ROSENBERG & SOLER
[2019] FCCA 1908
•6 August 2019
FEDERAL CIRCUIT COURT OF AUSTRALIA
| ROSENBERG & SOLER | [2019] FCCA 1908 |
| Catchwords: FAMILY LAW – Parenting – interim hearing – equal shared parental responsibility – whether the father’s time with the children is supervised. |
| Legislation: Family Law Act 1975 (Cth), ss.11F, 60CA, 60CC, 60DA, 65DAA, 68B, 68C, 68L |
| Cases cited: Briginshaw v Briginshaw (1938) 60 CLR 336 |
| Applicant: | MS ROSENBERG |
| Respondent: | MR SOLER |
| File Number: | SYC 2111 of 2019 |
| Judgment of: | Judge Morley |
| Hearing date: | 28 June 2019 |
| Date of Last Submission: | 28 June 2019 |
| Delivered at: | Sydney |
| Delivered on: | 6 August 2019 |
REPRESENTATION
| Solicitors for the Applicant: | Ms Youssef of Marsdens Law Group |
| The Respondent appeared in person |
| Solicitors for the Independent Children's Lawyer: | Ms Court of John Spence & Associates |
ORDERS
That the parents have equal shared parental responsibility for the children [X], born … 2013, and [Y], born … 2016 (“the children”).
That the children live with their Mother.
That the children spend time with their Father as follows:
(a)From 12:30pm until 3:30 pm each Sunday, supervised as provided in these orders, with the first such occasion to be on the Sunday next after the date of these orders;
(b)From 12:30pm until 3:30pm each alternate Saturday, supervised as provided in these orders, with the first such occasion to be on the Saturday second after the date of these orders;
(c)From 5:00pm until 7:00pm each Wednesday, supervised as provided in these orders;
(d)At such other times as may be agreed between the parents from time to time, supervised as provided in these orders.
That all of the time that the Father spends with the children pursuant to these orders will be supervised by any one of the Father’s sister, Ms B, the Father’s friend Ms D, or the Father’s friend Ms C, provided that such supervisor has fulfilled the condition set out in order 5.
That before any of Ms B, Ms D or Ms C are able to supervise the Father’s time with the children under order 3, the said supervisor must have completed an Undertaking as to that supervision in the same terms as the Undertakings previously completed in this matter by Ms E and Ms F, with the addition of a clause stating that such supervisor is aware of the Father having being diagnosed as suffering from a Borderline Personality Disorder, and consequently, is on occasions prone to outbursts of some anger, and on two occasions, of depression accompanied by thoughts of self-harm.
That at the Father’s option, the Father may substitute as supervisor for any or all occasions under order 3, a commercial supervision agency by one of ‘Children's Contact Centre G’, ‘Children's Contact Centre I’, or ‘Children's Contact Centre H’, or such other commercial supervision agency as is agreed upon between the parties from time to time, with such supervision to be at the expense of the Father, and in the event that the Father does elect to arrange such substitute supervision by a commercial supervision agency and advises the Mother in writing of that election, then the parents will each do all things necessary by way of application and paperwork to engage the agency.
That at the written request of the Father, the Mother will cooperate with the Father and the requirements of the contact centre in each making application to either the Town J Children’s Contact Centre or the Town K Children’s Contact Centre, to supervise the Father’s time with the children under order 3, at the expense of the Father.
That the children communicate with the Father by telephone, FaceTime, Skype or WhatsApp, depending upon the availability of FaceTime, Skype and WhatsApp to the Mother and the Father, but failing all else, by telephone, at some time between 5:30pm and 6:30pm on the Friday before any Saturday in which the Father will not be spending time with the children for any reason, with all such calls, of whichever nature, to be initiated by the Father.
That each of the parents is restrained from denigrating the other parent, any member of the other parent’s family, or any member of the other parent’s household in the presence of, or within the hearing of, the children or other of them.
That each of the parents is restrained from allowing the children to remain in the presence of, or within the children’s hearing of, any other person who is denigrating the other parent, any member of the other parent’s family, or any member of the other parent’s household.
That in the event that either of the children suffers a serious medical condition and requires urgent medical attention whilst in the care of either parent, that parent will notify the other parent of that circumstance as soon as practicable.
That as the parents have equal shared parental responsibility for the children pursuant to these orders, each of the parents is equally entitled to all information normally available to a parent from the children’s school and preschool.
THE COURT NOTES that no order of compulsion or mandatory injunction is made compelling the Father to engage in therapy in relation to misuse of alcohol or Borderline Personality Disorder on the basis that the Father informed the Court on interim hearing that he had made arrangements to so engage.
THE COURT NOTES that the time the Father spends with the children under interim orders may be reconsidered once the effectiveness of therapy undertaken by the Father is able to be evaluated, and in that regard the principal in Rice & Asplund (1978) 6 Fam LR 570 should not prevent that further interim consideration.
IT IS NOTED that publication of this judgment under the pseudonym Rosenberg & Soler is approved pursuant to s.121(9)(g) of the Family Law Act 1975 (Cth).
| FEDERAL CIRCUIT COURT OF AUSTRALIA AT SYDNEY |
SYC 2111 of 2019
| MS ROSENBERG |
Applicant
And
| MR SOLER |
Respondent
REASONS FOR JUDGMENT
Introduction
These are proceedings between Ms Rosenberg as Applicant Mother (“the Mother”) and Mr Soler as Respondent Father (“the Father”) relating to parenting issues for their daughters, [X], born … 2013 (“[X]”), and [Y], born … 2016 (“[Y]”) (“the children”).
The Father and Mother commenced living together in a de facto relationship in … 2013 and separated on a final basis on 24 February 2019. The parties separated under the one roof and then the Mother left the family home at Suburb L, with the children, on 22 March 2019. The Father remained, and remains, in occupation of the family home at Suburb L.
The Mother is a Senior customer relations officer at Employer M.
The Father is a tradesman at Employer N.
The matter before the Court on interim hearing was the parties’ competing proposals in relation to parental responsibility and the time, if any, that the children would spend with their Father pending a final hearing.
The Mother was represented by her solicitor advocate Ms Youssef. The Father appeared on his own behalf, and Ms Court appeared on her own behalf as the Independent Children’s Lawyer.
The Proceedings
Proceedings were commenced by an Initiating Application filed for the Mother on 3 April 2019. The Mother was granted leave for short service and the matter was listed on 11 April 2019, with the Application to be served by 4:00pm on 8 April 2019. The bases of the urgency was the Mother’s assertion in her evidence at the time of filing that the Father was suicidal, an alcoholic, and was threatening to pick up the children from school and take them into his care.
With the Initiating Application, the Mother filed a Notice of Risk and her affidavit. The documents, together with copies of three subpoenas issued by the Court at the request of the Mother, were served on the Father by email service on 9 April 2019. An affidavit of service by a licensed process server indicates that he made attempts on 8 and 9 April 2019 to serve the Father personally with the documents but was unable to do so, and that he sent documents to the Father as attachments to an email at 7:03am on 9 April 2019.
The matter was before the Court for first mention on 11 April 2019. The Mother appeared before the Court represented by her solicitor Ms Youssef and the Father appeared before the Court self-represented. The parties entered into some consent orders on a “without admissions” basis that:
a)The children would live with their Mother and would spend time with their Father:
i)From 12:30pm to 3:30pm each Sunday supervised by the paternal aunt, Ms E, at the aunt’s home or an agreed public place;
ii)From 5:00pm to 7:00pm each Wednesday supervised by the Father’s cousin, Ms F, to occur at the cousin’s home or an agreed public place; and
iii)On the child [Y]’s birthday on … 2019 from 5:00pm until 7:00pm supervised by one of the paternal aunt, Ms E, the father’s cousin, Ms F, or the maternal grandfather, at Suburb O McDonald’s Family Restaurant.
b)The above occasions to occur only after the said supervisors had signed a required Undertaking to the Court setting out their obligations and duties to the Court.
c)The Father to follow all directions and referrals of his general practitioners and medical service providers.
The matter was adjourned to 10:00am on 28 June 2019 for interim hearing. The parties were directed pursuant to section 11F of the Family Law Act 1975 (Cth) (“the Act”) to attend a Child Dispute Conference on 25 June 2019 at 9:00am and an order was made pursuant to section 68L of the Act appointing an Independent Children’s Lawyer to represent the children. A direction was made for the Father to file and serve his Response, affidavit in support and affidavits by any witnesses upon which he intended to rely at interim hearing by close of business on 10 May 2019.
Undertakings in the form prepared by the solicitor for the Mother were completed by Ms E and Ms F on 18 April 2019.
Despite the order that the Father file his Response documents by 10 May 2019, the Father filed his Response to Initiating Application, Notice of Risk and his affidavit sworn 13 May 2019 on 15 May 2019.
The Competing Proposals
In her Initiating Application, the Mother sought interim orders as follows:
a)That the Mother have sole parental responsibility for the children;
b)That the children live with the Mother;
c)That the children spend time with and communicate with the Father only as agreed in writing between the parties;
d)That the Father’s time be supervised by a person or service as agreed in writing between the parties;
e)That that for the purpose of the Father spending time with the children, changeover is to occur at a location as agreed in writing between the parties;
f)That prior to the children spending time with the Father, the Father shall attend to:
i)Completion of an alcohol rehabilitation program and the Father will provide a copy of the corresponding certificate to the Mother;
ii)Engagement with a drug and alcohol counsellor for a period of not less than three (3) months and will provide a copy of a report from the treating counsellor to the Mother in relation to the Father’s attendance, compliance and recommendations;
g)The Father’s time with children be conditional upon the following:
i)The Father do all things necessary to attend upon a clinical psychologist for the purpose of his management of alcohol use, depression, anxiety and Borderline Personality Disorder.
ii)For the purpose of order (g)(i) above, the Father is to attend all appointments as directed by the Father’s clinical psychologist and provide the Mother reports in relation to the Father’s attendance, compliance, his mental health and recommendations every three months.
iii)The Father is to provide by way of a report from his treating prescriber, being his General Practitioner (“GP”) or psychiatrist, a report confirming compliance of any prescribed medication to the Father every three months.
h)That pursuant to sections 68B and 68C of the Act:
i)The Father be restrained from attending the children’s school, being any current and future school the children are enrolled in;
ii)That the Father be restrained from attending the children’s current residence and any future residence.
i)That neither party denigrate the other party or permit any other person, or any member of the other party’s family, in the presence or hearing of the children.
j)In the event that any of the children suffers a serious medical condition, or requires urgent medical attention whilst in the care of either parent, that the other parent is to be notified as soon as practicable.
In his Response to Initiating Application, the Father sought the following interim orders:
a)That the children spend Monday, Wednesday and Thursday evenings from 3:00pm to 7:30pm with the Father.
b)That the children spend every second weekend with the Father.
c)That the time spent with the Father be unsupervised and allowed at his residence.
d)That the Mother and Father enter into immediate mediation in regards to the children, for the children’s well-being.
e)That the children and Mother not reside with maternal auntie, Kirsty Riley.
The Evidence
The Mother relied on her affidavit sworn 6 June 2019 and filed 7 June 2019, and an affidavit by the maternal grandfather, Mr Rosenberg sworn 6 June 2019 and filed 7 June 2019.
The Mother also relied upon material tendered on her behalf from subpoenaed documents produced by New South Wales Police and marked as Exhibit A1, material produced by Medical Centre P and marked as Exhibit A2, and material produced by Town K Hospital and marked as Exhibit A3.
At the interim hearing, the Father relied on the following affidavits:
a)His affidavit sworn or affirmed 13 May 2019 and filed 15 May 2019;
b)His affidavit sworn or affirmed on 27 June 2019 and filed that day;
c)An affidavit of Ms C sworn or affirmed and filed 27 June 2019;
d)An affidavit of Ms B sworn or affirmed 26 June 2019 and filed 27 June 2019;
e)An affidavit of Ms D sworn or affirmed 26 June 2019 filed 27 June 2019; and
f)An affidavit of Mr Q sworn 24 June 2019 and filed in Court at the interim hearing with leave of the Court.
The Father also relied upon documents tendered into evidence from material produced on subpoena by Town K Hospital being Exhibit R1, material produced by New South Wales Police being Exhibit R2, and material produced by Medical Centre P being Exhibit R3.
The Father tendered into evidence the following documents:
a)Exhibit R4, being a letter dated 27 June 2019 from Mr R Clinical Psychologist of Town S Mental Health Service addressed “To Whom This Concerns” confirming that the Father:
… is currently a participant in a research trial – “Assessing the efficacy of a stepped care treatment program for Borderline Personality Disorder” – conducted by University T, Town S Mental Health Service and Town K Mental Health Service. His trial participation involves attendance at a skills group treatment program at the Town K Mental Health Service. The program is based on Dialectical Behaviour Therapy (DBT) and involves 12 weeks of 2-hour long group sessions. This will be followed by an optional 16 week group skills treatment program for those who’ve benefited from the initial program and wish to do more.
The 12 week skills group program at the Town K Mental Health Service will commence when requisite participant numbers are obtained – anticipated to be approximately 2-3 months hereafter.
b)Exhibit R5, being a two page information pamphlet entitled “Parenting with Personality Disorder”.
c)Exhibit R6, being a four page information pamphlet about Clinical Psychologist Mr R.
d)Exhibit R7, being a page purporting to be part of a ‘Working with Children Check’ results sheet for Ms C, expiring 8 August 2019.
The Independent Children’s Lawyer tendered into evidence the Child Dispute Conference Memorandum to Court dated 25 June 2019 (“CDC Memorandum”) marked as Exhibit ICL1, and material produced by Town K Hospital marked as Exhibit ICL2.
The parents commenced a relationship in 2012 and commenced cohabitation September 2013, residing together in rented accommodation at Suburb U.
[X] was born on … 2013 and [Y] on … 2016.
In about January 2018 the family moved into rental accommodation at Suburb L. The parties separated under one roof on 19 February 2019 and the Mother left the Suburb L property with the children on either 19 March 2019 (according to the Father) or 22 March 2019 (according to the Mother) and went to live with the children at the maternal grandparent’s home in Suburb V.
The Father has remained living at the Suburb L property.
In March 2005, prior to the parties commencing the relationship, the Father had been admitted to Town K Mental Health Unit with mental health issues including attempted suicide and depression, with ongoing suicidal thoughts. The Father told the Mother about his admission during their relationship and the Mother noticed that on occasions when they would argue the Father would make comments indicative of a suicidal intent if certain events occurred, such as the end of the relationship.
The medical records entered as exhibits from Medical Centre P indicate that the husband sought assistance at that place for symptoms of depression and anxiety on 8 December 2014, was prescribed Pristiq, and was improved by his next attendance on 5 January 2015.
The Father again attended on 22 December 2016 for “low mood” and “anxiety issues” and he was prescribed Zoloft, with one 50mg tablet to be taken once per day.
The Father attended again on 6 March 2018 with “low mood” and “on and off suicidal thoughts” and was given a prescription increasing his Zoloft medication from one 50mg tablet per day to one 100mg tablet per day.
On 30 January 2019, the Father attended and advised his General Practitioner Dr W about his admission to Town K Hospital on 28 December 2018 and disclosed the diagnosis of Borderline Personality Disorder. Following his voluntary admission to Town K Hospital on 23 March 2019 at 10:15pm and discharge in the early hours of 24 March 2019, the Father attended Dr W again on 25 March 2019:
…feeling depressed…having family problems – separating with ex wife…not able to see kids…having suicidal thoughts
Dr W provided the Father with a letter to Accident & Emergency, presumably at Town K Hospital, for the Father to seek admission, which he did, becoming an inpatient from 25 to 28 March 2019.
These occasions indicate that the Father is a person who is able to recognise deterioration in his mental health and seek appropriate assistance.
The Father asserts that at about the time the parties commenced their relationship in August 2012, the Mother said to him words to the effect of:
I suffer from anxiety and OCD.
The Father asserts that he replied to her in words to the effect
I suffer from anxiety and depression as well.
The Father deposed that in about August 2016 he was prescribed Lyrica and Endep by a neurosurgeon in relation to nerve damage in his right leg. To the neurosurgeon’s knowledge, the Father was already taking Zoloft at this time.
In October 2017, the wife was informed by a pharmacist, while she was obtaining the Father’s prescription medications, that taking both Lyrica and Endep had extreme risks of side effects. As a result, the husband ceased taking Lyrica.
The Father deposed that in early 2018 he:
Found myself becoming more depressed in the relationship . . . . I attended my GP to discuss my depression and increased alcohol use.
He says that:
[In] mid 2018, there was still no improvement in the relationship . . . . It was at this time I again attended my GP as I was still depressed in the relationship and drinking more … In early December 2018, my weight has got back to 159kg. This made me very depressed and I again attended my GP.
The Mother asserts that during the relationship the Father began to consume alcohol, and then on an increasing basis, so that by mid-2018 the Father’s daily consumption was between four and ten bottles of beer after work. The Mother does not depose to the content capacity of those bottles of beer.
The Mother asserts that there were occasions when the Father:
Had passed out on the lounge with a beer in his hand.
The Mother relays an incident on 16 October 2018 when she asserts that the Father became intoxicated while attending his cousin’s wedding, such that he became abusive to other guests, needed to be assisted into his vehicle and was driven home by her whilst verbally abusing her.
On 28 December 2018, the Father attended a function at BB Recreational Club while the Mother and children visited her parents’ home. The Father deposes that he and a number of family members, inclusive of the maternal grandfather and the maternal aunt, Kirsty, attended Suburb DD public house. While at the public house there was an incident between the Father and Kirsty, the result of which being that they were both asked to leave the public house by the manager.
The Father deposes that on leaving the public house he was intoxicated and:
… proceeded to walk toward Ms Rosenberg’s parents’ house. I was deeply distressed and angry at the situation. On the way to Ms Rosenberg’s parents’ house I remember punching a bus shelter in frustration.
When I got to Ms Rosenberg’s parent’s house, I began to let my emotions show and abused Ms Rosenberg and her parents. At this point, I realised that I had lost control of my emotions and began to then suffer from the fact.
I left Ms Rosenberg’s parents’ house, walking out in front of cars. I knew I needed help so I walked to Ms E’s house and asked her to take me to hospital.
I attended Town K Hospital Emergency Department but was discharged because of a bed shortage, into the care of Ms E and given reference to the CC Medical Clinic for people with Borderline Personality Disorder at Town K Mental Health Unit.
The Mother deposes that she saw the Father walking along the road at the front of her parents’ home and saw him punch a bus shelter and then yell out abuse at her. On the Mother not responding to him, she saw him cross the road and continue walking away from her parents’ home.
Approximately 20 minutes later the Mother received a telephone call from the Father’s Aunt Ms E, who lives in Suburb DD, who said to the Mother:
Mr Soler is here, he walked here and said he wanted to walk in front of a car.
The Father was taken to Town K Hospital by his Aunt Ms E where he was admitted and noted as presenting with low mood and ideas of self-harming. The Father was diagnosed at the hospital with Borderline Personality Disorder (“BPD”) and prescribed medication.
On 4 January 2019, the Father posted the following on Facebook:
Since the age of 14 I’ve been treated by medication for Anxiety and Depression, in 2004 I was told BPD was a secondary issue to my anxiety. Since the birth of my daughters I have struggled with a lot of aspects of my life and for the last 6 months I have turned to heavy drinking...
In early January 2019, the Father began attending sessions with a counsellor, Ms EE, at the CC Medical Clinic in relation to management of his Borderline Personality Disorder.
The parties agreed that their cohabiting relationship had broken down in February 2019. The parties and the children remained living at the Suburb L property until 22 March 2019.
From January to 22 March 2019, the parties had an arrangement whereby the Father spent time with children on Monday, Wednesday, and Thursday afternoons, though the Mother deposes that the Father would regularly cancel at least one of these occasions each week during which time the children would stay at her parents’ home.
The records of Town K Hospital in relation to the Father’s admission
On 23 March 2019, the day after the Mother and children vacated the Suburb L property, the wife received a telephone call from a police officer at the Suburb FF Police Station, who enquired about the Father’s whereabouts, his car and whether Father was employed.
The Police officer referred to a notification of concern for the Father’s welfare as they had received report of a concerning Facebook post. The Mother looked at the Father’s Facebook page, and she attached a post dated 23 March 2019 to her affidavit. After reading the Facebook post by the Father, the Mother telephoned the relevant Police Station and was told by the Police officer:
Mr Soler has been taken to the emergency Department at Town K Hospital, we had an ambulance take him.
The Father asserts that on Saturday, 23 March 2019, following a conversation between himself and a friend of his, Ms GG, a trained nurse, Ms GG:
… full well understanding that I was in a crisis situation with my BPD, made a decision to call Police for her concern for my welfare. I told Ms F that I was at home when in fact I had driven down to Town HH to where my Mum’s ashes were spread. At this time, I had no idea Ms F had called police or that the police had called Ms Rosenberg looking for me.
I arrived home closely followed by a police car, I spoke with police telling them my situation and my fears, and agreed that I would go to the hospital on my own accord.
Due to shortage in bed [sic] at Town K Hospital, I was released in the early hours of 24 March 2019.
The Father was admitted at 10:15pm and was discharged from the hospital at 2:32am on 24 March 2019.
As noted above from the records from Medical Centre P, on 25 March 2019 the Father attended at his local GP Dr W, and advised the GP:
…that for some reason I was not coping.
The GP provided the Father with a letter for admission to Town K Hospital.
Later that evening the Father was again admitted to Town K Hospital Mental Health Service Psychiatric Emergency Care Centre:
…after it was discovered that my prescribed dosage of Zoloft was double that of what is considered the limit.
The Father remained an inpatient there until he was discharged on 28 March 2019. During his admission, according to the hospital records, the Father admitted that his:
…last attempt to commit suicide was a month ago when he tried to overdose himself with 800mg of Zoloft.
The records also state that the Father was:
…currently in crisis due to relationship problems.
On the day that he was discharged from hospital, the Father attended at the maternal grandparents’ home at 1:20pm and advised the Mother that he was intending on spending time with [Y], and collecting [X] from her Kindergarten. The Mother objected, but the Father insisted that he was:
…coming back at 2:30pm to get [Y] and pick up [X] from school and you can’t stop me. You stopping me is illegal. I have co-parenting rights.
The Mother further asserts that the Father said to her:
Call me when I can see my kids, you can’t stop me. If there was something wrong in my head I wouldn’t have been discharged.
The Father did not return to the maternal grandparents’ home that day and [X] was collected from her Kindergarten by the Mother and maternal grandmother.
In his affidavit of 27 June 2019, at paragraph 24, the Father deposes:
Since the End of March I had reduced my alcohol consumption to almost nothing.
Procedural History
The Mother commenced these proceedings by filing her Initiating Application on 3 April 2019 and seeking leave for short service, being alarmed by the Father’s recent behaviours, several admissions to Town K Hospital for mental health issues and his statements to her that he would be spending time with the children and that she could not stop him.
The Father was served with the Mother’s Initiating material on 9 April 2019.
The matter came before the Court on first return on 11 April 2019. The parties entered into the consent orders referred to above and the matter was listed for an interim hearing on 28 June 2019.
An order was made for the parties to attend a Child Dispute Conference on 25 June 2019, and an order was made appointing an Independent Children’s Lawyer to represent the children.
Following the making of the interim orders on 11 April 2019, the Father commenced spending time with the children for three hours each Sunday and two hours each Wednesday, pursuant to the interim orders made by consent between the parties. This was originally supervised by the Father’s aunt Ms E, and then on Ms E departing for overseas for six weeks, supervised by his cousin, Ms F.
On 7 May 2019, the Father contacted the Mother’s solicitors and advised that Ms F was no longer able to supervise his Sunday time with the children and that he sought to arrange agreement as to alternate supervisors. No agreement was reached, and the Father’s time with the children pursuant to the interim orders did not occur on Sunday 12 May 2019.
On 15 May 2019, the Mother received a text message from Ms F advising that she had:
… decided that I will no longer be supervising Mr Soler’s visits due to his continued poor behaviour towards me – his inexcusable screaming explosions towards me and hanging up on me, not to mention his text messages. . . . this behave [sic] can’t and won’t be tolerated. Please note: I have not advised Mr Soler formally and don’t intend to do so as I no longer want or welcome communication with him.
The Mother attaches a print copy of the text message to her affidavit.
The Father’s Evidence
On 15 May 2019, the Father commenced a relationship with Ms C. Ms C provided an affidavit relied on by the Father at the interim hearing. She is a single parent and has three daughters. She deposes that she is prepared to supervise visits for the Father with the children, if needed. She further deposes:
I have been required to undergo a “National Police History Check” and a “Working with Children Check” clearance as part of my role with Employer II.
The Father relied on an affidavit by his sister, Ms B. She deposes:
My home is a safe environment and I am prepared to supervise visits for Mr Soler with his daughters and host them in my home, if needed.
I own a 3-bedroom house with room to accommodate them, if required.
I have been required to undergo a “National Police History Check”, clearance as part of my role with the (omitted).
The Father relied on an affidavit by Ms D, a family friend of the Father since July 2000. Ms D deposes:
My home is a safe environment and I prepared to supervise visits for Mr Soler with his daughters and host them in my home, if needed.
I have room to accommodate them, if required.
I have been required to undergo a “National Police History Check”, “Working with Children” and a “Working with vulnerable people” clearance as part of my role with the (omitted).
On 16 May 2019, the Father attended Town K Private Hospital and had gastric sleeving surgery.
The Father deposes in paragraphs 15 and 16 of his affidavit of 27 June 2019 that:
Since last orders I have seen my daughters a total of 18 hours out of the allowed 50 hours of the orders.
My Auntie and Cousin have ceased all contact with me.
The Father then gives evidence in relation to his efforts to negotiate acceptable alternate supervisors with the Mother through her solicitors, with no success.
The affidavit of the maternal grandfather, Mr Rosenberg, narrates an incident on 13 May 2019 at JJ Recreational Club where there was a short verbal exchange between the Father on one side, and the maternal grandfather and his daughter Kirsty on the other side, over an assertion by Kirsty that the Father was taking a photo of her and Mr Rosenberg drinking.
The Father is asserted to have said:
Come outside and sort it out.
In relation to this incident, the Father relied on an affidavit of Mr Q, filed at the interim hearing with leave of the Court. As I find that this incident bears no relation to matters of risk and has minimal, if any, relevance in the matter, I will not summarise the evidence.
On 23 May 2019, Mr Rosenberg (the maternal grandfather) was to supervise the Father’s time with the children for [Y]’s birthday, pursuant to the interim orders. Mr Rosenberg did not do so, and deposes that he:
…was uncomfortable with Mr Soler’s allegations made about me and my family and his interactions with me at JJ Recreational Club on 13 May 2019.
In paragraph 11 of his affidavit, Mr Rosenberg deposes:
Recently, I was at home with Ms KK, [Y] and [X] before Ms Rosenberg got home from work. We were in the kitchen and I was present when [X] said to my wife words to the effect:
I love my daddy.
In the Father’s affidavit sworn or affirmed 13 May 2019, he makes a number of allegations about the Mother which, on their face, assert risk relating to mental health issues, failing to maintain prescribed medication regime for herself and exposing the children:
…to alcohol and parties at her parent’s place.
The Father does not present any evidence to substantiate the allegations, they being assertions made by him without any foundation of facts.
A print of a text message attached as an annexure “A” to the affidavit contains no material whatsoever that is foundation to any of his assertions.
The Child Dispute Conference Memorandum to the Court
The parties attended a Child Dispute Conference with Family Consultant Ms LL (“the Family Consultant”) on 25 June 2019. The Family Consultant provided the CDC Memorandum on that date.
The CDC Memorandum notes that at the Conference, the Mother proposed that the children spend only supervised time with their Father, to occur for three hours twice a week. The Mother indicated that she does not object to the children spending more frequent time with their Father as long as the time is supervised.
At the conference, the Father proposed that the children spend equal time with each parent in a week about arrangement, and that the time start with the children spending some afternoons in his home.
The CDC Memorandum notes that the Mother expressed fear of the Father due to his yelling at her during the relationship and his previous threats to:
…kill or harm himself and claimed that, at these times, the look in his eye is as if he is going to kill her.
The Father denied being threatening towards the Mother. The Mother claimed that the Father drank alcohol excessively during the relationship on an escalating basis until just before their separation. The Father acknowledged excessive alcohol use during the relationship and attributed this to his unhappiness with the Mother and to his Borderline Personality Disorder which was diagnosed in December 2018.
In relation to risk, the CDC Memorandum notes that the Mother said that she was concerned about the children being exposed to the Father’s threats of self-harm or suicidality, and about him potentially behaving irrationally around the children if they are with him when he is feeling depressed. The Father said that his main concern about the children was that they were spending very little time with him.
At the Child Dispute Conference, both parents acknowledged some issues with mental health. The Mother advised that she suffers from Obsessive Compulsive Disorder (“OCD”) due to a trauma she experienced as a young adult. The manifestation is her washing her hands more frequently than others and being slightly phobic about germs. She insisted that her OCD has not affected the children.
The Father advised that he has followed recommended advice regarding his Borderline Personality Disorder and that he was awaiting the start of a Dialectical Behavioural Program as part of a clinical trial with University T.
The Mother told the Family Consultant that she wants to promote the children’s relationship with their Father, but described him as:
…an uninvolved Father who took little notice of the children.
The Mother advised that she did not like seeing the Father at changeover.
The Mother also told the Family Consultant:
…that the children seem happy to spend time with Mr Soler but believes that this is partly due to the activity or wanting to also spend time with supervisor.
The Mother advised that the children do ask for their Father occasionally, but that:
…they do not seem to greatly miss him.
The Family Consultant further noted:
She implied the children do not have a very close relationship with their Father.
This expression of opinion by the Mother cannot, on the current state of the evidence after interim hearing, be attributed to any particular motivation on her part, but would seem to call for the making of effort to ensure the improvement of the relationship between the Father and the children, rather than being taken as a reason to minimise that relationship.
The Father told the Family Consultant that he agreed to supervision in the interim orders at the first mention so that he could spend time with the children, but that he did not believe that any supervision is necessary.
It is worth commenting here that at the interim hearing, the Father advised the Court in his submissions that he was then accepting of supervision as necessary at the time while he undertook the program of therapy to address his issues arising from his Borderline Personality Disorder.
Importantly, from the “Future directions” comments in the Memorandum to Court, I note the following:
(a) If the children are longing for Mr Soler, as he described, it would be very stressful for them to not have predictable and regular parenting arrangements in place for spending time with him.
(b)It is not clear how much importance Ms Rosenberg places on the children’s relationships with Mr Soler. If the relationships are not strong, then it is still important for regular and predictable time to occur, as extended and inexplicable (to the children) gaps will likely further impinge on the development of these relationships.
(c)As the issues raised by Ms Rosenberg potentially involve a high level of risk to the children at a vulnerable stage of development, it may be better the time spent with Mr Soler is supervised, at least on an initial basis. This may be best carried out by a trained contact supervisor, at a Contact Centre. Contact Centres often have waiting lists of several months, so an alternative option is for contact supervision to occur in the community, by a suitable agency.
(d) It is considered beneficial for the children if they can start spending regular time with Mr Soler as soon as possible.
(e)Both parents may benefit from attending a parenting-after-separation course.
In the material produced under subpoena by NSW Police Force is a COPS entry for 19 February 2019, tendered into evidence by both the Mother and the Father and marked as Exhibit A1 and Exhibit R2.
The Police attended upon the Mother at her parents’ home at Suburb V on 19 February 2019 to take a complaint about the Father, arising from the argument between them at the Suburb L property on 18 February 2019.
This argument resulted in them both agreeing that their relationship had broken down. The Mother described to police a verbal argument between the parties, with no violence, after which they:
…separated and went to sleep for the night.
The entry continues:
The following morning being Tuesday, 19 February 2019 [the Mother] has attended her parents address and informed them of the incident. After consultation with an off duty police officer [the Mother] has contacted under the belief that if she reported the matter to police, that police would instantly generate an AVO application. Attending police advised [the Mother] that this was not the case and at this stage police had insufficient grounds to make an application. [The Mother] was clearly not happy with the response of police. Further enquiries revealed that [the Mother] wishes to separate from [the Father] and wanted to utilise the AVO as a means to stop all of [the Father] contact with herself or the children. Police advised [the Mother] that if she wanted full custody of the children then she would need to lodge an application with the family law court. Police further advised [the Mother] of the various domestic violence support services available to her. [The Mother] further outlined that she believed [the Father] was of no threat to her or the children but stated her biggest fear was if he attended the location and removed the children. Police explained to [the Mother] that unless family law court orders are in place each biological parent has 50/50 parental responsibility of the children. …. Fears held by [the Mother]: That [the Father] may attended her parents address or the [children’s] school and remove the children. Fears held by Police: Nil.
The next day, 20 February 2019, a further COPS entry tendered into evidence by both the Mother and the Father narrates an occasion of the police contacting the Mother for “follow-up” purposes and relays:
[The Mother] explained that [the Father] often swears at her and is quite nasty towards her with his words but has never threatened to harm her or the children, nor has he ever laid a hand on her. [The Mother] explained that whilst [the Father] is aggressive, he is not in close enough proximity to be “in her face” or stand over her.
The police narrative states:
[The Mother] seemed largely concerned with how she was able to prevent [the Father] from being able to take custody of the children and was unhappy when told that in the absence of family law court orders both parents have a right to see the children.
Submissions
Other than some incidents of minor relevance and weight, such as the incident at the recreational club on 13 May 2019, this is not a case where on interim hearing there is a mass of disputed evidence. The Father made abundantly clear in his submissions at the interim hearing that he accepts the validity of the diagnosis that he suffers from a Borderline Personality Disorder and that he must undergo therapy and treatment to enable him to manage his mental health issue.
The Mother presents this matter as a risk case consequent upon the Father’s mental health issues, which have led him into not only suicidal ideation, but also a recent suicide attempt. The Father’s misuse of alcohol, which in subpoena documents indicate he has also accepted as a fact, presents another risk element.
In her submissions, the Independent Children’s Lawyer also asserted that the husband presented a risk to the children consequent upon his mental health issues, his tendency towards misuse of alcohol and, particularly, his suicidal ideation.
The Father has taken steps to engage in appropriate therapies for his Borderline Personality Disorder, but those therapies may not start for another several months and thereafter will take no less than 12 weeks, and possibly up to 28 weeks. When the Father is under stress for any reason, as he certainly was at the time of the breakdown of his relationship with the Mother in late 2018, and in the early months of 2019, he becomes particularly susceptible to depression, anxiety and dangerous thoughts of self-harming.
The Independent Children’s Lawyer submitted that, in her view, it was premature for the Father to spend unsupervised time with the children, as the Father is at the start of his program of therapy. The Independent Children’s Lawyer submitted that any success to be achieved in the Father’s management of his mental health issues can’t be assessed until the program is completed.
The Independent Children’s Lawyer submitted there was concern arising from the evidence of one of the supervisors named in the interim orders made on 11 April 2019 now refusing to act as a supervisor for the Father’s time with the children due to the Father’s behaviour toward her, and the Father’s own evidence in his affidavit of 27 June 2019 that both supervisors named in those orders “have ceased all contact with me.”
The Independent Children’s Lawyer submitted that as there was no evidence before the Court of the Father receiving any treatments while he was waiting to start the therapy program, there was therefore a risk that the Father may become stressed by one of a range of possible factors, and if in that condition he was spending time with children on an unsupervised basis, it could expose the children to the Father in circumstances of his possible excessive consumption of alcohol, inappropriate social behaviour or even suicidal ideation or attempt.
The Independent Children’s Lawyer submitted, in line with the recommendations of the Family Consultant in the CDC Memorandum, that the best interests of the children require that their time with their Father recommence on a supervised basis and progress by way of increases hand-in-hand with the progress of his therapy and treatment.
When the Father came to make submissions at the hearing, he began by indicating that he was no longer opposed to orders providing for supervised time with the children, and that he proposed that his time with the children be both supervised at a children’s Contact Centre and that he have time with the children supervised by family members and friends who had provided the affidavits relied upon by him at the interim hearing, and by the maternal grandfather.
It should be noted that each of Ms C, Ms D and Ms B put themselves forward as suitable supervisors for the Father’s time with children, but none deposed to knowledge of the Father’s mental health issues.
The Father stressed that the evidence shows that he is a person who seeks appropriate medical help, self-identifies that his mental health is deteriorating, and that his mental health issues are, in effect, out there for all to see as he voices them openly and often.
In submissions on behalf of the Mother, Ms Youssef asserted that the Mother wants the children to resume their relationship with the Father, but that there are risk factors presented by the Father that dictate that the time between Father and children needs to be appropriately supervised until such time as the risk has been addressed by the Father undergoing and completing appropriate therapy and treatment.
In the course of her submissions, Ms Youssef referred to at least two places in the subpoena documents where the description “bipolar” was used in association with the Father, but she acknowledged that there was no record showing that a specific diagnosis to that effect had ever been made in relation to the Father.
Ms Youssef indicated that the Mother was not in agreement with the Father’s time with children being supervised by any of the family or friend supervisors put forward by the Father, particularly on the basis that there was no evidence that any of them were aware of the Father’s mental health issues. In relation to the Father’s proposal that his sister and his Father be supervisors, Ms Youssef referred to notes in the medical records where it had been recorded, on the basis of a narrative from the Father, that the Father had:
…a poor relationship with Father and sister.
And:
…the Father was alcoholic.
In relation to any costs associated with supervision of the Father’s time with the children either at a children’s Contact Centre, or by a commercial agency, Ms Youssef submitted that the Mother was not in a financial position to assist with the cost of such supervision. I note that there was no specific evidence as to either party’s current financial position before the Court.
Following submissions, I asked the Father if he would consider consulting his GP to obtain a referral to a clinical psychologist so as to be able to commence immediate treatment under, perhaps, a mental health plan. The Father responded that he had formed a relationship of trust with the Clinical Psychologist Mr R and that he believed that for successful therapy and treatment he would need to be engaged with a therapist with whom he felt comfortable.
The Legislative Pathway
The Full Court and High Court have authoritatively discussed the approach to be followed in interim parenting hearings by reference to the legislative pathway.[1]
[1] See Goode & Goode (2006) FLC 93-286; Marvel [2010] FamCAFC 101; MRR & GR [2010] HCA 4.
In Goode & Goode,[2] the Full Court suggested that in an interim application relating to parenting issues, the Court should follow the framework set out in paragraphs 81 and 82 of that judgment:
[81] In making interim decisions the Court will still often be faced with conflicting facts, little helpful evidence and disputes between the parents as to what constitutes the best interests of the child. However, the legislative pathway must be followed.
[2] Goode & Goode (2006) FLC 93-286.
[82] In an interim case that would involve the following:
(a)Identifying the competing proposals of the parties;
(b)Identifying the issues in dispute in the interim hearing;
(c)Identifying any agreed or uncontested relevant facts;
(d)Considering the matters in s 60CC that are relevant and, if possible, making findings about them (in interim proceedings there may be little uncontested evidence to enable more than a limited consideration of these matters to take place);
(e)Deciding whether the presumption in s 61DA that equal shared parental responsibility is in the best interests of the child applies or does not apply because there are reasonable grounds to believe there has been abuse of the child or family violence or, in an interim matter, the court does not consider it appropriate to apply the presumption;
(f)If the presumption does apply, deciding whether it is rebutted because application of it would not be in the child’s best interests;
(g)If the presumption applies and is not rebutted, considering making an order that the child spend equal time with the parents unless it is contrary to the child’s best interests as a result of consideration of one or more of the matters in s 60CC, or impracticable;
(h)If equal time is found not to be in the child’s best interests, considering making an order that the child spend substantial and significant time as defined in s 65DAA (3) with the parents, unless contrary to the child’s best interests as a result of consideration of one or more of the matters in s 60CC, or impracticable;
(i)If neither equal time nor substantial and significant time is considered to be in the best interests of the child, then making such orders in the discretion of the court that are in the best interests of the child, as a result of consideration of one or more of the matters in s 60CC;
(j)If the presumption is not applied or is rebutted, then making such order as is in the best interests of the child, as a result of consideration of one or more of the matters in s 60CC; and
(k)Even then the court may need to consider equal time or substantial and significant time, especially if one of the parties has sought it or, even if neither has sought it, if the court considers after affording procedural fairness to the parties it to be in the best interests of the child.
As is made evident in the cases, and in particular in Goode & Goode, the statutory pathway applies in interim as well as in final hearings. However, in interim proceedings, the Court should be cautious in making findings of fact where there is contested evidence.
I have identified already in these reasons the competing proposals of the parties, issues in dispute in interim hearing, and commented on the extent of the agreed or uncontested relevant facts.
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, and the principles behind those objects. I have considered those objects and the principles behind those objects in formulating these reasons and the parenting orders that result.
Section 60CA of the Act provides that in deciding whether to make a particular parenting order in relation to a child, a Court must regard the best interests of the child or children as the paramount consideration.
Section 60CC of the Act provides that in determining what is in the child’s best interests, the Court must consider the primary considerations set out in subsection (2), noting the weighting requirement in subsection (2A), and the additional considerations set out in subsection (3).
Section 61DA(3) 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. However, the presumption does not apply if there are reasonable grounds to believe that a parent has engaged in abuse of the child or family violence. When the Court is making an interim order, the presumption applies unless the Court considers that it would not be appropriate in the circumstances for the presumption to be applied when making that order.
Pursuant to section 65DAA, if the presumption of equal shared parental responsibility in relation to the child applies, and is not rebutted, the Court must first consider whether the child spending equal time with each of the child’s parents would be in the best interests of the child and reasonably practicable, and if it is so in the best interests of the child and reasonably practicable, consider making an order for the child to spend equal time with each of the parents.
If equal time is found not to be in the child’s best interests, or impracticable, or is found to be in the child’s best interests and practicable, but the Court considers and rejects equal time with each parent, as a result of consideration of one or more of the matters in section 60CC, then the Court must consider making an order that the child spends substantial and significant time (as defined in section 65DAA(3)) with the parent with whom the child does not live, on the same triple-step basis as for the consideration of equal time.[3]
[3] See MRR and GR [2010] HCA 4.
Under the combination of sections 60CA, 60CC, and 65D, if neither equal time nor substantial and significant time is considered to be in the best interests of the child, or is impracticable, or are considered to be in the best interests of the child and practicable, but the Court, after considering making such an order does not do so, the Court may make such orders in the discretion of the Court as it thinks proper, being orders that are in the best interests of the child, as a result of consideration of one or more of the matters in section 60CC.
The process is one involving the exercise by the Court of a judicial discretion.
As was said in the joint judgment of the High Court in Bondelmonte v Bondelmonte:[4]
[32]A parenting order made under s 65D involves the exercise of a judicial discretion because it is made by reference to a paramount consideration of a general kind, the best interests of the child, which involves an overall assessment of a number of other considerations, either statutorily prescribed or considered by the court to be relevant. The primary considerations in s 60CC(2) are matters to be borne in mind as consistent with the objects of Pt VII. The additional considerations in s 60CC(3) require assessments of the matters there listed by reference to the circumstances of the case. They involve value judgments in respect of which there may be room for reasonable differences of opinion [Norbis v Norbis (1986) 161 CLR 513 at 518], as does the overall assessment of what is in the best interests of the child.
[4] Bondelmonte v Bondelmonte (2017) 259 CLR 662.
In relation to the considerations in section 60CC, the Full Court said in Banks v Banks:[5]
[47] As the Full Court pointed out in Goode, the fact there will often be little uncontested evidence in interim proceedings means that only limited consideration may be able to be given to the relevant s 60CC factors.
[48] It should also be said that in parenting proceedings, as in all civil litigation, it will be the issues that are joined that will dictate which s 60CC factors are relevant. By their nature, interim parenting proceedings should be confined to those issues which, in the best interests of the child, require determination prior to a proper determination at a trial. The fact such disputes are commonly dealt with in overcrowded court lists makes it even more desirable to identify with precision those issues which can, or should, be resolved on an interim basis.
[49] Although the primary judge discussed all the potentially relevant factors in her ex tempore reasons, that luxury will not always be available. Furthermore, there is a risk that in discussing every s 60CC factor, the judicial officer may lose sight of the forest for the trees. It is also important to stress here that the requirement to “consider” each factor does not mean each must be discussed, especially where the evidence leads inexorably to a particular conclusion: SCVG & KLD (2014) FLC 93-582.
[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. Moreover, it will be a sterile exercise to determine whether or not particular facts are disputed if they are relevant only to one of the non-determinative s 60CC considerations. Properly understood, we do not interpret what was said in Goode as meaning that in an interim case, each and every fact must be characterised as disputed or not; and that each s 60CC factor must be traversed where it is obvious on the facts and issues joined that there are only one or two decisive factors.
[5] Banks & Banks (2015) FLC 93-637, at paragraphs 47 to 50.
I will consider the relevant section 60CC considerations, then give attention to the requirements of section 61DA in relation to parental responsibility and what may flow from that on the legislative pathway, then consider and discuss the issues in this interim hearing, all in the light of my considerations of section 60CC.
The Primary Considerations
Section 60CC(2) sets out the primary considerations the Court must consider when determining what is in a child’s best interests. The first is the benefit to the child of having a meaningful relationship with both of the child’s parents and the second is the need to protect the child from physical or psychological harm from being subjected to, or exposed to, abuse, neglect or family violence.
Sub-section 60CC(2A) mandates that in applying the primary considerations, the Court is to give greater weight to the need to protect the child over the benefit of the child of having a meaningful relationship with both of the child’s parents.
The benefit of the child of having a meaningful relationship with both of the child’s parents.
What is meant by a “meaningful relationship” in section 60CC(2)(a) has been the subject of a number of leading cases.
In Mazorski & Albright[6] Brown J considered ordinary definitions of the term “meaningful” and observed:
[26] What these definitions convey is that “meaningful”, when used in the context of “meaningful relationship”, is synonymous with “significant” which, in turn, is generally used as a synonym for “important” or “of consequence”. I proceed on the basis that when considering the primary considerations and the application of the object and principles, a meaningful relationship or a meaningful involvement is one which is important, significant and valuable to the child. It is a qualitative adjective, not a strictly quantitive one. Quantitive concepts may be addressed as part of the process of considering the consequences of the application of the presumption of equally shared parental responsibility and the requirement for time with children to be, where possible and in their best interests, substantial and significant.
[6] Mazorski & Albright (2007) 37 FLR 518.
Kay J sitting in the appellate jurisdiction of the Court as a single judge in Godfrey & Sanders,[7] an appeal involving an application by a mother to relocate, agreed with Dessau J’s in M & S (formerly E)[8] and said at paragraph 33:
[33] The Act sets out in s 60CC several matters for the Court to consider in determining what is in the child’s best interests but does not seek to mandate that any one or other matter becomes determinative in any particular case. For the purposes of this case the legislation requires that there be a primary consideration given to the benefit of the child of having a meaningful relationship with both of the child’s parents but it does not purport to prescribe how that meaningful relationship is best promoted in the circumstances of any one case.
[7] Godfrey & Sanders (2007) 208 FLR 287.
[8] M & S (formerly E) (2007) FLC 93-313.
Later, at paragraph 36, his Honour said:
[36] It seems to me that the final conclusion reached by the Federal Magistrate that the proposed relocation would jeopardise the relationship between the children and their father to an unacceptable extent was not at all consistent with the evidence that was before the Federal Magistrate. Even if the move results in a diminution of quality of the relationship, what the legislation aspires to promote is a meaningful relationship, not an optimal relationship.
In Tait & Densmore,[9] Cronin J considered the distinction made by Kay J in Godfrey & Sanders between an optimal relationship and a meaningful relationship and said at paragraph 170:
[170] Kay J distinguish between the optimal relationship and the meaningful relationship. The distinction is clear. An optimal relationship is one which is second to none, unmatched and unequalled. That cannot be what the legislation intended. To be a meaningful relationship, it must be healthy, worthwhile and advantageous to the child. Those adjectives mean that the children need their parents to lead by example about self-discipline. Children need to learn to develop the ability to relate to others. They need to learn about the privileges and responsibility which will devolve upon them as parents. Those are fundamental parts of the meaningful relationship.
[9] Tait & Densmore [2007] FamCA 1383.
In McCall & Clark,[10] after referring to the matters quoted above from Kay J in Godfrey & Sanders, the Court said:
[10] McCall & Clark (2009) FLC 93-405.
[118] It appears to us that there are three possible interpretations of s 60CC(2)(a):
(a)one interpretation is that the legislation requires a court to consider the benefit to the child of having a meaningful relationship with both of the child’s parents by examination of evidence of the nature of the child’s relationship at the date of the hearing, to make findings based on that evidence, which findings will be reflected in the orders ultimately made (“the present relationship approach”);
(b)a second interpretation is that the legislature intended that a court should assume that there is a benefit to all children in having a meaningful relationship with both of their parents (“the presumption approach”); and
(c)the third interpretation is that the court should consider and weigh the evidence at the date of the hearing and determine how, if it is in a child’s best interests, orders can be framed to ensure the particular child has a meaningful relationship with both parents (“the prospective approach”).
[119] We conclude that the preferred interpretation of benefit to a child of a meaningful relationship in s 60CC(2)(a) is “the prospective approach” although, depending upon factual circumstances, the present relationship approach may also be relevant. We note however that s 60CC(3)(b) requires a court to explore existing relationships between a child and his or her parents and other persons, including grandparents. If the interpretation we have set out in (a) above were exclusively applied, that interpretation would limit a court making appropriate orders in circumstances where a significant relationship had not been established between a child and a parent at the date of trial.
[120] We reject the interpretation in sub-paragraph (b). In our view if the legislature intended to elevate the benefit to a child of a meaningful relationship to a presumption it would have said so in clear and unambiguous language.
[121] In coming to our conclusions we accept as appropriate the interpretation of “meaningful relationship” set out by Brown J in Mazsorski. Consistently with our conclusions we also agree with the reasoning of Bennett J in G & C.
[122]In reaching these conclusions, we also consider the legislation requires a court to focus on the benefit to the child of a meaningful or significant relationship. No doubt in the majority of cases there will be a positive benefit to a child of having a significant relationship with both parents, but there will also be some cases where there will be no positive benefit to be derived by a child by a court attempting to craft orders to foster a relationship with one parent if this would not be in the child’s best interests.
It is beyond contest that the children have a meaningful relationship with their Mother that is a close and loving relationship. Though the Father included material in both of his affidavits filed to date suggesting that there are matters in the Mother’s care of the children amounting to risk factors, the Father did not present any evidence to substantiate those assertions. None of them can even begin to cause question in relation to the Mother’s relationship with children. The Mother is their primary carer and there is nothing in the evidence to date to indicate that it has ever been otherwise.
An order was made by consent on the interim basis at the first mention on 11 April 2019 that the children live with the Mother. It is not now contested by the Father that the order so made will continue as a result of this interim hearing. I find that the children benefit from having a meaningful relationship with the Mother and the children will continue to so benefit living with their Mother as their primary carer.
There is nothing in the evidence to indicate that the children would other than benefit from having a meaningful relationship with their Father so long as the risk factors inherent in that relationship on the evidence are addressed, and they can be addressed by appropriate orders.
The mother conceded to the Family Consultant at the Child Dispute Conference that:
The children seem happy to spend time with Mr Soler.
The Family Consultant then went on to qualify that opinion by indicating that she believed that same was partly due to the activity or wanting to also spend time with the supervisor. At the relevant times the supervisors were either the Father’s Aunt, Ms E, or the Father’s cousin, Ms F.
No evidence is presented by the Mother in her affidavit, sworn by her on 6 June 2019, of any special relationship between either of the children and either of those supervisors so as to explain her “belief”, nor is there evidence of why the activities engaged in by the Father with the children during their time together under the initial interim orders were such as to entice the children to be happy spending the time with their Father more due to that activity than the fact that they were with their Father.
When one considers the material in the NSW Police Force COPS entries quoted earlier in these reasons it may be that the “belief” expressed by the Mother to the Family Consultant as to why the children were happy to spend time with their Father was a statement more in pursuance of her own case than an actual belief. At this stage of the evidence I am not in a position to make a finding in that regard.
To the Family Consultant, the Father described himself as having:
…a close relationship with the children and said that, on the occasions that they have spent time with him, they cry and cling to him, when it is time to go.
There is no evidence before the Court to contradict this assertion.
I suggest with perhaps a little judicial courage that the Court can now take judicial notice of the social science teaching that when children do not have a meaningful relationship with both of their parents as they grow up to mid-teen maturity, it can have a detrimental effect on their own ability to form and sustain close personal relationships in their future.
Despite the risk factors already referred to and elaborated upon below, in my consideration of the second primary consideration in section 60CC(2), those risks can be addressed by appropriate orders. There is nothing in the evidence to suggest that the children will other than benefit from having a meaningful relationship with their father and for that meaningful relationship to be an ever developing, close and loving relationship. In their best interest they are entitled to that relationship.
The need to protect the child from physical or psychological harm from being subjected to, or exposed to, abuse, neglect or family violence.
The second of the primary considerations is the need to protect the children from physical or psychological harm from being subjected to, or exposed to, abuse, neglect or family violence.
Though not all risks to the best interests and welfare of the child come under the heads of abuse, neglect or family violence, it is under this consideration that all aspects of risk are conveniently examined and evaluated as being real as proven to the required standard, or as being probable.
If found on either basis, the level of risk or probability of risk must be assessed as acceptable or unacceptable and, if unacceptable, as to whether or not such risk can be appropriately addressed so as to facilitate the meaningful relationship or any relationship between child and parent (or person) presenting that risk.
In M & M,[11] at paragraphs 24 and 25 the High Court said, when dealing with the concept of risk in parenting proceedings:
[24] In resolving the wider issue the court must determine whether on the evidence there is a risk of sexual abuse occurring if custody or access be granted and assessing the magnitude of that risk. After all, in deciding what is in the best interests of a child, the Family Court is frequently called upon to assess and evaluate the likelihood or possibility of events or occurrences which, if they come about, will have a detrimental impact on the child's welfare. The existence and magnitude of the risk of sexual abuse, as with other risks of harm to the welfare of a child, is a fundamental matter to be taken into account in deciding issues of custody and access. In access cases, the magnitude of the risk may be less if the order in contemplation is supervised access. Even in such a case, however, there may be a risk of disturbance to a child who is compulsorily brought into contact with a parent who has sexually abused her or whom the child believes to have sexually abused her. But that is not the issue in this case.
[25] Efforts to define with greater precision the magnitude of the risk which will justify a court in denying a parent access to a child have resulted in a variety of formulations. The degree of risk has been described as a "risk of serious harm" (v A [1976] VR 298 at 300, "an element of risk" or "an appreciable risk" (In the Marriage of M (1987) 11 Fam LR 765 at 770 respectively), "a real possibility" (B v B (Access) [1986] FLC 91-758 at 75,545), a "real risk" (Leveque v Leveque (1983) 54 BCLR 164 at 167), and an "unacceptable risk" (Re G (a minor) [1987] 1 WLR 1461 at 1469). This imposing array indicates that the courts are striving for a greater degree of definition than the subject is capable of yielding. In devising these tests the courts have endeavoured, in their efforts to protect the child's paramount interests, to achieve a balance between the risk of detriment to the child from sexual abuse and the possibility of benefit to the child from parental access. To achieve a proper balance, the test is best expressed by saying that a court will not grant custody or access to a parent if that custody or access would expose the child to an unacceptable risk of sexual abuse.
[11] M & M(1988) FLC 91-979.
The Full Court in A & A & The Child Representative[12] said that:
[3.23] The task which his Honour was required to perform was to determine whether the evidence was such as to establish that there would be an unacceptable risk to the children if they were to have contact or supervised contact with the husband. The basis of that is that if there were an apprehension that the husband was the perpetrator of this violent assault that, together with the profile of such an assailant referred to in Dr Waters' evidence, to which we will refer later, may cause the Court to conclude that future contact by the father to these young children, at least unless strictly supervised, will carry with it a risk that he may act in a similarly irrational and violent way towards them. This is aside altogether from the question of its effect upon the wife. The concentration here is upon the welfare and safety of the children. In reaching a conclusion on that issue, it is necessary for the Court to form some opinion about the connection between the assault and the husband. It would not be necessary in this exercise to reach a positive conclusion that he was the assailant. On the other hand, if the Court reached a comfortable conclusion that the husband was not the assailant, that would be likely to have a profound effect upon the approach to the question of contact.
[3.24] In cases of this sort often it is not possible for the Court to form a positive view at one end or the other end of this scale of persuasion and it is not necessary for it to do so: see the discussion in N and S (1996) FLC 92-655. The term identified by the High Court in M and M of "unacceptable risk" provides the touchstone for such an enquiry. Usually they are sexual abuse or similar cases, but this approach includes cases of the type identified here which involve the assessment of the risk of future physical and/or emotional harm: see M and M, supra, CLR at 77 referred to above.
[3.25] Here the primary question which his Honour should have addressed was, looking at the whole of the evidence, whether contact (or at least contact which was not strictly supervised) might expose the children to an unacceptable risk because, although it is almost impossible to quantify in any precise way, it may place those children in circumstances of potential jeopardy in the future in their father's care.
[12] A & A & The Child Representative(1998) FLC 92-800.
Murphy J in Harridge & Anor & Harridge,[13] at paragraph 73, quoted an article by B. Mahendra, a British psychiatrist and barrister entitled “Psychiatric Risk Assessment in Family and Child Law” and provided a helpful list for trial judges for determining matters where unacceptable risk is raised:
[13] Harridge & Anor & Harridge[2010] FamCA 445.
(a) What harmful outcome is potentially present in this situation?
(b) What is the probability of this outcome coming about?
(c)What risks are probable in this situation in the short, medium and long term?
(d)What are the factors that could increase or decrease the risk that is probable?
(e)What measures are available whose deployment could mitigate the risks that are probable?
At paragraph 56 of their judgment the Full Court in Napier & Hepburn[14] referred extensively to the judgment of Fogerty J in N v S[15] and emphasised that it is not for the Court to find a solution which will eliminate any chance of serious harm. Rather, it is to balance the harm that will follow if the risk is not minimised or removed, as against a normal, healthy relationship between a parent and a child not being permitted to prosper.
[14] Napier & Hepburn(2006) FLC 93-303.
[15] N v S (1996) FLC 92-655.
To go forward from an assessment of unacceptable risk to a finding that certain conduct giving rise to the assertion of unacceptable risk has actually occurred places the onus on the party asserting that the conduct has occurred to establish on the balance of probabilities that the assertion is correct. As pointed out by the Full Court in Re W; Sex Abuse (Standard of Proof),[16] the standard of proof the Court is required to apply must be towards the strictest end of the civil spectrum as set out in Briginshaw v Briginshaw,[17] noting that the appropriate reference is now to section 140 of the Evidence Act 1995 (Cth), and in particular, section 140(2)(c). Inexact proofs, indefinite testimony, or indirect inferences are insufficient to ground a finding of abuse.
[16] Re W; Sex Abuse (Standard of Proof) (2004) 32 Fam LR 249.
[17] Briginshaw v Briginshaw (1938) 60 CLR 336.
In Johnson & Page,[18] at paragraphs 62 to 72 the Full Court (May, Boland & Stevenson JJ) set out a detailed summary of the relevant law relating to unacceptable risk up to that time. I have had regard to the whole of those paragraphs of that judgment. In particular at paragraphs 68 and 71:
[18] Johnson & Page (2007) FLC 93-344.
[68] In his recent paper entitled ‘Unacceptable risk – A return to basics’ the Hon. John Fogarty A.M. set out his summary of the principles emerging from M and M as follows:
1.The decisive issue is and always remains the best interests of that child. All other issues are subservient.
2.The nature of the risk is best expressed by the term ‘unacceptable risk’. It is an evaluation of the nature and degree of the risk and whether, with or without safeguards, it is acceptable.
3.Where past abuse of a child is alleged it is usually neither necessary nor desirable to reach a definitive conclusion on that issue. Where, however, that is done the Briginshaw civil standard of proof applies.
4.The circumstance, if it be so, that the allegation of past abuse is not proved in accordance with Briginshaw, does not impede reliance upon those circumstances in determining whether there is an unacceptable risk.
5.The concentration in these cases should normally be uponthe question whether there is an unacceptable risk to the child.
6.The onus of proof in reaching that conclusion is the ordinary civil standard.
7.But the components which go to make up that conclusion need not each be established on the balance of probabilities. The court may reach a conclusion of unacceptable risk from the accumulation of factors, none or some only of which, are proved to that standard.
…
[71] We generally agree with Mr. Fogarty’s seven point summary (see paragraph 68). We assume point seven of that summary is directed to the requisite standard of proof. We think a Judge may be cautious in coming to a finding of unacceptable risk if none, rather than some only, of the accumulation of factors considered, satisfy the standard of proof (but see Malec v J C Hutton Proprietary Limited (1990) 169 CLR 638).
In Deiter & Deiter[19] at paragraph 61, the Full Court said as follows:
[61]The assessment of risk is one of the many burdens placed on family law decision makers. Risk assessment comprises two elements – the first requires prediction of the likelihood of the occurrence of harmful events, and the second requires consideration of the severity of the impact caused by those events. In our view, the assessment of risk in cases involving the welfare of children cannot be postponed until the last piece of evidence is given and tested, and the last submission is made. We accept, however, that it is always a question of degree depending on the evidence that is before the Court.
[19] Deiter & Deiter [2011] FamCAFC 82.
In SS v AH[20] at paragraph 100 the Full Court indicated, in the context of discussing the obligations of the Court whilst conducting interim children’s proceedings in circumstances where the evidence available was contradictory in nature, but nonetheless raised significant welfare concerns for the children concerned as follows:
[100]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.
[20] SS v AH [2010] FamCAFC 13.
In Eaby & Speelman,[21] the Full Court endorsed this approach as enabling:
…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.
[21] Eaby & Speelman (2015) FLC 93-654.
The Court cannot ignore child protection issues at interim hearing merely because those issues are incapable of definite resolution at the interim stage. This is the position in the matter currently before the Court.
The Father accepts that he has been diagnosed as suffering from, and does suffer from, Borderline Personality Disorder. There is little before the Court as to what that disorder entails by way of risk behaviour.
It can be accepted on the evidence that in the case of the Father, his Borderline Personality Disorder leads to angry outbursts, though not with physical violence, a tendency to abuse alcohol by overindulgence to the point where he is detrimentally affected in his ability to look after himself and inherently therefore to care for the children, and by him falling into periods of depression and anxiety, which sometimes become acute and are accompanied by not only suicidal ideation, but also on at least three occasions in his life since about 2004, by suicidal action.
I include in that finding the husband’s suicide attempt in either 2004 or 2005, depending on the evidence, his impulse to walk in front of cars or trucks, and actually walking in that manner on the roadway on … 2018, and his admitted attempted overdose with 800mg of Zoloft in early 2019.
Adopting the approach suggested by Murphy J in Harridge & Anor & Harridge, I ask what is the potential risk to the children in spending time with the Father, and what is the probability of any harm coming about?
The potential harm to the children is that they may be witness to and/or exposed to behaviour by the Father in consequence of either anger or overindulgence in alcohol that is detrimental to their social development, and even detrimental to their immediate safety in his care. Further than that, there is the potential for the Father to be prey to further suicidal ideation and even suicidal attempts before he has engaged and pursued adequately the therapy and treatment he needs, and has already planned and engaged to pursue, to manage his Borderline Personality Disorder.
If the children are in the Father’s care at this time, they can be in actual danger. That is not to say or imply that the Father would ever intend to do harm, or anything but right by his children. Nevertheless, on the evidence the risk is there of that occurring due to the Father’s mental health issues and that risk must be faced and addressed in the best interests of the children as the paramount consideration.
The risks to the children when they are in the Father’s care referred to are more possible than probable on the current evidence, but on the evidence, I find that the possibility is sufficient to present the unacceptable risk that must be addressed by appropriate orders.
The factors that would increase the risk lie mainly in whatever stress factors may affect the Father in the short, medium and long-term. On the evidence, it is under those stress factors that events have occurred as a result of the Father’s Borderline Personality Disorder.
On the evidence I find that the main stressor leading to the Father’s risk behaviour through 2018 (being his increased consumption of alcohol), and particularly in late 2018 and early 2019, was the gradual breakdown in the relationship between the Father and the Mother. That relationship of a cohabiting and close, personal, mutually supportive relationship has now broken down completely and the Father has had some time to deal with that stress, post the separation of the parties. It is hoped that the Father has a clear path to addressing his mental health issues through appropriate interventions.
In relation to the probability and possibility of the risks, I repeat that the evidence indicates that when the Father is in a period of acute mental health deterioration, he takes steps to seek appropriate help.
The measures available to mitigate the risks to the children in spending time with their Father are the making of appropriate protective orders, particularly for supervision of the Father’s time with the children until such time as he has not only completed an appropriate level of therapy for his mental health issues, but until such time when the effectiveness of that therapy can be evaluated.
I find that the Father’s Borderline Personality Disorder does present a risk to the children and given the potential of the behaviours referred to above, that risk is unacceptable. I find that the unacceptable risk can be addressed by appropriately protective orders.
The Additional Considerations
Any views expressed by the child and any factors (such as the child’s maturity or level of understanding) that the Court thinks are relevant to the weight it should give to the child’s views
[X] was five years of age at the time of the interim hearing, and [Y] was three years of age at that time. Accordingly, both children were too young for their wishes to be a factor of any weight in the matter.
Neither of the children were interviewed or observed by the Family Consultant for the CDC Memorandum because the occasion was a Child Dispute Conference, not a Child Inclusive Conference.
As referred to above, at the Conference the Mother sought to infer that the children seeming “happy to spend time with Mr Soler” was due more to their wish to participate in a particular activity or spend time with a particular supervisor rather than a wish to spend time with their father. That “belief” expressed by the mother gets no weight.
The nature of the relationship of the child with: (i) each of the child’s parents; and (ii) other persons (including any grandparent or other relative of the child)
The nature of the relationship between each of the children and their mother is a close and loving relationship.
It is somewhat more difficult to evaluate the nature of the relationship between each of the children and their father on the evidence currently before the Court, but there is no evidence of any weight that would lead me to believe that the relationship between the children and their father is in some way seriously defective or inadequate, other than the assertions by the Mother that the Father was not an attentive parent, and rather was a parent who came home from work, drank too much, went to sleep and had to be roused from sleep to assist in putting the children to bed.
Be that as it may, the Mother’s admission that the children “seem happy to spend time with” their Father, I find to be for the purposes of this interim hearing, on the very limited evidence available, a sufficient indication that the relationship between the children and their Father is also a close and loving relationship, though probably not to the same degree as that between the children and their Mother. Given the nature of the relationships between the children and each of their parents I find on the current evidence that it would be in the children’s best interests to live with their Mother and to spend time with their Father on an appropriate basis.
The extent to which each of the child’s parents has taken, or failed to take, the opportunity: (i) to participate in making decisions about major long-term issues in relation to the child; and (ii) to spend time with the child; and (iii) to communicate with the child
In relation to the extent to which each of the children’s parents has taken, or failed to take, the opportunity to participate in making decisions about major long-term issues in relation to the children, to spend time with their children and to communicate with the children, they are not considerations which have a great bearing on the decision as to what orders are best to be made with the children’s interest as the paramount consideration in this interim hearing.
This is due to the fact that the parties effectively separated in the sense only of beginning to live in different households, the children with their Mother, and the Father on his own, as at 22 March 2019, a period of only three months prior to the interim hearing. Up until that time, it is plain that the Mother was the primary carer for the children, whilst the evidence in relation to the extent of the Father’s participation in that care is one of the few areas of relevance where there is disputed evidence. The Mother asserts that the Father did not make the effort to participate with and spend time with their children, and the Father asserts that he did.
I do not have evidence on which I can make any finding about the parties’ relevant participation in making decisions about major long-term issues for the children, such as selection of day-care places, preschool places for the children and a school for [X].
I also do not have any evidentiary basis following the interim hearing on which I can make a finding as to the extent to which each of the parents succeeded or failed to fulfil their obligation to maintain the children. There is nothing in the evidence to indicate that the household was run on anything other than a “family money pool” basis during the parties’ cohabitation and their period of separation under one roof from February to March 2019. It may be inferred that both parties fulfilled their obligation to maintain the children during those periods.
Following the parties moving to live in separate residences from 22 March 2019, the Mother has necessarily been principally financially responsible for maintaining the children. I do not have any specific evidence as to the Father’s contribution to their financial support from that time.
The likely effect of any changes in the child’s circumstances, including the likely effect on the child of any separation from: (i) either of his or her parents; or (ii) any other child, or other person (including any grandparent or other relative of the child), with whom he or she has been living
The only change in the children’s circumstances likely to occur under the orders, given the Father’s concession that interim orders requiring he spend time with the children on a supervised basis are appropriate, is a change to the amount of time children spend with their Father and commensurate decreasing amount of time they are in the Mother’s care.
On the basis of the evidence outlined above and consideration of the primary considerations and the additional considerations already referred to, I find that the likely effect of such change is to benefit the meaningful relationship between each of the children and their Father, provided appropriate orders addressing the risk factors are made, without any decrease in the meaningful relationship between each of the children and their Mother. The same applies to the relationship between the children and their maternal grandparents with whom they have been residing, in company with the Mother, since 22 March 2019.
The practical difficulty and expense of a child spending time with and communicating with a parent and whether that difficulty or expense will substantially affect the child’s right to maintain personal relations and direct contact with both parents on a regular basis
In considering the practical difficulty and expense of the children spending time with and communicating with their Father, and whether the difficulty or expense will substantially affect the children’s right to maintain personal relations and direct contact with both parents, I note that these considerations will not affect the children’s right to maintain personal relations and direct contact with their Mother, but can certainly have an effect on their right to maintain personal relations and direct contact with their Father.
It is plain having come this far in these reasons that any orders made for the children spending time with their Father will for some time be on a supervised basis. Pursuant to the interim orders agreed by consent between the parties and made on 11 April 2019, the Father’s supervised time with the children was to be supervised by family members of the Father’s and, for an occasion, by the maternal grandfather. That did not work out. The supervisors withdrew their agreement to supervise, and the maternal grandfather would not supervise the occasion of [Y]’s birthday.
The Father has proposed alternative supervisors, being the woman with whom he is currently in a relationship, though on the evidence it is not a cohabiting relationship, his sister, and a family friend. Whilst each can be considered as a supervisor subject to providing appropriate undertaking, including acknowledgement of their knowledge of the Father’s health issues, each of them has been rejected as a supervisor by the Mother, and circumstances may arise for some or all of them in the future whereby they either cannot or will not continue to supervise.
Accordingly, I find that it would be in the best interest of the children to have at least some supervision, if not all, which is on a commercial basis by way of a children’s Contact Centre and/or a commercial supervision agency. Given that both parents are in employment this will involve a cost. As the Mother has day-to-day financial support for the children I consider that it would be best in the interests of the welfare of the children if any such cost is borne by the Father.
As to the practical difficulty, it is a matter of logistics to be met by the concerned parties on each occasion to ensure that supervision in whatever form is provided and works so that the children do have the benefit of pursuing their relationship with their Father.
The capacity of: (i) each of the child’s parents; and (ii) any other person (including any grandparent or other relative of the child); to provide for the needs of the child, including emotional and intellectual needs
The same difficulty as referred to above in relation to the evidence available after interim hearing attaches to a consideration of the capacity of each of the children’s parents to provide for the needs of the children, including their emotional and intellectual needs. Having said that, there is nothing in the evidence that could lead me to find that the Mother is not capable of providing for the children in all relevant ways other than a concern as to her real willingness to promote and foster the relationship between the children and their Father.
In that regard, as an example, I come back once again to the comment of the Mother reported in the CDC Memorandum about her belief as to why the children are happy to spend time with their Father. As has been said time without number in the authorities, and for the usually quoted authority, I mention the Full Court decision in Stevenson v Hughes,[22] there is an obligation on the Mother once orders are made to take positive steps to encourage the children in their relationship with their Father at least to the extent of the time and communication between Father and children provided in orders.
[22] Stevenson v Hughes (1993) 16 Fam LR 443.
The Mother calls the Father’s capacity to provide for the needs of the children into question. From the current state of the evidence, I consider that the Father’s capacity in that regard in the context of supervised time with the children with appropriate supervisors is not a consideration that mitigates against orders being made on the interim basis for him to spend time with the children.
The maturity, sex, lifestyle and background (including lifestyle, culture and traditions) of the child and of either of the child’s parents, and any other characteristics of the child that the Court thinks are relevant
The children are two little girls, [X], being aged five years, and [Y], aged 3 years at the time of the interim hearing. I do not consider that there is any lifestyle or cultural or traditional consideration that has a bearing on my consideration of the parenting orders that best be made in the children’s interest as the paramount consideration.
Any family violence involving the child or a member of the child’s family
I am not making a finding of family violence perpetrated by either party in this matter. No family violence order has been made affecting the parents as between them or their children.
Whether it would be preferable to make the order that would be least likely to lead to the institution of further proceedings in relation to the child
Whatever interim orders are made will be a step along the way towards the eventual final resolution of the parenting issues for this family, whether the final orders are by way of a consent agreement between the parties, which is “a consummation devoutly to be wished”, or following a final hearing imposing a parenting regime on the Mother and Father in relation to their two little girls based on the bubble of information comprised of the admitted evidence available to the Court, rather than the combined encyclopaedic knowledge of the parents.
Any other fact or circumstance that the Court thinks is relevant
I do not find that there are any other facts or circumstances relevant to be considered in determining what is in [X] and [Y]’s best interests.
Parental Responsibility
Having considered the primary and relevant additional considerations in section 60CC of the Act so as to inform my determination of what is in the children’s best interest, I turn now to section 61DA, which provides that when making a parenting order in relation to the children I must apply a presumption that it is in the best interests of the children for their parents to have equal shared parental responsibility unless I find that the presumption does not apply if there are reasonable grounds to believe that a parent, or a person living with a parent of the children, has engaged in abuse of either or both of the children, or has engaged in family violence, or if the presumption applies, but is rebutted by evidence that satisfies me that it would not be in the best interests of the children for the parents to have equal shared parental responsibility, or in the circumstances of an interim hearing such as this, if I find that it would not be appropriate in the circumstances for the presumption to be applied when making the order.
Currently, the parents each have parental responsibility for each of the children pursuant to the provisions of section 61C of the Act. As stressed by the Full Court in Goode,[23] parents each having parental responsibility is a different concept from the parents sharing or equally sharing parental responsibility:
[39] We therefore consider it clear that there is a difference between parental responsibility which exists as a result of s 61C and an order for shared parental responsibility, which has the effect set out in s 65DAC. In the former, the parties may still be together or may be separated. There will be no court order in effect and the parties will exercise the responsibility either independently or jointly. Once the Court has made an order allocating parental responsibility between two or more people, including an order for equal shared parental responsibility, the major decisions for the long-term care and welfare of children must be made jointly, unless the Court otherwise provides.[24]
[23]Goode & Goode (2006) FLC 93-286.
[24] Goode at paragraph 39
In this matter I find that the presumption does apply as on the evidence on interim hearing there are no reasonable grounds to believe that either parent or any person who lives with a parent has engaged in abuse of either of the children, or family violence.
In the CDC Memorandum, the Family Consultant reports that:
Mr Soler said that he has very little feedback about the children and that he believes that he is not supposed to make direct contact with [X]’s school.
Further on under the heading “Future directions” she provides:
It is not clear why Mr Soler cannot contact [X]’s school (if this is the case). Now that the parents are separated, it is important that the school, and other institutions provide information about the children, in an equitable way, to both parents. For example, Mr Soler could be able to make an appointment for a parent-teacher interview.
In the course of the interim hearing no evidence emerged to give grounds to the Father’s asserted belief that he was not supposed to make direct contact with [X]’s school. He is entitled so to do.
I find that there is no evidence that satisfies me that it would not be in the best interests of the children for their parents to have equal shared parental responsibility, and accordingly the presumption, which applies, is not rebutted.
In terms of this interim hearing, I further find that there are no circumstances that would render it not appropriate for the presumption to be applied by way of an order. Accordingly, I will make an interim order that the parents have equal shared parental responsibility for the children.
As I will make an order for equal shared parental responsibility, I must consider the matters mandated in section 65DAA of the Act. In the circumstances of this interim hearing I will short-circuit that process which, when carried out in full, requires full consideration of each of the three steps that apply in considering the children spending equal time with each of the parents and then, if an order for equal time is not made, considering the children spending substantial and significant time with each of the parents.[25]
[25] MRR & GR [2010] HCA 4.
A consideration of the matters referred to in section 65DAA is informed by the objects and principles set out in section 60B of the Act and by my consideration of the children’s best interests in light of the primary and relevant additional considerations in section 60CC of the Act.
I will short-circuit the process by noting that I do not consider it would be in the best interests of the children for the children to spend equal time with each of their parents given the risk factors that I have found that apply in relation to the children spending time with their Father, the Father’s acceptance of the current applicability of those risk factors and his acceptance of the necessity for his time with the children to be supervised until he has undertaken the relevant therapy and the success or otherwise of that therapy can be evaluated. In that regard it is neither in the children’s best interest nor is it reasonably practicable for them to spend equal time with their parents, and therefore, I do not need to go on the third step and consider making an order to that effect.
Similarly, for the reasons set out in the last preceding paragraph, I do not consider that it is in the children’s best interest for them to spend substantial and significant time with each of the parents, nor is it reasonably practicable for them to spend substantial and significant time with each of their parents, and accordingly, I need not consider making an order to that effect.
Decision
I consider that, in the best interests of the children, interim parenting orders should be made that the parents have equal shared parental responsibility for the children, and that they live with their Mother, and that they spend time with their Father for certain limited daytime periods, supervised by a combination of willing, available and informed private supervisors acceptable to the Father, and a children’s Contact Centre or a commercial supervision agency, depending on availability and affordability to the Father.
I also consider that it is in the best interests of the children to make interim orders by way of a restraining order on the parties equally in the nature of what is popularly known as a 'non-denigration order’ and other ancillary orders to assist in the flow of necessary information between the parents about the children.
Accordingly, I make the orders set out at the start of these reasons.
I certify that the preceding two hundred and twenty three (223) paragraphs are a true copy of the reasons for judgment of Judge Morley
Date: 6 August 2019
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