POLLARD & NORDBERG (No.2)

[2019] FCCA 3812

FEDERAL CIRCUIT COURT OF AUSTRALIA

POLLARD & NORDBERG (No.2) [2019] FCCA 3812

Catchwords:
FAMILY LAW – Interim parenting – high conflict parents – orders to spend time with father.

Legislation:

Family Law Act 1975 (Cth), ss.60B, 60CA, 60CC, 61DA, 65DAA

Cases cited:

Goode & Goode [2006] FamCA 1346
MRR v GR [2010] HCA 4

Applicant: MR POLLARD

Respondent: MS NORDBERG

File Number: DGC 1312 of 2019

Judgment of: Judge Altobelli

Hearing date: 18 December 2019

Date of Last Submission: 18 December 2019

Delivered at: Wollongong

Delivered on: 19 December 2019

REPRESENTATION

Solicitors for the Applicant: Acorn Lawyers

Solicitors for the Respondent: Foye Legal Pty Ltd

Solicitors for the Independent Children's Lawyer: Chapman & Smyth Family Law Pty Ltd

ORDERS

THE COURT ORDERS PENDING FURTHER ORDER THAT:

1. The parties have equal shared parental responsibility for the Children [X] born … 2019 and [Y] born … 2018(“the Children”).

2. The Children live with the Mother in Region F of New South Wales.

3. The Mother be restrained by injunction from relocating the Children’s primary residence more than 30 kilometres from her current address being I Street Suburb J  without the express written consent of the Father.

4. The Children spend time with the Father on the following basis:

   (a)For the first three months from the date of the orders:

   (i)Each Saturday from 10:00 am to 2:00 pm.

   (b)For the second three months from the date of the orders:

   (i)Every second Saturday from 10:00am to 2:00 pm; and

   (ii)Every second Sunday from 10:00am to 2:00pm. 

   (c)From six to twelve months from the date of the orders;

   (i)Every second Saturday from 10:00am to 2:00pm; and

   (ii)Every second Sunday from 9:00 am to 4:00 pm

   (iii)At such other times as the parties may agree from time to time.

5. Between 5:00 pm and 5:30 pm on the Saturday and Sunday the Father does not have time with the Children, the Mother initiate a video call and conference to the Father via Facebook or other video conferencing program and the Mother must ensure that the Children are available at the time of the call.

6. The Father shall spend time with the Children for a minimum of three (3) hours as agreed between the parties but where no agreement from 11:00am to 2:00pm on each of the following:

   (a)Christmas Day

   (b)Father’s Day

   (c)The Father’s birthday; and

   (d)Each of the Children’s birthdays.

7. The Child [C] spend time with the Father:

   (a)Each alternate Saturday from 10:00 am until 2:00 pm; and

   (b)At such other times as the parties may agree from time to time.

8. The Father is responsible for bringing all food, nappies and all other necessities for the Children for their time with him, including car seats.

9. The Father is restrained from consuming alcohol or illicit drugs 12 hours prior to and during any period the Children are spending time with him.

10. Changeover is to occur using the facilities provided by E Group Town D with the cost to be borne equally between the parties.

11. Within 7 days, the Mother and Father do all things necessary, sign all documents required and attend all assessments required to implement E Group’s supervised changeover services.

12. Pending the availability of E Group to facilitate changeover, changeover is to occur at Town D Police Station.

13. Within 7 days, the Father and Mother do all things reasonably necessary to enrol in, and then attend at the earliest opportunity, a post-separation parenting course and provide the other party with a certificate of attendance.

14. Within 7 days, the Father and Mother do all things reasonably necessary to enrol in, and then attend at the earliest opportunity, an anger management course with Relationships Australia and provide the other party with a certificate of attendance. 

15. The Father and Mother do all things reasonably necessary to enrol in, and then attend at the earliest opportunity, the Taking Responsibility course with Relationships Australia and provide the other party with a certificate of attendance. 

16. The parties communicate by way of text message in relation to arrangements for the Children except for an emergency where telephone is permitted.

17. Each of the parents by themselves and/or their agents be and are hereby restrained by injunction from

    (a)Harassing or assaulting the other parent;

    (b)Denigrating, rebuking or belittling the other parent to or in the hearing of any of the children and shall use their best endeavours to ensure that no other person does so; and

    (c)Discussing family law or parenting issue to, or within the presence or hearing of either of the children and shall use their best endeavours to ensure no other person does so.

18. In the event of any serious injury or illness suffered by either of the Children that the parent with whom they are living or spending time with shall inform the other as soon as it is reasonably practicable to do so and where any of the Children has required hospitalisation both parents shall be permitted to attend.

19. Both parents are hereby authorised to communicate with any day care/pre-school or school attended by either of the Children and request any information usually made available to parents and shall be permitted to attend any event held by that day care/pre-school, school at which parental attendance is permitted at that parent's cost.

20. The Father undertake (by provision of urine screen in accordance with the Australian/NZ standard 4308:2008 or any subsequent approved standard) chain of custody urinalysis for drug screening on no more than one occasion each calendar month and within 48 hours of receipt of a request to do so from the Independent Children’s Lawyer with such request to be communicated by email, SMS communication or facsimile transmission to the Solicitor for the party or the party directly and provide copies of the results of the tests to the other party and the Independent Children’s Lawyer within 48 hours of receipt of same. For the purposes of this order each party if unrepresented shall within 24 hours provide to the Independent Children’s Lawyer details of their mobile phone number, email address if available and facsimile phone number if available.

21. The Father is restrained from any form of photography or videography during changeover.

22. The parties are restrained from any form of communication that is not directly relevant to the needs and circumstances of their Children at changeover.

THE COURT FURTHER ORDERS THAT:

1. The Mother's Application in a Case, filed 27 September 2019 be dismissed.

2. The Orders of 6 August 2019 be discharged.

3. Pursuant to section 62G(2) of the Family Law Act 1975 the parties and the child of the relationship attend upon a Family Consultant nominated by the Manager, Child Dispute Services on a date and at times to be advised for the purposes of the preparation of a Family Report and in particular:

   (a)to consider the factors in sections 60CC and 65DAA of the Family Law Act1975;

   (b)to consider issues raised in the Family Consultant’s Memorandum to Court;

   (c)to profile the parents (and other significant adults);

   (d)to assess the parents interactions (and those of other significant adults);

   (e)to assess the children’s developmental and emotional state;

   (f)to assess the relationship of the children to the parents (and other significant persons);

   (g)to ascertain the wishes of the children unless inappropriate by reason of age or other special circumstance;

   (h)to assess the proposed and actual home environments; and

   (i)to assess the proposals of each party as to the children’s future.

4. The Family Consultant is granted leave to inspect all documents produced in response to Subpoena.

5. If the Family Consultant is unable to inspect documents produced in response to Subpoena at the Wollongong Registry of the Commonwealth Law Courts, the Registry Manager upon receiving a request from the Family Consultant, is to forward such documents to the Registry nominated by such consultant to permit such inspection.

6. The report be released by 20 February 2021, if practicable, and unless otherwise arranged with Chambers.

7. Upon the Report being provided to the Court, the Court will provide a copy to each party (or if represented the party’s lawyer) and to any Independent Children’s Lawyer in the proceedings.

8. Unless a party objects, in writing, within 14 days of the date of releasing the Report, copies of the Report may further be provided to the following, if the Court is requested to do so for a purpose related to the care, welfare or development of the Child/ren to whom these proceedings relate:

   (a)a Children’s Court;

   (b)a child protection authority;

   (c)a State or Territory legal aid authority; and

   (d)a convener of any legal dispute resolution conference.

9. Unless otherwise ordered, no person shall release the Report, or provide access to the Report to any other person.

10. Following release of the Family Report and prior to the adjourned date, the parties file and serve a minute of final order sought by each of them as to parenting.

11. The matter be adjourned to 5 March 2021 at 9:30am for Mention.  The parents must attend Court in person with their legal representatives if the Report is available prior to the adjourned date.

12. The matter be listed for a 2 day Final Hearing on 26 – 27 April 2021 at 10:00am.

13. The Applicant is to comply with the payment of any setting down and/or daily hearing fee in accordance with Rules 24.03 and 24.04 of the Federal Circuit Court Rules 2001 or as otherwise directed by the Registry Manager by the date of filing of further material.

IT IS NOTED that publication of this judgment under the pseudonym Pollard & Nordberg (No.2) is approved pursuant to s.121(9)(g) of the Family Law Act 1975 (Cth).

FEDERAL CIRCUIT COURT
OF AUSTRALIA
AT WOLLONGONG

DGC 1312 of 2019

MR POLLARD

Applicant

And

MS NORDBERG

Respondent

ORAL REASONS FOR JUDGMENT

1. In this matter, I provide the following Oral Reasons for Judgment.  This case is about three children:  [C], who is 10; [X], who is 3; and [Y], who is 1.  The children presently live with their mother and spend time with their father in accordance with consent orders entered into by the parents on 6 August 2019.  Those orders provide for the children to live with their mother and spend time with their father as follows:  for [C], alternate Saturdays between 10:00am and 4:00pm, for [X] and [Y], each Monday between 10:00am and 2:00pm, each Wednesday between 2:00pm and 6:00pm and each Saturday between 10:00am and 4:00pm. 

2. The Mother says that this arrangement is not working in the best interests of the children and that events have occurred since the making of the orders that warrant their reconsideration.  She proposes that the orders be discharged, that the children live with her and spend supervised time with their father at E Group.  It is common ground between all of the parties that even though the parents have registered for E Group supervised contact, they would be waiting for at least four or five months and probably much more – probably 10 months. 

3. The Father’s proposal accepts that the orders in place need to be changed.  He proposes that for the first three months [X] and [Y] would spend time with him each Saturday between 10:00am and 2:00pm, for the next three months each alternate Saturday between 10:00am and 2:00pm and each alternate Sunday between 10:00am and 2:00pm, and then from the next six months each alternate Saturday 10:00am to 2:00pm and each alternate Sunday 9:00am to 4:00pm.  In relation to [C], however, it would be each alternate Saturday from 10:00am to 2:00pm.  He proposes that changeover take place at Town D Police Station unless the parties otherwise agree. 

4. The children had the benefit of an experienced Independent Children’s Lawyer.  She supported the orders proposed by the Father but with a few minor additions that were really not in dispute. 

The evidence before the Court

1. The material before the Court consists of the various affidavits and case outlines referred to by the parties in their case outline documents.  A number of documents were tendered at evidence, including the Child Dispute Conference Memorandum and a number of other documents.  I will simply itemise those here. 

2. In the Father’s case he relied on the following documents;

   a)Initiating Application filed 22 March 2019;

   b)Response to an Application in a Case filed 12 December 2019;

   c)Affidavit of Mr Pollard filed 12 December 2019;

   d)Affidavit of Mr Pollard filed 29 March 2019; and

   e)Affidavit of Mr Pollard filed 21 March 2019.

3. In the Mother’s case she relied on the following documents;

   a)Application in a Case filed 26 September 2019;

   b)Affidavit of Ms Nordberg filed 26 September 2019; and

   c)Affidavit of Ms Nordberg filed 15 April 2019.

4. The following material was tendered as evidence during the course of the proceedings;

   a)Child Dispute Conference Memorandum to the Court dated 9 December 2019;

   b)Documents produced pursuant to subpoena on New South Wales Police; and

   c)Email from E Group.

The applicable law

1. The applicable law is found in Part VII of the Family Law Act. I will incorporate a number of the relevant provisions. In addition, the Full Court’s decision in Goode & Goode provides some guidance as to how Part VII is to be interpreted and the procedure to be followed in an interim proceeding, and I will incorporate a number of the relevant paragraphs from that decision here. 

2. The applicable law is found in Part VII of the Family Law Act 1975 (Cth) (hereafter referred to as ‘the Act’). In determining parenting matters under Part VII of the Act the Court must regard the best interests of the child as the paramount consideration: s.60CA.

3. The objects and principles of Part VII are set out at s.60B:

   60B Objects of Part and principles underlying it

   (1)  The objects of this Part are to ensure that the best interests of children are met by:

   (a)    ensuring that children have the benefit of both of their parents having a meaningful involvement in their lives, to the maximum extent consistent with the best interests of the child; and

   (b)    protecting children from physical or psychological harm from being subjected to, or exposed to, abuse, neglect or family violence; and

   (c)    ensuring that children receive adequate and proper parenting to help them achieve their full potential; and

   (d)    ensuring that parents fulfil their duties, and meet their responsibilities, concerning the care, welfare and development of their children.

   (2)  The principles underlying these objects are that (except when it is or would be contrary to a child’s best interests):

   (a)    children have the right to know and be cared for by both their parents, regardless of whether their parents are married, separated, have never married or have never lived together; and

   (b)    children have a right to spend time on a regular basis with, and communicate on a regular basis with, both their parents and other people significant to their care, welfare and development (such as grandparents and other relatives); and

   (c)    parents jointly share duties and responsibilities concerning the care, welfare and development of their children; and

   (d)    parents should agree about the future parenting of their children; and

   (e)    children have a right to enjoy their culture (including the right to enjoy that culture with other people who share that culture).

   (3)    For the purposes of subparagraph (2)(e), an Aboriginal child’s or Torres Strait Islander child’s right to enjoy his or her Aboriginal or Torres Strait Islander culture includes the right:

   (a)    to maintain a connection with that culture; and

   (b)    to have the support, opportunity and encouragement necessary:

   (i) to explore the full extent of that culture, consistent with the child’s age and developmental level and the child’s views; and

   (ii)    to develop a positive appreciation of that culture.

4. At the very core of Part VII of the Act is the creation of a presumption of equal shared parental responsibility in s.61DA. Section 61DA provides:

   61DA Presumption of equal shared parental responsibility when making parenting orders

   (1)  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.

   (2)  The presumption does not apply if there are reasonable grounds to believe that a parent of the child (or a person who lives with a parent of the child) has engaged in:

   (a)    abuse of the child or another child who, at the time, was a member of the parent’s family (or that other person’s family); or

   (b)    family violence.

   (3)  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.

   (4)  The presumption may be rebutted by evidence that satisfies the court that it would not be in the best interests of the child for the child’s parents to have equal shared parental responsibility for the child.

5. If the presumption applies, the Court is required to consider certain things:

   65DAA Court to consider child spending equal time or substantial and significant time with each parent in certain circumstances

   Equal time

   (1)  If a parenting order provides (or is to provide) that a child’s parents are to have equal shared parental responsibility for the child, the court must:

   (a)    consider whether the child spending equal time with each of the parents would be in the best interests of the child; and

   (b)    consider whether the child spending equal time with each of the parents is reasonably practicable; and

   (c)     if it is, consider making an order to provide (or including a provision in the order) for the child to spend equal time with each of the parents.

   Substantial and significant time

   (2)  If:

   (a)    a parenting order provides (or is to provide) that a child’s parents are to have equal shared parental responsibility for the child; and

   (b)    the court does not make an order (or include a provision in the order) for the child to spend equal time with each of the parents; and

   the court must:

   (c)     consider whether the child spending substantial and significant time with each of the parents would be in the best interests of the child; and

   (d)    consider whether the child spending substantial and significant time with each of the parents is reasonably practicable; and

   (e)     if it is, consider making an order to provide (or including a provision in the order) for the child to spend substantial and significant time with each of the parents.

   (3) will be taken to spend substantial and significant time with a parent only if:

   (a)    the time the child spends with the parent includes both:

   (i) days that fall on weekends and holidays; and

   (ii)    days that do not fall on weekends or holidays; and

   (b)    the time the child spends with the parent allows the parent to be involved in:

   (i) the child’s daily routine; and

   (ii)    occasions and events that are of particular significance to the child; and

   (c)     the time the child spends with the parent allows the child to be involved in occasions and events that are of special significance to the parent.

   (4)  Subsection (3) does not limit the other matters to which a court can have regard in determining whether the time a child spends with a parent would be substantial and significant.

   Reasonable practicality

   (5)  In determining for the purposes of subsections (1) and (2) whether it is reasonably practicable for a child to spend equal time, or substantial and significant time, with each of the child’s parents, the court must have regard to:

   (a)    how far apart the parents live from each other; and

   (b)    the parents’ current and future capacity to implement an arrangement for the child spending equal time, or substantial and significant time, with each of the parents; and

   (c)     the parents’ current and future capacity to communicate with each other and resolve difficulties that might arise in implementing an arrangement of that kind; and

   (d)    the impact that an arrangement of that kind would have on the child; and

   (e)     such other matters as the court considers relevant.

1. Because s.65DAA refers to the best interests of the child the Court must then go back to consider s.60CC which specifies how the Court must determine what is in a child’s best interests.

   Determining child's best interests

   (1)  Subject to subsection (5), in determining what is in the child's best interests, the court must consider the matters set out in subsections (2) and (3).

   Primary considerations

   (2)  The primary considerations are:

   (a)  the benefit to the child of having a meaningful relationship with both of the child's parents; and

   (b)  the need to protect the child from physical or psychological harm from being subjected to, or exposed to, abuse, neglect or family violence.

   Note:          Making these considerations the primary ones is consistent with the objects of this Part set out in paragraphs 60B(1)(a) and (b).

   (2A)  In applying the considerations set out in subsection (2), the court is to give greater weight to the consideration set out in paragraph (2)(b).

   Additional considerations

   (3)  Additional considerations are:

   (a)  any views expressed by the child and any factors (such as the child's maturity or level of understanding) that the court thinks are relevant to the weight it should give to the child's views;

   (b)  the nature of the relationship of the child with:

   (i)  each of the child's parents; and

   (ii)  other persons (including any grandparent or other relative of the child);

   (c)  the extent to which each of the child's parents has taken, or failed to take, the opportunity:

   (i)  to participate in making decisions about major long-term issues in relation to the child; and

   (ii)  to spend time with the child; and

   (iii)  to communicate with the child;

   (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;

   (d)  the likely effect of any changes in the child's circumstances, including the likely effect on the child of any separation from:

   (i)  either of his or her parents; or

   (ii)  any other child, or other person (including any grandparent or other relative of the child), with whom he or she has been living;

   (e)  the practical difficulty and expense of a child spending time with and communicating with a 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;

   (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;

   (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;

   (h)  if the child is an Aboriginal child or a Torres Strait Islander child:

   (i)  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

   (ii)  the likely impact any proposed parenting order under this Part will have on that right;

   (i)  the attitude to the child, and to the responsibilities of parenthood, demonstrated by each of the child's parents;

   (j)  any family violence involving the child or a member of the child's family;

   (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:

   (i)  the nature of the order;

   (ii)  the circumstances in which the order was made;

   (iii)  any evidence admitted in proceedings for the order;

   (iv)  any findings made by the court in, or in proceedings for, the order;

   (v)  any other relevant matter;

   (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;

   (m)  any other fact or circumstance that the court thinks is relevant.

The Case Law

In MRR v GR [2010] HCA 4, the High Court referred to s.65DAA(1) and said

9.  Each of sub-ss (1)(b) and (2)(d) of s 65DAA require the Court to consider whether it is reasonably practicable for the child to spend equal time or substantial and significant time with each of the parents.  It is clearly intended that the Court determine that question.  Sub-section (5) provides in that respect that the Court "must have regard" to certain matters, such as how far apart the parents live from each other and their capacity to implement the arrangement in question, and "such other matters as the court considers relevant", "[i]n determining for the purposes of subsections (1) and (2) whether it is reasonably practicable for a child to spend equal time, or substantial and significant time, with each of the child's parents".

A little later in the judgment the High Court said:

13.    Section 65DAA(1) is expressed in imperative terms.  It obliges the Court to consider both the question whether it is in the best interests of the child to spend equal time with each of the parents (par (a)) and the question whether it is reasonably practicable that the child spend equal time with each of them (par (b)).  It is only where both questions are answered in the affirmative that consideration may be given, under par (c), to the making of an order.

At [15] the High Court emphasised the need for a practical approach:

15.    Section 65DAA(1) is concerned with the reality of the situation of the parents and the child, not whether it is desirable that there be equal time spent by the child with each parent. The presumption in s 61DA(1) is not determinative of the questions arising under s 65DAA(1). Section 65DAA(1)(b) requires a practical assessment of whether equal time parenting is feasible.

The Full Court’s decision in Goode & Goode [2006] FamCA 1346 provides some guidance about the interpretation of Part VII and the way to proceed in interim hearings.

68. In our view some of the comments of the Full Court in paragraph 18 are still apposite. For example, the procedure for making interim parenting orders will continue to be an abridged process where the scope of the enquiry is “significantly curtailed”. Where the Court cannot make findings of fact it should not be drawn into issues of fact or matters relating to the merits of the substantive case where findings are not possible. The Court also looks to the less contentious matters, such as the agreed facts and issues not in dispute and would have regard to the care arrangements prior to separation, the current circumstances of the parties and their children, and the parties’ respective proposals for the future.

…

72. In our view, it can be fairly said there is a legislative intent evinced in favour of substantial involvement of both parents in their children’s lives, both as to parental responsibility and as to time spent with children, subject to the need to protect children from harm, from abuse and family violence and provided it is in their best interests and reasonably practicable. This means where there is a status quo or well settled environment, instead of simply preserving it, unless there are protective or other significant best interests concerns for the child, the Court must follow the structure of the Act and consider accepting, where applicable, equal or significant involvement by both parents in the care arrangements for the child.

…

82. In an interim case that would involve the following:

(a) identifying the competing proposals of the parties;

(b) identifying the issues in dispute in the interim hearing;

(c) identifying any agreed or uncontested relevant facts;

(d) considering the matters in s 60CC that are relevant and, if possible, making findings about them (in interim proceedings there may be little uncontested evidence to enable more than a limited consideration of these matters to take place);

(e) deciding whether the presumption in s 61DA that equal shared parental responsibility is in the best interests of the child applies or does not apply because there are reasonable grounds to believe there has been abuse of the child or family violence or, in an interim matter, the Court does not consider it appropriate to apply the presumption;

(f) if the presumption does apply, deciding whether it is rebutted because application of it would not be in the child’s best interests;

(g) if the presumption applies and is not rebutted, considering making an order that the child spend equal time with the parents unless it is contrary to the child’s best interests as a result of consideration of one or more of the matters in s 60CC, or impracticable;

(h) if equal time is found not to be in the child’s best interests, considering making an order that the child spend substantial and significant time as defined in s 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 s 60CC, or impracticable;

(i) if neither equal time nor substantial and significant time is considered to be in the best interests of the child, then making such orders in the discretion of the Court that are in the best interests of the child, as a result of consideration of one or more of the matters in s 60CC;

(j) if the presumption is not applied or is rebutted, then making such order as is in the best interests of the child, as a result of consideration of one or more of the matters in s 60CC; and

(k) even then the Court may need to consider equal time or substantial and significant time, especially if one of the parties has sought it or, even if neither has sought it, if the Court considers after affording procedural fairness to the parties it to be in the best interests of the child.

Discussion

1. A number of strong impressions can be formed by the Court after examining all of the relevant material that has been referred to above.  Firstly, the relationship between the parents is complex.  The separation has been marred by litigation in both State and Federal Courts and frequent involvement of police.  The parents are at times highly distrustful of each other.  The Mother presents as anxious.  [X] and [Y] are vulnerable because of their age.  [C] is not the Father’s biological child but may well experience him as her or as a psychological father even though she still has a relationship with her biological father. 

2. There is a dissonance between how the Mother describes the relationship she has with the Father and what she actually says and does.  On the one hand, she describes a violent and dysfunctional relationship, but, on the other hand, her communication with him and frequent physical intimacy with him, even during the course of intense litigation, communicates possible ambivalence about the end of the relationship.  Both parents make serious allegations against the other which are inconsistent with their own actions. 

3. This decision is thus being made in a complex factual scenario and in a factual vacuum where not much is agreed to at all.  Indeed, the Court must express its concerns that even if it makes orders, there is the risk – and, indeed, looking at history, the probability – that the parents will do something different. 

4. Neither parent seems to have insight into how their own actions and inactions are having a potentially adverse impact on the children.  For example, the Father does not seem to be able to understand what it must be like for [C] when he frequently involves the police in the changeovers, when there are frequent arguments in public places with the Mother and when he frequently takes videos of arguments with the Mother.  The Mother seems to have no understanding of what it must be like for [C] – and, indeed, the other children, to a lesser extent – of resuming intimacy with the Father in the context of a high-conflict separation.  She did not seem to fully understand, either, the impact on [Y] and [X]’s relationship with their father if the orders that she sought were actually made. 

5. A number of serious concerns arise, in this Court’s mind, from the evidence.  Firstly, the Father’s communications with the Mother, consistent with her account of him, create the impression that he is being controlling and manipulative of her.  This conclusion is formed from reading his own communications to her.  This is not just a case of the mother experiencing him to be controlling; his own behaviour and communication with her is consistent with that. 

6. Secondly, and as foreshadowed, the Mother does not appear, as yet, to be able to disengage in an emotional sense from the Father.  That this is the case even though she has sought professional assistance is of concern.  Her communication with the Father and her actions in either seeking or agreeing to receive intimacy from him has multiple impacts.  It probably sends a message that encourages the Father rather than discourages him.  It can create the impression that she is not as fearful of him as she asserts in her evidence.  It sends confusing messages to the Court and probably to her children. 

7. It is possible that the Mother is being manipulative, as hypothesised by the Independent Children’s Lawyer.  It is also possible that the Mother’s behaviour is consistent with her case, and that is that she has been controlled and been in a coercive relationship.  It is not possible to say at an Interim Hearing.  The evidence will need to be tested.  Some expert evidence will need to be obtained. From the children’s perspective, however, at the moment there must be doubts about the Mother’s protective capacity. 

8. Thirdly, there is enough evidence for the Court to be concerned about the Father’s parenting capacity, particularly in relation to [Y].  It is reassuring, somewhat, to see that in his proposal he reduces the frequency of time and the frequency of changeovers whilst maintaining the amount of time in the visits and gradually increases the same.  The Mother’s response to these issues and others that she raises is to suggest supervised time at a professional contact centre as the only way to protect the children. 

9. Respectfully, she fails to appreciate a number of things.  Firstly, some of the risks to the children, in an emotional sense, come from her and not just the Father.  Secondly, the Father’s proposal goes a long way to alleviate the problems that were created by the existing consent orders that provide for too great a frequency of contact and too many changeovers in a context where bringing the parents together in the same physical space is generally productive of conflict, often very public conflict. 

10. Thirdly, the Mother’s proposal seems to minimise some of the strong impressions created from the evidence that certainly [C] and [X] have a good relationship with the Father, [Y] less so because of her age.  Fourthly, the Mother’s proposal places inadequate weight on the recommendations of the Family Consultant in the Child Dispute Conference Memorandum of 9 December, and there Ms K suggests that young children benefit from being able to spend time with a non-residential parent on a consistent and predictable basis.  This is particularly important for [Y], given that she has, at best, a very tentative bond to her father. 

11. Ms K, though, emphasised the need to protect the children from conflict in the course of trying to facilitate time with their father.  True it is that Ms K also said that the best way to support the Mother supporting the children’s time and their father was to have supervised time, but this is impractical for the time being, and it may well be that Ms K did not have the information that the Court has about the Mother’s ambivalence or seeming ambivalence about the relationship with the Father. 

12. The Court did express its concern about the Father’s proposal for changeover to take place at Town D Police Station.  The concern was that both [C] and [X] were already far too exposed to the involvement of police in their lives because of the parental conflict.  The premise of contact at a police station – presumably outside the police station – was that the parents would be able to regulate their behaviour because of the public location and the proximity to the police. 

13. The Court is not so sure about that, however, given the complexity of the parental relationship and the Father’s past willingness to involve the police.  Nonetheless, the submission made on behalf of both the Father and the Independent Children’s Lawyer was a pragmatic one.  Other public changeover venues would be equally, if not more, problematic.  One option suggested was that changeover should happen at E Group and, until then, it should happen outside Town D Police Station.  This is the better option and, as it turns out, the one which the Court will adopt. 

14. The Mother has raised some important issues about family violence and the nature of her relationship with the Father.  The Court believes that, provided changeovers are managed, she can be adequately protected from the violence provided she chooses to.  The children expect their mother to act in a protective manner, and this might mean resolving issues of ambivalence in the relationship with their father.  The Father needs to remember that, at a Final Hearing, things generally look different.  He needs to reflect on how his behaviour can be seen as controlling and manipulative and thus fall within the definition of family violence, which could have a profound effect on the final orders to be made in this case. 

15. The orders in relation to [C] proposed by the Father provide for limited contact.  The report from the psychologist dated 30 May 2019 is of some concern, but it is, obviously, a limited report and seems primarily based on what the Mother told the psychologist, with little evidence to suggest that she mentioned the nature of her ambivalent relationship with the Father.  In short, the Court cannot be satisfied that the emotional symptoms referred to are exclusively referable to the father’s conduct. 

16. Nonetheless, [C]’s response to spending time with her father is something that can be carefully monitored by the Independent Children’s Lawyer, and the Court certainly asks her to do so. This is not a case where the Court considers it is necessary to make any order for parental responsibility. It is agreed that the children live with their mother. A Family Report will be ordered to take into account the matters raised in the Child-Inclusive Conference Memorandum, as well as the usual matters under the Act.

17. Both parents are urged to consider the impact or the potential impact on their children and [C] of their behaviour, both in the short and long term.

I certify that the preceding thirty-one (31) paragraphs are a true copy of the reasons for judgment of Judge Altobelli

Associate: 

Date:  21 January 2020