Pavlis & Pavlis
[2021] FedCFamC2F 510
FEDERAL CIRCUIT AND FAMILY COURT OF AUSTRALIA
(DIVISION 2)
Pavlis & Pavlis [2021] FedCFamC2F 510
File number(s): PAC 287 of 2021 Judgment of: JUDGE STREET Date of judgment: 3 December 2021 Catchwords: FAMILY LAW – INTERIM PARENTING – application to alter interim orders – where allegations of family violence have been made – where notices of risk filed by mother and father – where Child Inclusive Assessment included – whether the children should spend time with the father in former matrimonial home – whether location for changeover should be changed – where two eldest children resist spending time with father – where children live with mother – where youngest child is co-sleeping with mother – where family therapy consented to by parties – best interests of the child – parenting orders made
FAMILY LAW – INTERIM PROPERTY – whether a particular property ought to be rented – consent orders made
Legislation: Family Law Act 1975 (Cth) ss 60B, 60CA, 60CC, 65AA, 65D, 65DAA, 69ZL. Cases Blann &Kenny [2021] FamCAFC 161
Dansey & Dansey [2021] FedCFamC1A 71
Goode & Goode [2006] FamCA 1346
M & M (1988) 166 CLR 69
Mallory & Mallory [2019] FamCAFC 221
Stott & Holger [2017] FamCAFC 152Division: Division 2 Family Law Number of paragraphs: 42 Date of hearing: 3 December 2021 Place: Parramatta Counsel for the applicant: Ms A Petrie
Counsel for the respondent: Mr M Wong Solicitor for the applicant: Monardo Legal Solicitor for the respondent: First Choice Family Lawyers ORDERS
PAC 287 of 2021 FEDERAL CIRCUIT AND FAMILY COURT OF AUSTRALIA (DIVISION 2)
BETWEEN: MR PAVLIS
Applicant
AND: MS PAVLIS
Respondent
ORDER MADE BY:
JUDGE STREET
DATE OF ORDER:
3 DECEMBER 2021
BY CONSENT, THE COURT ORDERS THAT:
1.That on or before 1 February 2022, the applicant father do all things necessary and sign all such documents that are required of him to sell the property situated at B Street, Suburb C, NSW and being more particularly described as all that piece of land comprised in … ("the B Street, Suburb C property") on the following terms:
(a)The B Street, Suburb C property will be listed for sale by public auction at a reserve price agreed by the parties and if there is no agreement, the listing price shall be as determined by a valuer nominated by the respondent mother from the selection below and paid for at the equal cost to the parties;
(i)Mr D of Company D, or
(ii)Mr E of Company E, or
(iii)F Valuations.
(b)The applicant father will co-operate in any way with the Agent agreed by the parties in relation to the sale, including making the key available, allowing inspection of the B Street, Suburb C property at times requested by the Agent, and ensuring that the B Street, Suburb C property is in a neat and clean condition at the time of inspection by prospective purchasers; and
(c)If there is no agreement, the listing agent shall be nominated by the respondent mother from the selection below;
(i)G Real Estate, or
(ii)H Real Estate, or
(iii)J Real Estate, Suburb C.
2.That the proceeds of the sale of the B Street, Suburb C property are to be distributed at settlement as follows:
(a)In discharge of the mortgage in favour of Commonwealth Bank of Australia registered against the title to the B Street, Suburb C property ("the mortgage");
(b)In payment of all expenses of and incidental to the sale, including real estate agent commissions, advertising, legal fees and any necessary disbursements;
(c)In payment of any outstanding rates and taxes and other outgoings on the property;
(d)In payment of any capital gains tax;
(e)The balance, if any, applied to the mortgage held by National Australia Bank over the property known as and situated at K Street, Suburb L in the State of New South Wales ("K Street, Suburb L property"); and
(f)That after the discharge of the mortgage on the K Street, Suburb L property, the balance be invested in interest bearing controlled monies account to be held by the applicant father’s solicitor on behalf of the parties pending further order.
3.That the applicant father forthwith and by no later than 10 December 2021 give the tenants notice of sale and comply with the terms of any lease to forthwith do all things necessary and sign all such documents that are required of him to sell the property situated at M Street, Town N in the State of New South Wales and being more particularly described as all that piece of land comprised in … ("the M Street, Town N property") on the following terms:
(a)The M Street, Town N property will be listed for sale by public auction at a price agreed by the parties and if there is no agreement, the listing price shall be as determined by a valuer nominated by the respondent mother from the selection below and paid for at the equal cost to the parties;
(i)Mr D of Company D, or
(ii)Mr E of Company E, or
(iii)F Valuations.
(b)The applicant father will co-operate in any way with the Agent agreed by the parties in relation to the sale, including making the key available, allowing inspection of the M Street, Town N property at times requested by the Agent, and ensuring that the M Street, Town N property is in a neat and clean condition at the time of inspection by prospective purchasers; and
(c)If there is no agreement, the listing agent shall be nominated by the respondent mother from the selection below;
(i)O Real Estate, or
(ii)P Real Estate; or
(iii)Q Real Estate.
4.That the proceeds of the sale of the M Street, Town N property are to be distributed at settlement as follows:
(a)In payment of all expenses of and incidental to the sale, including real estate agent commissions, advertising, legal fees and any necessary disbursements;
(b)In payment of any outstanding rates and taxes and other outgoings on the property;
(c)In payment of any capital gains tax;
(d)The balance to be applied to the mortgage held by National Australia Bank over the K Street, Suburb L property; and
(e)That after the discharge of the mortgage on the K Street, Suburb L property, the balance be invested in interest bearing controlled monies account to be held by the applicant father’s solicitor on behalf of the parties pending further order.
5.That the funds held in the Offset account associated with the K Street, Suburb L property be utilised to apply to the current arrears of the mortgage secured by National Australia Bank against the property as at 3 December 2021.
6.That pending further Order, the respondent mother is restrained from enabling any withdrawals or transfers from the children's bank accounts.
7.That pending further Order, the respondent mother provide to the applicant father by way of ongoing financial disclosure, a copy of the children's bank statements.
8.That within 14 days the applicant father reply to the respondent mother’s letter dated 23 February 2021 including by way of disclosure of relevant documents.
THE COURT ORDERS THAT:
Property
9.Both parties take all reasonable steps to have the property R Street, Suburb S ACT (“the ACT property”) managed by an agent to facilitate the property being rented after 8 weeks.
10.The net rental payment/income from the ACT property is to be paid into an interest-bearing account, opened and managed by the solicitor for the applicant father, and that the outgoings and expenses of the property are to be met from the rent or that account, subject to further order.
11.The applicant father, as between the parties, is to have exclusive use of the property K Street, Suburb L NSW.
Parenting
12.Order 6(a), 6(b) and 8 of the orders made on 29 April 2021 (“the April 2021 orders”) be discharged.
13.Pending further order, in addition to the time the children spending with applicant father per the April 2021 orders as amended herein, the following time shall occur:
(a)W and X spend time with the applicant father each Wednesday from after 4 pm until 7 pm;
(b)Y and Z spend time with the applicant father together for a period of two (2) hours on a weekday as agreed between the parties and failing agreement on Thursday, each week, from 4 pm until 6 pm;
14.That for purposes of changeover unless otherwise agreed between the parties in writing, changeover is to take place at McDonalds Suburb T at U Street, Suburb T NSW, and the parties are not to engage in any disparaging communications, whether or not there is another person with either of the parties in attendance.
15.The children are to spend Christmas Eve with the respondent mother from 9am until midday (12pm) on Christmas Day, because this year Christmas Day falls on the applicant father’s weekend, and otherwise for Christmas Day, the applicant father is to spend time with the children from 10am to 4pm.
16.The applicant father spend time with the children on New Year’s Day from 3 pm until 6 pm.
17.The parties are both at liberty to attend all school and pre-school functions and events to which parents are invited including but not limited to; parent teacher nights, school carnivals, excursions, graduations, extracurricular activities and school assemblies and awards events.
18.Each parent be able to communicate with the children by telephone or other means of electronic communication when the children are with the other parent and each party shall ensure that the children are able to freely access a telephone and call the other parent at any time requested by the children or any of them and shall allow the children to speak to the other parent without distraction.
19.Each parent must advise the other of:
(a)any significant illness, accident or injury suffered by a child;
(b)any significant medical or dental treatment provided to a child;
(c)any medication a child is to take whilst a child is in the other’s care including the dosage;
and this Order can be regarded as authority for the relevant doctor and hospital to provide relevant information about the children to either parent.
20.That the family engage with Ms V, psychologist and follow the recommendations of the therapist. That a progress report be obtained from the therapist after six months of family therapy for the purposes of these proceedings. The parties are to share the costs of family therapy and any report equally.
21.Both parents are restrained from having the children attend any therapist, social worker, psychologist, or psychiatrist without the prior written consent of the other parent or an order of the Court.
22.The children spend time with the applicant father each alternate weekend commencing after school/pre-school on Friday until the commencement of school/pre-school on Monday, subject to the express wishes of either or both of the two eldest children not to so attend, and the respondent mother is to encourage and facilitate the spending of that time by the two older children with the applicant father.
23.The children are to spend Mother's Day and Father's Day with the respective parent from 9am to 6pm, subject to the express wishes of either or both of the two eldest children not to so attend, and the respondent mother is to encourage and facilitate the spending of that time by the two older children with the applicant father.
24.The children are to spend Easter Sunday from 9am to 2pm with the parents in alternate years; with the applicant father on odd years and the respondent mother on even years, unless the parties otherwise agree, subject to the express wishes of either or both of the two eldest children not to so attend, and the respondent mother is to encourage and facilitate the spending of that time by the two older children with the applicant father.
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 a pseudonym Pavlis & Pavlis has been approved pursuant to s 121(9)(g) of the Family Law Act 1975 (Cth).
REASONS FOR JUDGMENT
JUDGE STREET:
Introduction
The parenting matter before the Court is an application by the applicant father against the respondent mother seeking interim parenting orders under pt VII of the Family Law Act 1975 (Cth) (“the Act”) in relation to which the Court may give short form reasons under s 69ZL of the Act. The interim parenting matter was heard at the same time as an interim property application upon which there was substantial agreement and only minor issues involving 2 properties.
The children of the relationship are:
Z (born 2009)
Y (born 2011)
W (born 2015)
X (born 2018)
The parties separated on 18 October 2020. Previous interim parenting orders were made by consent on 29 April 2021 by a Registrar of the Court. The previous orders granted equal shared parental responsibility between the parties and addressed where the children will live, where and how changeover will take place, how the time will be split between the parties and other restraints on parent behaviour including a non-denigration order.
In this application before the Court, the applicant father sought an increase in time spent with the children and relied upon: a further amended initiating application filed 30 November 2021, a Notice of Risk filed 22 January 2021, a financial statement filed 30 November 2021, Applicant’s Affidavit filed 30 November 2021, and the Child Inclusive Assessment of Mr AA filed 24 September 2021.
The respondent mother opposed the application to increase time between the applicant father and children. In regards to this opposition, the respondent mother relied upon: an affidavit filed 16 April 2021, a Notice of Risk filed 16 April 2021, a financial statement filed 16 April 2021, a Child Inclusive Assessment prepared by Mr AA filed 24 September 2021 and a tender bundle filed 2 December 2021.
Property issues
Proposed consent orders have been provided to the Court in relation to the property which the Court is satisfied are appropriate. The minor interim property issues concern first, the sale or rent of a holiday home in the ACT in the name of the Family Trust which was the property of the parents of the respondent mother, and secondly, the use by the applicant father of a property at K Street, Suburb L NSW owned by a corporate trustee and the possible source of funds for payment of the mortgage of that property. At an interim stage, the Court is satisfied the mortgagee of the property the subject of agreed exclusive use by the applicant father, is unlikely to take any peremptory steps for sale of that property given the conduct of the mortgagee to date.
The source of possible funds to pay the mortgage was contested and the Court is not satisfied that the proposed source of funds are the property of the corporate trustee. Further, the Court is not satisfied that it would be appropriate to utilise the proposed source of funds to meet mortgage payments at this interim stage. Further, the mortgagee on the evidence before the Court has not taken any precipitous steps to take possession of the K Street, Suburb L property even though mortgage payments are in arrears. The consent orders do provide for payment of those arrears. Whilst the applicant father contends he is unable to pay ongoing mortgage payments, the Court is not satisfied that the mortgagee will do other than await the outcome of the property dispute as there appears to be sufficient assets to meet further accruing mortgage payments even if unpaid pending that outcome.
The Court is also of the view that at this interim stage it is unnecessary to order the sale of the ACT property and that it may be that either the parties will agree upon the respondent mother retaining that property or that there will be sufficient assets available in the making of final property orders that permit retention of that property by the respondent mother. The Court is however of the view that the ACT property should be rented out in the interim with sufficient time for the respondent mother to remove any personal items. It is for these reasons that the Court made the interim property orders identified above.
Parenting Issues
The respondent mother provided to the Court proposed short minutes of order relevantly in relation to the interim parenting orders which were in part the subject of agreement and otherwise have been resolved on an interim basis by the orders made by this Court.
There were 6 key issues in dispute in relation to parenting listed in the further amended initiating application filed by the applicant father:
1.Whether the children should spend overnight time with the Father.
2.The frequency of contact between the children and the Father.
3.School holiday time.
4.Changeovers other than at school.
5.Family therapy.
6.A restraint on the parties taking the children to any mental health worker without the written consent of the other party.
Because of the substantial agreement between the parties including on family therapy the real issues were 1, 2 and 4.
Evidence
Because it is an interim parenting application there was no cross examination and the Court is not in a position to make conclusive findings on the contested facts.
Materially on the real issues in dispute, the Court has given considerable weight to the detailed Child Inclusive Assessment dated 24 September 2021, that has been provided by Mr AA in relation to the respective children. On these real issues the Court has placed weight on the bundle of material tendered by the respondent mother in relation to the interactions and observations of the children.
The applicant father’s affidavit identifies the alleged deterioration of the relationship including an alleged incident in May 2020 and that around June 2020 the applicant father decided that staying home was exposing the children to conflict and causing more damage to their well-being. In October 2020, the three boys spent a weekend with the applicant father and his two brothers down the Region BB. The affidavit identified alleged incidents in October 2020 that resulted in the police being called. The affidavit identifies contact by phone with the children and alleged interruptions. The affidavit addresses an alleged passport incident in November 2020 and that since moving out, the applicant father has not been allowed overnight access with the children. The affidavit also addresses an alleged Christmas day incident in 2020 and the circumstances concerning calling the police. The applicant father has undertaken post-separation counselling. The applicant father denies the allegations of having been abusive to the respondent mother. The affidavit identifies the flexibility of the applicant father’s work and a change in the behaviour of the two eldest children. The concern identified in the notice of risk dated 22 January 2021 relates to a long term effect on the children if the behaviour of the respondent mother continues and provides details of alleged abuse in October 2020 and Christmas day 2020.
The respondent mother’s affidavit identifies alleged domestic violence during the marriage allegedly in the presence of the children, family and friends. Four alleged incidents were identified in 2020 prior to separation and one incident in November 2020 in the family home driveway. The affidavit expresses concerns as to the safety of the children and refers to alleged incidents pre-2020 involving the applicant father’s mother and arguments about the applicant father’s mother’s capacity to care for the children. The affidavit also refers to the time spent by the children with the applicant father and refers to the children being young and having an attachment to the respondent mother, in particular the two youngest children. The affidavit sets out views said to have been expressed by the two eldest children and arrival of two police to conduct a welfare check the children and the respondent mother’s phone on Christmas day. The respondent mother’s affidavit does reveal insight into the children having a meaningful relationship with their father in what is alleged to be a safe way which suits their needs and will enable them to adjust. The notice of risk dated 16 April 2021 refers to alleged derogatory and demeaning names, and alleged incidents in late 2015, January, March and November 2020.
Reasoning
In making a parenting order under s 65D of the Act the Court must take into account, as the paramount consideration the best interests of the children, under ss 60CA and 65AA of the Act. The objects and principles underlying these provisions are identified in s 60B of the Act. This requires the Court to consider both the primary considerations and the additional considerations identified in s 60CC of the Act. In this case, where there is an order for equal shared parental responsibility, but the time is not equal, the Court must also take into account the considerations in s 65DAA of the Act, in advancing the primary considerations of the children benefiting from a meaningful relationship with both parents and the need to protect the children from harm in the making of parenting orders.
The Court has taken into account the principles identified by the Full Court in Goode & Goode [2006] FamCA 1346 as to interim hearings at [55-56}, the effect of pt VII at [65], the legislative intent at [72-73], and that the legislative pathway must be followed as identified in [81-82]. The Court has also taken into account the particular nature of child related proceedings as identified in M & M (1988) 166 CLR 69 at [20] and the principles in relation to the risk of harm to the welfare of a child, including the existence and magnitude of the risk in achieving a proper balance, in efforts to protect the child’s paramount interests, between the risk of detriment to a child and the possible benefit from parental access at [24-25].
Family violence has been raised as an issue raised in this case. In addition the breadth of meaning of family violence in s 4AB(1) to (3) of the Act, the Court has taken into account the observations of the Full Court as to the unique nature of each case and the two steps required in considering unacceptable risk of the Full Court in Blann & Kenny [2021] FamCAFC161 at [98] and [101]. The two steps are first, is there are risk and, secondly, taking into account the nature and degree of the risk balanced against other factors, is it an unacceptable risk Stott & Holger [2017] FamCAFC 152 at [37]. The Court has also taken into account that “risk is not the only or necessarily determinative factor at play in the crafting of appropriate interim parenting orders” in Dansey & Dansey [2021] FedCFamC1A 71 at [25]. The wider issue is the best interests of the child to which the resolution of the existence of an unacceptable risk is subservient Mallory & Mallory [2019] FamCAFC 221 at [78].
The respondent mother alleges in her notice of risk filed 16 April 2021, that she has been the victim of family violence by the applicant father including emotional and physical abuse, exposing the children to such abuse and an incident of physical violence towards one of the children.
The applicant father has also filed a notice of risk on 22 January 2021, claiming that the respondent mother had engaged in ‘shouting, swearing and behaving erratically’ which was reported to the police, as well as alleging that the respondent mother had threatened to kill herself in front of the children on Christmas Day in 2020, which was also reported to the police. The applicant father also alleged an incident of physical violence in his affidavit filed 29 November 2021.
On an interim basis, it is not appropriate to make a determination on the contested facts about alleged family violence especially when the Court cannot test the evidence in cross-examination. There is limited evidence outside of the Child Inclusive Assessment which was formed on a preliminary basis, as to the previous and continuing experiences of the children in relation to the alleged family violence.
There has been substantial agreement as to what is in the best interests of the children in terms of the development of a meaningful relationship with the applicant father, but there has been a past level of conflict which, in part, appears attributable to the endeavour to involve the applicant father in attending the former matrimonial home.
In terms of managing the risk of conflict on an interim basis, the Child Inclusive Assessment agreed that ‘based on a preliminary report, it seems likely that the most impactful family violence… is the children’s exposure to intense, angry exchanges between the parents – particularly those that have occurred, in their presence, in the ex-family home.” This issue can be addressed in the interim by the applicant father not spending time with the children in the family home but rather at his home. In these circumstances, there should be little if any risk of harm and the magnitude of that risk does not on balance weigh against substantial and meaningful time with the applicant father being in the best interests of the children.
It is apparent that there has been an endeavour by the respondent mother to engage the applicant father with having to attend the matrimonial home for access to the children, which has, unfortunately, exacerbated some level of conflict between the parties. Given the separation, as well as the conflict and views of Mr AA, it is clearly not appropriate for the applicant father to be required to have access to the children in the former matrimonial home, in which the respondent mother is living.
The respondent mother submitted that the two eldest children had expressed reluctance to spend time with the applicant father other than at the applicant father’s home. Given the ages of the two eldest children and the conflict that has arisen between the parties, it is not in the best interests of the children for the children or the respondent mother to be seeking to dictate this location in respect of which any meaningful time should be spent with the applicant father.
The Child Inclusive Assessment has identified a level of conflict with the two older boys and the applicant father and identified that they may benefit from family therapy steps that the parties have agreed upon in order to assist advancing that relationship.
However, the Child Inclusive Assessment and the other evidence does not suggest that the two younger children have an issue with the time being spent with the applicant father. The Court has taken into account from the Child Inclusive Assessment the initial reticence of W in engaging with his father and the ready interaction of the youngest child to engage with her father. The Court is satisfied that increased time on alternate weekends with the younger children is consistent with both primary considerations. The Court has taken into account the age of the two younger children in the context of the likely effect of separation from the respondent mother and in this case, is satisfied the considerations of substantial and significant time with the applicant father weigh in favour of the commencement of alternate weekend access to the two younger children.
The Court has taken into account the submissions of Mr Wong of Counsel for the respondent mother, who opposed alternate weekend time with the applicant father and identified the young age of the youngest child, and that she has apparently been co-sleeping with the respondent mother. This appears to be a Cowling type factor as to there being a settled environment and whilst relevant, that is not the ultimate goal in the legislation and obliged by s 65DAA of the Act to consider the outcomes identified above. The sleeping arrangements of the youngest child, now aged 3, with the respondent mother should not in this case, prevail over the development of a meaningful relationship with the applicant father through alternate weekends that provide substantial and significant time with the two younger children. The respondent mother contended that the alternate weekend access was premature, given the family therapy that needed to be engaged in. There was apparent consent as to what should occur if the particular individual proposed was not available, in terms of a substitute person. The family therapy is obviously a constructive step forward but it is not in relation to the two youngest children a sufficiently compelling reason why there should not be a regime in place to ensure a real and meaningful opportunity for the two younger children to develop their relationship with the applicant father by the substantial and significant time from which they will benefit by alternate weekend access.
The Court is satisfied that it is reasonably practicable for the two younger children to spend alternate weekends with the applicant father and that this will advance his involvement in their daily routines. The Court is satisfied that it is in the best interests of the two younger children to spend alternate weekends with the applicant father going forward, so as to develop that meaningful relationship. The Court has also had regard to the fact that the two younger children will thereby be spending substantial and significant time with the applicant father together.
The Child Inclusive Assessment by Mr AA identified the competing positions in relation to abuse. As explained above it is not appropriate for the Court, at this interim stage, to make findings in relation to the competing contentions. The Court is satisfied that there is little if any risk of harm to the children if the proposed orders identified by the Court are put in place. The nature of the risk is that identified in the respondent’s mother’s notice of risk referred to above. The Court at this stage assesses the degree of that risk at this stage to be small and taking into account the matters referred to above, the proposed orders by the Court do not on balance given rise to an unacceptable risk to the children. In that regard, the Court has also taken into account the substantive agreement by the parties on other parts of the parenting orders that do not reflect there being any unacceptable risk to the children from the proposed orders.
The Court is satisfied that the primary considerations for the eldest two boys will be best advanced by the family therapy steps that the parties have agreed should take place, which should then permit the advancement of the two eldest boys spending substantial and significant time with the applicant father. Mr AA in the Child Inclusive Assessment has identified concern in relation to the applicant’s father’s engagement with Z. No doubt, the applicant father is now much more alive to this in light of Mr AA’s Child Inclusive Assessment. It is obviously necessary not to exacerbate Z’s anxiety or panic attacks and for the applicant father to engage with Z in a way that reassures the children of their safety and to advance a meaningful and loving relationship. Y has also been identified as having anger issues in relation to his father that, no doubt, will benefit from the proposed family therapy.
It is obviously apparent that both parties recognise they had marital conflict, and those heated arguments are not something to which the children should have been exposed, or should be, in the future, in any way exposed. That conflict does not advance the children’s future emotional and physical growth. It is also apparent from the Child Inclusive Assessment and the material provided in the respondent mother’s tender bundle that there is a level of interaction between the two older boys that makes it appropriate for both of them to be treated, even though their ages are still relatively young, as being in a position where they should not be forced, at this stage, against their will to spend substantial and significant time with the applicant father, in case it exacerbates their levels of anxiety or distress.
The endeavour of the two older boys to spend time with the applicant father in the ex-family home only is clearly not an appropriate approach given the conflict between the parties at that location, as the Court has identified. But this also reinforces that the older boys do want to spend time with the applicant father. It is very much in their interests for the respondent mother to encourage the boys to do so, even though it is not in the location in which they wish.
The Court has taken into account the observations of the respondent mother, both in her affidavit and in the Child Inclusive Assessment about the alleged distress in relation to spending time with the applicant father by the two older boys. In particular, the Court notes the observation by one of the two boys of self-harm. The Court has taken into account the observations that Mr AA made in relation to Z and Y.
The Court has taken into account Mr AA’s reference to the children’s exposure to intense angry exchanges between the parents, particularly in the ex-family home, and that such exposure in that home is exacerbating at least one of the children’s anxiety and confidence issues. However, Mr AA found no evidence that the children are being physically abused while in the care of the applicant father. An observation was made in relation to the two older boys trying not to trigger anger by the applicant father. It is obviously essential for the applicant father to control his emotions and ensure that his children, when in his presence, are not exposed to any outbursts of anger to advance their meaningful and loving relationship.
The Court notes that neither parent has raised any issue of alcohol and drugs, and neither has any clinical or classified mental illness. The Court has also taken into account the reference to the children and the respondent mother grieving the loss of their relationship and the complex nature of grief reactions which may not be resolved readily in a predictable pattern. That a grief reaction appears to be an impasse with respect to the older children spending more time with their father.
The Court has taken into account the views expressed by the two eldest boys about being adamant that they will not spend overnight time with their father, and Mr AA’s view that forcing them to do so would be highly likely to exacerbate their mental health issues.
The Court is mindful of the concerns expressed in the Child Inclusive Assessment which is why the Court is satisfied that it is in the best interest of the two eldest children to qualify the parenting orders in relation to the two eldest children to accommodate their wishes at this stage and also to protect the two eldest children from harm by exacerbating their reactions to substantial time with the applicant father.
There is dispute about particular special days, and also the times for particular special days. These are important considerations in relation to substantial and significant time with the applicant father and as far as possible should in this case be shared equally. The Court has made parenting orders for a meaningful participation by the children with the respective parents on those special days, subject to the wishes of the two eldest boys at this stage. The Court has framed the orders in a way which seeks to ensure that the respondent mother encourages and facilitates, as far as possible, the two older boys attending upon the applicant father on those occasions.
An issue was raised in relation to the paternal grandparents’ home and that can be taken into account by the applicant father when spending time with the children to try and ensure a healthy, constructive environment in relation to the children. The Court is not satisfied that the paternal grandparents’ home exposes the children to a risk of harm.
The change-over location was the subject of competing views and the previous close location to the matrimonial home appears to have been a potential source of conflict. The Court is satisfied that the McDonalds at Suburb T is a balance in the best interest of the children. The respondent mother should not be reacting to the applicant father attending change-over with another person and the order has been framed to restrain any disparaging communication by either party to avoid any conflict.
Accordingly, the Court makes the consent orders with regards to the properties, and makes interim orders in regards to the parenting issues. The Court is satisfied that the proposed orders made are in the best interests of the children.
I certify that the preceding forty-two (42) paragraphs are a true copy of the settled transcript of the published oral reasons for judgment of Judge Street delivered in open Court on 3 December 2021.
Associate:
Dated: 13 December 2021
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