Rawliston & Rawliston
[2023] FedCFamC1F 768
FEDERAL CIRCUIT AND FAMILY COURT OF AUSTRALIA
(DIVISION 1)
Rawliston & Rawliston [2023] FedCFamC1F 768
File number(s): SYC 8189 of 2019 Judgment of: KARI J Date of judgment: 12 September 2023 Catchwords: FAMILY LAW - CHILDREN – Where the father is spending supervised time with the children – Where there are serious allegations of family violence perpetrated by the father towards the mother and children – Whether the father should spend unsupervised time with the children pending trial – Whether the father’s supervised time should move to the community – Whether the paternal family and father’s partner should spend time with the children Legislation: Family Law Act 1975 (Cth) ss 60B, 60CC, 102NA Cases cited: Goode & Goode (2006) FLC 93-286,
Re F: Litigants in Person Guidelines (2001) FLC 93-072,
SS & AH [2010] FamCAFC 13.
Division: Division 1 First Instance Number of paragraphs: 79 Date of hearing: 25 August 2023 Place: Heard in Sydney, delivered in Adelaide Counsel for the Applicant: Ms Seric Solicitor for the Applicant: De Saxe O’Neill Family Lawyers Respondent: Litigant in person Counsel for the Independent Children's Lawyer: Mr Iuliano Solicitor for the Independent Children's Lawyer: Philip A Wilkins & Associates ORDERS
SYC 8189 of 2019 FEDERAL CIRCUIT AND FAMILY COURT OF AUSTRALIA (DIVISION 1)
BETWEEN: MR RAWLISTON
Applicant
AND: MS RAWLISTON
Respondent
INDEPENDENT CHILDREN'S LAWYER
ORDER MADE BY:
KARI J
DATE OF ORDER:
12 SEPTEMBER 2023
THE COURT ORDERS THAT:
1.That until further order the father shall continue to spend supervised time with the children at the B Contact Centre in City C in accordance with Order 3(3) and 3(4) made 8 January 2020 save and except:
(a)Such time spending shall occur each alternate Saturday for a period of 3 hours if the same can be accommodated by the service and in the event that it cannot be accommodated, a period of 2 hours; and
(b)Such time shall occur in the absence of the paternal family and/or the father’s partner.
2.That the Application in a Proceeding filed 19 July 2023 and the Response filed 8 August 2023 be dismissed.
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 Rawlitson & Rawlitson has been approved pursuant to s 121(9)(g) of the Family Law Act 1975 (Cth).
REASONS FOR JUDGMENT
KARI J:
INTRODUCTION
These proceedings relate to the parenting arrangements for the parties’ three children, aged 7, 6 and 4.
The proceedings are listed for a 5 day trial before me commencing 4 December 2023.
The children’s interests are represented by an Independent Children’s Lawyer.
The dispute between the parents at this interlocutory stage is of relatively narrow compass and concerns whether the father’s supervised time spending with the children should move away from a contact service and become unsupervised, or if it is to remain supervised, whether it move from a contact service and into the community pending trial.
BACKGROUND
The short background of this family is as follows:
(a)The father was born in 1987 and he is 36 years of age.
(b)The mother was born in 1988 and she is 35 years of age.
(c)The parties commenced living together in the middle of 2013.
(d)The parties married in 2015.
(e)The parties separated on a final basis on 20 May 2019.
During the marriage the parties had three daughters:
(a)X who was born in 2016, who is 7 years of age;
(b)Y who was born in 2017, who is 6 years of age; and
(c)Z who was born in 2018, who is 4 years of age.
The proceedings were commenced by the father some seven months after separation in December 2019, when the children were aged 3, 2 and 1 respectively.
During the relationship:
(a)The parties resided in Town D, NSW where the family home, a farming property, is located.
(b)The father was largely engaged in farming duties, while the mother was engaged in homemaking (with the father’s assistance) and parenting.
Following separation and in August 2019 the mother relocated with the children to City E, having first spent several weeks with the children in Sydney. It is the mother’s position that her relocation to City E was with the father’s consent. The father remained in the family home in Town D.
The father asserts that his relationship with the mother was difficult and punctuated by arguments from an early stage, in large part due to the mother’s strained relationship with the paternal grandparents and arguments over finances.
The mother, on the other hand, asserts that the parties relationship was difficult as it was punctuated by family violence perpetrated by the father; such family violence invariably fuelled and coupled with the father’s excess alcohol consumption. The mother asserts that there were several periods of separation over the course of the relationship lasting a number of days, and that on occasions she sought the assistance from the maternal grandparents and a women’s refuge in City F, such assistance including housing assistance.
Prior to the final separation of the parents, it is undisputed that they separated for a period of time between late 2017 and early 2018, and in that regard:
(a)The mother left the family home with the children in October 2017.
(b)In late 2017 Apprehended Domestic Violence Order (“ADVO”) was made with the father’s consent, which named the mother as a protected person. The terms of the ADVO resulted in the loss of the father’s firearms licence.[1]
(c)In December 2017 the mother and the children returned to the family home with the father vacating the home and moving to the home of the paternal grandparents.
(d)In early 2018 the parties reconciled and the father moved back into the family home.
(e)Two months later at the wife’s request the ADVO was withdrawn and the husband applied to have his firearms licence reinstated.
[1] It is noted that the court has not been provided with a copy of the ADVO by either of the parties.
It appears undisputed that the events that led to the parties’ final separation on 20 May 2019 arose against the backdrop of an argument between the parents culminating in the father asking the mother to leave the family home.
It is the father’s position that in the immediate post separation period, the parties explored the prospect of reconciliation, that he remained hopeful of that occurring and that the parties together with the children went to City E to explore relocating there as a family.
In mid-2019 the father was in a car accident, which saw him hospitalised. There was no other vehicle involved in the accident. The father asserts that he was driving his vehicle home from work, he was tired, he closed his eyes and the car rolled. It is the father’s position that he was hospitalised for 2 nights following the accident. The mother, however, asserts that the father did not immediately attend the hospital after the accident, and that he delayed doing so at least on the night of the incident. It is the mother’s position that the accident may have been as a result of the father’s excess alcohol consumption.
Following this accident, the father spent occasional time with the children in the mother’s presence, initially in Sydney, and otherwise in City E or at the former family home. It is the mother’s position that she did not allow the father to have unsupervised time spending with the children in the post separation period.
At the time that the proceedings were commenced, it is undisputed that the father had not seen the children since about the middle of September 2019.
The mother makes a range of serious allegations about the father as particularised and detailed in her first affidavit filed 23 December 2019. In summary the mother asserts that the family violence perpetrated by the father included:
(a)An incident described as “attempted sexual assault and an assault” which was described as an assault against the maternal grandfather following the attempted sexual assault against the mother, resulting in the maternal grandfather suffering an injury in 2017.
(b)Occasions of physical violence and or threats of violence towards the mother including threatening the mother with a knife.
(c)Behaviours of the father that can best be described as coercive and controlling, including removing the mother’s car keys from her and accessing the mother’s Facebook messenger accounts.
(d)Unwanted sexual encounters.
(e)Threats to have the mother killed.
(f)Verbal abuse towards the mother.
(g)Financial control of the mother.
(h)Threats made to the mother involving firearms in 2016 and 2017.
(i)Physical violence and/or threats of violence directed to the children.
(j)Violence, threats and aggressive behaviours directed to the maternal grandmother.
In addition, the mother asserts that in the immediate post separation period the father sent her an avalanche of communications by phone, text and email. Those communications include the mother receiving 1,350 emails from the father between 19 May 2019 and the filing of her first affidavit on 23 December 2019 and at least 100 voicemails from the father between 12 June 2019 and 23 December 2019.
THE LITIGATION
The litigation was commenced by the father on 3 December 2019.
By his Initiating Application the father sought parenting orders that provide for the parties to share parental responsibility for the children and that he spend regular and frequent time with them. The father filed an Amended Application for Final Orders on 1 June 2020 in which he sought orders that the children live with him and spend time with the mother on alternate weekends (Thursday to Tuesday if the mother lives proximate to the children), half school holidays and special occasions. The father also sought orders for shared parental responsibility, provided that each of the parents have “sole responsibility for making decisions about the day to day care, welfare and development of the children when the children are in their respective care”. The Amended Application for Final Orders has since been discontinued by the father on 15 September 2020.
In her Response to Final Orders filed on 23 December 2019, the mother sought orders providing for her to have sole parental responsibility, that the children live with her and that any time spending between the children and the father be that recommended by a Family Report Writer. As the mother has not amended the final orders she seeks since the release of the Family Report, it is not clear what orders for time spending between the father and the children she will be promoting at the final hearing. This is something to which the mother will need to direct her attention.
When the mother filed her Response she also sought financial orders. To the parties’ mutual credit, that dispute resolved, and the court made final orders for property settlement on 26 May 2021 at the request of the parties. I do not otherwise propose to refer to financial matters in these reasons, unless relevant to the parenting issues at hand.
When the matter first came before the court on 8 January 2020, parenting orders were made by agreement between the parties without the need for judicial determination. Those orders can be summarised as follows:
(a)That the children live with the mother; and
(b)That the children spend supervised time with the father each alternate Friday for a period of 2 hours.
(c)That supervision be undertaken by a “third party professional supervisor as agreed in writing between the parties”.
Additionally a range of orders were made restraining the father from:
(a)Coming within 100 meters of the mother’s residence in City F, the residence of the maternal grandmother in Suburb G and the maternal grandfather’s residence in Suburb H; and
(b)Contacting the mother other than through her legal representative.
On 13 March 2020 the father filed an Application in a Proceeding in which, among other things, he sought to have his time spending with the children unsupervised. The mother opposed that application. The application was ultimately withdrawn by the father at a hearing before a Senior Registrar on 17 April 2020.
The father filed a further Application in a Proceeding on 14 September 2020 in which he sought interlocutory parenting orders, which were opposed by the mother. The orders promoted by the father included:
(a)That the parties have equal shared parental responsibility for the children;
(b)That the children live with the mother;
(c)That the father spend unsupervised time with the children effectively on alternate weekends rotating between City E and Town D from 5.00 pm Friday until 6.00 pm Sunday together with one half of school holidays.
(d)Communication by FaceTime between the father and the children each Tuesday and Thursday and on alternate Saturdays.
On 21 September 2020 the parties were ordered to attend a Child Dispute Conference with a Family Consultant with a report to thereafter issue. That report was prepared and is dated 11 November 2020.
On 16 December 2020 a Senior Registrar determined that the parenting arrangements should remain those ordered on 8 January 2020. In addition orders were made which provided for:
(a)The father at the request of the Independent Children’s Lawyer, to undergo blood testing (including liver function testing).
(b)An injunction restraining the father from consuming alcohol 12 hours prior to and during his time spending with the children.
(c)The father (by consent) to attend a men’s behavioural change programme.
On 3 February 2021 the court made orders for the preparation of a Family Report. While there was some delay to the instruction of the identified expert resulting in further applications and hearings, those matters are not germane for present purposes. It is however important to understand that a report was prepared by Mr J and bears a date of 4 March 2022.
In the Family Report, Mr J identified (at [118])
Whether or not the subject children should live primarily with their mother in their current caregiving context is, appropriately, not being contested in this matter. The critical question in this matter, therefore, appears to be: How best to ensure that the children’s primary caregiving environment is optimally secure, whilst developing parenting arrangements that enable a relationship with their father that does not undermine the security of their primary caregiving environment or otherwise risk their physical and emotional security…
Against that backdrop the Family Report made recommendations (at [130-134]) as follows:
(a)The children live primarily with the mother.
(b)That for a period of six months following “Court Orders being handed down” the children spend supervised time with the father for five hours on a weekend day each fortnight;
(c)Thereafter for a further period of six months the children spend unsupervised time with the father each alternate weekend for five hours on each the Saturday and Sunday;
(d)Thereafter for a further period of six months the children spend unsupervised time with the father each alternate weekend from 10.00 am Saturday to 4.00 pm Sunday; and
(e)Thereafter the children spend unsupervised time with the father each alternate weekend from the conclusion of school Friday until the commencement of school Monday.
On 29 April 2022 the father filed a further Application in a Proceeding in which he sought among other things the matter to be listed for final hearing, but significantly for present purposes to progress his time with the children including the removal of supervision and a staggered increase to the father’s time spending.
On 14 July 2022 orders were made confirming that the provisions of s 102NA of the Family Law Act 1975 (Cth) (‘the Act’) were to mandatorily apply to these proceedings given the injunctions made for the personal protection of the mother on 8 January 2020. The mother who had been representing herself from at least 1 June 2021, was, as a consequence, ordered to make an application for funding pursuant to the Family Violence and Cross Examination of Parties Scheme. The matter was otherwise referred to the pool of matters awaiting trial.
The matter first came before me for case management and progression to trial on 28 April 2023. The mother however did not attend that hearing. Additionally, the court was advised that the mother had not been complying with the orders for the father to spend time with the children. Accordingly, the proceedings were adjourned to 5 May 2023.
At the hearing on 5 May 2023, the proceedings were given a trial date of 4 December 2023. Additionally the court confirmed the application of s 102NA of the Act to the proceedings. The mother was again directed to make an application for a grant of funding pursuant to the Family Violence and Cross Examination of Parties Scheme.
On 19 July 2023 the father filed his current Application in a Proceeding. That application was again directed at progressing the father’s time spending with the children. The application was listed for hearing on 25 August 2023. The mother filed a Response to the Application on 8 August 2023. The respective positions of the parties will be discussed in more detail in the reasons that follow.
At this juncture, however, it is important to record that the mother remains self-represented despite the looming final hearing. At the hearing on 25 August 2023 with respect to the interlocutory applications, the mother indicated to the court that she had made an application for a grant of funding and she was awaiting allocation of legal representation. It is hoped that the mother will be represented at the final hearing. If she is not, then she will be prohibited from personally cross examining the father. From my observations of the mother during the hearing on 25 August 2023, it strikes me that she would likely find the prospect of representing herself at a final hearing daunting and difficult. That is not a criticism of the mother, but simply a reality that faces many self-represented litigants. As identified by the Full Court in Re F: Litigants in Person Guidelines (2001) FLC 93-072 (“Re F”) at [242]:
It should be recognised that persons who represent themselves are almost always at a disadvantage in legal proceedings. Advocacy is a professional skill that has almost always been performed by highly trained lawyers in our legal system. They not only bring those skills to bear but also professional objectivity that a litigant in person lacks, particularly in family law proceedings.
THE PROPOSALS OF THE PARTIES
By his Application in a Proceeding filed 19 July 2023 the father seeks the following parenting orders:
1.That this application be listed at short notice.
2.That Orders 3 and 4 of the Orders made 8 January 2020, and Order 1 of the Orders made 16 December 2020 be discharged.
3.That the children [X] (DOB: […] 2016), [Y] (DOB: […] 2017) and [Z] (DOB: […] 2018) shall spend time with the Father from 9.00am to 1.00pm Sunday commencing the first Sunday following the date of these Orders, and continuing each alternate week thereafter pending further Order.
4.That for the purpose of Order 3 above, changeover shall occur in the car park of [City E] Library at [K Street, City E], or at such other location agreed between the parties in writing.
5.That the Father be at liberty to attend his time with the children with [Ms L], the children of [Ms L], or other members of the paternal family.
OR IN THE ALTERNATIVE
6.That this application be listed at short notice.
7.That Orders 3 and 4 of the Orders made 8 January 2020, and Order 1 of the Orders made 16 December 2020 be discharged.
8.That the children [X] (DOB: […] 2016), [Y] (DOB: […] 2017) and [Z] (DOB: […] 2018) shall spend supervised time with the Father, on a without admissions basis as follows:
a.Time will be supervised in the community of [City E] NSW by [B Contact Centre, City C];
b.Time will occur at one of the following locations, nominated by the Father in writing not less than 2 days prior to the visit:
i.[…] playground;
ii.[…] Library;
iii.[…] Tenpin Bowling Centre;
iv.[…] Park […];
v.[…] Museum;
vi.[…] Museum;
vii.[…] Ice Cream shop;
viii.A café or restaurant on [M Street, City E] CBD approved by [B Contact Centre] in writing;
ix.A café or restaurant on [N street, City E] CBD approved by [B Contact Centre] in writing; or
x.[…] Park.
c.Time will occur for a period of 3 hours (or 2 hours if directed by the Father, or by [B Contact Centre]) on a Saturday or Sunday subject to the availability of [B Contact Centre];
d.Changeover shall occur at the location of contact as directed by [B Contact Centre], or if there is no suitable changeover location at the location of the visit, in the car park of [City E] Library at [K Street, City E];
e.That the Father be at liberty to attend contact with [Ms L], the children of [Ms L], or other members of the paternal family.
f.The costs of supervision shall be paid by the parties in equal shares.
The mother opposes the orders sought by the father and instead proposes by her Response filed 8 August 2023 the following parenting orders:
1.That the Application in a Proceeding filed 19 July 2023 be dismissed.
2.That Orders 3 and 4 of the Orders made 8 January 2020 and Order 1 of the orders made 16 December 2020 remain.
3.That the fortnightly supervised time at [B Contact Centre] in [City C] be increased to 3 hours.
4.That the Father attend his supervised time at [B Contact Centre] alone in order to better forge a bond with the children.
5.That the Father undergo monthly CDT testing.
The father’s application is made against a background of the father not spending time with the children pursuant to the orders of 8 January 2020, as he asserts the mother has been inconsistent in making the children available for that time spending and/or has avoided and/or not responded to communications from the father’s solicitors and/or the contact service as to the time spending. In particular the father asserts:
(a)In or about late January 2023 he made a decision to discontinue visits as he was hopeful of an imminent trial date and he was concerned at the impost on him of a 9 hour round trip to City C from his home in Town D (with accommodation costs), with no prospect of the time spending occurring due to the mother’s non-compliance.
(b)That in May 2023 he decided that he would resume the supervised time spending at the contact service in City C, and was heartened by the mother’s indication to the court at a hearing on 5 May 2023 that she would facilitate those visits occurring.
(c)That at the time of filing his Application in a Proceeding, the visits had resumed, but he had not spent any time with X since October 2022 as the mother, without explanation, had not facilitated X attending whatsoever.
In addition, the father’s application comes against a background of the supervised time spending occurring on at least two occasions in the community in City C (December 2022 and January 2023 with Z and Y only). The father asserts that he was advised by the contact service that the mother withdrew her consent to the visits occurring in the community in City C on or about 21 January 2023, which appears to coincide with the timing of the father indicating he would no longer take the time spending in accordance with the orders.
The mother’s position is grounded in her allegations of family violence. The mother is concerned that the father may seek revenge against her by harming the children or her. She asserts that she is fearful of the children’s safety and her own safety if the children’s time with the father was unsupervised or outside the contact service in City C. She opposes the time spending occurring in City E as it is too near her home.
The mother acknowledges that time spending has not always occurred in accordance with the orders of 8 January 2020. She proffers various explanations including the death of the maternal grandmother, that she was unwell, the failure of the contact service to confirm visits, a last minute holiday with the children to Region P with the maternal grandmother and the father cancelling visits through the service without any explanation being given to her. The mother also acknowledges that X has not attended visits as she has become anxious and has refused to attend. It is the mother’s position that she will not “force” X to attend.
In addition, the mother has asserted that in June 2023 she did not facilitate the supervised time spending because she suffered a “panic attack triggered by the anxiety I face with the pending supervised visits”. The mother asserts that she spent the morning in the Emergency Department at Q Hospital as a consequence. The mother has not for present purposes produced any records in relation to this hospital attendance. However these records are likely to be relevant for the final hearing, as will expert evidence as to the mother’s psychological functioning in the context of the allegations that she has made, and it being agreed that she suffers from panic attacks.
The occurrence of what has been described as the mother’s “panic attacks” is not a new phenomenon. When the father met with Mr J for the purposes of the Family Report he acknowledged the mother suffering panic attacks during the relationship (at [39]). Additionally Mr J explored this issue seemingly at length with the mother during her appointment, with Mr J recording the mother’s description of the panic attacks “from a sensory perspective” as follows (at [55]):
…(when he followed me) yelling, (I would get) a stomach upset and need to go to the toilet… (it felt like) my heart was coming out of my mouth… I count backwards in threes… I feel lightheaded like I am going to pass out… it happens when I talk about this… when I have to talk about the children I go to the worst possible (scenario)…
The mother has also raised concerns that time spending on a Saturday impacts upon the children’s ability to participate in sports and the birthday parties of their peers. She does not however oppose the visits continuing on a Saturday pending trial. As identified earlier however, it is not clear what orders for time spending between the children and the father, the mother will be promoting at the final hearing.
The mother also asserts that the father is inconsistent in paying his child support obligations, with arrears said to be around $5,500 at the time she filed her Response and Affidavit on 8 August 2023.
At the commencement of the hearing on 25 August 2023 I indicated to the parties that given the close proximity of the trial and the serious allegations and factual disputes between the parties, it was unlikely that I would consider making any dramatic changes to the parenting orders for the children on an interim basis.
Accordingly, while the father did not formally abandon his application for his time spending with the children to move to an unsupervised arrangement, there was an acknowledgment on the part of his counsel that the court was not going to entertain that aspect of his application at an interim stage in such close proximity to the final hearing. His counsel thereafter focussed submissions on the more modest changes promoted by the father; in particular that the supervised time spending move away from occurring at the Contact Service in City C and into the community in City E.
During the hearing, the Independent Children’s Lawyer made submissions supporting the father’s proposal that the time spending move into the community on a supervised basis. The Independent Children’s Lawyer did not otherwise support the father’s time moving to an unsupervised regime and/or the father being permitted to have members of his family or his new partner attend the father’s time spending.
The position taken by the Independent Children’s Lawyer in relation to the father’s partner and family members came about (as it had initially been supported by the Independent Children’s Lawyer), as a consequence of questions posed of the father during the hearing and it being understood that the children have not met the father’s new partner and that they had not seen the paternal grandparents for more than five years.
WHAT PARENTING ORDERS SHOULD BE MADE PENDING TRIAL?
The Legal Framework
The court’s task whenever it is called upon to make a parenting order, is to make orders that are in a child’s best interests.
In determining what is in a child’s best interests, the court is assisted by s 60CC of the Act, which sets out the considerations (primary and additional) to which the court is to have regard.
Section 60CC(2) of the Act sets out the primary considerations to which the court is to give greater weight to, namely:-
(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.
The additional considerations set out in s 60CC(3) of the Act 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.
In addition, the Court is to have regard to the objects expressed in s 60B(1) of the Act as well as the underlying principles which underpin the parenting provisions of the legislation set out at s 60B(2) of the Act, which are as follows:
(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).
In Goode & Goode (2006) FLC 93-286 at [82], the Full Court set out the “legislative pathway” that is to be followed in parenting cases as follows:
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.
Family Violence is defined in s 4AB of the Act as follows:
(1)For the purposes of this Act, family violence means violent, threatening or other behaviour by a person that coerces or controls a member of the person’s family (the family member), or causes the family member to be fearful.
(2)Examples of behaviour that may constitute family violence include (but are not limited to):
a.an assault; or
b.a sexual assault or other sexually abusive behaviour; or
c.stalking; or
d.repeated derogatory taunts; or
e.intentionally damaging or destroying property; or
f.intentionally causing death or injury to an animal; or
g.unreasonably denying the family member the financial autonomy that he or she would otherwise have had; or
h.unreasonably withholding financial support needed to meet the reasonable living expenses of the family member, or his or her child, at a time when the family member is entirely or predominantly dependent on the person for financial support; or
i.preventing the family member from making or keeping connections with his or her family, friends or culture; or
j.unlawfully depriving the family member, or any member of the family member’s family, of his or her liberty.
Discussion
I observe that the allegations made by the mother as summarised above, fit within the definition of family violence in all its complex and various forms. Further, the allegations made by the mother are serious. While some of the allegations lack particularity, others are detailed.
The court is not at this stage, nor has it to date, been asked to make an order that the parties share parental responsibility on an interlocutory basis. Indeed presently, there are no orders for parental responsibility for these children. In those circumstances, the presumption of equal shared parental responsibility applies. However, it is apparent that if the court is in due course satisfied that some or all of the allegations made by the mother are ultimately made out, then the presumption would be comfortably rebutted. It equally may be the case that the presumption is rebutted in all of the circumstances of this family. That, however, shall be a question which is determined after the final hearing in this matter, when the court has had the benefit of hearing all of the evidence.
At this stage however, and regardless of the presumption of equal shared parental responsibility presently applying, the court is not being asked to consider orders for equal time, nor substantial and significant time spending between the father and the children.
While it is not clear to me from the history of the proceedings, I would have to assume that implicit in the agreement between the parties from the outset of these proceedings that the father’s time spending be limited and supervised, is an understanding between the parties that the same is appropriate and in the children’s best interests, and that supervision will act to suitably ameliorate any risk that the father may pose. That does not mean to say that the father accepts that he poses any risk to the children, but rather, that he has accepted at an interlocutory stage, when the parties’ competing allegations are unable to be resolved by the court, that it is appropriate that the question of time spending is considered carefully and modestly.
In addition, it is not lost on me that these children are still very young. They have always been in the mother’s primary care. Again, presumably these considerations factored into the father’s time spending arrangements that were implemented at the commencement of the proceedings.
It is through this narrow prism that the present dispute must be considered.
While the ambit of the dispute between the parties was relatively narrow in compass, what was obvious from the conduct of the hearing, is that the father’s proposed change of moving his supervised time spending away from the contact service and into the community is one that the parties both hold strong views about.
It is the father’s position that the locations in the City E community that he has proposed are ones that the contact service have “risk assessed” and identified as appropriate and promoted to “normalise the interactions”. Beyond a letter from the service asserting the same, there is no meaningful evidence before the court in this regard.
I also comment that at the hearing on 25 August 2023, the mother presented as particularly overawed, distressed and tearful. Moreover, during the course of her submissions it became clear that she was unable to entertain even the prospect of an outcome that would see the father’s supervised time moving away from the contact service and into the community. When pressed as to whether there was any location or arrangement in the community that the mother would support, the mother was unable to comfortably support any location; ultimately and reluctantly indicating only the City E Library from the list of locations proposed by the service and the father.
I make these observations, as I am mindful of the comments made by Boland and Thackray JJ in SS & AH [2010] FamCAFC 13 at [102]:
… the presence of a self represented litigant at an interim hearing does give the judge an opportunity to make assessments which could not otherwise be undertaken.
I also make these observations because I am mindful that the impact of the proposed regime on the parenting capacity of the parents, here significantly the mother who has always been the primary carer for these children, is a relevant factor to be taken into account.
These observations are particularly relevant, given the context in which this application has been filed, namely a hiatus of time spending between January and May 2023 of the father’s making, intermittent compliance by the mother from late last year and otherwise a cessation of time spending altogether from early June 2023.
These observations are also particularly relevant, as the mother’s distressed presentation was something that Mr J commented upon in his Report, describing the mother as “genuinely distressed… she presented as fearful for herself and the children rather than vengeful or angry” (at [50]).
Further, Mr J formed the view (at [120)]):
Although it is possible that [Ms Rawliston] is exaggerating the incidents or even manufacturing PTS symptoms as a manipulative ploy in the context of adversarial Court proceedings, the writer does not believe this to be so in this matter. The incidents of violence that she described did not seem to be exaggerated or embellished and would likely to have been traumatising and her distress in interview when she was required to consider these incidents seemed genuine. It is also noted that she states that she is less concerned about the amount of time that the children spend with their father than she is about ensuring their safety.
While it remains to be seen whether the mother’s fears are well founded and/or reasonably held, in circumstances where there is no dispute that she has been and shall at this interlocutory stage continue to be the primary carer for these children, her ability to support the time spending between the children and the father is a significant consideration. That the mother herself is promoting the continuation of time spending at the contact service, together with an increase to three hours, suggests that she is supportive of that regime and that she will facilitate that time spending occurring, despite the past difficulties.
Moreover, in the absence of fulsome evidence from the service as to the risk assessment undertaken of the proposed community locations and the manner in which they propose to conduct those visits, it is difficult to support any community based arrangement, particularly when there is a dispute about their appropriateness; despite at face value appreciating that community visits have the capacity to provide variety for the children and what might be considered as more “normalised” interactions and activities.
It is for all of these reasons that I consider that it would be premature to make any significant changes to the parenting orders in place for the children; particularly not so close to the trial when all of the evidence is to be tested and assessed by the court. To do otherwise in all of the circumstances that have prevailed for this family would be premature and pre-emptive.
I otherwise also do not consider it appropriate at this stage to include other family members or the father’s partner in any time spending. I have formed this view given not only the close proximity of trial, but also because the father’s time spending is limited and should, in those circumstances, be focussed on his relationship with the children. Additionally, there is no evidence before me on the appropriateness or otherwise of including the father’s partner and/or extended family members nor the impact of the same upon the children, who are still very young and have not in the case of the father’s partner met her, nor have they seen members of the paternal family for a significantly extended period of time.
I am mindful that the mother promoted “monthly CDT” testing, but in circumstances where I did not hear any submissions directed to this topic, I do not propose to order the same. From my perspective the father is on notice of the concerns raised by the mother in this regard, and outlined in the Family Report, and it is a matter for the father in due course to satisfy the court that his alcohol consumption is not a present/future risk factor.
It is for all of these reasons, that I make the orders that appear at the commencement of these reasons, noting that in line with the mother’s proposal I have increased the children’s time spending at the contact service to three hours if the same can be accommodated (there being some question over the same).
I certify that the preceding seventy-nine (79) numbered paragraphs are a true copy of the Reasons for Judgment of the Honourable Justice Kari. Associate:
Dated: 12 September 2023
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