PAVONI & PAVONI
[2018] FCCA 3399
•23 November 2018
FEDERAL CIRCUIT COURT OF AUSTRALIA
| PAVONI & PAVONI | [2018] FCCA 3399 |
| Catchwords: FAMILY LAW – Interim parenting orders – best interests of children – orders made. |
| Legislation: Family Law Act 1975, ss.60B, 60CA, 60CC, 61DA, 65D, 65DAA |
| Cases cited: Rice v Asplund (1979) FLC 90-725 Sampson v Hartnett [2015] FamCA 64 Morton and Berry [2014] FamCAFC 208 Goode & Goode (2006) FLC 93-286 Marvel & Marvel (2010) 43 Fam LR 348 SS & AH [2010] FamCAFC 13 Eaby & Speelman (2015) FLC 93-654 Banks & Banks [2015] FamCAFC 36 |
| Applicant: | MS PAVONI |
| Respondent: | MR PAVONI |
| File Number: | PAC 5601 of 2015 |
| Judgment of: | Judge Newbrun |
| Hearing date: | 26 October 2018 |
| Date of Last Submission: | 26 October 2018 |
| Delivered at: | Parramatta |
| Delivered on: | 23 November 2018 |
REPRESENTATION
| Counsel for the Applicant: | Mr Rosic |
| Solicitors for the Applicant: | Rowlandson & Co Solicitors |
| Solicitors for the Respondent: | Mr Neville of Branston Neville |
| Independent Children’s Lawyer: | Ms Hayward of Legal Aid NSW Parramatta Family Law |
ORDERS
The father’s Application in a Case filed 19 April 2018 be dismissed.
IT IS NOTED that publication of this judgment under the pseudonym Pavoni & Pavoni is approved pursuant to s.121(9)(g) of the Family Law Act 1975 (Cth).
| FEDERAL CIRCUIT COURT OF AUSTRALIA AT PARRAMATTA |
PAC 5601 of 2015
| MS PAVONI |
Applicant
And
| MR PAVONI |
Respondent
REASONS FOR JUDGMENT
Introduction and proposals
The following Reasons for Judgment relate to the interim hearing between Ms Pavoni born 1980 (“the mother”) and Mr Pavoni born 1981 (“the father”) in relation to the twin children [X] and [Y] born 2011 (“the children”).
The interim hearing pertained to the father’s Application in a Case filed 19 April 2018. In that application the father seeks fresh interim parenting Orders, there having been prior interim parenting Orders made by consent between the parties on 20 October 2017. Those past Orders provided for the children to spend supervised time with the father through Connecting Families. The father contended, inter alia, that there had been a significant change in circumstances since such past interim Orders of the Court; he contended that the need for the children to spend supervised time with the father no longer applied, by reason, inter alia, of the father’s past positive and uneventful supervised time spent with the children.
The mother contended that there had been no significant change in circumstances since the Court’s interim consent Orders made 20 October 2017 such that, pursuant to the rule in Rice v Asplund (1979) FLC 90-725 (“Rice & Asplund”), the father should be prohibited from seeking fresh parenting Orders in relation to the children.
Material relied upon
The mother relied upon the following documents:
a)Amended Initiating Application filed 8 May 2017;
b)Response to an Application in a Case filed 21 May 2018;
c)Affidavit of Ms Pavoni filed 21 May 2018;
d)Case outline for the Respondent in Application in a Case.
The father relied upon the following documents:
a)Amended Response to Initiating Application filed 22 March 2017;
b)Application in a Case filed 19 April 2018;
c)Affidavits of Mr Pavoni filed 19 April 2018 and 22 October 2018;
The Independent Children’s Lawyer (“ICL”) relied on the following documents:
a)Child Inclusive Conference Memorandum to Court dated 19 October 2017;
b)Family Report of Ms B dated 25 October 2018.
The following material was tendered:
a)Sleeve 10 – documents produced on subpoena by NSW Police, Tab M1 (Exhibit A);
b)Sleeve 9 – documents produced on subpoena by Connecting Families, Tab M1 (Exhibit B);
c)Sleeve 8 - documents produced on subpoena by NSW Police, Tabs M1 – M8 (Exhibit C).
The Court has considered all the parties’ material, exhibits and submissions.
Agreed or undisputed facts, unless otherwise stated
The father was born on 1981 and the mother on 1980. The parties commenced cohabitation in about 2007.
The parties separated in about September 2015. The father stayed in the home and the mother and the children went to live with the maternal grandparents.
On 14 April 2016 a provisional Apprehended Domestic Violence Order (“ADVO”) was taken out against the father for the mother’s protection.
The father asserts that he commenced cohabitation with Ms M in 2016.
On about 10 August 2016 a final ADVO was made against the father for the mother’s protection for one year.
The father asserts that prior to 5 December 2016, when the mother ceased all contact between the father and the children without notice, there was an over eight month period during which the children were spending time with the father without issue.
The mother asserted that from early December 2016 until 17 December 2017 the father did not spend any time with the children. On the other hand, the father asserted that during the period between December 2016 and 20 October 2017 he would on occasion attend the children’s school, in accordance with prior arrangements made with school staff, to see the children.
From 7 December 2016 to 10 December 2016 the father breached the ADVO by contacting the mother via text messages. The father conceded that the text messages from him were abusive. He asserted to the Child Inclusive Conference family consultant that he sent messages out of extreme frustration as the mother would not allow him to spend time with the children.
On 2017 the father was sentenced for breaching the ADVO. He received a fine with a bond for twelve months pursuant to section 9 of the Crimes (Sentencing Procedure) Act 1999 (Cth).
On 2017 the father drove his car whilst in the low range prescribed concentration of alcohol (“PCA”). On 2017 the father was sentenced in the Local Court for low range PCA. He received a fine and was disqualified from driving for three months. He was also sentenced following a Call Up on the above section 9 bond (see Exhibit A NSW Police records).
At the Child Inclusive Conference on 19 October 2017, the mother stated, inter alia, that the father had never been physically violent to the children. However, the mother asserted that the father would denigrate the mother and her family if the father was spending unsupervised time with the children.
Consent parenting orders were made between the parties on 20 October 2017, providing for the children to spend supervised time with the father through Connecting Families.
Thereafter the children spent supervised time with the father on 17 December 17, 14 January 18, 21 January 18 and 11 February 18. On 17 December 2017, a Sunday, the supervised time occurred between about 12 pm and 2 pm; on 14 January 2018, a Sunday, the supervised time occurred between about 12 pm and 2 pm; on 21 January 2018, the supervised time occurred between 12 pm and about 2 pm; and on 11 February 2018, a Sunday, supervised time occurred between about 12 pm and 2 pm.
Further, the children spent supervised time with the father on 5 August 2018, 19 August 2018, 2 September 2018, 16 September 2018, 30 September 2018 and 13 October 2018.
Rice v Asplund legal principles
The Court refers to the helpful exposition of relevant legal principles in relation to the decision of Rice v Asplund and the decision of Foster J in Sampson v Hartnett [2015] FamCA 64.
In Morton and Berry [2014] FamCAFC 208 (18 September 2014) the Full Court succinctly reiterated the development of the ‘rule’ as follows:
18. The “rule” in Rice & Asplund refers to remarks made by Evatt CJ in that case at [78,905-06]:
The principles which, in my view, should apply in such cases are that the court should have regard to any earlier order and to the reasons for and the material on which that order was based. It should not lightly entertain an application to reverse an earlier custody order. To do so would be to invite endless litigation for change is an ever present factor in human affairs. Therefore, the court would need to be satisfied by the applicant that … there is some changed circumstance which will justify such a serious step, some new factor arising or, at any rate, some factor which was not disclosed at the previous hearing which would have been material. …
19. Evatt CJ continued:
These are not necessarily matters for a preliminary submission, but they are matters that the judge should consider in his reasons for decision. It is a question of finding that there are circumstances which require the court to consider afresh how the welfare of the child should best be served. These principles apply whether the original order is made by consent or after a contested hearing. The way they apply and the factors which will justify the court in reviewing a custody order will vary from case to case.
20. The “rule” is a manifestation of the best interests principle and founded on the notion that continuous litigation over a child or children is generally not in their interests (Langmeil & Grange [2013] FamCAFC 31). The application of the rule is connected to the nature and degree of change sought to the earlier order (SPS & PLS (2008) FLC 93-363).
21. It is to be recalled however, as was said in Perrott & Perrot [2014] FamCAFC 128, referring to the decision of the High Court in Norbis v Norbis (1986) 161 CLR 513 where Brennan J said (at 537):
It is one thing to say that principles may be expressed to guide the exercise of a discretion; it is another thing to say that principles may harden into legal rules which would confine the discretion more narrowly than the parliament intended.
22. It is not relevant to the determination of this case to consider whether the cases concerned with Rice & Asplund have “hardened” into binding principles. However, there is no doubt that the concepts to which Rice & Asplund and the cases which follow it refer are entrenched in the Family Law jurisprudence.
23. As to the application of the principles, the Full Court in Marsden v Winch (2009) 42 Fam LR 1 said:
50. Nevertheless, there are significant changes that occur and which do require a court to reconsider decisions previously made. Whether in a particular case a court should be willing to embark upon another hearing concerning the child and parent, or whether to do so would itself be demonstrably contrary to the best interests of the child, is a decision to be made in each particular case. How is that decision to be made? The court must look at:
(1) The past circumstances, including the reasons for the decision and the evidence upon which it was based.
(2) Whether there is a likelihood of orders being varied in a significant way, as a result of a new hearing.
(3) If there is such a likelihood, the nature of the likely changes must be weighed against the potential detriment to the child or children caused by the litigation itself. Thus, for example, small changes may not have sufficient benefit to compensate for the disruption caused by significant re-litigation.
24. Although the provisions of Part VII of the Family Law Act 1975 (Cth) (“the Act”), which govern determination of the applications before his Honour, have, subsequent to Rice & Asplund, undergone significant amendment, there is no doubt that the principles established in that case and the subsequent line of authority applied to these proceedings.
The Court will now examine the evidence before the Court by reference to the father’s contention that there has been a significant change of circumstances since the past interim consent parenting Orders of 20 October 2017, such that there is a likelihood of those parenting Orders being varied in a significant way as a result of a new hearing. To conduct this analysis, it is necessary for the Court to consider relevant considerations under section 60CC of the Family Law Act 1975 (Cth) (“the Act”), discussed below.
Legal principles relating to parenting interim hearings
The relevant principles in relation to parenting proceedings, including interim proceedings, are well settled: see Goode & Goode (2006) FLC 93-286.
In Marvel v Marvel [2010] FamCAFC 101; (2010) 43 Fam LR 348 the Full Court (Faulks DCJ, Boland and Stevenson JJ), discussed the problems associated with making findings on disputed evidence as follows:
[120] As has frequently been emphasised interim parenting proceedings, and orders made as a consequence, are a necessary but temporary measure until all the evidence can be tested, evaluated and weighed at a final hearing by the making of final parenting orders. Decisions judicial officers have to make in interim proceedings are difficult and, often for very good reason, a conservative approach, or one which is likely to avoid harm to a child is adopted. This is often to the understandable distress of a party who may not achieve the outcome he or she desires, or thinks to be in the best interests of their child or children. Interim parenting orders are frequently modified or changed after a final hearing, and any allocation of parental responsibility made at an interim hearing is disregarded at the final hearing (s 61DB).
[122] In SS & AH [2010] FamCAFC 13 the majority (Boland and Thackray JJ) discussed at paragraph [88] of their reasons the care necessary to be exercised in making findings in interim parenting proceedings. Their Honours said:
In our view, findings made at an interim hearing should be couched with great circumspection, no matter how firmly a judge’s intuition may suggest that the finding will be borne out after a full testing of the evidence.
[123] Later, at [100] their Honours amplified their comments and said:
The intuition involved in decision-making concerning children is arguably of even greater importance when a judge is obliged to make interim decisions following a hearing at which time constraints prevent the evidence being tested. Apart from relying upon the uncontroversial or agreed facts, a judge will sometimes have little alternative than to weigh the probabilities of competing claims and the likely impact on children in the event that a controversial assertion is acted upon or rejected. It is not always feasible when dealing with the immediate welfare of children simply to ignore an assertion because its accuracy has been put in issue.
Of this, the Full Court in Eaby & Speelman (2015) FLC 93-654 said at 80, 332:
[80] As would be immediately apparent, this approach enables the court to appropriately and carefully deal with contentious issues relevant to the welfare of the child, and for those issues to not be ignored.
The Court also refers to the recent decision of the Full Court of the Family Court of Australia in Banks v Banks [2015] FamCAFC 36, especially at paragraph 46 to 52.
Section 60B of the Act sets out the objects of Part VII of the Act relating to children that inform the making of parenting Orders.
In deciding whether to make a particular parenting order in relation to a child, a Court must regard the best interests of the child as the paramount consideration: section 60CA of the Act.
To determine what is in a child’s best interests, the Court must consider the matters set out in subsections (2) and (3) of section 60CC. Firstly, the Court must consider the primary considerations, being:
a)(2)(a) The benefit to the child of having a meaningful relationship with both of the child’s parents; and
b)(2)(b) The need to protect the child from physical or psychological harm from being subjected to or exposed to abuse, neglect or family violence.
In applying these considerations, as per section 60CC(2A), greater weight must be given to the ‘need to protect’ the child over the benefit to the child of a meaningful relationship with the parents.
When making a parenting Order in relation to a child, the Court must apply a presumption that it is in the best interests of the child for the child’s parents to have equal shared parental responsibility for the child: section 61DA of the Act. When the Court is making an interim Order, the presumption applies unless the Court considers that it would not be appropriate in the circumstances for the presumption to be applied when making that Order: section 61DA (3).
If the presumption of equal shared parental responsibility in relation to the child applies, and is not rebutted, the Court must firstly consider whether the child spending equal time with each of the parents would be in the best interests of the child and reasonably practicable.
If equal time is found not to be in the child’s best interests, or impracticable, as a result of consideration of one or more of the matters in section 60CC, the Court must consider making an Order that the child spends substantial and significant time (as defined in section 65DAA (3)) with the parents, unless contrary to the child’s best interests as a result of consideration of one or more of the matters in section 60CC, or impracticable.
If neither equal time nor substantial and significant time is considered to be in the best interests of the child, or impracticable, then the court may make such orders in the discretion of the court that it thinks proper, being orders that are in the best interests of the child, as a result of consideration of one or more of the matters in section 60CC: sections 60CA, 60CC, 65D.
The best interests of the children
Section 60CC Considerations
Subsection (2a) - the benefit to the child of having a meaningful relationship with both of the child’s parents: a primary consideration.
The children have a meaningful relationship with the mother and would benefit from a continuance of that relationship.
The mother has been the children’s primary carer from birth to date.
The children, despite not having spent regular time with the father post separation, appear to continue to have a meaningful relationship with him and would benefit from a continuance of that relationship, subject to the children not being exposed to a significant risk of harm if spending time with him.
The Court proposes to expedite the final hearing of these parenting proceedings; in such circumstances, should the children, pending a final hearing, continue to spend regular supervised time with the father, there is a significant prospect that the children’s meaningful relationship with the father can be maintained. In this regard, the Court has not overlooked the concerns of the Family Report writer in relation to the children continuing to spend supervised time with the father, but refers to its discussion below under the need to protect primary consideration.
Subsection (2b) - the need to protect the child from physical or psychological harm from being subjected to, or exposed to, abuse, neglect or family violence.
The Court observes that the parties each make serious adverse allegations against the other in relation to family violence and other matters. They are significantly in dispute in relation to these allegations.
At the interim hearing, the mother contended that she had four main areas of concern in relation to the children spending unsupervised time of the father: the father’s alleged anger management problem, the father’s alleged alcohol problem, the father’s alleged substance abuse problem, and the father’s alleged denigration of the mother and her family in front of the children.
A summary of the mother’s allegations against the father relating to family violence appears under the heading “Family violence” in the mother’s Affidavit filed 21 May 2018 at paragraphs 6 to 10.
Such family violence allegations against the father by the mother include drunken and aggressive behaviour by the father in the presence of the children; the father going out late at night and returning home in the morning intoxicated; the father being too drunk to get out of bed; the father sending the mother abusive text messages; the father threatening the mother and threatening to burn the former matrimonial home down; and the father maliciously damaging the former matrimonial home.
The mother refers to the former ADVO orders made for her protection against the father and the father’s past breaches in early December 2016 of the ADVO by sending the mother abusive text messages.
The mother alleges (see Annexure B to her Affidavit filed 21 May 2018) that the father sent the mother’s employer an email alleging that the mother was corresponding with the Child Support Agency during her employment hours. It is alleged that the content of the father’s email to the mother’s employer stated, inter alia, “[i]f I was paying people I wouldn’t want them doing personal matters wasting company time and money”.
The father was convicted on [date] 2017 in the Local Court of driving with low range PCA. He was fined $500 and disqualified from driving for three months. By reason of the father’s previous section 9 bond, made on [date] 2017 in Local Court in relation to having breached the previous ADVO, on [date] 2017, the Court sentenced him as follows:
(Call up) bond section 9:12 months to participate in alcohol addiction counselling as directed. To participate in drug addiction counselling as directed. To participate in anger management as directed. Domestic violence related.
In relation to the above sentence, the father adduced no evidence.
As to the low range PCA driving offence on 2017, Exhibit C, the police entry for that date states, inter alia, that at about [time] on [date] 2017 the father was driving on [Road] at [Town A]. His speed was checked that 104 kilometres per hour in a signposted 80 kilometres per hour area. The police stopped the father and spoke to him in relation to his speed. He was roadside breath tested and returned a positive result of 0.068 g of alcohol in 210 L of breath. The police entry states that the father stated that he had had about eleven 375 ml cans of beer. He had had his first drink at 4:45 pm the previous day and his last drink at 10:10 pm the previous day. He did not consume any food during this time. The entry states that the father appeared slightly affected by intoxicating liquor.
Further, in relation to the allegation of the father’s alcohol problem, Exhibit C, the NSW Police entry, for [date] 2018 suggests that on the evening of [date] 2018 the father was well intoxicated at the [name] Hotel, [Town B].
Other Exhibit C police entries refer to alleged incidents in [dates] 2016, where the father has allegedly been verbally threatening towards the mother.
The Exhibit B tendered document from Connecting Families relates to an email from the father to Connecting Families on 23 February 2018 where, Connecting Families having informed the father that contact supervision scheduled for Sunday 25 February 18 would not proceed (if both parties could not come to an agreement about the contact location), the father stated to Connecting Families, “you people are a joke. You’re fucking with my kids life. I give enough notice to organise something and you can’t even do that hope rot in hell”.
In the mother’s Affidavit filed 21 May 2018, she alleges under the heading “Applicant’s Drink Driving Charge/Alcohol Issues”, inter alia, that the father has a problem with alcohol. She bases that view on observations on numerous occasions during the relationship that the father drove whilst well over the legal limit of 0.05. The mother expresses her concern that if the father was to spend unsupervised time with the children he would drink to excess and potentially drive whilst intoxicated.
The mother alleges that on at least one prior occasion in this Court, she allegedly observed the father staring at her and he started pointing at her and then started laughing. She alleges that whilst outside Court in early August 2016, she observed the father staring at her and putting his finger to his throat to make a slitting action whilst looking at her.
In the Child Inclusive Conference Memorandum to Court dated 19 October 2017, the mother stated that the father had never been physically violent towards her. However, she alleged, inter alia, that the father had been verbally threatening towards her and had punched a wall in anger.
In that Memorandum the father admitted to having breached the ADVO by sending abusive text messages to the mother. He asserted to the family consultant that he had not understood the severity of the ADVO and he further claimed that he had only sent the messages out of extreme frustration because the mother would not allow him to spend time with the children.
The mother also stated to the family consultant that the father had never been physically violent towards the children.
The mother told the family consultant that the father’s alcohol consumption had fluctuated during their relationship, but there had been periods where he had consumed alcohol on a daily basis and spent between one to five hours per day at the pub after work. She alleged to the family consultant that the father would drive home under the influence of alcohol and would be intoxicated. She alleged and claimed that the paternal grandfather had made the father attend Alcoholics Anonymous when he was a teenager.
The father reported to the family consultant that he currently consumes alcohol about three to four days a week and would drink six light beers. He alleged that in [date] 2017 he had become distressed on the children’s birthday and had consumed alcohol. He said that when driving to work the next day, he had been found to be still over the limit and had been convicted of driving under the influence of alcohol, resulting in him losing his license for three months. He stated that during his relationship with the mother he had consumed full strength beer, drinking about eight beers per sitting.
The child [Y] told the family consultant that she could not remember if the father had spoken negatively about the mother to her.
The child [X] told the family consultant that the father did not speak negatively about the mother.
In the Family Report, the mother told the Family Report writer that during the parties’ relationship, the father preferred to be at the pub, and that he had consumed alcohol to excess to the point that he had urinated in the wardrobe and on her clothes. She alleged that the father had been frequently so intoxicated that he slurred his words and was unable to play with the children. She alleged that the father was often rough with the children whilst intoxicated, albeit whilst joking, and gave an example that he would throw them on the bed roughly. She alleged that the father drives whilst under the influence of alcohol, and was concerned about the children being in a car that he is driving.
The father asserted to the Family Report writer that he consumes four to six mid strength beers per weekend. He denied that he had ever attended Alcoholics Anonymous as a teenager. He denied that his alcohol consumption poses any risk of harm to the children.
The maternal grandmother asserted to the Family Report writer that during the parties’ relationship the father had consumed alcohol to excess, often to the point of being paralytic.
The maternal grandparents alleged to the Family Report writer that they had witnessed the father verbally abuse the mother.
The Family Report writer interviewed the father’s new partner Ms M. Inter alia, she refers to the children’s close relationship with the father, the children’s comfortable relationship with her, and the fact that she could see no reason why the children could not spend time with the father.
The mother asserts she is fearful of the father. The father asserts that the mother has no reason to fear him.
The father denied to the family consultant ever being violent or controlling towards the mother. The father reported that during his relationship with the mother he had been diagnosed with depression, for which he had been medicated with antidepressants for less than a year. He claimed that since separation his depression has lifted and he is no longer depressed or in need of medication.
The Family Report writer observed that the mother and the maternal grandparents presented as hostile towards the father.
The Family Report writer stated that it was outside the scope of her assessment to determine whether or not the father had abused alcohol in the past and, if he had done so, whether this made him irritable, as was alleged by the mother. She noted that the mother did not indicate that the children had been harmed by the father while he was allegedly using alcohol. She stated that this may have been because the mother had been caring for the children at the time,
and thus, what remains unknown is whether [the father] would misuse substances if he had the children in his sole care. The Court may need to determine whether or not [the father] has a dependency to substances, as this may determine the likelihood that he would misuse substance with the children in his care. If [the father] has a dependency to these substances, this may cause him to prioritise his use of substances over the care of the children, leaving them open to risk of harm from irritability and/or lack of supervision or other parenting deficits. If the Court was to find that [the father] is dependent on alcohol and/or cannabis, supervision whenever the children spend time with [the father] may be required, although this would likely be impractical as a long-term solution in managing risk.
The Family Report writer also stated at paragraph 104 that,
[a]n additional concern raised by [the mother] is the children travelling in [the father’s] car, given his recent history of driving whilst under the influence of alcohol. It could not be determined in this assessment whether [the father] would operate a vehicle under the influence of substances if the children were travelling with him and this may require determination by the court. Significant concerns for the children safety would be held if [the father] was to do this.
The Family Report writer stated at paragraph 105 that if the father had substance dependency,
he may benefit from attending drug and alcohol counselling, a referral for which can be obtained from his family doctor. If [the father] is found by the Court to be dependent on substances, his denial of this may mean that he is not motivated to use treatment to reduce dependency and this may mean that the children would be at risk of harm in his unsupervised care.
The Family Report writer stated that the father’s proposal to spend alternative weekend’s with the children from after school Friday to before school Monday would benefit the children,
unless the court determines that the children would be at unacceptable risk of harm in his care. This arrangement would allow the children spend medical time with [the father] …
The Family Report writer stated that if the Court was to find that the children are at unacceptable risk of harm in the father’s care, any time they spent with him would need to be supervised. She stated that ongoing professional supervision was likely to be experienced as confusing and limiting to the children. She stated that it was outside the scope of her assessment to determine whether or not Ms M would be an appropriate supervisor, should this be required, “however her presentation indicated no significant concerns in regard to this”.
The father denied the mother’s allegations relating to alleged damage to the former matrimonial home, stalking the mother and her family, intimidating phone calls, and physical and verbal violence.
The Court has considered and taken into account the Family Report. The Court recognises that this Family Report remains untested at this interim stage.
The children were interviewed by the Family Report writer and observed with the father and his new partner. That observation session was positive. The child [X] told the Family Report writer that the father sometimes fought with his new partner Ms M. [X] stated that she had never seen them be violent but had seen them shout. She stated that they did not get that cross and she was not fearful when that occurred. The child [X] referred to Ms M as a bit friendly and a bit grumpy. She referred to the father as both grumpy and kind. She was not fearful of Ms M. [X] stated that the father “doesn’t say mean things about Mum. He used to, but [Y] said Mum likes everyone and he said he likes everyone too.”
The child [Y] described Ms M as normally kind and a little bit grumpy. She was not fearful of Ms M. This child stated that neither parent speaks negatively about the other parent to her.
The Court recognises that:
a)The father’s supervised time with the children has been positive and uneventful, and the father has an established and close relationship with the children.
b)There is no evidence that the father has previously physically harmed the children.
c)The children want to spend more time with the father, including overnight time.
d)The father has denied the mother’s allegations made against him, apart from acknowledging the past breaches of the ADVO when he sent abusive text messages to the mother and his low range PCA conviction.
e)The Family Report writer stated that the impression given was that the children would likely experience emotional distress and confusion if they were not able to have ongoing and meaningful contact with the father. She stated that it appeared that the children would benefit from spending meaningful time with the father, unless the Court was to find that them doing so would place them at unacceptable risk of harm.
(The Court also acknowledges the father’s contention that the cost of supervised time with the children is presently prohibitive for him, in light of his child support and mortgage obligations. However, this contention is significantly disputed by the mother and the Court is unable to resolve this factual dispute.)
Nevertheless, the Court has significant concerns at this interim stage in relation to the children spending unsupervised time with the father. In the view of the Court, there is an unacceptable risk posed to the children if they were to spend unsupervised time with him.
This unacceptable risk relates to the significant risk of the children being exposed to neglect, abuse (psychological) or family violence, if spending unsupervised time with the father by reason of his alcohol consumption and anger management issues. Further, it relates to the significant risk of the children being exposed to physical harm if they are passengers in the father’s motor vehicle whilst he is driving when affected by alcohol. And it also relates to the significant risk that the father will denigrate the mother in the presence of the children.
There is a significant suggestion on the material before the Court that the father has a significant alcohol consumption problem which remains untreated by him. In this regard, the Court refers to the mother’s allegations of the father’s antisocial and other behaviour during the relationship whilst intoxicated; the mother’s allegations that during the relationship the father drove a motor vehicle while intoxicated; the father’s statements to the family consultant/Family Report writer and the police regarding his alcohol consumption; the father’s low range PCA driving conviction in [date] 2017, including the suggestion of his significant alcohol consumption the day before being pulled over by the police for driving at 104 kilometres per hour in a signposted 80 kilometres per hour area; and the suggestion of the father’s intoxication at the [name] Hotel in Town B in [date] 2018.
There is a significant suggestion on the material before the court that the father has an anger problem which has not yet been addressed by the father; the Court refers to the mother’s allegations against the father in this regard (and see Exhibit C in this context); the father’s communications with third parties; the father’s past breaches of the ADVO, and the father’s failure to adduce evidence relating to Exhibit A, being the sentence imposed in the Local Court on [date] 2017 relating to the section 9 call up bond, which refers to the father participating in anger management as directed.
The Court has considered whether it could craft appropriate protective Orders, such as an Order that the father not drive a motor vehicle whilst affected by alcohol, an Order that the father not drive a motor vehicle whilst spending unsupervised time with the children, and an Order that the father not denigrate the mother in the presence of the children. However, the Court has significant concerns as to whether the father would comply with such potential protective orders in light of his past breaches of the ADVO; the father’s apparent breach of the bond imposed upon him on being dealt with for breach of the ADVO (by reason of his conviction of the low range PCA driving charge); and allegations made against him by the mother of abusive, threatening and antisocial behaviour, including whilst the parties were present at the courthouse.
The Court cannot predict the future circumstances in which the father may potentially exhibit anger in the presence of the children if spending unsupervised time with them; whether that may be when he is alone with the children, with his partner in the presence of the children, or in conjunction with alcohol consumption. In this context, it is not without relevance that, whilst acknowledging that Ms M was interviewed by the Family Report writer, there is no affidavit from Ms M outlining the nature of her relationship with the father, nor is there significant evidence from the father outlining the nature of his relationship with Ms M. One of the children, [X], stated that the father sometimes fights with Ms M, in that she has seen them shout.
The Court could craft a protective Order that the father attend an anger management program, but the Court has concerns in relation to the children being exposed to a significant risk of psychological harm if exposed to the father’s anger whilst spending unsupervised time with the father, before the father has successfully completed such a program.
The Court gives significant weight to this need to protect primary consideration.
Section 60CC(3) - additional considerations
(a) Any views expressed by the child and any factors (such as the child maturity or level of understanding) that the court thinks are relevant to the weight it should give to the child’s views
The Court does not place significant weight on the children’s views, noting their tender age, and taking into account the Family Report.
(b) The nature of the relationship of the child with each of the child’s parents; and other persons (including any grandparent or other relative of the child)
The Court refers to its discussion above under the meaningful relationship primary consideration. The mother asserts that the children have a good relationship with the maternal grandparents. The father asserts that the children have warmed to his new partner.
(c) The extent to which each of the child’s parents has taken or failed to take the opportunity; to participate in making decisions about major long-term issues in relation to the child; and to spend time with the child; and to communicate with the child
Both parties would appear to have taken such opportunities, whilst noting that the mother and the father are in dispute as to their respective historical care of the children.
(ca) The extent to which each of the child’s parents has fulfilled, or failed to fulfil, the parent’s obligations to maintain the child
The mother would appear to have fulfilled such obligations. She alleges that the father failed to pay child support for a significant period post separation. This appears to be in dispute to some extent. The father, in more recent times, has been paying child support.
(d) The likely effect of any changes in the child’s circumstances, including the likely effect on the child of any separation from either of his or her parents; or any other child, or other person (including any grandparent or other relative of the child), with whom he or she has been living
The Court refers to its discussion above under the primary considerations.
(e) The practical difficulty and expense of a child spending time with and communicating with the parent and whether that difficulty or expense will substantially affect the child’s right to maintain personal relations and direct contact with both parents on a regular basis
Not applicable.
(f) The capacity of each of the child’s parents; and any other person (including any grandparent or other relative of the child), to provide for the needs of the child, including emotional and intellectual needs
Both parties would appear to have such capacities. However, the mother alleges (denied by the father) that historically the father failed to devote adequate time and energy towards the care of the children.
(h) If the child is an Aboriginal child or a Torres Strait Islander child: the child’s right to enjoy his or her Aboriginal or Torres Strait Islander culture (including the right to enjoy that culture with other people who share that culture); and the likely impact any proposed parenting order under this Part will have on that right
Not applicable.
(i) The attitude to the child, and to the responsibilities of parenthood, demonstrated by each of the child's parents
Both parties assert that they have each demonstrated appropriate attitudes towards the child and to their responsibilities of parenthood, whilst noting the disputation between the parties relating to, in particular, alleged family violence perpetrated in the presence of the children.
(j) Any family violence involving the child or a member of the child's family.
The Court refers to its discussion above under the need to protect consideration.
(k) If a family violence order applies, or has applied, to the child or a member of the child’s family – any relevant inferences that can be drawn from the order, taking into account the following: the nature of the order; the circumstances in which the order was made; any findings made by the court in, or in proceedings for, the order; any other relevant matter.
The Court refers to the need to protect consideration discussed above and the material before the Court relating to a history of a provisional and final ADVO between the parties.
(l) Whether it would be preferable to make the order that would be least likely to lead to the institution of further proceedings in relation to the child.
These are interim proceedings.
m) Any other fact or circumstance that the court thinks is relevant.
Not applicable.
Summary
Evaluating the above considerations under section 60CC of the Act, in the context of considering whether or not the father has overcome the Rice v Asplund threshold, the Court is of the view that there is not a likelihood that the Court would vary the Orders of 20 October 2017 to provide that the children spend unsupervised time with the father as a result of a fresh interim parenting hearing. Accordingly, the father should not be permitted to seek fresh interim parenting Orders as sought by him. If the Court is wrong in coming to this conclusion in relation to the rule in Rice v Asplund, the Court would nevertheless be of the view that, by reason of the above discussed considerations under section 60CC of the Act, it would not be in the best interests of the children to make further interim parenting Orders such that they spend unsupervised time with the father, as sought by him in his Application in a Case filed 19 April 2018.
I certify that the preceding one hundred and three (103) paragraphs are a true copy of the reasons for judgment of Judge Newbrun
Date: 23 November 2018
0
8
2