Ranta & Tatton
[2021] FedCFamC2F 233
•22 October 2021
FEDERAL CIRCUIT AND FAMILY COURT OF AUSTRALIA
(DIVISION 2)
Ranta & Tatton [2021] FedCFamC2F 233
File number(s): PAC 3136 of 2020 Judgment of: JUDGE NEWBRUN Date of judgment: 22 October 2021 Catchwords: FAMILY LAW – interim parenting - best interests of children - Orders made Legislation: Family Law Act 1975 (Cth), ss 69ZL, 60B, 60CA, 60CC, 61DA, 65D, 65DAA Cases cited: Goode & Goode [2006] FamCA 1346; (2006) FLC 93-286
Marvel & Marvel (No 2) [2010] FamCAFC 101
Eaby & Speelman [2015] FamCAFC 104
Banks & Banks [2015] FamCAFC 36Division: Division 2 Family Law Number of paragraphs: 54 Date of last submission/s: 17 August 2021 Date of hearing: 17 August 2021 Solicitor for the Applicant: Ms Kumar Solicitor for the Respondent: Mr Moore Solicitor for the Independent Childrens Lawyer: Ms Morrison ORDERS
PAC 3136 of 2020 FEDERAL CIRCUIT AND FAMILY COURT OF AUSTRALIA (DIVISION 2)
BETWEEN: MR RANTA
Applicant
AND: MS TATTON
Respondent
INDEPENDENT CHILDREN’S LAWYER
ORDER MADE BY:
JUDGE NEWBRUN
DATE OF ORDER:
22 OCTOBER 2021
PENDING FURTHER ORDER THE COURT ORDERS THAT:
1.That the child X born in 2016 shall live with the Mother.
2.That X shall spend no time with her Father.
3.That the parties are restrained from abusing, insulting, belittling, rebuking or criticising each other to or in the presence of X and from permitting any other person to do so and the parties are further restrained from discussing these proceedings in any way in the sight or hearing of X or permitting any other person to do so.
4.The proceedings are adjourned to 15 December 2021 at 9:30am for mention.
Note: The form of the order is subject to the entry in the Court’s records.
Note: This copy of the Court’s Reasons for judgment may be subject to review to remedy minor typographical or grammatical errors (r 10.14(b) Federal Circuit and Family Court of Australia (Family Law) Rules 2021 (Cth)), or to record a variation to the order pursuant to r 10.13 Federal Circuit and Family Court of Australia (Family Law) Rules 2021 (Cth).
Section 121 of the Family Law Act 1975 (Cth) makes it an offence, except in very limited circumstances, to publish proceedings that identify persons, associated persons, or witnesses involved in family law proceedings.
IT IS NOTED that publication of this judgment by this Court under the pseudonym Ranta & Tatton has been approved pursuant to s 121(9)(g) of the Family Law Act 1975 (Cth).
REASONS FOR JUDGMENT
JUDGE NEWBRUN
These are short form reasons pursuant to section 69ZL of the Family Law Act 1975 (“the Act”).
This interim hearing relates to the child, X, born in 2016; the child is now aged 5 years.
On 5 March 2021, the parties agreed to interim parenting Orders pending interim hearing which provided, inter alia, for the child to live with the Mother, and spend no time with the Father.
The Mother relied upon her Case Outline filed 22 February 2021, her Affidavits filed 26 June 2020 and 17 February 2021, her Notice of Risk filed 26 June 2020, and Amended Response filed 17 February 2021.
The Father relied upon his Case Outline filed 16 August 2021, his Amended Initiating Application filed 4 March 2021, his Affidavit filed 4 March 2021, solicitor’s Affidavit filed 6 August 2021, Affidavit of psychiatrist Dr B filed 10 August 2021, the above Affidavits of the Mother, Child Dispute Conference Memorandum dated 11 January 2021 (Exhibit A) and the ICL’s Tender Bundle (34 pages) (Exhibit B).
The ICL relied upon her Case Outline filed 16 August 2021, and the above Child Dispute Conference Memorandum (Exhibit A). She also relied upon her Tender Bundle of documents (Exhibit B) and criminal history of Father (Exhibit C).
The Mother and ICL both sought interim Orders that the child spend no time with the Father on an interim basis.
The Father sought interim Orders, inter alia, that the parties have equal shared parental responsibility for the child; that the child live with the Mother; that the Father spend time with the child for a period of not less than two hours per fortnight on Saturday at Region C Relationships Australia Contact Centre.
LEGAL PRINCIPLES
The relevant principles in relation to parenting proceedings, including interim proceedings, are well settled: see Goode & Goode [2006] FamCA 1346; (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.
The Court also 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”.
Section 60B of the Act sets out the objects of Part VII of the Act relating to children that inform the making of parenting Orders.
In deciding whether to make a particular parenting Order in relation to a child, a Court must regard the best interests of the child as the paramount consideration: section 60CA of the Act.
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 its discussion above in relation to Banks & Banks.
Under section 60CC(2) of the Act, there are stated to be two primary considerations, one being the meaningful relationship primary consideration (specifically, the benefit to the child of having a meaningful relationship with both of the child’s parents), and the second one being the need to protect primary consideration (specifically, the need to protect the child from physical or psychological harm from being subjected to, or exposed to, abuse, neglect or family violence). Under section 60CC(2A), in applying these two primary considerations, the Court is to give greater weight to the need to protect primary consideration.
The Mother is aged 24 years. The Father is aged 32 years.
The Mother has a daughter, Y, from a previous relationship aged six years, who the Father alleges was removed from the Mother’s care and currently lives with the maternal grandmother. The Mother also has a daughter from her relationship with Mr D, Z, born in 2020.
The Father asserts that due to an accident which occurred when he was 17 years old he suffered an acquired brain injury which affects his long-term and short-term memory.
The Father denies allegations of sexually assaulting a minor.
The Father denies that Y was removed from the Mother’s care because of his alleged criminal history involving sexual assault against a minor.
The Father denies forcing the Mother to have non-consensual sexual intercourse with him.
The Father recalls being charged with multiple driving offences before his relationship with the Mother. He recalls being convicted of an offence relating to display sword, which he alleges he had accidentally put through a door. An AVO was made against him for his Mother’s protection.
The Father alleges that he does not recall having an AVO made against him for any of his previous partners as alleged by the Mother.
The Father denies posting explicit photos of the Mother on social media.
The Father alleges the parties had a brief on and off relationship from 2009 to 2010. He alleges they got back together in 2015.
The Father alleges the parties moved to City E with the child when the child was about one year old.
The Father refers to the parties often arguing during their relationship.
The Father refers to an incident in 2020 when he saw that the Mother in the parties’ bedroom had allegedly been sending explicit photos and messages to someone and they started to argue. He alleges that he closed the door behind him so that the child would not hear the parties arguing. The Father refers to knocking some boxes, stacked near the inside of the front door, down in frustration and they tipped over as the Mother and child were leaving the house.
The Father refers to the Mother’s allegations that he sexually assaulted her in 2020. The Father denies these allegations.
The Father refers to the Mother leaving City E for Sydney in about early 2020. He refers to the Mother later informing him she was not returning to City E.
The Father refers to a final AVO made against him in 2020, in his absence, at the Town F Local Court for the Mother and child’s protection. He alleges he was in City E at that time.
The Father asserts his belief that he is Z’s Father because the Mother and himself had been allegedly living together as a couple shortly before the Mother moved to New South Wales and he found out that she was pregnant.
The Father alleges that he has not had any illicit substances since he was about 17 years. He refers to starting to drink alcohol at about that age and that as he grew older there were times when he would drink excessively. He alleges the last time he drank heavily was when his relationship with the Mother was breaking down, around 2019 to 2020. He alleges no alcoholic drinks since December 2020.
The Father alleges that he has an acquired brain injury as a result of a pushbike incident when he was 17 years of age. He alleges his belief that this acquired brain injury does not affect his capacity to parent. He alleges that he has been diagnosed with anxiety and depression but he has never attempted to end his life.
The Father refers to seeing a counsellor at a community centre at Suburb G since 2020. The letter from the counsellor dated 2 March 2021 refers, inter alia, to the Father having attended a total of 14 sessions since September 2020. The counsellor refers to the Father’s low self-esteem, loneliness and deep depression. The counsellor refers to the Father’s mental health appearing quite deteriorated and states that the Father’s depression levels are often at alarming levels. The counsellor refers to the Father having improved his ability to cope with the circumstances, “despite cycling in and out of hopelessness.”
The Father refers to currently residing alone in a two-bedroom house, that he is not working and is receiving Centrelink benefits.
The Father refers to being currently charged with breach of the AVO protecting the Mother. He states that he has pleaded not guilty to the charges and the matter is next listed for hearing on 30 March 2021 at Town F Local Court. The Father annexes the Court Attendance Notice and Fact sheet.
The above Court Attendance Notice sets out the details of the alleged offences by the Father. The Court refers to Exhibit C indicating that in 2021 in the Town F Local Court, the Father was convicted of contravene prohibition/restriction in AVO (Domestic); and was convicted of stalk/intimidate intend fear physical etc harm (domestic), with the dates of the offences being in 2020..
The NSW police event narrative for 20 March 2020 (see pages 11 and 12 of the ICL’s Tender Bundle, Exhibit B) refers to the Father being the defendant. It alleges that since the beginning of the Mother’s new relationship with the third person (the PINOP), the Father has become increasingly hostile, agitated and has sent several threatening messages towards the third person. The narrative states that the third person is concerned that the Father will carry out the threats and therefore the police have made an application for an AVO Order listing the third person as a person in need of protection due to the nature of the alleged threats. The content of the alleged threatening messages sent by the Father are of concern to the Court.
The Mother alleges that during the parties’ relationship the Father perpetrated numerous acts of family violence against herself when the parties were living together with the child. She alleges that she decided to move from Western Australia to New South Wales because the Father’s alleged violent outbursts continue to escalate and she feared for herself and the child’s safety. She alleges in this context that the Father perpetrated acts of family violence against her following the Mother communicating her intention to move back to New South Wales. The Mother alleges that the child was present in the parties’ residence when this occurred. The Mother alleges that at this time she called the police and they helped the Mother and child leave the residence. She alleges a three day Domestic Violence Order (“DVO”) was issued against the Father for the protection of the Mother and the child.
The Mother alleges that the Father sexually assaulted her in 2020 and punched her. She alleges that she had the police attend the residence and another three day DVO was issued against the Father. In this context, the Court refers to the allegations in the Department of Communities and Justice (“DCJ”) material relating to an alleged incident in 2020 and referred to at page 27 of the ICL Tender Bundle and which is not inconsistent with the Mother’s allegations in this regard. Again, the Father denies these allegations of family violence.
The ICL’s Tender Bundle, Exhibit B, refers to, inter alia, an alleged event in 2018 which is recorded in the NSW police records. It alleges that the Father was admitted to Hospital H at this time. It refers to the Father allegedly attempting suicide the day before by consuming a large amount of his own antidepressant tablets. It alleges that the Father was very aggressive towards paramedics and that upon arrival at the hospital, security allegedly assisted and attempted to restrain the Father from harming himself, harming others and attempting to get off from the bed. The Father allegedly was scheduled and became an involuntary patient. The record refers to the Father allegedly becoming extremely violent and aggressive towards security.
At page 16 of the ICL Tender Bundle, an alleged recorded interview with the parties at Hospital H states, inter alia, that the Father was questioned and that he acknowledged that he gets angry a lot, he has problems remembering things and admitted to throwing objects at the Mother but dismissed it when he advised the items thrown did not connect with the Mother so therefore “didn’t count”.
There is a significant suggestion, on the material before the Court, that the Mother has been the child’s primary carer from birth to date. The child has a meaningful relationship with the Mother and will benefit from a continuance of that relationship.
The child has not spent time with the Father since about June 2020 according to the Father. There are competing allegations between the parties as to the nature of the Father’s relationship with the child prior to the separation; the Mother alleges, inter alia, that the child was exposed to significant family violence by the Father and the Father alleges a positive relationship. Because the child, now only aged 5 years, has not spent time with the Father since about June 2020, it may well be that the child’s former relationship with the Father has dissipated to a not insignificant extent; the Father told the family consultant that post separation his relationship with the child was absent and did not exist as he was unable to spend consistent and sufficient time with the child. On the material before the Court, the Court has a concern that prospectively the child may not benefit from developing a relationship with the Father because it would not be safe, physically and/or psychologically, for the child to do so; in this regard, the Court refers in particular to the Mother’s family violence and other allegations of adverse behaviour against the Father, the Father’s criminal convictions, and the allegations in the NSW Police material relating to the Father.
As to the need to protect primary consideration, referred to previously in these Reasons, the Court is of the view that there presently exists an unacceptable risk of psychological harm posed to the child in spending supervised time with the Father.
Firstly, the child is being treated for anxiety by a child psychologist. The Court has a concern that the child will experience a significant exacerbation of her anxiety if required to spend supervised time with the Father. In this context, the Mother alleges that the child was diagnosed with separation anxiety in September 2018. The Mother alleges that the child was exposed to family violence at the instance of the Father during the parties’ relationship. The Mother alleges that between 2018 and 2019, the Department of Communities in Western Australia became involved with the child. The Mother alleges that the child experienced significant anxiety as a result of the content of telephone discussions between the Father and the child in March 2020; in this context, the Mother alleges that the Father spoke to the child inappropriately in certain respects. The Mother alleges that in May 2020 the child experienced significant anxiety when the Mother was facilitating time between the child and the Father, and she alleges that in August 2020 the child began to soil herself prior to a scheduled telephone call between the child and the Father. These above allegations of the Mother were significantly repeated in her statements to the Family Consultant at the Child Dispute Conference. There is force to the submissions of the Independent Children’s Lawyer in this context that supervision by a contact centre cannot remove such a risk of psychological harm to the child.
Secondly, the Court has a significant concern that the Mother will experience psychological harm if the child begins to spend supervised time with the Father. Should this occur, there is a real risk that the Mother’s parenting capacity will be adversely affected and that consequentially the child will be adversely affected psychologically herself and/or be subjected to neglect in the Mother’s care. The contents of the Family Consultant’s Memorandum is consistent with this concern; at paragraph 47 of the Memorandum, the Family Consultant states that in the short term the child is likely to be affected by the impact on the Mother of ongoing legal proceedings and the fear she holds of the Father. The ICL’s submissions in this context have force. The ICL had submitted that there is a significant suggestion on the material before the Court that both parties’ parenting capacities have been found wanting historically. The ICL submitted that the Mother, should the Court Order supervised time, may well experience significant anxiety and thereby the Mother’s already compromised parenting capacity would be further adversely affected.
As previously discussed, the Court has a concern that prospectively the child may not benefit from the development of a relationship with the Father because it would not be safe for the child to do so. There is force to the ICL’s submissions in this context. In particular, the ICL’s submission that were the Court to presently Order the child to spend supervised time with the Father and ultimately, at the final hearing, the Court determined that it would not be safe for the child to spend time with the Father on a final basis, then the child may well experience significant psychological harm because any developed relationship with the Father obtained through supervised time would have to be severed.
The Court stresses, at this point, that the Court’s concerns are based on the material presently before the Court. In this context, inter alia, serious allegations of family violence have been made by the Mother against the Father, the Father has been convicted of domestic violence related offences committed by him as recently as March 2020, final AVOs have been made against the Father for the Mother and child’s protection and also for the protection of a third-party, the police allege significant violence proffered by the Father against third parties in relation to the Father’s admission to Hospital H in 2018, and the Father himself allegedly admitted to police (in an ERISP on 3 June 2020) that he had sent a threatening message to the Mother on 6 May 2020. There is a significant suggestion, on the material before the Court, that the Father, through his denials of family violence in particular, lacks insight into his past alleged adverse behaviour. Further, in this context, the Court has a concern in relation to the Father’s mental health. The untested report of Dr B has been considered by the Court, however the Court has concerns as to the reliability of the opinions and conclusions of the psychiatrist by reason of the psychiatrist not having considered, for example, the contents of the ICL’s Tender Bundle documents relating to the Father’s alleged adverse behaviour and mental health and the convictions of the Father in the Town F Local Court on 30 March 2021. The Court also has a concern in relation to the said report of the psychiatrist because the psychiatrist had noted the Father’s inability to remember past events when questioned by the psychiatrist about the Mother’s accusations against him.
In the above context of the Court’s above concerns that the child may experience significant anxiety if spending supervised time with the Father, the Court takes into account the contents of the Family Consultant’s Child Dispute Conference Memorandum whilst acknowledging that that Memorandum remains untested.
The Court has not overlooked the Father’s allegations against the Mother of family violence perpetrated by her against the Father. Again, there is a suggestion, on the material before the Court, as previously discussed, that both parties’ parenting capacities have been found wanting historically. However, the Father is not seeking Orders that the child not live with the Mother but rather is seeking an Order that he be entitled to spend supervised time with the child at a contact centre.
The above matters discussed by the Court are the relevant section 60CC considerations at this interim hearing. Evaluating the above discussed matters under section 60CC it will be in the best interests of the child that the Court make the following Orders on an interim basis:
1.That the child X born in 2016 shall live with the Mother.
2.That X shall spend no time with her Father.
3.That the parties are restrained from abusing, insulting, belittling, rebuking or criticising each other to or in the presence of X and from permitting any other person to do so and the parties are further restrained from discussing these proceedings in any way in the sight or hearing of X or permitting any other person to do so.
4.The proceedings are adjourned to 15 December 2021 at 9:30am for mention.
I certify that the preceding fifty-four (54) numbered paragraphs are a true copy of the Reasons for Judgment of Judge Newbrun. Associate:
Dated: 22 October 2021
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