Saade & Hutton
[2023] FedCFamC1F 599
FEDERAL CIRCUIT AND FAMILY COURT OF AUSTRALIA
(DIVISION 1)
Saade & Hutton [2023] FedCFamC1F 599
File number(s): PAC 3547 of 2022 Judgment of: ALTOBELLI J Date of judgment: 20 July 2023 Catchwords: FAMILY LAW – PARENTING – Interim parenting – Application in a Proceeding by the mother seeking to vary the current time the children spend with the father – Where the children’s contact with the father was suspended following the release of the Family Report – Where there is a history of extreme family violence – Where the mother’s new partner poses a risk of harm – Where the expert recommends the children spend unsupervised time with the father on alternate weekends – Previous spend time orders reinstated – Children to spend time with the father supervised by paternal family – The children to spend additional make-up time with the father – The mother’s partner is restrained from coming into contact with the children. Legislation: Family Law Act 1975 (Cth) ss 60B, 60CA, 60CC, 61DA, 65DAA, 102NA Cases cited: Goode & Goode (2006) FLC 93-286; [2006] FamCA 1346
MRR v GR (2010) 240 CLR 461; [2010] HCA 4
Division: Division 1 First Instance Number of paragraphs: 64 Date of hearing: 19 July 2023 Place: Sydney Solicitor for the Applicant: SCB Legal Pty Ltd The Respondent: Litigant in person Solicitor for the Independent Children's Lawyer: Lamrocks Solicitors ORDERS
PAC 3547 of 2022 FEDERAL CIRCUIT AND FAMILY COURT OF AUSTRALIA (DIVISION 1)
BETWEEN: MS HUTTON
Applicant
AND: MR SAADE
Respondent
INDEPENDENT CHILDREN'S LAWYER
order made by:
ALTOBELLI J
DATE OF ORDER:
20 July 2023
THE COURT ORDERS THAT:
1.The orders made by a Senior Judicial Registrar on 14 November 2022 are reinstated.
Time with the father
2.Pursuant to the above order, the children will spend time with the Respondent father (“the father”) as follows:
(a)Commencing on Friday 21 July 2023, the children shall spend each alternate weekend with the father from after school or 3.40 pm (if a non-school day) on Friday to 5.00 pm on Sunday;
(b)Commencing on Thursday 27 July 2023, the children shall spend each alternate Thursday with the father from after school or 3.40 pm (if a non-school day) until 7.00 pm;
(c)In the event that the Friday or Thursday pick-up pursuant to the above orders is on a non-school day, the commencement of such time shall be at 9.00 am;
(d)From 2.00 pm on Christmas Day to 2.00 pm on 27 December each year;
(e)From 2.00 pm on 25 January to 2.00 pm on 26 January each year;
(f)From 2.00 pm on the Saturday before Father’s Day to 5.00 pm on Father’s Day if the children are not already in his care;
(g)The father’s time is suspended on the Mother’s Day weekend if the children are in his care such that the Applicant mother (“the mother”) collect the children at 2.00 pm on the Saturday before Mother’s Day.
3.The children will spend six nights of extra time (in the form of two three-night periods) with the father to make up for the days of lost time arising from the orders of 28 June 2023 as follows:
(a)During the children’s first alternate weekend contact with the father as per Order 2(a) in the September-October school holidays (including, if it coincides with the same, the children’s last day of term) the children will spend an additional three nights with the father.
(b)During the children’s time with the father as per Order 2(d) in the Christmas school holidays, the children will spend an additional three nights with the father.
Supervision
4.The children’s time with the father will be supervised at all times by the paternal aunt, Ms B, and/or the paternal grandfather, Mr C in accordance with their undertakings to the Court.
Changeover
5.Where it is not possible for changeover to take place at school, changeover is to be facilitated by the supervisors of the father’s time with the children, namely the paternal aunt and/or the paternal grandfather.
6.The mother is at liberty to facilitate changeover using a third-party, provided it is not her partner, Mr D born in 1990.
7.The mother is to nominate the changeover venue to be a public place which is approximately halfway between where she and the children are living, and the father’s home.
Restraints
8.The mother is still restrained from bringing the children into contact with Mr D.
Trial directions
9.By no later than 4pm on 2 October 2023, each party is to file and serve any amended Application or Response on which they seek to rely.
10.By no later than 4pm on 2 October 2023, each party is to file and serve one consolidated affidavit in support of the orders sought by them, together with any other witnesses’ affidavits.
11.By no later than 4pm on 6 November 2023, each party is to serve exhibits to affidavits and tender bundles of all documents that might be tendered or relied upon in cross-examination on each other, and provide an electronic copy of the same to the Associate of Justice Hogan (…@…).
12.In respect to exhibits to affidavits and tender bundles, only documents which are successfully tendered during the hearing shall be in evidence.
13.By no later than 4pm on 20 November 2023 the parties shall have conferred, settled and forwarded to the Associate of Justice Hogan in electronic form a joint trial plan which allows for the trial to be completed within five days.
14.By no later than 4pm on 20 November 2023, each party is to file and serve a Case Outline document, setting out:
(a)a list of documents to be read in their case;
(b)a precise Minute of Orders Sought; and
(c)a brief summary of argument touching upon the relevant matters set out in the Family Law Act 1975, with reference to the evidence relied upon, and any other considerations relevant to the decision.
15.Leave is granted to the parties to apply to relist the proceedings on short notice to deal with anything that may jeopardise the hearing dates, provided that in the event that such liberty is exercised the person seeking to relist the proceedings shall:
(a)Forthwith notify all other parties of the intention to make the request and the reason for same;
(b)Make the request for relisting in accordance with the Federal Circuit and Family Court of Australia protocol as to communication with chambers; and
(c)Contemporaneous with any notice of relisting serve upon all other parties a minute of orders to be sought together, in the case of the parties, with such evidence as is relied upon by the party in seeking such orders.
16.No further subpoenas be issued by either party without leave of the Court. Subject to any objection being raised by any person to whom a subpoena has been issued, photocopy access be granted to the parties’ legal representatives and the Independent Children’s Lawyer for the purposes of providing exhibits to affidavits and provisional tender bundles.
17.By no later than 4pm on 1 December 2023, each party is to file a notification as to costs pursuant to rule 12.06 of the Federal Circuit and Family Court of Australia (Family Law) Rules 2021 (including complying with rule 12.06(2)).
THE COURT NOTES THAT:
A.The remaining orders made by the Senior Judicial Registrar on 14 November 2022 which are not referenced in the above orders remain in force.
B.The Court requests that the Independent Children’s Lawyer facilitate making the arrangements for make-up time referred to in these orders to the extent that the parents are unable to do so themselves.
C.The paternal aunt filed an undertaking with the Court on 9 November 2022, and the paternal grandfather filed an undertaking with the Court on 17 November 2022.
D.The final hearing of this matter will be heard before the Honourable Justice Hogan at the Parramatta Registry commencing on 4 December 2023 with an estimated hearing time of five days.
Note: The form of the order is subject to the entry in the Court’s records.
Note: This copy of the Court’s Reasons for judgment may be subject to review to remedy minor typographical or grammatical errors (r 10.14(b) Federal Circuit and Family Court of Australia (Family Law) Rules 2021 (Cth)), or to record a variation to the order pursuant to r 10.13 Federal Circuit and Family Court of Australia (Family Law) Rules 2021 (Cth).
Section 121 of the Family Law Act 1975 (Cth) makes it an offence, except in very limited circumstances, to publish proceedings that identify persons, associated persons, or witnesses involved in family law proceedings.
IT IS NOTED that publication of this judgment by this Court under the pseudonym Saade & Hutton has been approved pursuant to s 121(9)(g) of the Family Law Act 1975 (Cth).
REASONS FOR JUDGMENT
ALTOBELLI J:
INTRODUCTION
These reasons for judgment explain the further interim orders made in a case which is about two children: X, born 2011 who is now 11 years old, and his brother Y, born 2015, who is now eight years old (“the children”).
BACKGROUND
The applicant is the mother (“the mother”). She is 35 years old and is currently unemployed and cares full time for the children. As well as the children the subject of these proceedings, the mother also has two children with her partner Mr D who are aged three years old and one month old. The respondent is the father (“the father”). He is 36 years old and is also unemployed.
The most recent substantive orders are dated 14 November 2022 (“the substantive orders”) and were made by a Senior Judicial Registrar. The orders provide for the children to live with the mother and spend time with the father as agreed in writing between the parents, or failing agreement each alternate weekend from after school on Friday to 5.00 pm on Sunday, and each alternate Thursday from after school to 7.00 pm, with additional time on special occasions. The orders provided for this time to be supervised at all times by the paternal aunt and/or paternal grandfather, after each filed undertakings with the Court. The father would also have a telephone or video call with the children each Tuesday and Thursday between 5.00 pm and 5.30 pm. Changeover was to occur at the children’s school or at the father’s home on a non‑school day. The mother was restrained from bringing the children into contact with Mr D, and any time the children spend with Mr D’s mother was to be supervised by the mother. Both parents were restrained from recording the children, questioning or interrogating them about the time they have spent with the other parent, or interfering with the children’s electronic devices. The father was ordered to undergo hair follicle testing.
On 28 June 2023 I released to the parties the Family Report of Ms E (“the Family Consultant”) dated 30 May 2023 (“the Report”). I recommended that the father be assisted at the time he reads and considers the Report and, if possible, have access to the Family Advocacy and Support Service men’s support worker at the Parramatta Registry. As a result of the concerns raised by the Family Consultant at paragraph 89 of the Report, and on the Court’s own initiative, I made orders on 28 June 2023 (which were extended on 5 July 2023 after the father required more time to file the required documents) suspending the father’s face-to-face time with the children. The orders for the children to spend time with the father were suspended until 19 July 2023, and the children were to communicate with the father by way of telephone call on 30 June 2023 and 7 July 2023. The purpose of the present interim hearing was to enable the parties to make such applications as they considered appropriate in light of the Report. The mother filed an Application in a Proceeding on 3 July 2023 and the father filed a Response to an Application in a Proceeding on 14 July 2023.
The matter is listed for final hearing before Justice Hogan on 4 December 2023 at the Parramatta Registry, with an estimated hearing time of five days. An order under s 102NA of the Family Law Act 1975 (Cth) (“the Act”) was made on 28 June 2023. Trial directions will be made in the orders to these reasons for judgment.
Barring unforeseen circumstances, the orders made today, which are explained in these reasons, will govern the parenting arrangements until judgment is delivered after the final hearing.
The children are represented by the Independent Children’s Lawyer. The mother was also represented. The father is currently representing himself. He did indicate to the Court that he was awaiting a grant of aid for the final hearing and, in any event, he was cognisant of the fact that s 102NA of the Act applied and he would have access to limited representation at the final hearing. The father did the best he could to argue his case to the Court, and present material in support. As a self-represented litigant it was difficult for him to remain focused on the issues. He was clearly concerned about the best interests of the children.
At the current time, the final proposed orders by the parents appear to be as follows.
The father, in his Initiating Application filed on 30 June 2022 seeks for the children to live with the mother and spend time with the father as agreed between the parties, and that each parent keeps the other informed about any medical problems, illness or injury, as well as matters regarding the children’s schooling. He proposed that each parent be restrained from consuming alcohol or illicit substances within 12 hours of having care of the children, and that each parent be restrained from using physical discipline, or making critical or derogatory remarks about the other parent. However, the Family Consultant indicates in the Report that the father seeks to have sole parental responsibility and for the children to live with him, and that any time with the mother would need to be carefully considered due to safety concerns.
In her Response to Final Orders filed on 8 August 2022 the mother seeks to have sole parental responsibility for the children and for the children to live with her and spend time with the father at times as agreed between the parties, and that these arrangements be particularised after the release of the Report. The position of the Independent Children’s Lawyer will be discussed below where relevant.
COMPETING INTERIM PROPOSALS
The mother seeks for the spend time arrangements in the substantive orders to be suspended, and for the restraint regarding Mr D to be dismissed. In its place, she seeks for the children to spend time with the father each alternate Saturday and Sunday for a period of three hours, with such time to be supervised by a professional supervision service.
The father seeks for his time with the children to be reinstated, and for make-up time for the time he has lost with the children pursuant to my orders of 28 June 2023. He also seeks for the mother to enter into a suitable drug treatment and counselling program, as well as a suitable family and domestic violence course.
The Independent Children’s Lawyer did not make any specific proposals. The Independent Children’s Lawyer could not form a view regarding ongoing time arrangements in circumstances where the Report did not address the impact on the children of any variation, and was concerned about the impact that any variation may cause. However, she did suggest that if adverse findings were made against the father and neither party could afford professional supervision, the time the children spend with the father could be reduced to alternate weekends or to day time only. The Independent Children’s Lawyer submitted the restraints against Mr D should remain until the evidence is tested at final hearing, but suggested that if the Court were to remove the restraints, that time should be limited and supervised by a third party. However, she noted that this may open the matter up to further allegations being made by the father.
MATERIAL BEFORE THE COURT
In support of her case, the mother relied upon the following material:
(a)Application in a Proceeding filed 3 July 2023;
(b)Her affidavit filed 3 July 2023;
(c)Affidavit of Mr D filed 28 February 2023; and
(d)Certificates relating to Mr D, received on 18 July 2023 and marked as Exhibit A1.
In support of his case, the father relied on the following material:
(a)Case outline filed 17 July 2023;
(b)Response to an Application in a Proceeding filed 14 July 2023;
(c)His affidavit filed 14 July 2023;
(d)Tender bundle filed 17 July 2023; and
(e)Various electronic subpoena documents labelled S2, S4, S5, S7, S8, S9, S10, S12, and S16.
In support of her case, the Independent Children’s Lawyer relied on the following documents:
(a)Case outline filed 18 July 2023;
(b)Child Impact Report of Ms F dated 26 October 2022;
(c)Family Report of Ms E dated 30 May 2023; and
(d)A document tendered and marked as Exhibit ICL1, (being pages 41–69 of the Independent Children’s Lawyer’s tender bundle).
APPLICABLE LAW
The applicable law is found in Part VII of the Act. In determining parenting matters under Part VII of the Act the Court must regard the best interests of the child as the paramount consideration: s 60CA.
The objects and principles of Part VII are set out at s 60B:
60B Objects of Part and principles underlying it
(1)The objects of this Part are to ensure that the best interests of children are met by:
(a)ensuring that children have the benefit of both of their parents having a meaningful involvement in their lives, to the maximum extent consistent with the best interests of the child; and
(b)protecting children from physical or psychological harm from being subjected to, or exposed to, abuse, neglect or family violence; and
(c)ensuring that children receive adequate and proper parenting to help them achieve their full potential; and
(d)ensuring that parents fulfil their duties, and meet their responsibilities, concerning the care, welfare and development of their children.
(2)The principles underlying these objects are that (except when it is or would be contrary to a child’s best interests):
(a)children have the right to know and be cared for by both their parents, regardless of whether their parents are married, separated, have never married or have never lived together; and
(b)children have a right to spend time on a regular basis with, and communicate on a regular basis with, both their parents and other people significant to their care, welfare and development (such as grandparents and other relatives); and
(c)parents jointly share duties and responsibilities concerning the care, welfare and development of their children; and
(d)parents should agree about the future parenting of their children; and
(e)children have a right to enjoy their culture (including the right to enjoy that culture with other people who share that culture).
(3)For the purposes of subparagraph (2)(e), an Aboriginal child’s or Torres Strait Islander child’s right to enjoy his or her Aboriginal or Torres Strait Islander culture includes the right:
(a)to maintain a connection with that culture; and
(b)to have the support, opportunity and encouragement necessary:
(i)to explore the full extent of that culture, consistent with the child’s age and developmental level and the child’s views; and
(ii)to develop a positive appreciation of that culture.
At the very core of Part VII of the Act is the creation of a presumption of equal shared parental responsibility in s 61DA. Section 61DA provides:
61DA Presumption of equal shared parental responsibility when making parenting orders
(1)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.
(2)The presumption does not apply if there are reasonable grounds to believe that a parent of the child (or a person who lives with a parent of the child) has engaged in:
(a)abuse of the child or another child who, at the time, was a member of the parent’s family (or that other person’s family); or
(b)family violence.
(3)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.
(4)The presumption may be rebutted by evidence that satisfies the court that it would not be in the best interests of the child for the child’s parents to have equal shared parental responsibility for the child.
If the presumption applies, the Court is required to consider certain things:
65DAA Court to consider child spending equal time or substantial and significant time with each parent in certain circumstances
Equal time
(1)Subject to subsection (6), if a parenting order provides (or is to provide) that a child’s parents are to have equal shared parental responsibility for the child, the court must:
(a)consider whether the child spending equal time with each of the parents would be in the best interests of the child; and
(b)consider whether the child spending equal time with each of the parents is reasonably practicable; and
(c)if it is, consider making an order to provide (or including a provision in the order) for the child to spend equal time with each of the parents.
Substantial and significant time
(2) Subject to subsection (6), if:
(a)a parenting order provides (or is to provide) that a child’s parents are to have equal shared parental responsibility for the child; and
(b)the court does not make an order (or include a provision in the order) for the child to spend equal time with each of the parents;
the court must:
(c)consider whether the child spending substantial and significant time with each of the parents would be in the best interests of the child; and
(d)consider whether the child spending substantial and significant time with each of the parents is reasonably practicable; and
(e)if it is, consider making an order to provide (or including a provision in the order) for the child to spend substantial and significant time with each of the parents.
(3)For the purposes of subsection (2), a child will be taken to spend substantial and significant time with a parent only if:
(a) the time the child spends with the parent includes both:
(i) days that fall on weekends and holidays; and
(ii) days that do not fall on weekends or holidays; and
(b)the time the child spends with the parent allows the parent to be involved in:
(i)the child’s daily routine; and
(ii)occasions and events that are of particular significance to the child; and
(c)the time the child spends with the parent allows the child to be involved in occasions and events that are of special significance to the parent.
(4)Subsection (3) does not limit the other matters to which a court can have regard in determining whether the time a child spends with a parent would be substantial and significant.
Reasonable practicality
(5)In determining for the purposes of subsections (1) and (2) whether it is reasonably practicable for a child to spend equal time, or substantial and significant time, with each of the child’s parents, the court must have regard to:
(a)how far apart the parents live from each other; and
(b)the parents’ current and future capacity to implement an arrangement for the child spending equal time, or substantial and significant time, with each of the parents; and
(c)the parents’ current and future capacity to communicate with each other and resolve difficulties that might arise in implementing an arrangement of that kind; and
(d)the impact that an arrangement of that kind would have on the child; and
(e)such other matters as the court considers relevant.
Because s 65DAA refers to the best interests of the child the Court must then go back to consider s 60CC which specifies how the Court must determine what is in a child’s best interests.
Determining child's best interests
(1)Subject to subsection (5), in determining what is in the child's best interests, the court must consider the matters set out in subsections (2) and (3).
Primary considerations
(2) The primary considerations are:
(a)the benefit to the child of having a meaningful relationship with both of the child's parents; and
(b)the need to protect the child from physical or psychological harm from being subjected to, or exposed to, abuse, neglect or family violence.
Note: Making these considerations the primary ones is consistent with the objects of this Part set out in paragraphs 60B(1)(a) and (b).
(2A)In applying the considerations set out in subsection (2), the court is to give greater weight to the consideration set out in paragraph (2)(b).
Additional considerations
(3) Additional considerations are:
(a)any views expressed by the child and any factors (such as the child's maturity or level of understanding) that the court thinks are relevant to the weight it should give to the child's views;
(b) the nature of the relationship of the child with:
(i)each of the child's parents; and
(ii)other persons (including any grandparent or other relative of the child);
(c)the extent to which each of the child's parents has taken, or failed to take, the opportunity:
(i)to participate in making decisions about major long-term issues in relation to the child; and
(ii)to spend time with the child; and
(iii)to communicate with the child;
(ca)the extent to which each of the child's parents has fulfilled, or failed to fulfil, the parent's obligations to maintain the child;
(d)the likely effect of any changes in the child's circumstances, including the likely effect on the child of any separation from:
(i)either of his or her parents; or
(ii)any other child, or other person (including any grandparent or other relative of the child), with whom he or she has been living;
(e)the practical difficulty and expense of a child spending time with and communicating with a parent and whether that difficulty or expense will substantially affect the child's right to maintain personal relations and direct contact with both parents on a regular basis;
(f)the capacity of:
(i)each of the child's parents; and
(ii)any other person (including any grandparent or other relative of the child);
to provide for the needs of the child, including emotional and intellectual needs;
(g)the maturity, sex, lifestyle and background (including lifestyle, culture and traditions) of the child and of either of the child's parents, and any other characteristics of the child that the court thinks are relevant;
(h)if the child is an Aboriginal child or a Torres Strait Islander child:
(i)the child's right to enjoy his or her Aboriginal or Torres Strait Islander culture (including the right to enjoy that culture with other people who share that culture); and
(ii)the likely impact any proposed parenting order under this Part will have on that right;
(i)the attitude to the child, and to the responsibilities of parenthood, demonstrated by each of the child's parents;
(j)any family violence involving the child or a member of the child's family;
(k)if a family violence order applies, or has applied, to the child or a member of the child's family--any relevant inferences that can be drawn from the order, taking into account the following:
(i)the nature of the order;
(ii)the circumstances in which the order was made;
(iii)any evidence admitted in proceedings for the order;
(iv)any findings made by the court in, or in proceedings for, the order;
(v)any other relevant matter;
(l)whether it would be preferable to make the order that would be least likely to lead to the institution of further proceedings in relation to the child;
(m)any other fact or circumstance that the court thinks is relevant.
The case law
In MRR v GR (2010) 240 CLR 461, the High Court referred to s 65DAA(1) and said:
9. Each of sub-ss (1)(b) and (2)(d) of s 65DAA require the Court to consider whether it is reasonably practicable for the child to spend equal time or substantial and significant time with each of the parents. It is clearly intended that the Court determine that question. Sub-section (5) provides in that respect that the Court "must have regard" to certain matters, such as how far apart the parents live from each other and their capacity to implement the arrangement in question, and "such other matters as the court considers relevant", "[i]n determining for the purposes of subsections (1) and (2) whether it is reasonably practicable for a child to spend equal time, or substantial and significant time, with each of the child's parents".
A little later in the judgment the High Court said:
13. Section 65DAA(1) is expressed in imperative terms. It obliges the Court to consider both the question whether it is in the best interests of the child to spend equal time with each of the parents (par (a)) and the question whether it is reasonably practicable that the child spend equal time with each of them (par (b)). It is only where both questions are answered in the affirmative that consideration may be given, under par (c), to the making of an order.
At [15] the High Court emphasised the need for a practical approach:
15. Section 65DAA(1) is concerned with the reality of the situation of the parents and the child, not whether it is desirable that there be equal time spent by the child with each parent. The presumption in s 61DA(1) is not determinative of the questions arising under s 65DAA(1). Section 65DAA(1)(b) requires a practical assessment of whether equal time parenting is feasible.
The Full Court’s decision in Goode & Goode (2006) FLC 93-286 provides some guidance about the interpretation of Part VII and the way to proceed in interim hearings.
68. In our view some of the comments of the Full Court in paragraph 18 are still apposite. For example, the procedure for making interim parenting orders will continue to be an abridged process where the scope of the enquiry is “significantly curtailed”. Where the Court cannot make findings of fact it should not be drawn into issues of fact or matters relating to the merits of the substantive case where findings are not possible. The Court also looks to the less contentious matters, such as the agreed facts and issues not in dispute and would have regard to the care arrangements prior to separation, the current circumstances of the parties and their children, and the parties’ respective proposals for the future.
…
72. In our view, it can be fairly said there is a legislative intent evinced in favour of substantial involvement of both parents in their children’s lives, both as to parental responsibility and as to time spent with children, subject to the need to protect children from harm, from abuse and family violence and provided it is in their best interests and reasonably practicable. This means where there is a status quo or well settled environment, instead of simply preserving it, unless there are protective or other significant best interests concerns for the child, the Court must follow the structure of the Act and consider accepting, where applicable, equal or significant involvement by both parents in the care arrangements for the child.
…
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.
THE FAMILY REPORT DATED 30 MAY 2023
The Report highlighted a number of important issues. Firstly, both of the children have special needs and have been diagnosed with ADHD. They both take medication and attend fortnightly counselling. Secondly, this matter has a long and complicated history with the Court. There have been previous proceedings in which final orders were made in October 2017 and March 2020, as well as, apparently, at least two recovery applications by the mother. The Family Consultant indicated that the father appeared concerned about the mother’s poor parenting practices including manipulation, physical discipline, abuse and neglect, as well as concern regarding Mr D. The mother appeared concerned about the potential continuation of the father’s previous family violence behaviours.
During observations with the children, the Family Consultant stated that the children were comfortable and familiar with both parents. However, while they chatted and engaged with the mother, they did not go to the father when he arrived. It was further noted that the father gave the children “new looking iPhones” during the observation.
The Family Consultant states that the father alleged that the children were at risk of harm in the mother’s care, but that these risks were not supported by other sources. In contrast, the risks identified by the mother in relation to previous and ongoing family violence perpetrated by the father are supported by police charges, criminal convictions, subpoena material and other filed documents.
The Family Consultant stated that the father is steadfast in his views that his primary concern is the children’s safety and wellbeing, while the mother believes the father is using the proceedings to continue to perpetrate ongoing coercive and controlling family violence. She suggested that the father’s presentation at interview gave rise to some concern as he shifted blame for his behaviour and lacked child focus, insight or accountability for his actions. She also stated that the mother’s presentation was consistent with that of a victim-survivor of family violence.
The Family Consultant explained that the father has made serious allegations including physical abuse and neglect, and that he has recorded the children disclosing these incidents and has taken them to the police station and a doctor to confirm the same. The Family Consultant opined that if the Court were to find little veracity to these allegations, this behaviour could negatively impact the children. She expressed concerns regarding the children’s developmental trajectory due to their experiences of family violence and disruptions to their living situation, confusion and uncertainty. However, she notes that both children are currently receiving therapeutic intervention aimed at emotional and behavioural regulation, which she encourages to continue. Both children identify the mother as their primary parent and wish to live with her and spend time with the father. The Family Consultant indicated that any significant change to the primary care arrangement would be destabilising for the children.
During interview, the mother acknowledged that she sometimes finds the children’s behaviour difficult. While the children have in the past reported that smacking has been used as a form of punishment, they did not report this at the interview and authorities such as the Department of Communities and Justice have not substantiated these claims.
The Family Consultant stated that Mr D presented at interview with “a good degree of reflective functioning, capacity to maintain a child focus associated with the children’s behaviour, acknowledge his failings in managing the children’s dysregulated behaviour and understand the impacts that [the father’s] application seemed to have upon [the mother’s] functioning” (paragraph 82 of the Report). He has completed parenting programs, attends therapy with G Family Services and there are no ongoing investigations relating to him. As the mother and Mr D’s second child was about to be born, the Family Consultant recommended that the current contact restrictions be removed and that there should be slow and considered family reunification.
The Family Consultant also outlined the mother’s wish to relocate to City H. The mother indicated she would still be willing to facilitate fortnightly time with the father, and the Family Consultant suggested that a move to City H would provide benefits such as space for the children to play outdoors, cheaper rent and employment opportunities for the mother, as well as being closer to the practical support of Mr D. However, such a move would necessitate a change in schools and support services for the children, so careful planning and handover would be necessary.
The Family Consultant opines that it is unlikely that the parents have a capacity to effectively co-parent as they lack constructive communication. She also recommends that the mother and the children continue to receive support of a practical nature.
At the conclusion of the Report, the Family Consultant recommends that the mother should have sole parental responsibility for the children and that the children live with her. She recommends that if the mother is to remain in Sydney, the children should spend time with the father each alternate weekend from Friday after school until Sunday evening, with changeover to be conducted at school, or supervised, or by a third party in a location such as a police station or other location with CCTV. She suggests that consideration should be given to additional time during school holidays, of not more than four nights in succession. She also recommends that the children have a weekly telephone call with the father. If the mother is permitted to move to City H, the Family Consultant recommends that the children still spend time with the father in a similar manner as above. Alternatively, if there are adverse findings made against the father, it is suggested that consideration should be given to the father’s time with the children being professionally supervised for a three month period prior to moving to unsupervised time.
In addition to parental responsibility and live with/time arrangements, the Family Consultant suggests that the current restraints regarding Mr D’s contact with the children (pursuant to the substantive orders) should be removed with some expediency and that the mother and Mr D continue to attend G Family Services. She recommends that the father should have access to medical and school information about the children’s progress directly from health practitioners and the school. She further suggests that consideration should be given to ordering an injunction which would prevent the father form coming into contact with the mother and her family, and prevent any communication outside of Court orders. Finally, she recommends that the children should continue to attend counselling and any treating therapists should be provided with a copy of the Family Report for their information.
The father made it clear in his submissions and in his affidavit filed 14 July 2023 that he had concerns with the methodology adopted by the Family Consultant in the preparation of the Report, and in particular the failure to consider what the father considered to be relevant material produced on subpoena which went directly to the question of risk to the children both from the mother, and her partner. The appropriate place to canvass these concerns is at a final hearing, and whilst the Court notes his concerns, the Report remains the only independent and expert evidence before the Court, and thus the Court is entitled to place weight on it. Nonetheless it must be noted that the Family Consultant expressed her opinions as being subject to findings made by the Court.
DISCUSSION
There are two issues for the Court to determine on an interim basis.
The first relates to the mother’s partner, Mr D, and whether, in accordance with the mother’s proposal, the order made on 14 November 2022 that she be restrained from bringing the children into contact with him, be discharged. The question was whether there was a risk of harm to the children that could not be managed by the presence of the mother. It is common ground that the historical evidence demonstrates violence between Mr D and the mother, and violence directed towards the child Y.
The second issue relates to the arrangements for the children to spend time with the father between the date of these orders and the decision made after the final hearing. Ancillary to this is, from the father’s perspective, whether there should be any make-up time with the children.
The restraints against Mr D
Both the father and the Independent Children’s Lawyer were opposed to the modification of the restriction on the children being brought into contact with Mr D. However, the Independent Children’s Lawyer seemed to at least countenance some variation if appropriate safeguards could be put in place including, for example, supervision by a third party other than the mother; limiting the amount of time and the circumstances of such contact; that both Mr D and the mother attend relationship counselling; and that the mother engage in a protective behaviours course prior to any variation of the restraint.
The mother’s case is that Mr D presents no risk of harm to the children and, implicitly if not expressly, is an important support to her in the care of the children, including her son to Mr D, who is only one month old. She would like to be a complete family which includes Mr D. The evidence of Mr D is that he has undertaken education in relation to his parenting skills, anger management and positive discipline practices. Documents tendered in the mother’s case establish that he completed a J Family Service Online Positive Parenting Program in mid-2022. In early 2023 he completed a Fundamentals of Domestic Violence and Abuse course. Also, around that time he completed an anger management and conflict resolution course.
One of the recommendations of the Report is that the restraints around Mr D’s contact with the children be removed with some expediency due to the birth of their child, provided that the mother and he continued to attend G Family Services. It is clear from the Report that Mr D presented positively.
Looking at the objective evidence, Mr D, just like the mother and the father, has a criminal record. In the case of Mr D, he was charged with three separate counts for incidents which occurred in mid-2022. The records indicate that Mr D threw the child Y into a wall, leaving a red mark on his shoulder, allegedly by way of disciplining Y for misbehaving and refusing to get ready for bed. He also assaulted the mother, demanding that she take the children and leave the house.
This was not the only violent incident between the mother and Mr D, and there is a clear record of serious violence by the father towards Mr D.
The impression formed from the Report is that both the mother and Mr D have minimised the nature, extent and seriousness of this violence. The events occurred just over one year ago. And yet, at paragraph 32 of the Report the mother describes what occurred as Mr D grabbing Y, rather than throwing him against the wall as is reported in the police records. She does not mention the red mark on Y’s shoulder. Indeed there is almost a sense of her blaming Y, by suggesting that he had been a “menace”, and disrespectful to her, for some time.
The father’s and the Independent Children’s Lawyer’s concern is more than enough to satisfy the Court that there should be no change to the current restriction on Mr D spending time with the children. The risk that he presents, both to the children and to the mother, and the mother’s lack of appreciation of the same in terms of her protective capacity of her children, are clearly significant issues for determination at a final hearing.
The father’s time with the children
The second issue about the father’s time with the children until the final hearing is complex at a number of different levels.
For example, and as the Independent Children’s Lawyer submitted, the mother’s proposal for the father’s time to be supervised by a professional contact service is impracticable having regard to the means and resources available to the parents. Even if they could access publicly funded services, it is unlikely that the father’s time with the children would resume until shortly before the final hearing, if at all.
Again, as the Independent Children’s Lawyer submitted, there was insufficient expert evidence before the Court to enable it to assess the potential impact on the children of what would be, in effect, no contact for a prolonged period in circumstances where they have enjoyed spending regular time with the father since November 2022.
The submissions made on behalf of the mother, and the evidence adduced by her, did very little to cogently explain why the existing supervision arrangements were insufficient. Again the allegations the mother made about inadequate supervision are untested and, the Independent Children’s Lawyer suggests, inconsistent with the more objective business records of the school which the children attend.
The recommendations made in the Report are somewhat ambiguous. Despite the Family Consultant being fully appraised of the father’s history of violence she recommends professional supervision “initially as a cautionary measure” (paragraph 89 of the Report). The spends time with recommendations at paragraphs 94 and 95 provide for the children to spend time with the father each alternate weekend from Friday after school until Sunday evening, together with recommendations for school holiday time, with the focus being on changeover which should either be at school, supervised, or facilitated by a third party in a public place such as a police station. Even these recommendations are contingent on the making of adverse findings against the father. The seeming dissonance between the mother’s proposal and the Family Consultant’s recommendations could not be satisfactorily explained in submissions made on the mother’s behalf.
The risk to the children of spending time with the father was examined by the Court at an interim hearing on 8 November 2022 which resulted in the substantive orders of 14 November 2022. Indeed, the only reason why the current arrangements for the children to spend time with the father have been revisited is the concern expressed at paragraph 89 of the Report. Notwithstanding that, there is no evidence before the Court of any elevated or heightened risk of harm to the mother or the children as a result of the release of the Report to the father.
Neither parent raises new evidence about the other. Indeed, both seem to want to re-agitate concerns that have been previously aired, or allege new concerns that are consistent with previous ones.
DECISION
What this matter needs is a final hearing, as soon as possible. Appropriate directions will be made to facilitate this.
This is a case where there are serious allegations made by each parent against the other which are denied. On any objective but preliminary impression of the material before the Court, there is every reason to believe that there are risks for the children in the household of both parents. The father has clearly perpetrated serious violence on the mother and Mr D. Mr D has perpetrated family violence on the mother, and on Y. Mr D told the police that the mother was violent towards him. The father makes the same allegation. The children both have special needs. The mother presents as vulnerable, and has been the victim of family violence from at least two partners. There are serious issues about the mother’s lack of insight and inadequate protective behaviours as regards the children. She fails to understand the risk that is potentially presented by Mr D.
The father is seemingly relentless in his criticism of almost every aspect of the mother’s parenting and is fixated in his belief of risk of harm to the children in her care. Given some of the evidence before the Court, his concerns cannot be discounted. The father lacks boundaries in terms of his involvement of the children in this case, either by saying or doing inappropriate things in their presence, or with them. The children wish to live with the mother but spend time with the father. There is now an established track record of spending time with the father. Both parents find fault in relation to each other’s agency in making this time work for the children. Many of the father’s submissions to the Court were about the mother’s alleged contravention of existing orders for him to spend time with the children.
It is quite possible that the children are experiencing the relentless pressure that comes from being caught in the crossfire of the long-standing toxic conflict which is manifested in the present litigation. They are already vulnerable children. They have already experienced much more than children of their age should. It is quite possible that they are saying things to each parent on the basis that they perceive that it is what that parent wants to hear. Neither parent seems to have considered the possibility that the children are telling them what they think they want to hear, rather than what is actually happening. Both parents are entrenched in this conflict. Both are grossly minimising the responsibility that each of them have to protect the children from their current experience.
That being said, there is nothing in the Report which, in the view of this Court, changes the risk assessment that was undertaken on 14 November 2022. The father’s time should be forthwith reinstated.
ORDERS
These orders are being made on Thursday, 20 July 2023 and the children’s time should recommence in accordance with Order 3.1 made 14 November 2022 from tomorrow, Friday, 21 July 2023 from after school. The pattern of time created by the order made 14 November 2022 will then recommence. This is outlined in the orders to these reasons for judgment.
The father will have six nights extra time to make up for the days lost in the form of two three‑night periods. The first three-night period will coincide with the children’s September‑October school holidays. During the father’s first alternate weekend contact as per Order 2(a) during the said school holidays (including, if it coincides with the same, the children’s last day of term) the father will have the children for an additional three nights. The other three night block will be added on to the Christmas time ordered at Order 2(d). Where it is not possible for changeover to take place at school, changeover is to be facilitated by the supervisors of the father’s time with the children, namely the paternal aunt and/or the paternal grandfather. The mother is at liberty to facilitate changeover using a third-party, provided it is not Mr D. She is to nominate the changeover venue to be a public place which is approximately halfway between where she and the children are living, and the father’s home.
The Court requests that the Independent Children’s Lawyer facilitate making the arrangements for make-up time referred to above to the extent that the parents are unable to do so themselves. The restraints regarding Mr D’s contact with the children will remain.
The substantive orders made by the Senior Judicial Registrar on 14 November 2022 will otherwise remain in force.
Trial directions for the final hearing will be made in the orders above.
I certify that the preceding sixty-four (64) numbered paragraphs are a true copy of the Reasons for Judgment of the Honourable Justice Altobelli. Associate:
Dated: 20 July 2023
0
1
0