REDLICH & DEMIR
[2020] FCCA 1757
•22 June 2020
FEDERAL CIRCUIT COURT OF AUSTRALIA
| REDLICH & DEMIR | [2020] FCCA 1757 |
| Catchwords: FAMILY LAW – Interim hearing – parenting proceedings – where allegations of family violence – where family violence found – where family violence can be mitigated by appropriate orders – where parental responsibility shared in some aspects only. |
| Legislation: Family Law Act 1975 (Cth), ss.4AB, 13C 60B, 60CA, 60CC, 61DA, 63C, 65D, 65DAA, 65DAB. |
| Cases cited: M & M (1988) FLC 91-973 A & A & The Child Representative (1998) 22 FamLR 756 |
| Applicant: | MR REDLICH |
| Respondent: | MS DEMIR |
| File Number: | SYC 6160 of 2018 |
| Judgment of: | Judge Morley |
| Hearing date: | 14 August 2019 |
| Date of Last Submission: | 14 August 2019 |
| Delivered at: | Sydney |
| Delivered on: | 22 June 2020 |
REPRESENTATION
| Counsel for the Applicant: | Ms Snelling |
| Solicitors for the Applicant: | Stamford Law Pty Ltd |
| Solicitors for the Respondent: | Mr Frost of Horizons Family Law Centre Pty Ltd |
| Solicitors for the Independent Children's Lawyer: | Ms Morton of Morton Family Lawyers |
ORDERS
PENDING FURTHER ORDERS THE COURT ORDERS THAT:
That the mother have sole parental responsibility for X born in 2011, Y born in 2014, and Z born in 2016 (“the children”) in relation to matters relating to the children’s health, including hospitalisations, AND OTHERWISE the parents have shared parental responsibility for the children.
That the children live with their Mother.
That the father spend time with X and Y (“the boys”) as follows:
(a)Each Tuesday during school term time from 3.30 PM until 6.30PM;
(b)Until the first due weekend in October 2020, during school term time each alternate weekend from 10.00 AM on Saturday until 7.00 PM on Sunday;
(c)From the first due weekend in October, during school term time each alternate weekend from 3.30 PM on Friday until 7.00 PM on Sunday;
(d)During school holidays at the end of terms 1, 2 and 3, for half of the school holiday period being the first half in even numbered years and the second half in odd numbered years;
(e)During the school holidays at the end of term 4, for half of the school holidays on a week-about basis, the father’s time commencing with the first week of the school holidays commencing in even numbered years and commencing with the second week of the school holidays commencing in odd numbered years;
(f)From 10.00 AM until 4.00 PM on 25 December each year and from 10.00 AM until 7.00 PM on 7 January each year;
(g)At such other times as are agreed between the parents in writing from time to time.
That the father spend time with Z as follows:
(a)Each Tuesday during school term time from 3.30 PM until 6.30PM;
(b)During school term time, each alternate weekend, being the same weekend on which the boys are spending time with their father, from 10.00 AM until 4.00 PM on Saturday and from 10.00 AM until 4.00 PM on Sunday;
(c)During school holidays from 10.00 AM until 5.00 PM on each day on which the boys are spending time with their father;
(d)From 10.00 AM until 4.00 PM on 25 December each year and from 10.00 AM until 7.00 PM on 7 January each year;
(e)At such other times as are agreed between the parents in writing from time to time.
That notwithstanding any other order herein, the children shall be in the mother’s care from 4.00 PM on 24 December until 10.00 AM on 25 December and from 4.00 PM on 25 December until 4.00 PM on 26 December each year.
That for the purposes of these orders, school holidays commence at 3.30PM on the last day of school attendance and end at 7.00 PM on the day before school attendance resumes, with changeover in the middle (Term 1, 2 and 3 school holidays) and at the end of each week (Term 4 school holidays) occurring at 10.00 AM.
That changeovers at the start of the father’s time with the children will occur by the father collecting the children from the front door of the mother’s home and changeovers at the end of the father’s time with the children will occur by the mother collecting the children from the front door of the father’s home.
That at changeovers at the end of the father’s time with the children, the father must encourage the children to return to their mother’s care quickly and happily and not prolong the farewells.
That each of the parents is restrained from saying or doing anything derogatory of the other parent, any member of the other parent’s family or any member of the other parent’s household in the presence or hearing of the children or any of them.
That each of the parents is restrained from allowing the children or any of them to remain in the presence of, or within any of the children’s hearing of, any other person who is saying or doing anything derogatory of the other parent, any member of the other parent’s family, or any member of the other parent’s household.
That each of the parents is restrained from discussing or commenting on these proceedings in the presence of, or within the hearing of, any of the children and from discussing or commenting on any matter in dispute between the parents in the presence of, or within the hearing of, any of the children.
That the father is restrained from filming any of the children and/or the mother at a changeover occasion.
That the father is restrained from discussing his emotional state or his financial circumstances in the presence of, or within the hearing of, any of the children.
That the father must ensure that while any of the children are in his care each is provided with appropriate food at all mealtimes and that each is dressed appropriately for the prevailing conditions.
That each of the parents is restrained from physically chastising any of the children.
That, unless he has already done so, the father is to enrol in and complete the Triple P Parenting Course and provide a certificate of his completion of the course to the Independent Children’s Lawyer and to the legal representatives for the mother.
That unless they have already done so, each of the parents is to enrol in and complete a Parenting After Separation Course and provide a certificate of completion of the course to the Independent Children’s Lawyer and to the other party.
THE COURT FURTHER ORDERS THAT:
Compliance Check
The matter is listed for a Compliance Check for Final Hearing before Judge Morley on a date and time to be advised in May 2021.
Applications
Direct the Applicant file and serve any Amended Initiating Application by no later than 4:00PM on 17 July 2020.
Direct the Respondent file and serve any Amended Response by no later than 4:00PM on 6 August 2020.
Evidence
The evidence of each witness, including of the parties, is to be contained in one affidavit only by each such witness and multiple affidavits by a witness, including a party, will not be read at trial.
No party may rely on an affidavit sworn or affirmed by them and filed prior to these Compliance Check Directions without leave first being obtained.
Direct the Applicant and Respondent file and serve all affidavit material on which they intend to rely at trial by no later than 4:00PM on 30 April 2021.
Direct that any exhibits to affidavits being impractical to annex to trial affidavits under Rule 15.28 of the Federal Circuit Court Rules 2001 (Cth) must be delivered in hard copy and in a form in compliance with Rule 15.28(5) to the Sydney Registry of the Federal Circuit Court and addressed to the Chambers of Judge Morley and must arrive at the Registry no less than seven (7) working days prior to the date for Compliance Check.
Expert Evidence
In the event that either party seeks to call evidence by any medical practitioner, family consultant, or expert (‘expert’), then they shall give notice of such intention to the other party/ies not less than 28 days prior to the date for Compliance Check, with such notice to include:
(a)The name of the expert;
(b)The name of the organisation with which the expert is employed/the name of the expert’s workplace; and
(c)The nature of the expert’s expertise.
In the event that any party wishes to cross examine an expert, that person is to give notice of such intention at least 14 days prior to the Compliance Check, and in that circumstance, the question of costs with respect to the expert’s appearance is reserved to the Hearing.
Subpoenas
Leave is granted to each party to issue more than five subpoenas.
Terms of Settlement
Leave is granted to the parties in the event that the matter is resolved and Terms of Settlement prepared and signed to forward those Terms to my Chambers for the purpose of orders being made in Chambers and Hearing dates vacated.
THE COURT NOTES THAT:
(a)The matter has been giving a mention date on 28 January 2021. This is an administrative date and will be relisted upon the settlement of the 2021 Judicial Calendar.
(b)Consideration will be given to allocating a trial date/s at the Compliance Check, provided that (inter alia) the parties have complied with these directions.
(c)Non-compliance with these directions may result in the matter not being allocated a trial date/s and referred to family dispute resolution.
(d)If in any proceedings there are allegations of family violence and the provisions of section 102NA of the Family Law Act 1975 (Cth) apply (see attached Family Violence Information Sheet), any unrepresented party will not be permitted to personally cross-examine the other party/parties.
(e)Affected unrepresented parties may apply to the Commonwealth Family Violence and Cross-Examination of Parties Scheme (‘the Scheme’) for representation but any such application must be made at least 12 weeks prior to the final Hearing.
(f)Further information about the legislation and the Scheme can be found at Part 4 of the attached Family Violence Information Sheet.
(g)If section 102NA applies and a party becomes unrepresented after these directions were made, that party is required to promptly advise the Court.
THE COURT FURTHER ORDERS THAT:
Pursuant to section 62G a report is to be prepared for the Court by a Family Consultant nominated by the Manager of Child Dispute Services.
The Report writer is requested to consider and comment upon the following:
(a)The nature of the relationship of the children with each of the children's parents; and other persons (including any grandparent, partner of a parent or other relative of the children or other person’s living within either parent’s household;
(b)The likely effect of any changes in the children 's circumstances, including the likely effect on the children of any separation from either of his or her parents or any other children, or other person (including any grandparent or other relative of the children or member of either parent’s household), with whom he or she has been living or spending time on a regular basis;
(c)The practical difficulty and expense of a children spending time with and communicating with a parent and whether that difficulty or expense will substantially affect the children's right to maintain personal relations and direct contact with both parents on a regular basis and, if so, what arrangements might be made to seek to address such affects;
(d)The capacity of each of the children’s parents and any other person (including any grandparent or other relative of the children or member of the parent’s household) to provide for the needs of the children, including physical, emotional and intellectual needs;
(e)The attitude to the children, and to the responsibilities of parenthood, demonstrated by each of the children's parents and/or members of a parents household or other care givers;
(f)Any allegations of family violence involving the children, or a member of the children’s family and the impact of those allegations and/or of any exposure of the children to family violence upon the children’s relationship with either parent and upon future parenting arrangements;
(g)The parents' current and future capacity to communicate with each other and resolve difficulties that might arise and with respect to same;
(h)any specific course, program or counselling service that might be of assistance in supporting, encouraging and/or assisting the parents (jointly and/or severally) in addressing any such difficulties as are apparent; and
(i)the impact upon future parenting arrangements (including the allocation of parental responsibility) of such apparent difficulties (if not addressed) and/or upon the children;
(j)Such other matters as the Report Writer considers relevant.
The Report writer is requested to complete the report not less than four weeks before the adjourned date.
The parties shall attend all appointments with the Report Writer and shall ensure that any other member of their household or other relative (as the Report Writer may request) as well as the subject children attend all appointments with the Report Writer, as requested by the Report Writer.
The report writer may read the following documents and any document on the Court file, including but not limited to:
(a)The most recent Application or Response filed by each party;
(b)Any Notices of Risk filed in the proceedings;
(c)All Affidavits filed by each party;
(d)Any material produced on subpoena.
IT IS NOTED that publication of this judgment under the pseudonym Redlich & Demir is approved pursuant to s.121(9)(g) of the Family Law Act 1975 (Cth).
| FEDERAL CIRCUIT COURT OF AUSTRALIA AT SYDNEY |
SYC 6160 of 2018
| MR REDLICH |
Applicant
And
| MS DEMIR |
Respondent
REASONS FOR JUDGMENT
Introduction
On 14 August 2019, I conducted an interim hearing, under the Family Law Act 1975 (Cth) (‘the Act’), regarding parenting proceedings between the applicant father, Mr Redlich (‘the father’), and the respondent mother, Ms Demir (‘the mother’). The proceedings concern their parenting arrangements for their children, X, born in 2011, Y, born in 2014, and Z, born in 2016.
The father was represented by Ms Snelling of counsel, the mother by Mr Frost, solicitor advocate, and Ms Morton appeared on her own behalf as the Independent Children’s Lawyer (‘the ICL’).
The matter was originally listed for interim hearing on 4 July 2019, but on that day an oral application was made by the father for an order discharging the ICL. As there had been no prior notice to either the mother or the ICL of the application, the matter could not proceed on that day, and it was adjourned to 14 August 2019 for interim hearing of that application to discharge the ICL.
On 14 August 2019, the application to discharge the ICL was withdrawn by the father, and, by agreement of the parties and the ICL, the matter proceeded to an interim hearing on the parenting issues in contest between the parties.
The issues
There was no contest in the interim and final applications made by each of the parties that the children would live with their mother.
The issues to be determined at the interim hearing are:
a)Parental responsibility;
b)The amount of time the father should spend with X and Y, and, in particular, whether that time should include any overnight time;
c)The amount of time the father should spend with Z – it not being an issue at the interim hearing that such time would not include overnight time;
d)How changeovers would be arranged at the start and end of the father’s time with the children;
e)Whether a watch list order should be made, at the application of the father;
f)What order for communication by each of the parents with the children when in the care of the other parent was appropriate; and
g)Whether injunctive orders should be made in relation to physical discipline, discussing the proceedings with the children, and involving the children in a parent’s emotional or financial difficulties.
The proceedings up to the interim hearing
The proceedings were commenced by the father filing an Initiating Application seeking interim and final parenting orders on 26 September 2018.
The first return date was on 30 October 2018, where directions were made for filing of a Response to an Initiating Application, an affidavit, and a Notice of Risk by the mother. The matter was adjourned to 8 April 2019 before Judge Harper (as his Honour was then titled).
On 23 November 2018, the mother filed a Response to an Initiating Application seeking interim and final parenting orders. On 28 December 2018, the mother filed an Application in a Case, was granted leave for short service by the Registrar, and the matter was listed before the Court at 2.30PM on that day. The mother asserted in her material, in support of her Application in a Case, that the father had retained X and Y, but not Z, on 25 December 2018, and she was seeking the return of X and Y, or the issue of a recovery order in the alternative. In evidence before the Court on that occasion was a parenting plan entered into between the parties on 13 December 2018.
Orders were made on an interim basis, largely in accordance with the content of the parenting plan. Those orders related to X and Y only, and did not relate to Z.
The interim orders provided that:
a)The father return the children to the mother;
b)The children X and Y live with the mother and spend time with the father:
i)Each Thursday from 3.30PM until 6.30PM;
ii)Each alternate weekend, from 10.00AM until 7.00PM on Saturday and 10.00AM until 7.00PM on Sunday; and
iii)That they spend time with their father for Country B Christmas on 7 January 2019 from 10.00AM until 7.00PM;
c)Changeover was to be effected by the mother delivering the children to the father at the start of his time, and the father returning the children to the mother at the end;
d)The father attend upon his general practitioner to obtain a referral to a psychologist, or other appropriate mental health professional, for a mental health assessment;
e)Injunctive relief was made in the nature of:
i)A non-denigration order; and
ii)A prohibition on the physical discipline of the children;
f)An order was made appointing an ICL; and
g)The matter was adjourned to 25 February 2019.
On 16 January 2019, the parties attempted mediation with the assistance of the Sutherland Family Relationship Centre, but no settlement was reached.
On 25 February 2019, the matter came before Judge Harper (as his Honour was then titled), and orders were made for the parties and children to attend a Child Inclusive Conference on 1 May 2019. The proceedings were adjourned to 19 June 2019 for mention and to 4 July 2019 at 11.00AM for interim hearing. At the mention on 19 June 2019, the interim hearing for 4 July 2019 was confirmed.
I have outlined above what happened on 4 July 2019 in relation to the father’s oral application that the ICL be dismissed. On that day, in consequence of evidence that had been presented, and for reasons outlined by me in a notation to the orders, I made an order granting the mother sole parental responsibility in relation to the children’s health, including hospitalisation, and that otherwise the parties share parental responsibility.[1]
[1] In Pavli & Beffa [2013] FamCA 144, Watts J established that once an aspect of parental responsibility has been allocated to one parent and not the other, no order for equal shared parental responsibility should be made.
The matter was adjourned for interim hearing on the issue of the application for discharge of the ICL to 14 August 2019. On that day, the application to discharge the ICL was withdrawn, and the matter proceeded to interim hearing on the contested parenting issues.
On 14 August 2019, some orders were made by consent between the parties, pending further order, including that:
a)Z live with her mother and spend time with her father on certain named dates through August and early September, and to occur both on occasions when her brothers were spending time with their father and occasions when they were not;
b)From Thursday, 5 September 2019, Z spend time with her father each Thursday from 3.30PM to 6.30PM, with her brothers also present; and
c)From Saturday, 14 September 2019, Z spend time with her father each alternate Saturday, when her brothers are spending time with her father, from 10.00AM until 1.00PM.
Orders were made in relation to the changeover for the children. The mother was to deliver the children to the father’s residence at the start of his time with the children, and the father was to return the children to the mother’s residence at the end of his time. Those orders were to be carried out separately from changeover for Z, who would be collected by the mother from the father’s residence at the end of her time with the father on Saturday.
The interim orders made by consent provided that at changeovers at the father’s place:
a)The mother would meet the children at or bring the children to the father’s front door at the start of time; and
b)At the end of the time, the father would take all reasonable steps to encourage the children to return to their mother’s care quickly and happily and not prolong farewells; and
c)The father would be restrained from filming the children and/or the mother or her residence.
Further, by consent, and without admissions, each parent was restrained from:
a)Speaking to the children about any aspect of the proceedings or any dispute between the parents;
b)Discussing their emotional or financial situation with the children; and
c)Denigrating the other parent and/or members of the other parent’s family in the presence or hearing of the children.
A notation was made that the interim orders, made by consent on that day, were not intended to resolve the interim issues between the parties but were to be in force pending delivery of the reserved judgment and the making of orders in consequence of the interim hearing.
By no fault of the parties, and entirely at my fault, there has been an inordinate delay between the interim hearing and the making of these orders. I apologise to the parties and to the children.
Material relied upon
On interim hearing, the father relied upon the following material:
a)Case Outline document prepared by Ms Snelling of counsel;
b)Application in a Case filed 21 February 2019, setting out the interim orders sought by the father;
c)Notice of Risk filed 26 September 2018 – the only risk asserted by the father was that the mother may take the children overseas without his consent;
d)Affidavit of the father sworn 31 July 2019 and filed that day; and
e)Affidavit of Ms Q (the paternal grandmother) sworn 30 July 2019 and filed 31 July 2019.
At the interim hearing, the mother relied on the following materials:
a)Case Outline document prepared for the mother by Mr Frost, her solicitor advocate;
b)Response to Application in a Case filed 18 June 2019, setting out the orders sought by the mother at the interim hearing;
c)Notice of Risk filed 23 November 2018, asserting risk to the children by reason of:
i)Child abuse;
ii)The ongoing risk of child abuse;
iii)Family violence perpetrated by the father;
iv)Mental health issues affecting the father; and
v)Serious parental incapacity on the part of the father;
d)Affidavit of the mother sworn and filed 23 November 2018;
e)Affidavit of the mother sworn and filed 28 December 2018;
f)Affidavit of the mother sworn 17 June 2019 and filed 18 June 2019;
g)Exhibit R1, which is a screenshot of text messages between the father and the mother;
h)Exhibit R2, which is a printout of an email chain occurring on 3 July 2019 involving the solicitors for each of the parties and the ICL; and
i)Exhibit R3, which is a printout of an email chain from 30 January 2019 to 5 February 2019 involving the solicitors for each of the parties and the ICL.
The ICL relied on the following materials:
a)A Case Outline document with the ICL’s Minute of Orders attached;
b)Exhibit ICL1, which is the Child Inclusive Conference memorandum to Court dated 31 May 2019 in relation to the conference interviews conducted on 1 May 2019 by the Family Consultant; and
c)Exhibit ICL2, being all of the materials produced on subpoena by NSW Police Force.
Orders sought
In summary, the father sought the following orders at the interim hearing:
a)That the parents have equal shared parental responsibility for the children;
b)That the children live with their mother;
c)That X and Y spend time with their father:
i)Each alternate weekend from 4.00PM on Friday until 6.00PM on Sunday;
ii)Each week from 4.00PM on Wednesday until the start of school on Thursday; and
iii)Other times as agreed;
d)That Z spend time with her father:
i)Every Wednesday from 4.00PM until 7.00PM (the father to collect her from and return her to the mother’s home); and
ii)Each alternate weekend, with time on Saturday from 10.00AM until 5.00PM and time on Sunday from 10.00AM until 5.00PM, in conjunction with her brothers spending time with their father;
e)That all communication between the parents be by text message;
f)That the father communicate with the children by telephone on each school day when they are not in his care between 5.30PM and 6.00PM, with the mother to initiate the call to the father’s telephone;
g)That the father facilitate the children telephoning their mother, from their father’s phone to their mother’s phone, on occasions when they are overnight with him, at some time between 5.30PM and 6.00PM;
h)That the father spend time with X and Y for the first half of each school holiday period from the last day of school until 10.00AM on the middle day, and continue to spend time with Z during school holiday periods in the normal weekly and alternate weekly routine, and at other times with all three children as agreed during school holidays;
i)That changeovers be effected by the father collecting the children from and returning the children to the mother’s home; and
j)That the children be placed on the watch list and be restrained from leaving the Commonwealth of Australia.
In summary, the mother sought the following orders:
a)That she have sole parental responsibility for the children, that she inform the father of any impending long-term decisions, consider any written response received from him, and advise him of decisions made by her;
b)That the father obtain a mental health report;
c)That the children live with the mother;
d)That X and Y spend time with their father every Thursday from 3.30PM until 6.30PM, and each alternate weekend from 10.00AM until 7.00PM on Saturday and from 10.00AM until 7.00PM on Sunday;
e)That Z spend time with her father each Thursday from 3.30PM until 6.30PM, and each alternate weekend on Saturday from 10.00AM until 1.00PM in conjunction with her brothers;
f)That the father have telephone communication with the children each Tuesday between 5.00PM and 5.30PM;
g)That the father commence and complete the ‘PPP’ parenting program, and the course ‘Talking with Kids – How to Keep Your Kids out of the Conflict’;
h)That the family engage in family therapy or ‘The Anchor’ program provided by Uniting, all at the expense of the father;
i)That each of the parties keep the other advised of their current residential address, email address, telephone number, any injuries or illnesses suffered by any of the children whilst in their care, and any medical treatment undergone by any of the children whilst in their care;
j)That changeovers be effected by the mother delivering the children to the father at the start of his time, and the father returning the children to the mother at the end of his time;
k)That the father be restrained from excessively disciplining the children, denigrating the mother or any member of the mother’s family in the presence or hearing of the children, and from discussing the proceedings in any way with the children or within their hearing;
l)That the mother be authorised to travel with the children outside of the Commonwealth of Australia after giving three months notice to the father; and
m)That the mother have sole responsibility for obtaining and retaining passports for the children.
The ICL sought the following orders:
a)That the mother have sole parental responsibility;
b)That the order made on 28 December 2018 in relation to the father’s time with X and Y continue, that time being:
i)Each Thursday 3.30PM until 6.30PM; and
ii)Each alternate weekend from 10.00AM until 7.00PM on Saturday and 10.00AM until 7.00PM on Sunday;
c)That the father spend time with Z each Thursday from 3.30PM until 6.30PM, and each alternate Saturday or Sunday of the weekend when the boys are with their father, from 10.00AM until 1.00PM;
d)That the father be restrained from filming the mother or the children during changeover, from talking to the children about the proceedings, and from talking to the children about his emotional or financial situation; and
e)That the father undertake the ‘PPP’ parenting course.
The evidence
The father was born in Sydney, Australia, is of Country B descent, and was 48 years of age at the time of the interim hearing.[2] The mother was born in City C, Country D, and was 34 years of age at the time of the interim hearing.
[2] Affidavit of the father sworn 26 September 2019, [4].
The parties met when the father was in Country D for a conference in 2007 according to the mother,[3] or in 2006 according to the Father.[4] The mother visited the father in Sydney in 2007 and then joined him by migrating to Australia in 2008.[5] The parties began their cohabitation in a rented apartment at Suburb E.
[3] Affidavit of the mother sworn 23 November 2918, [5].
[4] Affidavit of the father sworn 25 September 2018, [6].
[5] Affidavit of the father sworn 12 June 2019, [9].
The mother is now a dual citizen of Australia and Country D.[6]
[6] Affidavit of the mother sworn 23 November 2018, [60].
When X was born in 2011, the father asserts that he assisted the mother with care of X, and that on the birth of each of the other children, he assisted the mother with their day-to-day care.[7] The mother asserts that she was the main carer for each of the children from the time of their birth, and that the father would work long hours at home and rarely involve himself in family life.[8] She also asserts that the father would travel overseas on business for two months in each year but that he did provide some help to the mother with the care of the children.
[7] Affidavit of the father sworn 25 September 2018, [13].
[8] Affidavit of the mother sworn 23 November 2019, [10]-[11].
The parties moved to rental premises at Suburb F in 2013.[9] In 2013 Y was born. From about this time onwards, the paternal grandmother provided assistance to the parties by caring for X, and then X and Y, and ultimately X, Y and Z, at her home with the help of the paternal grandfather.[10]
[9] Affidavit of the father sworn 12 June 2019, [14].
[10] Affidavit of the mother sworn 23 November 2019, [15].
In 2014, the family moved to rented premises at G Street, Suburb H. The father asserts the move was to enable the family to live closer to the paternal grandparents and to receive more assistance from them.[11]
[11] Affidavit of the father sworn 12 June 2019, [18].
In 2016, the mother and the children spent two months in Country D, and again in 2017 the mother and children spent two months in Country D.
In 2016, Z was born and at that time the father moved out of the main bedroom and began sleeping in a separate bedroom, on his own, at the back of the house. This allowed for the mother and Z to occupy the main bedroom.[12] The father asserts that this arrangement was made because of his loud snoring and his wish not to disturb the mother and infant child. The mother asserts that this arrangement was part of the father cutting himself off from the family.
[12] Affidavit of the father sworn 12 June 2019, [21].
The father gives extensive evidence of his playing with and engaging with the children, in particular the boys, whilst the family was still together.
In 2015, the maternal grandmother visited Australia and lived with the parties for about three months.
In 2017, the father was involved in a car accident and received head injuries and other bodily injuries that resulted in him having some serious medical difficulties ongoing through 2017 and 2018. In particular, the father submits that he suffered with pain and numbness, and, increasingly, irritability.[13] In late 2017, the father was diagnosed with a medical condition and spent two weeks in J Hospital, one of those weeks being in the ICU.[14] The father asserts that from August to December 2017 he was acutely ill with the effects of the motor vehicle accident and the medical condition.
[13] Affidavit of the father sworn 12 June 2019, [38].
[14] Affidavit of the father sworn 12 June 2019, [49].
In February 2018, the father’s general practitioner, Dr K, prescribed Valium for the father to assist him to sleep and other medication for treatment of pain.[15] Dr K referred the father to a psychologist, Ms L, for counselling. On the documents, it would appear that the purpose of the counselling was to assist the father with some anxiety and depression and irritability consequent upon his accident and illness.
[15] Affidavit of the father sworn 12 June 2019, [72].
In early 2018, the father travelled to the Country M for work, and during his absence the mother and the children moved out of the family home.[16] The mother moved to another residence in the same street at Suburb H, and, judging by the house numbers, there is not much distance between them, though they are probably on different sides of the street.
[16] Affidavit of the father sworn 12 June 2019, [75].
The father is a highly qualified professional and has been conducting his own business throughout the parties’ relationship and up to the present time. Since the birth of X, the mother has been a full-time carer for the children.
The father asserts that following the parties’ separation in 2018, and while he was still overseas, he sent lengthy emails to the mother attempting to repair their relationship, and he included profuse apologies for his behaviour toward the mother over the course of their relationship.[17] The father has acknowledged that his behaviour was unacceptable and is regretted by him.
[17] Affidavit of the father sworn 12 June 2019, [120].
On a reading of that material, the behaviour referenced by the father relates to verbal abuse of the mother, verbal anger towards her, and angry statements demeaning of the mother and the mother’s abilities. There is no suggestion in the evidence of the father or the evidence of the mother, to which I will turn shortly, to indicate that there was any physical violence perpetrated by the father. There is evidence that the father’s angry outbursts to the mother, and his verbal demeaning of her, did occur in the presence and/or within the hearing of the children.[18]
[18] Affidavit of the mother sworn 23 November 2018, [34].
Following separation, the father asserts that he spent time with the boys on most weekends from Friday until Sunday, and during school holidays. He asserts that from the separation in March until December 2018, when the parties entered into the parenting plan, he spent time with the boys “nearly every weekend”[19] from Friday to Sunday, and almost all of the school holidays. He does not detail when he saw or spent time with Z, though he mentions some occasions when he would have spent some time with her during the daytime at functions.
[19] Affidavit of the father sworn 12 June 2019, [81].
The father asserts that during the school holidays:
a)At the end of term 1 in 2018, he had the boys for the whole of the holidays;
b)At the end of term 2 in 2018, he had the boys for 10 days and Z for one day; and
c)At the end of term 3 in 2018 he had “the children” [20] the entire school holidays – though the evidence is so framed that I understand the father to mean that he had X and Y the entire school holidays, and Z not at all.[21]
[20] Affidavit of the father sworn 12 June 2019, [86]-[88].
[21] Affidavit of the father sworn 12 June 2019, [86]-[88].
The father asserts that he often requested that he be able to spend time with Z, but such requests were denied by the mother. The father says that he had opportunity to spend some time with Z on occasions when he visited the mother’s home and when the mother brought the children to visit the father at his home.
The father says that relations between the parties from March until August 2018 were amicable, but that in August 2018 the maternal grandfather visited the mother and children in Australia and from that point his relationship with the mother became less and less amicable.
The mother gives evidence that “X and Y have spent the majority of the weekends since separation with”[22] their father. She asserts that the father “did not ask to spend time with Z for the first six months after separation”[23], but that he saw her on a few occasions.
[22] Affidavit of the mother sworn 23 November 2018, [40].
[23] Affidavit of the mother sworn 23 November 2018, [41].
The father commenced these proceedings on 26 September 2018, and the mother filed her response on 23 November 2018, seeking that the time the father spends with the children, X and Y, be limited on the interim basis to each Thursday from 3.00PM until 6.00PM, and each alternate weekend from 10.00AM until 7.00PM on each of Saturday and Sunday.
On 13 December 2018 – after the proceedings had been commenced by the father and responded to by the mother – the parties entered into a parenting plan, a copy of which each party annexes to their affidavits.[24] The plan set out an agreement that:
a)The father would obtain a mental health assessment and provide same to the mother;
b)The children would live with the mother; and
c)That the father would spend time with X and Y:
i)Every Thursday from 3.30PM until 6.30PM;
ii)Each alternate weekend from 10.00AM until 7.00PM on both Saturday and Sunday; and
iii)10.00AM to 7.00PM on 25 December 2018 (Christmas) and 7 January 2019 (Country B Christmas).
[24] This was a document that complied with section 63C of the Act.
The father asserts in his evidence that he only entered into the parenting plan as he was led to believe by the mother that otherwise he would not be spending time with the children.[25] I cannot find that the evidence supports that contention.
[25] Affidavit of the father sworn 12 June 2019, [106].
As already traversed, subsequent to the parenting plan, on 25 December 2018, the father retained Y and X, causing the mother to bring her Application in a Case for return of the children, or issue of a recovery order, before the Court on an urgent basis on 28 December 2018, and resulting in interim orders being made that day largely in accordance with the provisions of the parenting plan.
The parenting plan, and the interim orders of 28 December 2018, did not make any provision in relation to with whom Z would live and what time she would spend with the other parent.
The father asserts that he saw Z on six or seven occasions between December 2018 and June 2019. He says that after the orders were made on 28 December 2018, he had some sessions with Ms N, a psychologist, and he included in his evidence for the interim hearing a report dated 4 June 2019 prepared by Ms N in relation to the father’s mental health. I will give detail in relation to that report below.
The father gives evidence that the maternal grandmother and the maternal grandfather, both of whom the father asserts live with the mother and children for periods of time, yell and scream at the children, and that the maternal grandfather pinches, pokes, and hits X.[26] Nevertheless, the father seeks both interim and final orders that the children live with the mother.
[26] Affidavit of the father sworn 31 July 2019, [139]-[140].
On 20 May 2019, there was email communication between the parties in relation to the mother requesting that the father ensure that X wear his eyepatch, as part of a treatment X was undergoing, for one hour during the three hours that X was to be in his care on 20 May 2019.[27] The father refused on the basis that the treatment would require X to concentrate on reading or objects within close proximity to his eye not covered by the eyepatch, and that the father would, in consequence, lose the benefit of some time with him during the three hours that he would have on that day.
[27] Affidavit of the father sworn 31 July 2019, [153].
The mother gives evidence of events around 31 January and 7 February 2019, when she asked if she could retain X so that he could attend an eye appointment, but the father refused to give up his time with X.[28] The mother says that she eventually made an appointment with an alternate eye specialist. The father, for his part, says that he advised the mother he was perfectly willing to take X to the appointments.
[28] Affidavit of the mother sworn 18 June 2019, [9]-[10].
On 2 July 2019, X was admitted to the Children’s Hospital with appendicitis and was operated on the next day. There was a disagreement between the parties as to who would remain in the room with X overnight before his operation and after his operation, the hospital rules only allowing one parent to remain with the child.[29] Ultimately, the father remained with X for the night before the operation, whilst the mother and Z remained in another room, but the mother gives evidence that she was referred to a domestic violence counsellor by the hospital in consequence of the father’s behaviour.
[29] Affidavit of the father sworn 31 July 2019, [165]-[169].
The father asserts that on 20 July 2019 he became aware that X was seeing ‘Ms O’ from a conversation he had with X, and that, on his inquiry, he was advised by the mother that she had arranged for X to see Ms O, a counsellor at P Community Centre. The father asserts that the mother did not consult him about this arrangement for X.[30]
[30] Affidavit of the father sworn 31 July 2019, [176].
The mother asserts that the father suffers from mental illness. She is not able to present evidence of any diagnosis in relation to the father suffering from any mental health issue, but she asserts that the contents of his lengthy emails to her at about the time of their separation, his angry conduct in the family home, and his verbal abuse of her, are all symptomatic of mental illness. The mother, of course, is not qualified to give that opinion.
There is no evidence of physical violence between the parties.
The mother gives evidence of what she describes, and what is referred to by her solicitor advocate, as family violence perpetrated against her by the father, often in the presence and hearing of the children. I have read very carefully the evidence of the mother, including evidence of incidents she regards as family violence.[31] I take all of that material into account at its highest, despite some denials by the father, in consequence of the contents of the emails forwarded by the father to the mother in March 2018 at the time of their separation.
[31] Examples of this behaviour by the father can be found in the affidavit of the mother sworn 23 November 2018, [18]-[35], [42]-[57], and in the affidavit of the mother sworn 28 December 2018, [6]-[21], [27].
Not all of those incidents are “violent, threatening or other behaviour” by the father that “coerces or controls” the mother, or causes the mother “to be fearful”.[32] However, some would certainly be regarded as “repeated derogatory taunts”,[33] and clearly within the ambit of family violence within the meaning of that term in the Act [34]
[32] All quotes in this sentence are taken from Family Law Act 1975 (Cth) s 4AB(1).
[33] Family Law Act 1975 (Cth) s 4AB(2)(d).
[34] The term ‘family violence’ is defined in section 4AB of the Family Law Act 1975 (Cth).
I have read and carefully taken into account and considered all of that material, and I do not repeat it all here. I do note that the mother indicates that the father would call her “stupid”[35] and complain of her prowess in relation to cooking and washing. The mother complains that the father spoke to her in ways that made her feel “sad and worthless” and that such interactions occurred in front of the children. She gives evidence that on occasion the father used a word of particularly fierce and unpleasant abuse towards the mother, four letters starting with the letter ‘c’.
[35] Affidavit of the mother sworn 23 November 2018, [19].
The mother gives evidence that following separation she invited the father to attend at her home to spend some time with the children by arrangement with her, but that he abused the invitation by turning up announced on occasions, until she eventually told him that he could no longer come inside her home.
The mother gives evidence that the father on several occasions referred to her as a “liar” in front of the children. In the mother’s affidavit of 23 November 2018, she recounts an occasion on 3 August 2018 when the father referred to the mother as a “liar”[36] in front of the children, and when she complained of this, the father said directly to X, and in the presence of Y, “See X? See what I mean? Mummy is a liar. See? She is a liar.”[37] The mother goes on that the father walked away with his arm around the boys’ shoulders, singing, “Mummy is a liar! Mummy is a liar! Mummy is a liar!”[38]
[36] Affidavit of the mother sworn 23 November 2018, [46].
[37] Affidavit of the mother sworn 23 November 2018, [46].
[38] Affidavit of the mother sworn 23 November 2018, [46].
The mother complains in her evidence that the father has been habitually late in returning the children from spending time with him, to the extent that he would return X and Y after 9.00PM at night on a Sunday evening, when they were to have school the next day. [39] She complains that items she sent with the children, including clothes, shoes, jackets and so forth were not returned with the children from their father’s.
[39] See, for example, Affidavit of the mother sworn 23 November 2018, [54]-[56].
The mother also details in her evidence comments made by the children to the effect that they need to spend more time with their father because he is sick and lonely, and that they blame their mother for their father’s circumstances.[40]
[40] Affidavit of the mother sworn 23 November 2018, [51].
On 2 September 2018, the mother recounts an occasion when she went to collect the boys from spending time with the father, and X refused to leave the father and cried. The father, she asserts, videoed X while he was crying. The mother asked the father to stop videoing and to help her get the boys in the car. She says, “Eventually, Mr Redlich did stop filming and encouraged the boys to go with me.”[41] She recounts another occasion on 23 September 2018 when X did not want to leave the father and became hysterical when he had to leave.
[41] Affidavit of the mother sworn 23 November 2018, [52].
The mother asserts that she has no intention of removing the children from Australia on any permanent basis, but that she would like to take them to visit their relatives in Country D, as they have done in the past.[42]
[42] Affidavit of the mother sworn 23 November 2018, [58].
The father continues to run his own business and is in receipt of an income. He resides in a leased four-bedroom home in the same street as the mother. There is a bedroom at that home shared by X and Y, being the bedroom they had when it was the family home. The mother gives evidence that there is a cot available at the father’s home for Z, but that she has not had any overnight time with the father since separation.
The mother leases a three-bedroom home in the same street as the father. The sleeping arrangement is that she has a bedroom to herself, X and Y share a bedroom, and Z has a bedroom to herself. The mother is not working as she is the full-time carer for the children. The mother arranges for the children to spend some time with their paternal grandparents.
The mother gives evidence that she is not receiving any child support from the father.[43] There is no contrary evidence from the father. There is no evidence as to whether or not the mother has sought an assessment of child support. The father gives no evidence of providing financial assistance to the mother for the benefit of the children.
[43] Affidavit of the mother sworn 23 November 2018, [69].
The father annexes to his affidavit a report by Ms N, a psychologist whom he has consulted. Ms N recounts various tests undergone by the father, and indicates that, pursuant to the tests he underwent on 14 February 2019, he has been assessed as being in the normal range in relation to depression, stress, and anxiety. In relation to tests undertaken by the father on 16 February 2019, she expresses an opinion that he has a need to continue with some consultations with his psychologist, but is non-specific as to why.
In relation to PDSQ and COPE tests undertaken on 30 April 2019 by the father, Ms N reports an absence of any psychological symptomology. Ms N gives her opinion that the father does not need a symptom-focused treatment plan. She noted that the tests indicate that the father has an effective approach to coping. Ms N refers to the emails sent by the father to the mother in March 2018, and notes that they were in the course of an attempt by the father to arrange a reconciliation with the mother. She recommends that the father undertake the ‘Positive Parenting Program’.[44]
[44] Affidavit of the father sworn 31 July 2019, p 29.
The father relied on an affidavit by his mother, and whilst I take into account the whole of the evidence in that affidavit, I note here the assertion of the paternal grandmother that from January 2014 she regularly assisted with the care of X and Y, and eventually with the care of Z also, including on overnight occasions. She details occasions through June and July 2019 when the mother left the children in her care, following the parties’ separation.
The Child Inclusive Conference memorandum
The parties and the children attended a Child Inclusive Conference with a Family Consultant on 1 May 2019. The parties were interviewed separately, X and Y were interviewed separately, and Z was briefly observed with her parents as she was too young to be interviewed separately.
In the memorandum to Court, the Family Consultant notes:
[The mother] proposes that, at a later stage, the children progress to spending overnight time with their father each alternate weekend (in addition to one afternoon each week).[45]
[45] Exhibit ICL1, p [1].
The Family Consultant also noted that “[the mother] believes that it is important for the children to have a relationship with their father”.[46]
[46] Exhibit ICL1, p [2].
X was seven years and nine months of age at the time of the interview. The consultant notes that X “spoke very lovingly of his father”,[47] and that he “spoke reasonably positively of his mother as well”,[48] and “misses both his mother and father when in the other’s care”.[49]
[47] Exhibit ICL1, p [3].
[48] Exhibit ICL1, p [3].
[49] Exhibit ICL1, p [3].
Y was five years and four months of age at the time of the interview, and the Family Consultant notes that he “spoke lovingly of his father”[50] and “feels safe in both parents’ care”.[51]
[50] Exhibit ICL1, p [3].
[51] Exhibit ICL1, p [3].
The Family Consultant observed Z interacting with her father, and noted that she “seemed familiar with her father, and while she was initially somewhat reserved with him, she soon warmed him to him and appeared very happy and playful with him”.[52] Z was two years and eight months of age at the time of the observation.
[52] Exhibit ICL1, p [4].
A paragraph in the memorandum under the heading “Future Directions”[53] is of note:
The boys appear quite attached to [the father], and they seem to crave more time with him. Based on this very brief, preliminary assessment, Z also appeared to be very, very content in [the father’s] care, and if their relationship is to be marinated and developed, it is important that she begin spending regular time with him. As such, consideration could be given to Z being included in spending time with her father on Thursday afternoons and for the day every second Saturday and Sunday. Consideration could also be given to the boys’ time with [the father] increasing.[54]
[53] Exhibit ICL1, p [4].
[54] Exhibit ICL1, p [4].
The Family Consultant goes on to note that despite the views expressed in the last quoted paragraph, the children’s safety needs to be prioritised. The Family Consultant further contemplated that if there is substance in the mother’s concerns, a cautious approach may be appropriate in relation to the children’s time with their father until further information about safety issues can be obtained.
The Family Consultant also makes comments, in the final paragraph of the memorandum, in relation to the father’s apparent inability to shield the children from his own distress and anger toward the mother in relation to the breakdown of the relationship.
In line with the Family Consultant’s recommendations in relation to Z’s time with her father, the parties entered into the consent orders on 14 August 2019 establishing Z’s time with her father, pending the making of interim orders as a result of the interim hearing that day.
The law – interim parenting proceedings
In parenting proceedings under the Act, the Court is required to follow the legislative pathway set down in the Act. That applies to interim hearings on parenting issues.[55]
[55] MRR & GR [2010] HCA 240; Goode & Goode (2006) FLC 93-286; Marvel & Marvel (2010) 240 FLR 367.
The Court must give attention to section 60B of the Act that sets out the objects of Part IV of the Act relating to children. Those objects inform the making of parenting orders.[56] That section also contains the principles behind those objects. In this matter I have considered those objects and the principles behind those objects.
[56] Family Law Act 1975 (Cth) s 60B.
Section 60CA of the Act provides that in deciding whether to make a particular parenting order in relation to a child the Court must regard the best interests of the child as the paramount consideration. The child’s interests are not the only consideration. Parents and other persons, especially partners and extended families, are almost always relevant in the matter, but the child’s interests must always be the paramount consideration.
In parenting proceedings, pursuant to section 65D of the Act, the Court may, subject to the presumption of equal shared parental responsibility in section 61DA and consideration of parenting plans under section 65DAB, make such parenting order as it thinks proper.[57] The Court may make a parenting order that discharges, varies, suspends, or revives some or all of an earlier parenting order.[58]
[57] Family Law Act 1975 (Cth) s 65D(1).
[58] Family Law Act 1975 (Cth) s 65D(2).
In determining what is in a child’s best interest, the Court must consider the matters set out as the primary considerations and additional considerations in section 60CC and make findings. [59]
[59] Family Law Act 1975 (Cth) s 60CC.
Section 61DA provides that 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.[60]
[60] Family Law Act 1975 (Cth) s 61DA.
The presumption does not apply in circumstances where a parent has perpetrated family violence or abuse. The presumption, when applying, 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.[61]
[61] Family Law Act 1975 (Cth) s 60B.
When the Court is considering parenting matters on the interim basis the presumption applies unless the Court considers it would not be appropriate in the circumstances for the presumption to be applied when making interim orders.
If a parenting order provides that a child’s parents are to have equal shared parental responsibility for the child, then pursuant to section 65DAA, the Court must consider:
a)Whether the child spending equal time with each parent would be in the best interest of the child;[62] and
b)Whether the child spending equal time with each of the parents is reasonably practicable.[63]
If both questions are answered ‘yes’, the Court must consider making an order to provide for the child to spend equal time with each of the parents.[64]
[62] Family Law Act 1975 (Cth) s 65DAA(1)(a).
[63] Family Law Act 1975 (Cth) s 65DAA(1)(b).
[64] Family Law Act 1975 (Cth) s 65DAA(1)(c).
If the Court does not make an order for the child to spend equal time with each of the parents, then the Court must consider whether the child spending substantial and significant time with each of the parents would be in the best interests of the child and consider whether the child spending substantial and significant time with each of the parents is reasonably practicable and, if the answer to both is yes, the Court is to consider making an order to provide for the child to spend substantial and significant time with each of the parents.
What is meant by substantial and significant time is set out in section 65DAA(3) of the Act and includes days that fall on weekends and holidays, days that do not fall on weekends or holidays, the child being able to be involved in occasions and events special to the parents, the parents being able to be involved in occasions and events of particular significance to the child, and the parents being able to be included in the child’s daily routine.
If the Court does not make an order for the child to spend substantial and significant time with each of the child’s parents, the Court must then go on to determine what parenting orders are proper in the best interests of the child, per section 65D.
As to what is ‘proper’, and how the Court’s discretion is to be exercised, I note the comments of the Full Court of the Family Court of Australia in the decision of Grella & Jamieson:[65]
A discretionary judgment concerning the parenting orders necessarily involves, because of the focus upon the future, significant elements of value judgments; assumptions; necessarily uncertain predictions and intuition.[66]
[65] Grella & Jamieson [2017] FamCAFC 21.
[66] Grella & Jamieson [2017] FamCAFC 21, [18].
There is much jurisprudence on the issue of risk in parenting proceedings. The jurisprudence may be simplified by saying that the task of the Court where risks are asserted is not necessarily to make a finding as to whether the actions and events asserted have actually happened or have definitely not happened, as such a finding is rarely open to the Court on the evidence and most particularly in interim parenting proceedings replete with contested evidence.
Rather, the task of the Court is to assess whether the evidence establishes that there is a risk to the best interests of the child. If the evidence establishes that there is such a risk, briefly expressed, the Court must:
a)Assess whether that risk is an acceptable risk or an unacceptable risk;
b)If it is assessed that it is an unacceptable risk, assess whether or not the risk can be mitigated by appropriate orders; and
c)Decide what orders are proper in all the circumstances in the best interests of the child.
Detailed exposition of the treatment of risk in parenting matters can be found in the decision of the High Court in M & M[67] and the decisions of the Full Court of the Family Court of Australia in A & A & The Child Representative,[68] Napier & Hepburn,[69] Johnson & Page,[70] Deiter & Deiter,[71] and Eaby & Speelman.[72]
[67] M & M (1988) FLC 91-973.
[68] A & A & The Child Representative (1998) 22 FamLR 756, [3.23] to [3.25].
[69] Napier & Hepburn (2006) FLC 93-303.
[70] Johnson & Page (2007) FLC 93-344.
[71] Deiter & Deiter [2011] FamCAFC 82, [61].
[72] Eaby & Speelman [2015] FamCAFC 104.
Where there is contested evidence in an interim hearing the Court is not always able to make a finding, but must do what can be done on the basis of agreed facts and any contested evidence where there is sufficient corroboration on one side to enable a finding. This is to enable the Court to perform its function, and resolve any interim issues with the best interests of the child as the paramount consideration, and make whatever orders are then considered proper.
In SS & AH,[73] in the context of discussing the obligations of the Court whilst conducting interim children’s proceedings where the evidence available was contradictory in nature but nonetheless raised significant welfare concerns for the children concerned, the Court observed:
… 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.[74]
[73] SS & AH [2010] FamCAFC 13 (Boland, Thackray, and O’Ryan JJ).
[74] SS & AH [2010] FamCAFC 13, [100].
As noted by the Full Court of the Family Court of Australia in Eaby & Speelman,[75] 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.”[76]
[75] Eaby & Speelman [2015] FamCAFC 104 (Thackray, Ryan, and Forrest JJ).
[76] Eaby & Speelman [2015] FamCAFC 104, [19].
Section 60CC – the primary considerations
The primary considerations are the benefit to the children of having a meaningful relationship with both of their parents, and any need to protect the children from physical or psychological harm from being subjected to or exposed to abuse, neglect or family violence.[77]
[77] Family Law Act 1975 (Cth) s 60CC(2).
Patently, the children have a meaningful relationship, a close and loving relationship, with their mother.[78] She has been their principal caregiver since birth, and, for Z, she has been her sole caregiver, other than the very limited time Z has spent with her father following the consent orders made on 14 August 2019. The benefit to the children of having and continuing their meaningful relationship with their mother cannot be doubted.
[78] Family Law Act 1975 (Cth) s 60CC(2)(a).
The children also have a meaningful relationship with their father. That is clear on all of the evidence. With the boys, it is, on the evidence, a close and loving relationship, and the evidence indicates that the boys want, even crave, more time with their father.[79]
[79] Exhibit ICL1, p [4].
Is there a benefit to the children in having a meaningful relationship with their father? To answer that question, I will go to the second of the primary considerations, being any need to protect the children over the benefit to children of having a meaningful relationship with both of their parents.[80]
[80] Family Law Act 1975 (Cth) s 60CC(2)(b).
The mother asserts that there is a risk to the children in spending time with their father beyond that time proposed by her, and in particular by spending overnight time with their father. The mother’s assertion is based upon the father’s behaviour toward the mother during the relationship and after separation. Some of that behaviour asserted by the mother would amount to family violence within the meaning of that term in the Act. Those particular behaviours asserted to be perpetrated by the father include repeated derogatory taunts and verbal abuse.
The mother asserts that the father lacks appropriate parenting capacity, by reason of the father’s:
i)Failure to properly care for the children by providing them with adequate and appropriate food;
ii)Failure to clothe the children properly in light of prevailing conditions;
iii)Subjecting the children to open and deliberate derogation of their mother – to the extent of instructing them that their mother is a liar, therefore causing danger to the children’s relationship with their mother; and
iv)Failure to shield the children from his own distress and anger caused by the breakdown of the relationship and caused by what he perceives to be the mother’s unfair failure to provide him with what he would regard as adequate time with the children, and his financial circumstances.
Is there an unacceptable risk to the children? The mother asserts an unacceptable risk to the children consequent upon the matters traversed in the previous two paragraphs. The mother is supported in this by the ICL, who submits in her Case Outline that the evidence, including the subpoenaed documents, demonstrate a lack of capacity of the father. The ICL further submits that the father’s conduct does not demonstrate an appropriate attitude toward his responsibilities to the children.
The mother proposes that the father’s time be confined to one afternoon each week for three hours, and time on Saturday and Sunday each alternate weekend, but not overnight. She proposes that his time with Z be the same afternoon as with the boys each week, and from 10.00AM until 1.00PM on one day of each alternate weekend. The mother is supported in her proposed orders by the ICL.
I find that there is an unacceptable risk that the children will be exposed to conduct that can cause them psychological harm, in consequence of their father’s behaviour toward their mother in their presence. The risk is that their relationship with their mother is thereby put in danger of being harmed, which would be to the children’s detriment.
I further find there is an unacceptable risk of harm to the children due to the potential of psychological harm by being exposed to the father’s own anger and distress with the mother over the breakdown of their relationship. The risk is created by reason of his failure, on some occasions deliberate failure, to shield the children from exposure to his distressing emotional outbursts. This behaviour on the part of the father can have a detrimental impact on the children, particularly X and Y.
What is the probability of the behaviour that gives rise to the unacceptable risk being repeated by the father? On the interim basis, I am only able to answer that question by careful examination of the evidence, both agreed and contested, as outlined earlier in these reasons, and, as a matter of caution, in formulating parenting orders proper in the best interests of each of the children with each of their interests as the paramount consideration, I take the evidence of the mother, as I have said earlier, in relation to those matters at its highest. I find that in this matter it is appropriate to do so, despite the contested nature of some of the evidence, on the basis of the admissions made by the father as to conduct in the emails forwarded by him to the mother in March 2018.
For clarity, that is not that I intend to make a finding in relation to each or any particular incident referred to by the mother and not admitted by the father, but it is on the basis of treating the allegations of family violence and conduct that, whilst not amounting to family violence within the meaning of that term under the Act, nevertheless, is conduct that can have a detrimental impact on the welfare and interests of each of the children. Therefore, and with that consideration in mind, I am proceeding with caution in the interests of the children on the interim basis.
Can the unacceptable risk to the children be mitigated by appropriate orders?
I find that the unacceptable risk presented by the father’s behaviours outlined above can be mitigated by appropriate orders. Those orders would naturally include orders for injunctive relief, as sought by the mother and by the ICL, and as consented to by the parties on 14 August 2019. I find that such orders would, if obeyed by the father, address and mitigate the unacceptable risk to such an extent that it would not be necessary to restrict the father’s time with the children, and in particular X and Y, to the extent advocated by the mother and the ICL.
With the unacceptable risk mitigated by appropriate orders, so that the children are not exposed to behaviours by the father which expose them to psychological harm, then the benefit to the children of having a meaningful relationship with their father is maximised over what it would be if those behaviours on the part of the father were to continue.
Section 60CC – the additional considerations
At the time of interim hearing, Z was two years and 11 months of age and too young to express a view in relation to time with her father.[81] Her demonstrated reaction to her father, when under observation by the Family Consultant, indicates that she has no fear of her father, and is familiar and happy in his company.
[81] Family Law Act 1975 (Cth) s 60CC(3)(a).
Both X and Y express a clear view through the Family Consultant’s reports of their interviews, which are contained in the memorandum.[82] Both spoke lovingly of their father, they mention that they miss him and that they feel safe in his care. The Family Consultant was of the opinion that both boys are “quite attached”[83] to their father, and that they “seem to crave more time with him”.[84]
[82] Family Law Act 1975 (Cth) s 60CC(3)(a).
[83] Exhibit ICL1, p [4].
[84] Exhibit ICL1, p [4].
At the time of interview, X was nearly eight years of age, and Y was five years of age. Accordingly, X was only just approaching the cognitive age, and Y was three years off, and, accordingly, their views do not carry any great weight. Nevertheless, their views are important, in that they make it obvious that there is a loving relationship with their father, they are happy in their father’s care, they want to spend time with their father, and they have no fears or objections to spending more time with their father than the current regime.
I have already made comment and findings about the nature of the relationship of each of the children with each of their parents.[85]
[85] Family Law Act 1975 (Cth) s 60CC(3)(b).
On the basis of the evidence on the interim hearing, I make no criticism of the father in relation to his taking opportunities to spend time with and communicate with his children post-separation.[86] The evidence between the parties in relation to the father taking opportunity to spend time with and communicate with the children before separation is contested, and I can make no findings in that regard at the present time.
[86] Family Law Act 1975 (Cth) s 60CC(3)(c).
There is a question hanging over the extent to which the father has fulfilled or failed to fulfil his obligation to maintain the children, in that the only evidence that I have in relation to this consideration is the evidence of the mother that the father pays no child support.[87] The father presents no evidence in relation to providing financial support for the children. The mother presents no evidence in relation to any action taken by her to attempt to secure financial support for the children from the father, whether by way of assessment through the Child Support legislation or otherwise.
[87] Family Law Act 1975 (Cth) s 60CC(3)(ca).
I find on the interim basis that this consideration does not mitigate against a finding that the children should spend more time with their father than is proposed by the mother and the ICL, including overnight time for X and Y.
The only likely effect of a change in the children’s circumstances in the event that orders are made on the interim basis for the children to spend more time with their father is just that – more time with their father and less time with their mother.[88] The children spending more time with their father, including X and Y spending overnight time with him, would not work any detriment to their relationship with their mother.
[88] Family Law Act 1975 (Cth) s 60CC(3)(d).
On the mother’s evidence, taken in conjunction with the injunctive relief that I propose to order as a mitigation of unacceptable risk, and on the presumption that the father complies with the orders, the boys being able to spend more time with their father, including overnight time may work to the betterment of their relationship with their mother. I find that this is the case with the very live caveat that betterment will only occur if they are not exposed to any adverse influence by their father against their mother, and that they see their mother as an active participant in facilitating that increased time.
I have no evidence that leads me to consider that there are practical difficulties and expenses involved in the children spending time with and communicating with their father on a regular basis, particularly given the circumstance of the parents living in the same street.[89]
[89] Family Law Act 1975 (Cth) s 60CC(3)(e).
As I have already found, the mother’s evidence, taken at its height, does indicate a lack of appropriate parenting capacity on the part of the father, and though that evidence is contested by the father, I find that, in view of the mother’s evidence, on the interim basis, I should make an order in the nature of a mandatory injunction requiring the father to provide the children with adequate food, and to ensure that they are appropriately clothed on every occasion they are in his care.[90]
[90] Family Law Act 1975 (Cth) s 60CC(3)(f).
I find that, despite some of the assertions made by the father in his evidence, there is no basis on which I can make any finding other than that the mother has more than adequate capacity to provide for the needs of the children, including their emotional and intellectual needs.
The children have the great advantage of inheriting an attachment to two cultures, their mother’s Country D culture and their father’s Country B culture.[91] The children are entitled to exposure to both of these cultural influences. I find that in spending some increased time with their father, including overnight time, they will have increased opportunity to be exposed to and learn about their paternal family culture.
[91] Family Law Act 1975 (Cth) s 60CC(3)(g).
Consideration of each parent’s attitude to the children, and to the responsibilities of parenthood, is woven through my consideration of the primary considerations and some of the additional considerations above. The father’s attitude to the responsibilities of parenthood are in question in consequence of the behaviours he has exhibited in the presence of the children. A continuation of those behaviours would demonstrate a failure on his part to address his failings in his attitude to the responsibilities of parenthood. That failure would be a factor, looming larger and larger, in the Court’s consideration of what orders are proper to be made for the benefit of each of these children on a final basis.
The same comment applies to a consideration of family violence that has involved the children by their exposure to their father’s behaviour to their mother, on a non-physical but nevertheless coercive and demeaning basis. Happily, there are no family violence orders affecting either of the parents or any of the children in this matter.[92]
[92] Family Law Act 1975 (Cth) s 60CC(3)(j),(k).
On the basis of my deliberation of the primary and additional considerations, considered in the light of the evidence, including the submissions made on behalf of each of the parties and ICL, in both their respective Case Outlines and at the interim hearing, I find that it is appropriate to make orders increasing the time the father spends with the children. I find in the case of X and Y, but not Z, to extend that time to include overnight time, the extent of which is to be considered later in these reasons. I find it is appropriate at the same time to make orders in the nature of injunctive relief, both prohibitive and mandatory, addressing the elements of risk presented by behaviours on the part of the father, so as to address those risks and render such increased time proper and in the best interests of the children.
Section 61DA – Parental Responsibility
The Court will be making parenting orders as a result of the interim hearing, and, accordingly, the Court must apply the presumption that it is in the best interests of the children for their parents to have equal shared parental responsibility for them.[93] That presumption does not apply where there are reasonable grounds to believe that a parent has engaged in abuse of one or more of the children, or has engaged in family violence. The presumption is also rebuttable where there is evidence that satisfies the Court that it would not be in the best interests of the children for their parents to have equal shared parental responsibility for them.
[93] Family Law Act 1975 (Cth) s 61DA.
As these are interim proceedings, the presumption still applies, unless the Court considers it would not be appropriate in the circumstances for the presumption to be applied when making the order.
I have made a finding that there has been family violence within the meaning of that term in the Act. Accordingly, the presumption does not apply.
Even though the presumption does not apply, is it in the children’s best interests for an order to be made that their parents have equal shared parental responsibility?
In view of the evidence relating to the occasion in early July 2019 when X was hospitalised for an appendix operation, I find, as I found on 4 July 2019, that it is not appropriate for the parents to have equal shared parental responsibility on the interim basis. However, it is appropriate for the mother to have sole parental responsibility for the children in relation to matters concerning the children’s health, including hospitalisations, and for the parents to otherwise have shared parental responsibility for the children. As I have stated above, when an aspect of parental responsibility is allocated to one parent solely, then even when the parental responsibility is shared between the parents, it is not shared on the basis of them having equal shared parental responsibility.[94]
[94] Pavli & Beffa [2013] FamCA 144.
I find on the evidence that though the relationship between the parents is on the poorer side, they have a demonstrated ability to actually communicate by text message and email. Any parental responsibility decision relating to health will be in the sole hands of the mother.
In view of the orders I have indicated I intend to make, the next ‘big’ parenting decision for the parties is likely to be in relation to the choice of school to be attended by Z, and high school to be attended by X. Both of those decisions will arise, given the children’s respective current ages, after orders have been made in consequence of a final hearing.
Section 65DAA – equal time, substantial and significant time
As I will not be making an order that the children’s parents are to have equal shared parental responsibility for them, I need not follow the legislative pathway through section 65DAA of the Act.
In deciding what parenting order to make in relation to the time the children are to spend with their mother, I must regard the best interests of the children as the paramount consideration,[95] and make such parenting order as I think proper.[96]
[95] Family Law Act 1975 (Cth) s 60CA.
[96] Family Law Act 1975 (Cth) s 65D.
The parties separated in March 2018, about 18 months prior to the interim hearing. For the period from separation until about the start of December 2018, X and Y spent overnight time with the father almost every weekend, and substantial time with him during school holidays. In contrast, Z spent very, very little time with him and certainly no overnight time.
From December 2018 until the present time, X and Y have not spent overnight time with their father, other than his retention of them from 25 to 28 December 2019. Their time with him has been limited to daytime only, Z not joining in on at that time, per orders, until August 2019.
The only detriment to X and Y in spending overnight time with their father is in consequence of what I found to be the unacceptable risk presented by their father. I have indicated how that unacceptable risk will be mitigated by appropriate orders.
The father does not seek overnight time with Z on the interim basis. He seeks that Z join in with his time with the boys, but return to her mother for the overnight.
I find that it is appropriate to make orders that X and Y begin spending overnight time with their father by increasing their time to include the Saturday night each alternate weekend for a period of three months, and thereafter to include the Friday and Saturday night each alternate weekend.
I find that it is appropriate for X and Y to spend time with their father during school holidays by spending one half of the school holidays at the end of terms 1, 2 and 3 with him, and half of the school holidays at the end of term 4 with him on a week-by-week basis, pending final hearing.
I find that it is appropriate for Z to spend time with her father on both the Saturday and the Sunday of the alternate weekend that the boys are with him, from 10.00AM until 5.00PM on each day.
The father has been spending time with all of the children each Thursday evening from 3.30PM until 6.30PM. He has spent that time with the boys since the orders of 28 December 2018 and with Z since the orders of 4 August 2019. The father’s application is that the boys spend Wednesday night with him every week from 4.00PM on Wednesday until the start of school on Thursday, and that Z spend time with him every Wednesday from 4.00PM until 7.00PM.
I find that on the interim basis, there is nothing in the evidence to indicate a need in relation to the father’s arrangements for his midweek time to be moved from Thursday to Wednesday. Under that consideration, I find in the best interests of the children that their midweek time with their father remain as it has been, that is, each Thursday from 3.00PM until 6.30PM.
In relation to time between the father and Z during school holidays, I find that it is appropriate that she join in with the time during school holidays between the father and the boys, but only between 10.00AM and 5.00PM on each day on which the boys are in his care during school holidays.
In line with recommendations by the Family Consultant, and pursuant to section 13C of the Act, I propose to make an order that the father enrol in the ‘PPP’ parenting course, if he has not already done so, and complete that course. The father must provide a certificate of completion to the ICL and to the mother’s legal representative. I will also make an order that both parties enrol in and complete a Parenting After Separation course, if they have not already done so, and provide a certificate of completion to the ICL and to the other party’s legal representative, or, if not represented, to the other party.
In closing, I would strongly recommend the parties give consideration to engaging in Family Dispute Resolution mediation with a Family Dispute Resolution practitioner after some time has passed, and the father’s time with the boys has moved to the double-overnight each alternate weekend, with a view to taking the decisions about the future parenting of their children back into their own hands, and avoiding the unpleasantness of a final hearing. However, if the parents are not able to reach a final agreement, then the matter will ultimately come to final hearing, and their children’s parenting future, in several respects, will be taken out of their hands and decided by the Court.
Accordingly, I make the orders set out at the start of these reasons.
I certify that the preceding one hundred and fifty-eight (158) paragraphs are a true copy of the reasons for judgment of Judge Morley
Associate:
Date: 6 July 2020
Key Legal Topics
Areas of Law
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Family Law
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Civil Procedure
Legal Concepts
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Procedural Fairness
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Expert Evidence
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Discovery
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Remedies
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