Pedrosa & Findon
[2021] FCCA 1227
•4 June 2021
FEDERAL CIRCUIT COURT OF AUSTRALIA
Pedrosa & Findon [2021] FCCA 1227
File number(s): PAC 4605 of 2020 Judgment of: JUDGE NEWBRUN Date of judgment: 4 June 2021 Catchwords: FAMILY LAW – parenting - best interests of Child -interim orders made
FAMILY LAW – proceedings transferred to the Family Court of Australia - order made
Legislation: Federal Circuit Court of Australia Act 1999 s 39
Federal Circuit Court Rules 2001 r 8.02Family Law Act 1975 (Cth) ss 60B, 60CA, 60CC
Cases cited: Banks & Banks (2015) FamCAFC 36
Eaby & Speelman [2015] FamCAFC 104
Goode & Goode (2006) FLC 93-286
Marvel & Marvel (No 2) [2010] FamCAFC 101
Morris & Rosetti [2017] FamCA 249Number of paragraphs: 123 Date of last submission/s: 3 May 2021 Date of hearing: 27 April 2021, 3 May 2021 Place: Parramatta Solicitor for the Applicant: Ms Munk Solicitor for the Respondent: Mr Grew Solicitor for the Independent Children's Lawyer: Mr Bornam ORDERS
PAC 4605 of 2020 BETWEEN: MR PEDROSA
Applicant
AND: MS FINDON
Respondent
ORDER MADE BY:
JUDGE NEWBRUN
DATE OF ORDER:
4 JUNE 2021
ORDERS PENDING FURTHER ORDER:
1.The Child X born in 2014 shall live with the Mother.
2.X shall spend supervised time with the Father as agreed between the parents in writing, or failing agreement, for 3 hours one Sunday each month commencing 13 June 2021 (or as soon thereafter as arrangements can be made) through P Contact Centre, at the Father’s expense.
3.Should the Father be unable to afford supervision of his time with the child through P Contact Centre, then he shall spend supervised time with the child at a Children’s contact centre subject to the requirements of Order 4.
4.For the purpose of effecting X’s time with the Father at a Children's contact centre pursuant to Order 3:
(a)X's time with the Father shall be supervised by a Children’s contact centre such as B Counselling at Suburb C or Suburb D (Contact Service);
(b)Each parent shall:
(i)Contact the Contact Service within 7 days and arrange an appointment for an intake assessment;
(ii)Attend the intake assessment;
(iii)Comply with all reasonable rules of the Contact Service; and
(iv)Comply with all reasonable requests or directions of the staff of the Contact Service;
(c)The Father is solely responsible for payment of the costs of the Contact Service;
(d)The Mother and the Father shall each provide such authority as is required by the Contact Service to ensure the timely provision of a contact report to the Independent Children's Lawyer in relation to each occasion on which X has time with the Father at the Contact Service;
(e)The Father's Child E shall not be involved in any contact that X has with the Father at the Contact Service.
5.A Court Expert shall be appointed pursuant to Part 15.5 of the Family Law Rules to provide a report (Court Expert Report) regarding the Mother, the Father and X including an assessment of the capacity of each parent to safely parent or care for X and meet his physical and emotional needs.
6.To facilitate preparation of the Court Expert Report:
(a)The Independent Children’s Lawyer shall provide the Court Expert with copies of all documents filed in these proceedings;
(b)Leave is granted to the Independent Children’s Lawyer to provide the Court Expert with copies of all pages identified by a party or the Independent Children's Lawyer from the documents produced on Subpoena;
(c)For the purposes of Order 6 (b), the parties shall each clearly identify the pages required to be included by tagging said pages or by providing a list of page numbers from digital files (as the case may be) within 14 days of the date of these Orders;
(d)Each of the parties shall attend upon the Court Expert for interviews and observation sessions at such times and places as the Court Expert reasonably requires;
(e)The Mother shall arrange for X's attendance for interviews and observation sessions at such times and places as the Court Expert reasonably requires;
7.The Mother and the Father shall be jointly and equally responsible for meeting the cost of the Court Expert Report, and shall each pay their half share into the Medcalf Grant Lawyers trust account BSB ...96 Account ...32 on account of the costs of the Court Expert within 7 days of a request by the Independent Children's Lawyer for that payment to be made.
8.Leave is granted to the Independent Children's Lawyer to relist this matter on 72 hours’ notice if the parties cannot reach agreement in relation to the Contact Service or Court Expert or if any party fails to attend to an obligation arising pursuant to these Orders.
9.The Father is restrained by injunction from being present within the premises or grounds of any school that X attends except as agreed in writing by the Mother each such agreement to be only in relation to a specific day and time-period.
10.That the Father be and is hereby restrained from contacting the Mother by telephone, email, or text message except other than through her lawyer.
11.That the Father be and is restrained from approaching the Mother or attending upon the Mother’s residence.
12.These parenting proceedings are forthwith transferred to the Family Court of Australia at Parramatta, with a mention date to be held in that Court on 17 June 2021 at 10:15am.
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 under the pseudonym Pedrosa & Findon is approved pursuant to s.121(9)(g) of the Family Law Act 1975 (Cth).
REASONS FOR JUDGMENT
JUDGE NEWBRUN:
INTRODUCTION
These interim parenting proceedings relate to the Child, X, born in 2014.
The parties and Independent Children’s Lawyer (‘ICL’) seek interim parenting Orders.
Lastly, the Court heard submissions from the parties as to the proceedings being transferred to the Family Court of Australia, together with the matter of Masters & Pedrosa.
PROPOSALS
The Father’s proposed Orders were set out in his proposed Minute of Orders (“Minute of the Father 3/5/2021”); inter alia, he sought Orders that he spend unsupervised time with the Child on a graduating basis. In the alternate, he sought Orders providing for the Child to spend an initial six-week period of supervised time with him, and thereafter, for a defined period, time with the Child, on a graduating basis, supervised by his partner, and thereafter unsupervised time, including overnight time.
The Mother sought interim parenting Orders as set out in her proposed Short Minutes of Order; inter alia, she sought interim parenting Orders that the Mother have sole parental responsibility for the Child; that the Child live with the Mother; that the Child spend time with the Father one Sunday per month supervised by a Children’s contact Centre such as B Counselling at Suburb C or Suburb D; that the Father attend and complete an accredited men’s behaviour change program; and that a Court expert be appointed pursuant to part 15.5 of the Family Law Rules to provide a report in respect to the Mother, Father and the Child.
The ICL sought interim parenting Orders set out in his proposed Short Minutes of Order attached to his amended Case Outline filed 30 April 2021; inter alia, he sought Orders that the Child live with the Mother; that the Child spend supervised time with the Father at a Children’s contact Centre; and that the Father attend and complete an accredited men’s behaviour change program.
MATERIALS RELIED UPON
The Father relied upon the following documents:
(a)His Case Outline filed 23 April 2021;
(b)Affidavit of the Father filed 22 April 2021;
(c)Affidavit of Ms F filed 22 April 2021;
(d)Affidavit of Mr G filed 22 April 2021;
(e)Affidavit of Dr H filed 22 April 2021;
(f)Affidavit of Dr J filed 22 April 2021;
(g)His Tender Bundle of documents.
The Mother relied upon the following documents:
(a)Affidavit of Mother filed 2 November 2020;
(b)Response filed 2 November 2020;
(c)Notice of Risk filed 2 November 2020;
(d)Her Tender Bundle of documents (with the Mother indicating she was only relying upon pages 4 – 6, 7, 8 – 12, 14, 19 – 20, 24, 34 – 35, 39, 74).
The following Exhibits were relied upon:
(a)Exhibit A: Child Inclusive Memorandum dated 27 April 2021.
EVIDENCE
The Child is now aged 7 years.
The Father was born in 1974. The Mother was born in 1972.
The Father alleges that the parties were in a boyfriend/girlfriend relationship for a few months, and after that relationship breakdown, the Mother advised him that she was pregnant with the Child.
The Father alleges that after the Child’s birth initially he had daytime only with the Child. He alleges that this time occurred at the Mother’s home and nearby park several times each week.
The Father alleges that the parties entered into a parenting plan in early May 2017 in relation to his time with the Child.
The Father alleges that from February 2019, when the Child was five years of age, the Father was spending 5 nights per fortnight with him and also spending time with the Child during one half the school holidays in blocks of 7 days at a time, together with time on special occasions.
The Father alleges that the Child has not spent time with the Father since March 2020 because the Mother has not facilitated such time occurring.
On one occasion in 2020 the Father attended the Child’s school with a view to seeing him. The Father spent some brief time with the Child on this occasion. Apart from this occasion, the Father has not seen or spoken to the Child for a year.
The Father alleges that between 2 April 2020 and 1 May 2020, he attended upon Suburb K Community Mental Health Unit after being referred by his GP to assist him with his alleged distress of being away from the Child and his other Child E born in 2018.
The Father voluntarily admitted himself into L Hospital on 30 April 2020. He remained there until 17 May 2020. He refers to his discharge summary from that hospital and which refers, inter alia, to a diagnosis for the Father of anxiety disorder.
The Father alleges that he now works as a carer for physically and intellectually disabled persons.
The Father alleges that he has re-partnered with Ms F. He lives in a home in Suburb M with this person. He shares a bedroom with this person.
In the report of Dr J, psychiatrist, dated 27 March 2021, he states that he has reviewed the Father on 9 December 2020 (first review) and on 17 February 2021. He asserts, inter alia, that following discharge from hospital, the Father had a fluctuating presentation up to the point of the first review, together with ongoing stress reported to be related to lack of access to the Children, as well as his financial stressors. The doctor asserts that when he reviewed the Father for the second time in February 2021, the Father presented as under ongoing stress, but in an improved mental state compared to his first review with him. He referred to the Father having attended upon Ms N at the O Centre for 36 psychology sessions between July 2018 and February 2021.
In Dr J’s Report of 7 April 2021, inter alia, he refers to the Father’s further improvement in his mental health, in spite of the ongoing stress that remains due to the upcoming Family Court hearing.
In the report of Dr H, psychiatrist, dated 1 October 2020, he states, inter alia, that the Father is using medication that is frequently used in depression, anxiety and psychosis. He states that the reason for medication prescribed is because of significant anxiety.
The following organisations and third parties had involvement with the family:
(a)Family and Community Services/Department of Communities and Justice;
(b)Police; and
(c)The parties’ lawyers.
RELEVANT LEGAL PRINCIPLES: INTERIM PARENTING PROCEEDINGS
The relevant principles in relation to parenting proceedings, including interim proceedings, are well settled: see Goode & Goode (2006) FLC 93-286.
In Marvel & Marvel (No 2) [2010] FamCAFC 101, the Full Court of the Family Court of Australia discussed the problems associated with making findings on disputed evidence as follows:
[120] As has frequently been emphasised interim parenting proceedings, and Orders made as a consequence, are a necessary but temporary measure until all the evidence can be tested, evaluated and weighed at a final hearing by the making of final parenting Orders. Decisions judicial officers have to make in interim proceedings are difficult and, often for very good reason, a conservative approach, or one which is likely to avoid harm to a Child is adopted. This is often to the understandable distress of a party who may not achieve the outcome he or she desires, or thinks to be in the best interests of their Child or Children. Interim parenting Orders are frequently modified or changed after a final hearing, and any allocation of parental responsibility made at an interim hearing is disregarded at the final hearing (s 61DB).
…
[122] In SS & AH [2010] FamCAFC 13 the majority (Boland and Thackray JJ) discussed at paragraph 88 of their reasons the care necessary to be exercised in making findings in interim parenting proceedings. Their Honours said:
In our view, findings made at an interim hearing should be couched with great circumspection, no matter how firmly a judge’s intuition may suggest that the finding will be borne out after a full testing of the evidence.
[123] Later, at paragraph 100 their Honours amplified their comments and said:
The intuition involved in decision-making concerning Children is arguably of even greater importance when a judge is obliged to make interim decisions following a hearing at which time constraints prevent the evidence being tested. Apart from relying upon the uncontroversial or agreed facts, a judge will sometimes have little alternative than to weigh the probabilities of competing claims and the likely impact on Children in the event that a controversial assertion is acted upon or rejected. It is not always feasible when dealing with the immediate welfare of Children simply to ignore an assertion because its accuracy has been put in issue.
Of this, the Full Court in Eaby & Speelman [2015] FamCAFC 104 said at [19]:
As would be immediately apparent, this approach enables the Court to appropriately and carefully deal with contentious issues relevant to the welfare of the Child, and for those issues to not be ignored.
Section 60B of the Family Law Act 1975 (Cth) (“the Act”) sets out the objects and principles of Part VII of the Act relating to Children that inform the making of parenting Orders.
In deciding whether to make a particular parenting Order in relation to a Child, a Court must regard the best interests of the Child as the paramount consideration: section 60CA of the Act.
Section 60CC of the Act provides that in determining what is in the Child’s best interests, the Court must consider the matters set out in subsections (2) and (3). In this context, the Court refers to the decision of the Full Court of the Family Court of Australia in Banks & Banks (2015) FamCAFC 36, especially at paragraphs 46 to 52. In that decision, the Full Court stated, inter alia, that (at paragraph 49), “It is also important to stress here that the requirement to “consider” each factor (under s60CC of the Act) does not mean each must be discussed, especially where the evidence leads inexorably to a particular conclusion: SCVG & KLD (2014) FLC 93-582”. Further, it stated, at paragraph 50, “When it is obvious that the findings made as to some of the s 60CC factors will be determinative of the Child’s best interests on an interim basis, it is a sterile and unnecessary exercise to address other factors”.
THE BEST INTERESTS OF THE CHILD
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 Child has a meaningful relationship with the Mother and will benefit from a continuance of that relationship. The Mother has been the primary carer of the Child from birth to date.
The Child previously had a meaningful relationship with the Father. In view of the Child not having spent significant time with the Father since March 2020, it is likely that the Child’s previous relationship with the Father has dissipated to some extent. The Child will benefit from a redevelopment of that former relationship provided it is safe for him to do so.
Should the child begin to spend supervised time with the father as agreed between the parents in writing, or failing agreement for three hours one Sunday each month, there is a reasonable prospect that the child’s former meaningful relationship with the father can begin to redevelop. Because the child has not spent time with the father since about March 2020, the reintroduction of the child to the father, in the view of the court, should begin cautiously. The Court accepts the ICL’s submissions in this regard.
At the interim hearing, the father’s legal representative submitted that the father’s financial circumstances are such that he could not afford long-term professional supervision of his time with the child. The Court proposes to craft interim Orders permitting the father to spend supervised time with the child through P Contact Centre, and make further interim Orders providing for the child to spend supervised time with the father at a contact centre in the event that the father cannot afford professional supervision through P Contact Centre.
Subsection (2b): the need to protect the Child from physical or psychological harm from being subjected to, or exposed to, abuse, neglect or family violence.
The Court has a significant concern in relation to the Father’s mental health. The Court is concerned that aspects of the Father’s behaviour, both during the parties’ relationship and post separation, significantly suggest adverse mental health in the Father.
Whilst the Father has received mental health treatment, and has adduced medical evidence from his treating Doctors, the Court has a significant concern as to whether the Father’s mental health has been properly diagnosed and/or is adequately managed; in these circumstances, the Court is concerned that the Father may continue to exhibit adverse behaviour, as discussed below, both towards the Child and/or the Mother.
The Court has not overlooked the medical reports of Drs H and J but it has a significant concern as to the reliability of their opinions in relation to the Father’s mental health and in relation to the Child’s safety whilst in the Father’s care; there is force to the submissions of the Mother and ICL in this context, including the significant suggestion that these doctors have not been provided with fulsome information relating to the Mother’s allegations in these interim parenting proceedings.
There is force to the submission of the ICL that, in the context of the Mother’s contentions in relation to the Father’s mental health, the Father’s extensive mental health treatment through Ms N, psychologist, would be relevant to the Court to consider; this material is not before the Court at this interim hearing.
The Court also has a significant concern that aspects of the Father’s behaviour, both during the parties’ relationship and post separation, significantly suggests that the Father has perpetrated family violence, including coercive and controlling family violence, towards the Mother.
The Court now refers to aspects of the Father’s behaviour as alleged by the Mother which is suggestive of adverse mental health in the Father and/or the perpetration of family violence by him. The Court will also refer to documentary material before the Court in this context.
The Mother alleges that from the start of the party’s brief relationship the Father constantly lectured her. On one occasion she alleges that the Father was angrier than usual and started to rant at the Mother and lecture her and the Father’s speech was very quick.
The Mother alleges that just prior to the party’s separation the Father spent a great deal of time Ordering the Mother around, and the Father was agitated, and the Mother was feeling afraid and anxious. The Mother alleges that the Father pushed the Mother on the bed and got on top of her after the Mother went to leave the house.
The Mother alleges that since separation in about June 2013, the Father has bombarded her with text messages and email communications.
The Mother alleges that between October 2014 and January 2019, the parties attended about six mediation sessions, and during this time the parties developed a parenting plan. The Mother alleges that on each occasion, shortly after the parenting plan was agreed and updated, the Father would ignore the terms of the plan and would continue to send her a voluminous amount of emails and text messages for days at a time. She alleges that in about December 2018 she first attended a police station to report the number and nature of the text messages and emails she had been receiving from the Father.
The Mother alleges that between October 2019 and June 2020, the Father arranged for 5 welfare checks to be undertaken on the Child whilst the Child was in the Mother’s care.
The Mother alleges adverse verbal behaviour towards her by the Father on about 28 June 2019 at the Child’s school. She alleges that the Father verbally criticised the Mother in the presence of other parents. The Mother alleges she reported this incident to the police and to the school.
The Mother alleges an incident on Christmas Day 2019 at a changeover. She alleges the Father yelled out to her in an aggressive manner and that the Father approached the Mother and pulled the Child from her arms. She alleges that at this time the Child was very distressed and crying. She alleges that she could hear the Child screaming out “Mumma” as the Father sped off in an aggressive manner.
The Mother alleges that on about 22 March 2020 and 23 March 2020, she started receiving text messages from the Father on an escalating basis. The Mother alleges that she was feeling very frightened and concerned for the Child as the Father was exercising, in her view, controlling behaviours by alleged constant messaging and requesting the Mother to comply with his demands. She alleges that the Father made demands of the Mother that if she did not make them then the Father would not return the Child. The Mother alleges that the Father in his text messages made demands of the Mother to agree to certain terms and conditions relating to Covid 19 before the Father would consider bringing the Child home. The Mother alleges that when the Child was eventually returned home to her the Child appeared distressed and was pale. The Mother alleges that as she opened the door slightly to let the Child through, the Father, who was carrying the Child E, grabbed the door handle to force the door open.
The Mother alleges that on 25 March 2020 the police attended her home to carry out a welfare check on the Child on two occasions that day at the instance of the Father.
The Mother alleges that on about 10 April 2020 the police attended her home to carry out another welfare check on the Child.
The Mother alleges that in about late March/early April 2020, she became aware that the Father had made numerous complaints to various Child welfare units such as DCJ and NSW Family Referral Services, each time allegedly making false allegations that the Child’s welfare was at great risk under her care.
The Mother alleges that on about 26 March 2020 she attended the Child’s school. She alleges she spoke to the principal. She alleges that the principal told her that the Father was claiming the Child was a Child at risk under the Mother’s care. The Mother alleges the principal told her that he had reassured the Father on several occasions that the Child presents very well at school, is always neatly dressed, happy in the classroom and respected amongst his peers. She alleges the principal told her that the Father was not in a good place, and the dialogue with him was long, convoluted and repetitive.
The Mother alleges that in in about early April 2020 she spoke with the Father’s brother-in-law who told her, inter alia, that he was concerned about the Father’s behaviour, and that the Father was very angry.
The Court observes that the Father admitted himself to L Hospital at the end of April 2020 where he was an inpatient for about 17 days. The material before the Court from this hospital suggests that the Father’s presenting problem was at least severe anxiety with possible previous manic type behaviour.
The Mother alleges that on about 5 June 2020 she was contacted by the principal of the Child’s school informing her that the Father was in his office requesting to remove the Child from school into his care. The Mother attended the Child’s school. The Mother alleges that a school counsellor attended upon the parties and the principal and told the Father that the Child did not know or understand that the Father was picking him up that day as this was not planned and that the Child would not be leaving with the Father this day. The Mother alleges that she was told by the principal later that earlier that day he had told the Child that the Father was at school to take him home and that the Child immediately started crying stating he did not want to go with the Father.
The Mother alleges that the Father’s reporting of her to the police and welfare agencies has created a great amount of stress and anxiety for her and has taken up much of her time.
The Mother alleges an occasion when the Child told her that the Father was planning to take him to the doctor. The Mother alleges that the Child told her that the Father had stated to the Child that he was going to take the Child to the doctor because the Child was crying as he was missing the Mother.
In about early November 2019 the Mother alleges that the Child told her that the Father was rude when he talked about E’s Mother and the Mother. The Mother alleges that the Child told her that the Father told the Child that he should be staying with the Father all the time.
The Mother alleges that on about 11 November 2019 the Child told her, words to the effect, that the Father had told the Child that the Mother and E’s Mother were horrible.
The Mother alleges that in about early April 2020 the Child told her that the Father had told him that the Mother was sick.
The Mother alleges that in about early September 2020 the Child told her that the Father had told him that the Mother was going to hurt the Child.
The Mother alleges that she caused the Child to attend counselling sessions with the Suburb Q Family Centre in about late 2020.
The Court refers to document 7 from the Mother’s Tender Bundle in which the senior psychologist at the Child’s school reports that in about early April 2020 the Father had stated that the Child had been kidnapped and was now a Child at risk by NSW police. The psychologist recorded that the Father had stated that he has another Child “who was also abducted by the child’s mother in the past and Mr Pedrosa stated that the Federal Court found him to be an excellent father”.
The Court refers to document 8 in the Mother’s Tender Bundle referring to the Father being diagnosed with an episode of acute mania on about 6 April 2020.
The Court refers to document 9 in the Mother’s Tender Bundle referring to a brother-in-law (the suggestion from this document is that this is the brother-in-law of the Father) advising that on 22 April 2020 the Father seems to be a bit worse, and had mentioned wanting to burn his ex-partner’s house down. (The Court observes, with some concern, that the brother-in-law’s affidavit does not refer to this matter).
The Court refers to document 11 in the Mother’s Tender Bundle being a mental health risk assessment and management plan from L Hospital, dated 30 April 2020, in relation to the Father, and which states, under the heading “General Risk Factors, Background factors”: “major psychiatric illness, diagnosed personality disorder, significant alcohol/drug abuse history, serious medical condition”.
The Court refers to DCJ documents in the Mother’s Tender Bundle relied upon by the Mother; in these documents there is a significant suggestion that the Father had reported to DCJ, inter alia, that the Father believed the Mother had a mental health condition; that the Mother had kidnapped the Child; that the Child was a Child at risk and was currently being abused; and that the Father believes that the Child is engaging in self-harming due to missing the Father.
The Court refers to annexure C to the Mother’s affidavit in which she refers to the Father, on 29 March 2020, attending her home unit to collect the Child and buzzing 4 times. The Court refers in this annexure to the copy text messages from the Father to the Mother in about March 2020 in which the Father makes a request of the Mother to provide certain information. The Court refers in this annexure to the Father’s email communication with the Mother on about 23 March 2020 in which he requests certain information from the Mother failing which the Child would remain in his care until such information was provided.
The Court has concerns in relation to the significant suggestion, on the material before the Court, that the Father has accused the Mother of abusing the Child without justification, and made complaints to DCJ in this regard.
The Court also is concerned with the suggestion, based on the material before the Court, that the Father unreasonably believes the Child has been psychologically unwell through self-harming, and has expressed an intention to attend upon a doctor for the Child to receive a mental health plan.
The Court is concerned with the significant suggestion, based on the material before it, that the Father has previously harassed the Mother with excessive written communications, and has attended her premises seeking to spend time with the Child.
The Court has concerns in relation to the Father’s alleged behaviour after release from hospital in May 2020. In this context, the Court observes that the Father’s treating psychiatrists have referred to the Father’s ongoing stress after being released from hospital.
The Court has concerns in relation to the Father’s attendance at the Child’s school in June 2020 and his communications with the school in this context; there is a suggestion, based upon all the material before the Court, that the Father may lack insight into the effect upon the Child of his requests to take the Child from school to spend time with him (the Child allegedly became quite distressed upon being told that the Father was to take the Child from school and later expressed reluctance to attend school).
There is a significant suggestion, on the material before the Court, that the Child has at least been adversely exposed to conflict between the parties arising out of the Father’s alleged adverse behaviour.
There is a significant suggestion, on the material before the Court, that the Mother has reacted adversely to the Father’s above alleged behaviour and is fearful for herself and the Child; the Court is concerned that the Mother’s parenting capacity for the Child may be adversely affected should the Child spend unsupervised time with the Father or even if spending non-professional supervised time with the Father (for a limited period) as proposed by him in the alternate.
The Court has a concern, based on the material before it, that should the Child spend unsupervised time with the Father, the Father may denigrate the Mother to the Child.
Accordingly, on the material before the Court, the Court is of the view that there is an unacceptable risk of psychological harm posed to the Child in spending unsupervised time with the Father. The Court would assess that the magnitude of such risk of harm posed to the Child in not having his time with the Father professionally supervised is significant. In the view of the Court, such risk of harm can be minimised and addressed by the Child spending professionally supervised time with the Father, and/or at a contact centre.
The statements and opinions of the family consultant in the Child Inclusive Conference Memorandum to Court dated 27 April 2021 are consistent with the Courts above views, and the Court takes into account the statements and opinions of the family consultant (together with the contents of the Memorandum), whilst acknowledging that they (and the contents of the Memorandum) are presently untested. The Court observes that the Mother’s allegations made to the family consultant in relation to the Father are consistent with her allegations made against the Father in her affidavit. The Court has some concern that the Father did not disclose to the family consultant his previous admission to the L hospital which may suggest, at least, a possible lack of insight into the significance of his mental health problems.
The Court takes into account the comment of the family consultant that the Child’s refusal to discuss the Father and his parenting arrangements may suggest that he experiences distress in regards to these topics, albeit that the family consultant stated it was not possible to determine the nature or cause of this distress from her assessment. In this context, the family consultant had stated, “Given this distress, and the concerns raised by (the Mother) in regards to (the Father’s) interactions with (the Child), it may be beneficial that any attempt to recommence time between (the Child) and (the Father) be supported and supervised by a professional Child contact service.”
The Court, acting cautiously and conservatively, is concerned that the Father’s proposal for supervision by his partner will not minimise the above risk of harm posed to the Child, and again, is of the view that such supervision should be provided professionally and/or at a contact centre. The Father’s proposed partner, by reference to her affidavit, has not met the Child and nor has she met the Mother. The partner began dating the Father in about mid 2020 which was after the Father’s hospitalisation at the L hospital. She works as a professional. There is a significant suggestion that she is in an intimate relationship with the Father; the Father asserts that they share a bedroom. She does not attest to having a fulsome understanding of the allegations and issues raised in relation to the Father’s mental health and alleged family violence. For example, she does not state her awareness of the Mother’s allegations in this context, nor does she indicate that she has been appraised of the mental health and other material presently before the Court in relation to the Father.
The Court has not overlooked the offer made by the Mother to the Father through her solicitors, on 16 March 2020, that the Child spend regular fortnightly overnight unsupervised time with the Father. However, in this regard, the Court refers to the Mother’s allegations made against the Father in relation to his alleged behaviour occurring after this date, and additionally, the Court would observe that this offer was made prior to the Father’s admission to the L hospital at the end of April 2020.
The Court has not overlooked that there were no AVO proceedings in relation to the Father arising out of the above discussed concerning behaviour of the Father. The Court has not overlooked his apparent present employment. And the Court has not overlooked the Father’s previous unsupervised time spent with the Child being five nights per fortnight. Nevertheless, the Courts concerns in relation to the Father remain, as discussed above.
The Father contends that his financial position is unsatisfactory and the Court refers to his untested allegations in his affidavit in this regard. He submits that he could not afford to pay for professional supervision. Under the Act, in applying the primary considerations, namely the need to protect primary consideration and the meaningful relationship primary consideration, the need to protect primary consideration is to be given greater weight. Again, the magnitude of the risk of harm posed to the Child in not having professionally supervised time with the Father is significant.
The Court proposes to make an Order for supervised time at a contact centre in the event that the Father cannot afford to take up professionally supervised time with the Child through an organisation such as P Contact Centre.
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 Child was interviewed by the family consultant on 19 January 2021 merely acknowledging that he had not seen the Father for a long time.
The Mother alleged to the family consultant that any discussion in regards to spending time with the Father with the Child causes him distress. She alleged that the Child declined to speak to the Father on his birthday.
The Court observes that the family consultant had stated that it was not possible to determine the nature or cause of any alleged distress in the child in this regard.
(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 above to the meaningful relationship primary consideration. The Child would appear to have positive relationships with the Mother’s extended family and the Child E.
(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 up such opportunities.
(ca) The extent to which each of the Child’s parents has fulfilled, or failed to fulfil, the parent’s obligations to maintain the Child
The Mother has fulfilled such obligations. The Father has maintained the Child when in his care and pays 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
Should the Child spend supervised time with the Father, with a professional supervisory body or at a contact centre, as discussed above under the meaningful relationship primary consideration, there is a reasonable prospect that the Child’s meaningful relationship with the Father can begin to be redeveloped.
(e) The practical difficulty and expense of a Child spending time with and communicating with the parent and whether that difficulty or expense will substantially affect the Child’s right to maintain personal relations and direct contact with both parents on a regular basis
Not applicable.
(f) the capacity of:
i) each of the Child’s parents; and
ii) any other person (including any grandparent or other relative of the Child);
to provide for the needs of the Child, including emotional and intellectual needs
The Mother would appear to have such capacities. As to the Father, the Court refers to its discussions above under the need to protect primary consideration, whilst it would appear that he has in the past, for not insignificant periods, provided satisfactorily for the Child’s needs.
(g) The maturity, sex, lifestyle and background (including lifestyle, culture and traditions) of the Child and of either of the Child’s parents, and any other characteristics of the Child that the Court thinks are relevant
As to the Father, the Court refers to its discussions above under the need to protect primary consideration.
(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
The Mother would appear to have demonstrated appropriate attitudes towards the Child and to her responsibilities of parenthood. As to the Father, the Court refers to its discussions above under the need to protect primary consideration. Nevertheless, it would appear that the Father has in the past, for not insignificant periods, also demonstrated appropriate attitudes towards the Child and to his responsibilities of parenthood.
(j) Any family violence involving the Child or a member of the Child's family
The Court refers to its discussions above under the need to protect primary consideration, in relation to concerning behaviour of the Father towards the Mother and in relation to the Child.
(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
Not applicable.
(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
A belated proposal was made by the Father, during submissions, that should the Court Order that the Child spend supervised time with the Father, then the Child E should join in spending such time together with the Father and the Child. There is force to the submission of the ICL in this context that the Child should spend supervised time alone with the Father so that the Child and the Father can focus on their time together, and noting that the Child and E are of quite different ages.
The Mother and ICL seek restraining Orders against the Father in relation to the Father attending upon the Child’s school. The Court refers to its discussions above under the need to protect primary consideration, including its discussion in relation to the Father’s mental health and the Father attending upon the Child’s school in June 2020. It will be in the best interests of the Child and appropriate that the ICL’s proposed such interim restraining Order is made.
The Mother seeks restraining Orders against the Father in relation to contacting the Mother or approaching her or attending upon her residence. The Court refers to its discussions above under the need to protect primary consideration, including its discussion in relation to the nature and extent of the Father’s communications with the Mother, and the Mother’s alleged adverse reactions in relation to such communications. It will be in the best interests of the Child and appropriate that the Mother’s proposed such interim restraining Orders are made.
The Father seeks Interim Orders relating to telephone and/or face time time between the Child and the Father. The Court refers to its discussions above under the need to protect primary consideration, including its discussions relating to the Father’s mental health and alleged family violence, and his alleged behaviours in this regard. It will not be in the best interests of the Child to make such Orders.
The Mother and ICL seek an Order that the Father attend a Men’s Behaviour Change Programme; on the material before the Court, there is a significant suggestion that the Father lacks sufficient insight into the risk issues in this case, discussed above under the need to protect primary consideration, which may well militate against the utility of participating in such a programme. It will not be in the best interests of the child to make such an Order at this interim stage.
PARENTAL RESPONSIBILITY
At the Interim Hearing, the Court was informed that there was agreement between the parties and ICL that no party nor the ICL would seek an interim Order relating to parental responsibility.
The Court refers to its discussions above under the need to protect primary consideration. Equal time nor substantial and significant time (between the Child and the Father) would be in the best interests of the Child at this interim stage. Equal time and substantial and significant time would probably be reasonably practicable.
SUMMARY
Evaluating the above discussed considerations under Section 60CC of the Family Law Act1975 (Cth), it will be in the best interests of the Children to make the following Interim Orders:
1.The Child X (X) born in 2014 shall live with the Mother.
2.X shall spend supervised time with the Father as agreed between the parents in writing, or failing agreement, for 3 hours one Sunday each month commencing 13 June 2021 (or as soon thereafter as arrangements can be made) through P Contact Centre, at the Father’s expense.
3.Should the Father be unable to afford supervision of his time with the child through P Contact Centre, then he shall spend supervised time with the child at a Children’s contact centre subject to the requirements of Order 4.
4.For the purpose of effecting X’s time with the Father at a Children's contact centre pursuant to Order 3:
(a)X's time with the Father shall be supervised by a Children’s contact centre such as B Counselling at Suburb C or Suburb D (Contact Service);
(b)Each parent shall:
(i)Contact the Contact Service within 7 days and arrange an appointment for an intake assessment;
(ii)Attend the intake assessment;
(iii)Comply with all reasonable rules of the Contact Service; and
(iv)Comply with all reasonable requests or directions of the staff of the Contact Service;
(c)The Father is solely responsible for payment of the costs of the Contact Service;
(d)The Mother and the Father shall each provide such authority as is required by the Contact Service to ensure the timely provision of a contact report to the Independent Children's Lawyer in relation to each occasion on which X has time with the Father at the Contact Service;
(e)The Father's Child E shall not be involved in any contact that X has with the Father at the Contact Service.
5.A Court Expert shall be appointed pursuant to Part 15.5 of the Family Law Rules to provide a report (Court Expert Report) regarding the Mother, the Father and X including an assessment of the capacity of each parent to safely parent or care for X and meet his physical and emotional needs.
6.To facilitate preparation of the Court Expert Report:
(a)The Independent Children’s Lawyer shall provide the Court Expert with copies of all documents filed in these proceedings;
(b)Leave is granted to the Independent Children’s Lawyer to provide the Court Expert with copies of all pages identified by a party or the Independent Children's Lawyer from the documents produced on Subpoena;
(c)For the purposes of Order 6 (b), the parties shall each clearly identify the pages required to be included by tagging said pages or by providing a list of page numbers from digital files (as the case may be) within 14 days of the date of these Orders;
(d)Each of the parties shall attend upon the Court Expert for interviews and observation sessions at such times and places as the Court Expert reasonably requires;
(e)The Mother shall arrange for X's attendance for interviews and observation sessions at such times and places as the Court Expert reasonably requires;
7.The Mother and the Father shall be jointly and equally responsible for meeting the cost of the Court Expert Report, and shall each pay their half share into the Medcalf Grant Lawyers trust account BSB ...96 Account ...32 on account of the costs of the Court Expert within 7 days of a request by the Independent Children's Lawyer for that payment to be made.
8.Leave is granted to the Independent Children's Lawyer to relist this matter on 72 hours’ notice if the parties cannot reach agreement in relation to the Contact Service or Court Expert or if any party fails to attend to an obligation arising pursuant to these Orders.
9.The Father is restrained by injunction from being present within the premises or grounds of any school that X attends except as agreed in writing by the Mother each such agreement to be only in relation to a specific day and time-period.
10.That the Father be and is hereby restrained from contacting the Mother by telephone, email, or text message except other than through her lawyer.
11.That the Father be and is restrained from approaching the Mother or attending upon the Mother’s residence.
TRANSFER OF THE PROCEEDINGS TO THE FAMILY COURT OF AUSTRALIA AT PARRAMATTA
There is a commonality of issues in relation to these proceedings and the proceedings in Masters & Pedrosa such that the 2 sets of proceedings should be at least heard together and possibly consolidated. In these circumstances, both sets of proceedings should be forthwith transferred to the Family Court of Australia at Parramatta.
The commonality of issues in relation to these proceedings and the proceedings in Masters & Pedrosa include the Father’s alleged mental health issues; the Father’s alleged harassing communications with each Mother relating to each Child (X and E); and his alleged communications with DCJ and Police in relation to each Child.
The Court is of the view that this Court’s judicial resources are insufficient to adequately manage the parties’ parenting proceedings, assuming they are at least heard together.
Further, the Court is of the view that there is now a likelihood that any future final hearing of these parenting proceedings will take well in excess of four hearing days.
As to relevant statutory provisions and principles, in relation to transfer of proceedings from this Court to the Family Court of Australia, the Court refers to the decision of Tree J in Morris & Rosetti [2017] FamCA 249. His Honour sets out in that decision, in relation to transfers of proceedings between this Court and the Family Court of Australia, the relevant statutory provisions and principles, and refers to a Protocol, agreed to between the heads of jurisdiction of this Court and the Family Court of Australia, in relation to such transfers, as follows:
14. The heads of jurisdiction of both Family Court and the Federal Circuit Court have agreed upon, and published, a protocol for the guidance as the appropriate Court in which parties should commence proceedings. It provides as follows:
If any one of the following criteria applies, then the application for final Orders ordinarily should be filed and/or heard in the Family Court of Australia (“FCoA”), if judicial resources permit, otherwise the matter should be filed and/or heard in the Federal Magistrate Court (“FMC”).
1. International Child abduction.
2. International relocation.
3. Disputes as to whether a case should be heard in Australia.
4. Special medical procedures (of the type such as gender reassignment and sterilisation).
5. Contravention and related applications in parenting cases relating to Orders which have been made in FCoA proceedings; which have reached a final stage of hearing or a judicial determination and which have been made within 12 months prior to filing.
6. Serious allegations of sexual abuse of a Child warranting transfer to the Magellan list or similar list where applicable, and serious allegations of physical abuse of a Child or serious controlling family violence warranting the attention of a superior Court.
7. Complex questions of jurisdiction or law.
8. If the matter proceeds to a final hearing, it is likely it would take in excess of four days of hearing time.
Note: The FCoA has exclusive jurisdiction in relation to adoption and the validity of marriages and divorces.
Transfers
1. Either Court on its own motion or on application of a party can transfer a matter to the other Court.
2. There is no right of appeal from a decision as to transfer.
15. It is pertinent to make the following observations in relation to the protocol:
•The protocol speaks about the appropriate Court in which proceedings should be commenced. It does not speak, necessarily or directly, to the matters which might inform transfer by either Court, although there may be an expectation that the matters enumerated in it would be relevant to the exercise of the discretion to transfer;
•The language of the protocol admits of exception: for instance the direction that certain matters “ordinarily” should be filed in the Family Court, and the reference to “if judicial resources permit;”
•Some of the criteria require a degree subjective interpretation, for instance, the reference to “serious” allegations of abuse, and “complex” questions of law. Necessarily, these are matters upon which reasonable minds may legitimately reach different conclusions;
•Notwithstanding those observations, the intent of the protocol is to effect a relatively clear division of work between the two Court’s, with the Family Court undertaking work more suited to a superior Court of record. Whilst terms such as “complex,” “difficult” or “complicated” might on occasion be used to try and describe that division, none are perfectly apt to describe the line of demarcation between the two Court’s work. That is because, particularly in Children’s matters, there is almost always some degree of complexity, difficulty and complication involved in determining where the best interests of Children lie.
16. The other point which should be made about the protocol is that it is an agreement between the heads of both jurisdictions. As such, it cannot lawfully fetter the discretion of either Court to transfer proceedings to the other: see for instance, Re W: Publication Application (1997) 137 FLR 205 at 240 per Finn J. In fairness to those who drafted the protocol, it does not, on a plain reading of its contents, seek to do so in any event. To cast that proposition slightly differently, a judicial officer who regarded the exercise of their discretion to transfer as being required to be in conformity with the protocol would be imposing an unlawful fetter. At most, the protocol is a potentially relevant consideration.
17. Section 39 of the Federal Circuit Court of Australia Act 1999 relevantly provides:
(1) If a proceeding is pending in the Federal Circuit Court of Australia, the Federal Circuit Court of Australia may, by Order, transfer the proceeding from the Federal Circuit Court of Australia to ... the Family Court.
...
(4) In deciding whether to transfer a proceeding to the Family under subsection (1), the Federal Circuit of Australia must have regard to:
(a) any Rules of Court made for the purposes of subsection 40(4);
(b) whether proceedings in respect of an associated matter are pending in the Family Court;
(c) whether the resources of the Federal Circuit Court of Australia are sufficient to hear and determine the proceedings; and
(d) the interests of the administration of justice.
...
18. Rule 8.02 of the Federal Circuit Court Rules provides as follows:
(1) The Court may, at the request of a party or of its own motion, transfer a proceeding to the Federal Court or the Family Court.
(2) Unless the Court otherwise Orders, a request for transfer must be made on or before the first Court date for the proceeding.
(3) Unless the Court otherwise Orders, the request must be included in a response or made by application supported by an Affidavit.
(4) In addition to the factors required to be considered by the Court under subsections 39(3) and (4) of the Act for transfer of proceedings to the Federal Court or the Family Court, the following factors are relevant:
(a) whether the proceeding is likely to involve questions of general importance, such that it would be desirable for there to be a decision of the Federal Court or the Family Court on one or more of the points in issue;
(b) whether, if the proceeding is transferred, it is likely to be heard and determined at less cost and more convenience to the parties than if the proceeding is not transferred;
(c) whether the proceeding will be heard earlier in the Court;
(d) the availability of particular procedures appropriate for the class of proceeding;
(e) the wishes of the parties.
Presently, the parties each seek competing Orders in relation to parenting.
There is likely to be significant evidence, including cross-examination, in relation to the parties’ issues in dispute, including alleged adverse mental health of the Father.
To date, the parties have filed Affidavits in the proceedings.
There have been subpoenas to produce documents filed in the proceedings.
There is likely to be extensive and significant cross-examination at the Final Hearing of:
(a)The Fathers;
(b)The Mothers;
(c)Lay witnesses;
(d)The Family Report Writer/Single expert;
(e)Health professional treatment experts in relation to the Father’s mental health.
It will be necessary for the Court, at the final hearing of these proceedings, to hear the competing oral submissions of the parties, based upon the likely extensive evidence before the Court.
In the above circumstances, these proceedings will likely take more than four days of Final Hearing, and, in the view of the Court, having regard to the Protocol alone, the proceedings should be transferred.
Further, as to section 39(4) of the Federal Circuit Court of Australia Act 1999 and Rule 8.02 of the Federal Circuit Court Rules 2001:
(a)The proceedings are likely to be heard and determined at less cost and more convenience to the parties than if the proceedings are not transferred.
(b)The final hearing of these proceedings is likely to be heard earlier in the Family Court of Australia than in this Court.
(c)Again, having regard to the issues to be determined between the parties, and other matters referred to above, these proceedings are likely to take in excess of four final hearing days.
(d)The administration of justice is best served by transferring these proceedings, and the Court has regard to its discussions above.
The Court, in the exercise of its discretion, transfers these proceedings to the Family Court of Australia.
I certify that the preceding one hundred and twenty-three (123) numbered paragraphs are a true copy of the Reasons for Judgment of Judge Newbrun. Associate:
Dated: 4 June 2021
Key Legal Topics
Areas of Law
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Family Law
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Civil Procedure
Legal Concepts
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Remedies
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Injunction
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Expert Evidence
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Costs
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Procedural Fairness
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Jurisdiction
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