Ms C, I am mindful of the likely impact of an order made against the strongly-held wishes of the children, including that it may have counter-productive outcomes for Y’s relationship with his father should he continue to resist spending time with his father.
The father demonstrated limited insight into the challenges he is likely to encounter in recommencing a relationship with either of the children should he be given the opportunity. By way of example, the Family Report records:
Concerning the children’s knowledge of his incarceration and how he envisaged communicating with the children about this, [Mr Paterson] said “look love, that’s the third time I’ve explained to you I am under my solicitors advice not to talk about this”.
The children are well aware of the father’s criminal history and his incarceration. Should the father have any real chance of re-establishing a positive and meaningful relationship with the children, he ought to be prepared to address with them his absence from their lives resulting from his criminal activities. On the evidence before me, I am not satisfied that the father has turned his mind to this consideration.
CONCLUSION
The father has not spent time with the children for some years now. It would not be appropriate on the evidence before me and for the reasons identified above, to change that circumstance on an interim basis, especially having regard to the children’s firm and unequivocal views.
The father will have an opportunity at some future time to adduce evidence that may reassure the Court to disprove the mother’s allegations and reassure the Court that he does not present a risk to the children. He has not done so to date. If he is able to demonstrate that at some future time, then the Court will give further consideration as to whether or not it is in the children’s best interests to spend time with him.
The reality at this stage of the proceedings, having regard to the period that the children have not seen the father, is that evidence concerning the nature of each child’s relationship with the father will have a significant bearing on the Court’s assessment as to the prospect of the children having a meaningful relationship with him into the future. Again, these matters ought to be the subject of full exploration at a final hearing.
Having regard to all of the foregoing best interests considerations for the reasons explained, I am satisfied that the orders at the forefront of these reasons are in the best interests of the children, pending the resolution of these proceedings on a final basis.
COSTS
In the event that the father’s Application for Review is unsuccessful, the mother sought that her costs be paid in a fixed sum of $1,595.
The father, being self-represented, confirmed that he had not incurred any costs in prosecuting his Interim Application to date. He resisted any costs order being made against him in the event he was unsuccessful in his Application for Review, but did not identify any reasons supporting his position.
In determining the application for costs in the circumstances of this case, I have applied the overarching purpose identified in r 1.04 of the Rules so as to determine costs as quickly, inexpensively and efficiently as possible.
While the general position established by s 117(1) of the Act is that each party should bear their own costs, s 117(2) allows a court to make such costs order as it considers just if there are circumstances which justify doing so.
In considering what order for costs should be made (if any) and in what form, a court is required to have regard to the considerations set out in s 117(2A) of the Act. The relevance of the particular matters will depend on the circumstances of each case.
The mother is presently in receipt of a grant of legal aid and received income by way of Centrelink benefits only. She does not receive child support from the father. In circumstances where the mother is solely responsible for meeting the needs of both herself and the child, I accept her limited income would present some hardship to her. I accept the advice of the mother’s solicitor that any costs as ordered and recovered will be remitted to Legal Aid.
The father said that he was employed but did not give evidence as to his income. He said he had capacity to pay for supervision services, should that be so ordered, and for family therapy and for a phone for the children.
The father in his affidavit filed on 4 November 2021 gave some evidence as to his financial circumstance, although that evidence was very difficult to evaluate. He said he has assets in the form of cryptocurrency but that he is unable to access those assets because the mother is in possession of his laptop. I cannot make any safe finding as to the father’s current financial circumstances on the evidence at hand.
The father by his Application for Review sought to challenge the exercise of power delegated to a registrar. He has been wholly unsuccessful in his application. This alone is a justifying circumstance for an award of costs.
The costs order sought on behalf of the mother is modest. In the facts and circumstances of this case, I am satisfied that an order for costs is warranted.
I will order that the father pay the mother’s costs of the review, calculated at scale in the sum of $1,595. The mother can remit the costs when paid to legal aid.
I certify that the preceding one hundred and twenty-four (124) numbered paragraphs are a true copy of the Reasons for Judgment of the Honourable Justice Campton. Associate:
Dated: 1 April 2022
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