Rinakis & Rinakis
[2022] FedCFamC2F 57
FEDERAL CIRCUIT AND FAMILY COURT OF AUSTRALIA
(DIVISION 2)
Rinakis & Rinakis [2022] FedCFamC2F 57
File number(s): PAC 3364 of 2019 Judgment of: JUDGE NEWBRUN Date of judgment: 27 January 2022 Catchwords: FAMILY LAW – Interim parenting – best interests of children – Orders made. Legislation: Family Law Act 1975 (Cth), ss.60B, 60CC, 62B, 65DA(2) Cases cited: Goode & Goode [2006] FamCA 1346; (2006) FLC 93-286
Marvel & Marvel(No 2) [2010] FamCAFC 101
Eaby & Speelman [2015] FamCAFC 104
Banks & Banks [2015] FamCAFC 36Division: Division 2 Family Law Number of paragraphs: 89 Date of last submission/s: 18 November 2021 Date of hearing: 18 November 2021 Place: Parramatta Solicitor for the Applicant: The Applicant appeared in person Solicitor for the Respondent: Ms Munk Solicitor for the Independent Children’s Lawyer Ms Shedden ORDERS
PAC 3364 of 2019 FEDERAL CIRCUIT AND FAMILY COURT OF AUSTRALIA (DIVISION 2)
BETWEEN: MR RINAKIS
Applicant
AND: MS RINAKIS
Respondent
AND: INDEPENDENT CHILDREN’S LAWYER
ORDER MADE BY:
JUDGE NEWBRUN
DATE OF ORDER:
27 JANUARY 2022
PENDING FURTHER ORDER THE COURT ORDERS THAT:
1.That the children X, born in 2012, and Y, born in 2014, (“the children”) live with the Mother.
2.The children shall spend supervised time with the Father through B Counselling, Suburb C, once each fortnight for 2 hours.
3.For the purpose of time being facilitated between the Father and the children pursuant to Order 2, the parties shall forthwith do to all acts and things to facilitate such time occurring and the parties shall each meet half of the costs of that supervision.
4.The Father shall continue to attend:
(a)counselling sessions with a psychologist at “D Counselling” no less than once per month, and shall do all acts and things to authorise the ICL to contact D Counselling to verify such attendance,
(b)counselling sessions with Mr E at F Community Centre, Suburb C,
(c)AA and NA meetings.
5.That the Father shall continue to attend upon his usual General Practitioner (GP), Dr G, for the purpose of obtaining treatment relating to his prescribed medication, and shall comply with the recommendations and directions of his GP and Psychiatrist (if referred to such Psychiatrist by his GP) including but not limited to taking medication as prescribed, and attending appointments.
6.The ICL shall be authorised to provide to the Father’s current treating mental health practitioners including his GP, psychiatrist, and psychologist at D Counselling, a sealed copy of these Orders, and a copy of the Report of Dr H dated 28 October 2021.
7.The Mother and father shall forthwith do all acts and things and provide all necessary directions to pay the sum of $676.50 from the funds held in trust on behalf of the parties by GM Lawyers Group Pty Ltd from the proceeds of sale of a property at J Street, Suburb K to the Mother, in reimbursement for half of the additional fee paid by her for the purpose of the report being prepared by Dr H dated 28 October 2021.
8.That the Father shall be restrained from consuming illicit drugs.
9.That the Father shall be restrained from consuming alcohol during or for the 24 hour period prior to the commencement of any contact time with the children.
10.That the Father shall be restrained from approaching or communicating with the Mother.
11.That the Father shall be restrained from approaching or communicating with the children except during the periods permitted in accordance with these Orders.
12.That the Father shall be restrained from denigrating the Mother during any periods of contact with the children.
Property Directions
13.That the husband shall file and serve his Reply in relation to property Orders, Affidavit in support, and a Financial Statement within 28 days.
14.That the wife shall within 14 days serve upon the husband an initial draft balance sheet.
15.That within 14 days thereafter the husband shall complete the balance sheet and provide that to the lawyer for the wife.
16.That in the event of disagreement as to the value of the former matrimonial home then the wife shall nominate 3 valuers and the husband shall within 7 days nominate one of the valuers as the joint expert. In the event that the husband shall neglect or refuse to nominate a valuer then the wife may do so.
17.If a valuation is required then the costs of the valuation shall be paid from the funds held in trust.
18.The proceedings are adjourned to 4 February 2022 at 9:30am for mention.
Note: The form of the order is subject to the entry in the Court’s records.
Note: This copy of the Court’s Reasons for judgment may be subject to review to remedy minor typographical or grammatical errors (r 10.14(b) Federal Circuit and Family Court of Australia (Family Law) Rules 2021 (Cth)), or to record a variation to the order pursuant to r 10.13 Federal Circuit and Family Court of Australia (Family Law) Rules 2021 (Cth).
Section 121 of the Family Law Act 1975 (Cth) makes it an offence, except in very limited circumstances, to publish proceedings that identify persons, associated persons, or witnesses involved in family law proceedings.
IT IS NOTED that publication of this judgment by this Court under a pseudonym Rinakis & Rinakis has been approved pursuant to s 121(9)(g) of the Family Law Act 1975 (Cth).
REASONS FOR JUDGMENT
JUDGE NEWBRUN:
These are short form reasons pursuant to section 69ZL of the Family Law Act 1975 (Cth) (“the Act”).
This Interim Hearing relates to the children, X, born in 2012, aged 9, and Y born in 2014, aged 7.
PROPOSALS
The Father sought interim Orders in accordance with his Memorandum of Proposed Order attached to his Court Book (page 2); he sought interim Orders, inter alia, that he spend supervised time with the children once a fortnight for 2.5 hours at B Counselling, Suburb C, following which “this arrangement be reviewed after 3 months to transition to non-supervised visits”.
The Mother had sent a proposed Minute of Order to the Court on 17 November 2021. At the interim hearing the Mother clarified that she consented to an Order that the children now begin to spend supervised time with the Father, once each month for 2 hours, at B Counselling at Suburb C, but otherwise she sought interim Orders as set out in that Minute of Order relating, inter alia, to the Father’s continuing mental health and other treatment, and protective restraining Orders against the Father.
The ICL supported the Mother’s proposed Orders, save and except that “the Court may include an order also for the Mother to obtain a mental health assessment.” The Father opposed the Mother’s proposed Orders relating to monthly supervised visits and otherwise opposed her proposed Orders relating to his continuing mental health and other treatment, and restraining Orders. Again, he sought Orders that his proposed supervised time be reviewed after 3 months to transition to non-supervised visits.
MATERIAL RELIED UPON
The Father relied upon:
(a)The documents attached to his Court Book filed 26 October 2021 containing 68 pages, including his Affidavit filed 18 December 2019;
(b)His Affidavit filed 25 February 2021.
The Mother relied upon:
(a)Her Court Book documents containing 171 pages;
(b)The Father’s letter to the Mother’s solicitor, Mr K Ridley, attaching correspondence to be given to the children.
The ICL relied upon:
(a)Her Case Outline filed 22 September 2021;
(b)The Child Inclusive Conference Memorandum dated 17 December 2019;
(c)The report of Dr H, consultant forensic psychiatrist, dated 28 October 2021.
Exhibits
The following Exhibits were relied upon:
(a)Exhibit A: Annexure A to the Mother’s affidavit filed 24.9.19;
(b)Exhibit B: Region L Local Health District clinical notes regarding Mother;
(c)Exhibit C: M Contact Centre, contact report;
(d)Exhibit D: Aide Memoir;
(e)Exhibit E: Suburb C Local Court, sleeve 3 (certain tabbed documents);
(f)Exhibit F: NSW Police, sleeve 4 (certain tabbed documents);
(g)Exhibit G: M Health Centre, sleeve 2 (certain tabbed documents).
EVIDENCE INCLUDING THE PARTIES’ RESPECTIVE ALLEGATIONS
The Court does not propose to set out the entirety of the above documentary evidentiary material relied upon at this interim hearing by the parties and ICL.
The Mother is aged 47 years. The Father is aged 57 years.
The Father alleges the parties married in 2007 and separated in about April 2019 when the Mother left the parties home with the children and moved into her parents’ home.
The Father has two children from a previous marriage being Mr O aged 29 years, and Ms P aged 27 years.
The Father alleges that in 2013 he began using pain medication, namely synthetic marijuana, for a health condition and in relation to which he developed an addiction. He alleges that the became a member of AA and in his Affidavit filed 18 December 2019 he alleges that he has been free from drugs and alcohol for nearly 7 years. He alleges that he is happy to undergo urinalysis or hair follicle testing to show that he is drug-free. In that Affidavit he alleges that he has suffered depression for several years for which he received psychiatric treatment including the prescription of antidepressant medication.
The Father, on 24 July 2019, was convicted of an assault upon the Mother which occurred on 21 April 2019 in front of the eldest child, with the Suburb C Local Court not recording a conviction on the basis that the Father be on good behaviour for 2 years.
The Father alleges that he had supervised time with the children on 1 September 2019. He alleges his last supervised visit with the children was on 8 December 2019. The contact reports for 1 September 2009, 13 October 2019, 2 November 2009, 30 November 2019, and 8 December 2019 indicate that overall the supervised time was positive. In relation to the visit on 8 December 2019, the contact report for 8 December 2019 alleges, inter alia, that there were a few bumpy patches between the Father towards the supervisor due to the supervisor arrival time. It alleges that the Father made one or two snide remarks about the children’s mother, in front of the children.
The character reference for the Father by Mr Q dated 3 December 2019 is a positive one, and refers to the Father’s weekly attendance at mood disorder/substance abuse counselling groups at R Clinic, Suburb S. The reference of Mr Q, retired NSW police officer, refers to the Father demonstrating a genuine concern for his own recovery as well as mentoring new members. The character reference of Mr T for the Father is a positive one.
The short report of Ms U, employed therapist at R Clinic, Suburb S, refers positively to the Father’s membership of a weekly Men’s Recovery Group since April 2013. The report refers to the Father’s consistent attendance and maintenance of abstinence from substances which include alcohol and drugs for the entire time.
The short report dated 13 December 2019 of Dr V, consultant psychiatrist, states that he is an addiction psychiatrist who has been the Father’s treating psychiatrist since his admission under his care to R Clinic in April 2013. He refers to the Father’s attendance at outpatient group therapy regularly and activity within NA/AA fellowship. The doctor states that as far as he is aware the Father has been abstinent from all drugs of addiction, including alcohol, for the last 6 years. He refers to the Father’s regular attendance and he has never presented intoxicated or in withdrawal. He states his belief that the Father is doing well from a drug and alcohol point of view.
The interim hearing first commenced on 20 December 2019 with the Court reserving judgement. A short time later, in January 2020, the Mother was permitted to rely upon further evidence.
Following the initial interim hearing, the Father alleges that he was charged with matters relating to breaching an ADVO in place for the protection of the Mother and the children. The Father pleaded guilty to all the charges, except for the 2 “use carriage service to menace/harass”, which were dismissed.
The Father alleges that he was then charged with offences which occurred on 12 January 2020 in respect of the maternal grandfather, referred to in the Mother’s Affidavit filed 15 January 2020 and the Affidavit of the maternal grandfather filed the same date. The Father pleaded guilty to the charges. The maternal grandfather alleges in his Affidavit that the Father, in a church, had forcibly and aggressively grabbed his left chest area and verbally threatened him and/or his extended maternal family with serious harm and death. The Father alleges that he was also charged with a breach of the “DVO” as a result of driving past the school.
As a result of all of the above charges, the Father alleges that he was incarcerated from 15 January 2020 to 12 June 2020, and then from July 2020 to 24 November 2020. The Father alleges that he was released under the care of Probation and Parole and has completed his period on Parole.
The Father alleges that whilst he was in jail he received psychological counselling from a psychologist with the Department of Corrective Services. He alleges that he cannot recall the psychologist’s name.
In his Affidavit filed 25 February 2021 the Father alleges that his treating doctor for depression is Dr G, and that that doctor has been his treating doctor for the last 12 years. The Father alleges that he is currently prescribed 200 mg of Zoloft per day. At the interim hearing the Father confirmed that this doctor is his GP and that that doctor prescribes his medication. The Father alleges that since his release he has continued to attend his psychologist, Mr E at F Community Centre in Suburb C NSW. The Father alleges that he tries to see Mr E fortnightly, however, some of these visits have had to be via Zoom. He alleges that he has also been seeing Mr E at Bible study group which he attends each Saturday and some Sundays.
The Father alleges that he attends at the Alcoholics Anonymous meetings with Mr W, and that he attends these meetings each Monday, Tuesday, Wednesday and Friday. He alleges that he has not used drugs or alcohol for over seven years.
The Father alleges, in his Affidavit filed 25 February 2021, that he has attended two sessions of an 8 session course with D Counselling which has been set up as an anti-violence counselling course. The Father alleges that he is also reactivating his TAFE course which she started prior to jail. He alleges that he will complete his Certificate III in drug and alcohol counselling.
The Father produces a negative hair follicle test certificate of analysis completed 7 July 2021 in relation to certain drugs of addiction. The collection date was stated to be 23 June 2021.
The Father produces a letter from Ms Z, provisional psychologist from D Counselling Anit-Violence Movement Inc dated 11 November 2021 address to the Family Court of Australia. The letter states, inter alia, that the Father has attended 12 sessions of psychological therapy in addition to stress and anger management workshop. Dates of attendance ranged from 18 January 2021 to 1 November 2021. Each therapy session was one hour duration. It states that the Father was referred for psychological treatment for a domestic violence incident. It states that the Father has attended appointments punctually and has demonstrated an interest in gaining skills to develop stress and anger management strategies. He refers to the Father having positive coping strategies which he engages regularly to ensure he builds his resilience, so that he can deal with stressful situations effectively. At the interim hearing the Father confirmed that he attends upon Ms Z once each month.
The Father produces a character reference from Mr E, counsellor/Chaplain, dated 25 October 2021, stating, inter alia, that he first met the Father three years ago when the Father came to his counselling service. It refers to the Father attending the centre’s support group for counselling clients. He referred to the Father sharing advice about issues concerning addiction. The report refers to the Father being by nature somewhat impulsive but one-on-one counselling in anger management has yielded a dividend.
The Father produces a character reference from the parish priest, Father AA, dated 16 November 2021 which is a positive character reference for the Father.
The Father alleges that he has not spent time with the children since his supervised time on 8 December 2019 and states that he understands and accepts that this is a result of his behaviour and conduct and as a result of the time he spent in jail. He alleges that during this time and since then, he has been sending and receiving letters and drawings to and from the children which was kindly facilitated through the solicitors representing the Mother. He states he will comply with the ICL’s request for CDT and hair panel testing.
The Mother alleges, inter alia, that following an incident in February 2018 in the car with the family when the Father allegedly grabbed the Mother’s arms and forcefully shook her, the Mother suggested to the Father that they should go and see a counsellor and that the Mother had located a man called Mr E at F at Suburb C.
The Mother alleges that in January 2019 on a family holiday cruise, the parties had a heated and also a physical argument. She alleges that following the argument the Father told the Mother to get out of his room and forcefully placed his hands on her arms with force and threw her backwards and outside of an open door.
The Mother alleges that the Father told her of suicidal ideation in about January 2019 and in late February 2019 the Father was admitted to R Clinic for six weeks in relation to severe depression. The Court observes that from Exhibit G, a Treatment Recovery Care Plan Inpatient document dated 25 February 2019 refers to the Father’s current difficulties as including active suicidal ideation and low mood. A discharge summary from R Group Suburb S Clinic, states that the Father was admitted to the Clinic on 25 February 2019 and discharged on 4 April 2019. The discharge summary refers to the Father’s commencement of the medication Sertraline and Quetiapine, with the Father making a good recovery overall and discharged in stable condition.
The Mother refers to the Father’s assault upon her on 21 April 2019 and separation thereafter with the Father seeing the children in May and June 2019 leading to supervised visits commencing in September 2019. The Mother refers to the Father being charged and arrested in mid July 2019 for 8 counts of breach ADVO with hearing dates allocated for May 2020. The Mother alleges the Father sent to her harassing and intimidating text messages between August and November 2019.
The Mother alleges that the Father has made inappropriate comments to the children in her absence or whilst on the telephone to them.
CHILD INCLUSIVE CONFERENCE MEMORANDUM
A Child Inclusive Conference was held on 17 December 2019.
The family consultant referred to the Mother’s Response filed 23 September 2019 in which, inter alia, the Mother sought both interim and final parenting Orders that the children spend supervised time with the Father. The family consultant noted that the Mother during the interview propose that the children spend time with the Father provided a medical practitioner assesses the Father as being safe to spend time with the children.
The Mother told the family consultant that she primarily attributed difficulties in the parents’ relationship to the Father’s alleged inability to manage his emotions.
The children were interviewed by the family consultant. The eldest child stated, inter alia, that the parents have separated because they had a big fight. She alleged that she saw the Father take the Mother’s phone and grab her neck and then leave the home. She stated that she sees the Father every second weekend and speaks with them on the telephone and she said that she is happy with the current arrangements, stating that she likes to be able to show the Father photos of herself, the family dog and her Christmas tree. She otherwise spoke positively of her relationship with the Father. The youngest child told the family consultant that before “the fighting” the Father would take the children to outside activities.
Under the heading “Future directions”, the family consultant stated, inter alia, that each of the children were generally positive when talking about the Father. The family consultant stated that the current arrangements of supervised time and telephone time appear to be providing the children with continuity in the relationships with the Father albeit on a limited basis. The family consultant stated that given the Father’s reported mental health difficulties in drug use history, the Court may be assisted by a single expert report by a child and family psychiatrist to assess of any possible diagnoses, the impact of such on his functioning, any recommended treatment, and the likely impact on non-compliance with recommended treatment.
THE REPORT OF DR H DATED 28 OCTOBER 2021
The above medicolegal psychiatric report was addressed to the ICL and was stated to have been written in accordance with the ICL’s instructions contained in her letter of 15 October 2021. The doctor states that the Court has ordered that the Father attend upon the doctor for the purpose of a psychiatric assessment and report as to his current mental health. The doctor states that the doctor has been requested to assess the Father for any possible mental health diagnoses and should any such diagnoses be given, the impact on the Father’s functioning, any recommended treatment and/or the likely impact on non-compliance with any treatment if recommended.
The doctor states that an assessment was undertaken on 15 October 2021 via audio visual link to the Father’s place of residence and he reviewed documents set out in his report.
The doctor stated, inter alia, that the Father had told him that he accepts full responsibility for his actions including the trouble that he has had with the law and is remorseful regarding the impact on his family including the Mother and the children. He stated that all he wants is for the children to see both parents.
The doctor stated that the Father had reported that he had continued to see a psychologist from an organisation called D Counselling as well as a spiritual counsellor. He had also continued to attend NA and AA meetings.
In relation to the Father’s substance use history, the doctor stated that the Father had reported that he had not had any relapses since his rehabilitation admission in 2012. The Father had reported that in 2021 he will be in 10 years abstinent from all substances.
The doctor referred to the Father reporting that he was convicted of a breach of AVO and common assault when he confronted the maternal grandfather. As a result, he was convicted and jailed.
The doctor referred to the Father reporting that he takes an antidepressant medication daily.
The doctor conducted a mental state examination of the Father which was unremarkable. The doctor reported the Father had good insight and a good degree of rational judgment.
The doctor reviewed certain documents, including the BB Health clinical notes, referring, inter alia, to stable mental state in September 2020. The doctor reviewed the notes from D Counselling with psychology sessions from July 2020 to July 2021. He refers to a clinical entry on 10 June 2021 indicating that the Father has been preparing for a forklift license and has been journaling as well as participating in AA meetings and that the sessions focused on maintaining positive coping strategies for the Father. Previous clinical entries indicated ongoing stressors for the Father particularly around not having access to the children and the coping strategies that he has been utilising.
The doctor reviewed the Child Inclusive Conference Memorandum to Court.
The doctor reviewed certain Affidavits of the parties and the maternal grandfather.
Under the heading “Summary and Opinion”, the doctor states that based on the account presented by the Father, his presentation and review of associated documents, the Father meets the diagnostic criteria for recurrent Major Depressive Disorder currently in remission as per DSM 5. He also refers to the Father’s history of Cannabis Use Disorder which has been in remission for years now. He refers to the Father continuing to undertake outpatient treatment specifically attending NA and AA groups. The Father continues to see a psychologist for psychological therapy and takes antidepressant medication.
The doctor states that the Father’s history of verbal abuse and physical assaults against the Mother are likely partially related to his depression as well as substance use and partially constitutional, however it is certain that when the Father is abstinent from substances and is well and stable in his mental state, his propensity to be verbally abusive and physically violent behaviour is significantly mitigated.
The doctor states that it is apparent that the Father has reached a degree of stability in terms of his mental health and is engaging in regular sessions of therapy, compliant with his medications as prescribed, and continues to abstain from illicit substance use. The doctor stated the Father’s current treatment regime should be continued to ensure enduring stable mental state. The doctor states that no further treatment is recommended currently, however, if the Father was to become unwell with significant depressive symptoms, a referral to a psychiatrist for outpatient and/or inpatient treatment would be recommended.
The doctor states that when the Father is psychiatrically unwell his functioning is impaired both occupationally and socially and his risk of violence, particular towards the Mother, is increased. If the Father was to become non-compliant with his treatment, the doctor stated that there was a high risk that he will relapse into his depressive illness and possibly relapse back into substance use with the associated risk to himself and others.
The doctor states that if the Father continues with his prescribed treatment and develops effective strategies to manage external stressors, then he is more likely to remain well-functioning in all aspects of his life, as well as maintaining healthy relationships which will significantly reduce his risk of coming in contact with the criminal justice system.
LEGAL PRINCIPLES
The relevant principles in relation to parenting proceedings, including interim proceedings, are well settled: see Goode & Goode [2006] FamCA 1346; (2006) FLC 93-286.
In Marvel & Marvel (No 2) [2010] FamCAFC 101, the Full Court of the Family Court of Australia discussed the problems associated with making findings on disputed evidence as follows:
[120] As has frequently been emphasised interim parenting proceedings, and Orders made as a consequence, are a necessary but temporary measure until all the evidence can be tested, evaluated and weighed at a final hearing by the making of final parenting Orders. Decisions judicial officers have to make in interim proceedings are difficult and, often for very good reason, a conservative approach, or one which is likely to avoid harm to a child is adopted. This is often to the understandable distress of a party who may not achieve the outcome he or she desires, or thinks to be in the best interests of their child or children. Interim parenting Orders are frequently modified or changed after a final hearing, and any allocation of parental responsibility made at an interim hearing is disregarded at the final hearing (s 61DB).
…
[122] In SS & AH [2010] FamCAFC 13 the majority (Boland and Thackray JJ) discussed at paragraph 88 of their reasons the care necessary to be exercised in making findings in interim parenting proceedings. Their Honours said:
In our view, findings made at an interim hearing should be couched with great circumspection, no matter how firmly a judge’s intuition may suggest that the finding will be borne out after a full testing of the evidence.
[123] Later, at paragraph 100 their Honours amplified their comments and said:
The intuition involved in decision-making concerning children is arguably of even greater importance when a judge is obliged to make interim decisions following a hearing at which time constraints prevent the evidence being tested. Apart from relying upon the uncontroversial or agreed facts, a judge will sometimes have little alternative than to weigh the probabilities of competing claims and the likely impact on children in the event that a controversial assertion is acted upon or rejected. It is not always feasible when dealing with the immediate welfare of children simply to ignore an assertion because its accuracy has been put in issue.
Of this, the Full Court in Eaby & Speelman [2015] FamCAFC 104 said at [19]:
As would be immediately apparent, this approach enables the Court to appropriately and carefully deal with contentious issues relevant to the welfare of the child, and for those issues to not be ignored.
The Court also refers to the decision of the Full Court of the Family Court of Australia in Banks & Banks [2015] FamCAFC 36, especially at paragraphs 46 to 52. In that decision, the Full Court stated, inter alia, that (at paragraph 49), “It is also important to stress here that the requirement to “consider” each factor (under s60CC of the Act) does not mean each must be discussed, especially where the evidence leads inexorably to a particular conclusion: SCVG & KLD (2014) FLC 93-582”. Further, it stated, at paragraph 50, “When it is obvious that the findings made as to some of the s 60CC factors will be determinative of the child’s best interests on an interim basis, it is a sterile and unnecessary exercise to address other factors”.
Section 60B of the Act sets out the objects of Part VII of the Act relating to children that inform the making of parenting Orders.
In deciding whether to make a particular parenting Order in relation to a child, a Court must regard the best interests of the child as the paramount consideration: section 60CA of the Act.
Section 60CC of the Act provides that in determining what is in the child’s best interests, the Court must consider the matters set out in subsections (2) and (3). In this context the Court refers to its discussion above in relation to Banks & Banks.
Section 60CC of the Act provides that in determining what is in the child’s best interests, the Court must consider the matters set out in subsections (2), the primary considerations, and (3), the additional considerations. In this context the Court refers to its discussion above in relation to Banks & Banks.
Section 60CC(2) provides:
The primary considerations are:
(a)the benefit to the child of having a meaningful relationship with both of the child's parents;
(b)the need to protect the child from physical or psychological harm from being subjected to, or exposed to, abuse, neglect or family violence.
Note: Making these considerations the primary ones is consistent with the objects of this Part set out in paragraphs 60B(1)(a) and (b).
Further, s 60CC (2A) provides:
In applying the considerations set out in subsection (2), the Court is to give greater weight to the consideration set out in paragraph (2)(b).
DISCUSSION
As to the meaningful relationship primary consideration under s 60CC(2)(a), the children have a meaningful relationship with the Mother, the Mother having been the children’s primary carer from birth to date, and the children will likely benefit from a continuance of those relationships with the Mother.
The children have previously enjoyed a meaningful relationship with the Father, however, it is likely that that relationship has significantly dissipated by reason of not having spent time with the Father since December 2019.
The children may prospectively benefit from the restoration of their former meaningful relationship with the Father if it is safe, physically and psychologically, for them to do so.
Should the children presently commence to spend supervised time with the Father, through B Counselling, Suburb C, once each fortnight, there is a real prospect that their former meaningful relationship with the Father can be restored.
The Court has a concern that should the children only spend supervised time with the Father once per month as proposed by the Mother there is a real risk that the timely restoration of their former meaningful relationship with the Father will be adversely affected. The Court would give significant weight to this meaningful relationship primary consideration.
As to the need to protect primary consideration under s 60CC(2)(b), the Court has considered carefully the Father’s history of substance abuse, mental health problems, convictions for breaches of ADVO and assault upon the Mother (with there being a significant suggestion, on the material before the Court, that this assault was witnessed, at least in part, by one or both of the children) and maternal grandfather, and the Mother’s allegations of the Father’s historical family violence including both pre and post separation. And the Court further observes that the children have not spent time with the Father since December 2019. These matters are of concern to the Court and the Court would assess that presently there exists an unacceptable risk of harm that the children may be exposed to family violence if spending unsupervised time with the Father. Such risk can be addressed predominantly by the children beginning to spend supervised time with the Father once each fortnight.
The Court now briefly considers the contested issue between the parties as to whether the parties’ agreed position on supervised time presently commencing should transition to unsupervised time after 3 months.
There is a significant suggestion, on the material before the Court, that the Father’s substance abuse has been in remission for some years. That issue appears to have been well controlled by the Father through his treatment including attendance at AA and NA meetings. The Father has had a relatively recent negative hair follicle test and a further Court ordered hair test, in the view of the Court, is not necessary at this interim stage, and noting that the children will now begin to spend supervised time with the Father.
Whilst the Father’s mental health, as assessed by Dr H on 15 October 2021, would appear to be stable, the Court does observe that despite the Father’s commencement of antidepressant medication during his admission to the R Clinic between February and early April 2019, and his apparent wellness on discharge from the Clinic at that time, he perpetrated a serious assault upon the Mother on 21 April 2019 as well as assaulting the maternal grandfather with associated verbal threats in January 2020. Further, allegations are made in the contact report from M Contact Centre of 8 December 2019 (which the Father denied at the interim hearing) that the Father, in the presence of at least one of the children, became somewhat emotionally dis-regulated.
Generally in this context, the Court observes the opinion of Dr H that the Father’s history of verbal abuse and physical assaults against the Mother are “partially constitutional” (as well as being likely partially related to his depression as well as substance use). This opinion of the doctor throws into focus the issue of the Father’s management of his apparent stress and anger management issues.
Whilst the Father has been receiving treatment, with apparent benefits, in relation to stress and anger management strategies through the provisional psychologist Ms Z and Mr E, counsellor/chaplain, the reports of those two persons are quite brief and remain untested at this interim stage, there is limited material before the Court relating to the Father’s behaviour including emotional regulation in 2021, and the Father has not spent time with the children since 8 December 2019.
Accordingly, taking into account the above discussed matters relating to this contested issue of whether supervised time should transition to unsupervised time after three months, in the view of the Court, it would be premature to presently make an interim Order that the children begin to spend unsupervised time with the Father after only 3 months of supervised time with him. Before the Court considers making an Order relating to the children spending unsupervised time with the Father, the Court would need to consider, inter alia, the success or otherwise of the children’s supervised time with the Father, including the Father’s behaviour with them and other persons, more significant documentary material from the Father relating to his treatment for stress and anger management issues, as well as documentary treatment material from his GP and psychiatrist if applicable.
Again, in the view of the Court, at this interim stage, there should be no unacceptable risk of harm posed to the children, whether physically or psychologically, should they presently commence to spend supervised time with the Father through B Counselling, Suburb C, once each fortnight. In this context, the Court takes into account, in particular:
(a)the contents of the medicolegal report of Dr H dated 28 October 2021, whilst acknowledging that that report remains untested at this interim stage;
(b)The report of Dr V dated 13 December 2019 referring to this doctor’s treatment of the Father for addictive disorders for over six years, and the doctor’s report of the Father’s abstinence for the last six years from all drugs of addiction including alcohol;
(c)the Father’s negative hair analysis certificate completed 7 July 2021, whilst acknowledging that it was carried out voluntarily by the Father;
(d)the brief report of psychologist Ms Z dated 11 November 2021, referring to her treatment of the Father, whilst acknowledging that that report is untested;
(e)the brief report of Mr E, counsellor/chaplain dated 25 October 2021 referring to, inter alia, his one on one counselling of the Father in anger management with positive results, whilst acknowledging that that report is untested;
(f)the Father’s character references, whilst acknowledging that those references are untested;
(g)the Father’s jail time, release on parole and apparent non-breach of parole conditions;
(h)the Father’s willingness to comply with the ICL’s request for CDT and hair panel testing.
In addition to the above supervised time presently occurring between the children and the Father through B Counselling, Suburb C, the safety of the children in their supervised time with the Father can be further ensured by the Court making further protective interim parenting Orders that the Father continue to obtain treatment as referred to in the report of Dr H and the Father’s material, and by making the Mother’s proposed restraining Orders against the Father.
In the view of the Court, the supervision fees of B Counselling should be shared between the parties noting their apparent modest extent for each visit. In this regard, the Court also takes into account, in particular, the Father’s present apparent unemployment.
The Court broadly accepts the submissions of the Mother and ICL in relation to it not being in the best interests of the children, at this interim stage, that they begin to have telephone time and/or video FaceTime with the Father, or that the Father be permitted to attend upon the children’s schooling activities (see the Father’s proposed Order 6) as proposed by him. In this context, the Court refers to its discussions above under the need to protect primary consideration relating to the Father; presently, the Court has a concern that there is a real risk that the Father may say inappropriate things to the children through unsupervised telephone time and/or video FaceTime and/or act in an emotionally dis-regulated manner with consequential emotional harm to the children. Further, at this interim stage, again taking into account the Court’s above discussions under the need to protect primary consideration, the children should not spend time with the Father through their school activities by reason of the real risk that he will act in an emotionally dis-regulated manner with consequential emotional harm to the children. And further, the Court broadly agrees with the submissions of the ICL in this context that it is relevant to take into account that the children have not spent time with the Father for over two years.
The Court would also give significant weight to this need to protect primary consideration at this interim stage.
The Court indicates at this interim stage that in applying the primary considerations under section 60CC, the Court is to give greater weight to the need to protect primary consideration, and in this particular case, it does so.
The Mother seeks an order for sole parental responsibility in relation to the children. The children are presently aged nine years and seven years. There does not appear to be any major decision looming for these children. The Court has a concern at this interim stage that to make such an order in favour of the Mother, there may be created an impediment to the timely restoration of the children’s former meaningful relationship with the Father. It will not be in the best interests of the children to make an order for sole parental responsibility at this interim stage.
For reasons discussed above under the need to protect primary consideration, equal time or substantial and significant time would not be in the best interests of the children at this interim stage. Such time, theoretically, may be practical.
These Reasons have discussed the relevant considerations under section 60CC of the Act. Evaluating such discussed relevant considerations, it will be in the best interests of the children to make the following interim parenting Orders:
1.That the children X, born in 2012, and Y, born in 2014, (“the children”) live with the Mother.
2.The children shall spend supervised time with the Father through B Counselling, Suburb C, once each fortnight for 2 hours.
3.For the purpose of time being facilitated between the Father and the children pursuant to Order 2, the parties shall forthwith do to all acts and things to facilitate such time occurring and the parties shall each meet half of the costs of that supervision.
4.The Father shall continue to attend:
(a)counselling sessions with a psychologist at “D Counselling” no less than once per month, and shall do all acts and things to authorise the ICL to contact D Counselling to verify such attendance,
(b)counselling sessions with Mr E at F Community Centre, Suburb C,
(c)AA and NA meetings.
5.That the Father shall continue to attend upon his usual General Practitioner (GP), Dr G, for the purpose of obtaining treatment relating to his prescribed medication, and shall comply with the recommendations and directions of his GP and Psychiatrist (if referred to such Psychiatrist by his GP) including but not limited to taking medication as prescribed, and attending appointments.
6.The ICL shall be authorised to provide to the Father’s current treating mental health practitioners including his GP, psychiatrist, and psychologist at D Counselling, a sealed copy of these Orders, and a copy of the Report of Dr H dated 28 October 2021.
7.The Mother and father shall forthwith do all acts and things and provide all necessary directions to pay the sum of $676.50 from the funds held in trust on behalf of the parties by GM Lawyers Group Pty Ltd from the proceeds of sale of a property at J Street, Suburb K to the Mother, in reimbursement for half of the additional fee paid by her for the purpose of the report being prepared by Dr H dated 28 October 2021.
8.That the Father shall be restrained from consuming illicit drugs.
9.That the Father shall be restrained from consuming alcohol during or for the 24 hour period prior to the commencement of any contact time with the children.
10.That the Father shall be restrained from approaching or communicating with the Mother.
11.That the Father shall be restrained from approaching or communicating with the children except during the periods permitted in accordance with these Orders.
12.That the Father shall be restrained from denigrating the Mother during any periods of contact with the children.
Property Directions
13.That the husband shall file and serve his Reply in relation to property Orders, Affidavit in support, and a Financial Statement within 28 days.
14.That the wife shall within 14 days serve upon the husband an initial draft balance sheet.
15.That within 14 days thereafter the husband shall complete the balance sheet and provide that to the lawyer for the wife.
16.That in the event of disagreement as to the value of the former matrimonial home then the wife shall nominate 3 valuers and the husband shall within 7 days nominate one of the valuers as the joint expert. In the event that the husband shall neglect or refuse to nominate a valuer then the wife may do so.
17.If a valuation is required then the costs of the valuation shall be paid from the funds held in trust.
18.The proceedings are adjourned to 4 February 2022 at 9:30am for mention.
I certify that the preceding eighty-nine (89) numbered paragraphs are a true copy of the Reasons for Judgment of Judge Newbrun. Associate:
Dated: 27 January 2022
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