SAFIR & SAFIR(No.2)

[2016] FCCA 2674

FEDERAL CIRCUIT COURT OF AUSTRALIA

SAFIR & SAFIR(No.2) [2016] FCCA 2674

Catchwords:
FAMILY LAW – Parenting – father’s application to spend time with children on two consecutive nights – not in best interests of children – application dismissed – family therapy directed.

Legislation:

Family Law Act 1975, ss.60B, 60CA, 60CC

Cases cited:

Banks & Banks [2015] FamCAFC 36

Goode & Goode (2006) FLC 93-286

Marvel & Marvel [2010] FamCAFC 101; (2010) 43 Fam LR 348

Applicant: MR SAFIR

Respondent: MS SAFIR

File Number: PAC 559 of 2015

Judgment of: Judge Newbrun

Hearing date: 22 August 2016

Date of Last Submission: 22 August 2016

Delivered at: Parramatta

Delivered on: 7 September 2016

REPRESENTATION

Solicitors for the Applicant: Turner Freeman Lawyers

Solicitors for the Respondent: Shorehills Legal Solicitors

ORDERS, PENDING FURTHER ORDER

1. By consent, order 12 of the Orders of the Court dated 23 May 2015 shall be discharged. Otherwise, the interim orders sought by the father in his Application in a Case filed 8 June 2016 are dismissed.

2. Each of the parties shall attend family therapy through (omitted family counselling service) for the purposes of addressing the child [X]’s relationship with her father.

3. Each party shall do all such things as may be necessary to ensure their own attendance at each appointment made by the (omitted family counselling service) Family Therapist and do all such things as may be recommended by the (omitted family counselling service) Family Therapists from time to time.

4. The parties shall do all such things as may be necessary to ensure that each or either of the children attend appointments made by the (omitted family counselling service) Family Therapist, as directed.

5. Leave is granted to the parties to provide the (omitted family counselling service) Family Therapist with a copy of the report of Dr C dated 8 April 2016.

NOTATION: On 11 October 2016, the proceedings will be dealt with in the call-over for allocation of final hearing dates in 2017.

IT IS NOTED that publication of this judgment under the pseudonym Shah & Shar (No.2) is approved pursuant to s.121(9)(g) of the Family Law Act 1975 (Cth).

FEDERAL CIRCUIT COURT
OF AUSTRALIA
AT PARRAMATTA

PAC 559 of 2015

MR SAFIR

Applicant

And

MS SAFIR

Respondent

REASONS FOR JUDGMENT

1. This was the hearing of an Application in a Case brought by the father filed 8 June 2016. The subject children of the relationship are a daughter [X], born 2005, and a son [Y], born 2009.

2. Firstly, the father seeks a parenting order that certain interim injunctions made by Donald J on 23 July 2015 be set aside, despite those injunctions remaining in place following the hearing of an appeal to the Full Court of the Family Court of Australia, Ryan J, on 28 January 2016. The injunctions related to the father, inter alia, not exposing the children to pornography, and restraining him from bringing the children into contact with certain adult persons.

3. Secondly, the father seeks a parenting order that the children spend time with him during the school term each alternate weekend from the conclusion of school on Friday until 5:00pm on Sunday. 

4. In relation to this last mentioned proposed parenting order, the father relies upon a recommendation made in a Family Report released to the parties on 13 April 2016.

5. At paragraph 166 of that report, the recommendation is made that in view of the parties’ children experiencing emotional distress in separating from the mother at changeovers, their time with the father should commence after school on Friday, rather than commence at 10:00am on Saturday; such a recommendation, if accepted by this Court, and a fresh parenting order made, would involve the children spending two (2) consecutive nights with the father (Friday night and Saturday night), as the current orders of Ryan J provide for the children to spend time with the father, inter alia, each alternate weekend from 10:00am on Saturday until 5:00pm on Sunday (Saturday night only).

6. The mother opposes the making of the proposed fresh parenting orders.  She contended that the existing parenting orders of Ryan J continue, and that family therapy be immediately ordered to address the child [X]’s relationship with the father. The father also sought an interim order for family therapy, referred to in Exhibit C (the mother did not consent to the particular format of the father’s proposed family therapy order and relied upon her own proposed family therapy order set out in her Amended Response filed 19 August 2016).

7. The mother submits, inter alia, that there is no further persuasive evidence, since the hearing before Ryan J, justifying the setting aside of the injunctions. Further, she submits, in relation to the father’s proposed parenting orders, that the children’s time with him commence from the conclusion of school on Friday; that the making of such an order involving in particular the child [X] spending two (2) consecutive nights with the father, would likely expose that child to an even greater risk of emotional harm, compared to the risk of emotional harm to the child at changeovers on the Saturday morning. The mother adduces evidence, inter alia, in Annexure M of her affidavit filed 18 August 2016 relating to events from 31 March 2016 to 12 July 2016, involving the child [X]’s oppositional behaviour to spending more than one (1) consecutive night with her father during school holidays and other concerning behaviour when spending time with the father, including running away from him and returning to the mother’s home.  It is noted that this evidence in Annexure M, including other evidence in the mother’s affidavit, was not able to be considered by the Family Report writer, as the Family Report writer had interviewed the parties and the children on 16 March 2016.

Background

1. It is helpful that I give some background in these proceedings.

2. A contested interim hearing was held before Donald J on 23 July 2015.  His Honour’s orders do not include any overnight time for the children to spend time with the father. The father had been seeking orders that the children spend time with him on each alternate weekend from after school Friday until the following Monday before school, and each alternate Thursday from after school until before school on the following Friday, and periods in the school holidays.

3. On appeal, Ryan J, having found, inter alia, that his Honour’s risk analysis in relation to the father’s use of pornography was flawed, set aside certain “time with” orders made by Donald J and made orders, inter alia, that the children could spend time with the father during school term each alternate weekend from 10:00am Saturday until 5:00pm Sunday.

4. On appeal, it is noted in paragraph 4 of Ryan J’s judgment, in lieu of the operative orders made by Donald J, that the father sought, inter alia, that the children spend each alternate weekend (three [3] nights) with him, (together with alternate Thursdays [overnight] during school term with him, slightly less than half the school holidays).

5. At paragraph 24 of Ryan J’s judgment, relevant to the above injunction issues, her Honour noted that, on the appeal:

   … during oral addresses, the solicitor for the father made the point there was no evidence the children had been exposed to pornography (or masturbation) and said that notwithstanding there was no basis on which the Court would impose restrictions on the father’s time with the children:

   … [The father] is willing to make any undertakings in that regard that is necessary. Your Honour, this is not a man who doesn’t follow orders of the court. There’s no evidence to suggest that he’s not someone who will do whatever your Honour directs, and I – my submissions are that this is not an issue that would prevent your Honour from extending extensive unsupervised daytime contact to overnight.

6. Ryan J determined that the Appeal Court should determine by way of re-exercise. At paragraph 54 of the judgment, Ryan J stated:

   The re-exercise takes place in the context of those orders which are undisturbed and his Honour’s findings to which no challenge was made. In this regard, it will be recalled that the challenges to his Honour’s reasons were solely concerned with the assessment of risk. This means that the re-exercise takes place in the context of orders which provide:

   …

   which deal with special occasions (to the extent this was an issue), extra curricular activities and a raft of injunctions.

The Competing Proposals of the Parties

1. The father’s proposed orders were set out in his Application in a Case filed 8 June 2016, and in his Case Outline dated 22 August 2016, together with a proposed family therapy order set out in Exhibit C.

2. The mother’s proposals were referred to in her Amended Response to the father’s Application in a Case filed 19 August 2016.

Material relied upon by parties

1. The father relied upon his said Case outline, his Application in a Case filed 8 June 2016, and his affidavit filed 8 June 2016.

2. The Family Report was in evidence and was Exhibit B.

3. The mother relied upon the documents referred to in Exhibit A, which included her Amended Response filed 19 August 2016, and her affidavit filed 18 August 2016.

Relevant legal principles

1. The relevant principles in relation to parenting proceedings, including interim proceedings, are well-settled: see Goode & Goode (2006) FLC 93-286.

2. In Marvel & Marvel (2010) 43 Fam LR 348, the Full Court of the Family Court of Australia discussed the problems associated with making findings on disputed evidence as follows:

   [120] As has frequently been emphasised interim parenting proceedings, and orders made as a consequence, are a necessary but temporary measure until all the evidence can be tested, evaluated and weighed at a final hearing by the making of final parenting orders. Decisions judicial officers have to make in interim proceedings are difficult and, often for very good reason, a conservative approach, or one which is likely to avoid harm to a child is adopted. This is often to the understandable distress of a party who may not achieve the outcome he or she desires, or thinks to be in the best interests of their child or children. Interim parenting orders are frequently modified or changed after a final hearing, and any allocation of parental responsibility made at an interim hearing is disregarded at the final hearing (s 61DB).

   [122] In SS & AH [2010] FamCAFC 13 the majority (Boland and Thackray JJ) discussed at paragraph 88 of their reasons the care necessary to be exercised in making findings in interim parenting proceedings. Their Honours said:

   In our view, findings made at an interim hearing should be couched with great circumspection, no matter how firmly a judge’s intuition may suggest that the finding will be borne out after a full testing of the evidence.

   [123] Later, at paragraph 100 their Honours amplified their comments and said:

   The intuition involved in decision-making concerning children is arguably of even greater importance when a judge is obliged to make interim decisions following a hearing at which time constraints prevent the evidence being tested. Apart from relying upon the uncontroversial or agreed facts, a judge will sometimes have little alternative than to weigh the probabilities of competing claims and the likely impact on children in the event that a controversial assertion is acted upon or rejected. It is not always feasible when dealing with the immediate welfare of children simply to ignore an assertion because its accuracy has been put in issue.

3. The Court also refers to the recent decision of the Full Court of the Family Court of Australia in Banks & Banks (2015) FamCAFC 36, especially at paragraphs 46 to 52.

   Consideration of the s 60CC factors that are relevant

   [46] In order to determine whether it is in the child’s best interests to remain in Thailand pending trial, we must consider matters arising under s 60CC.

   [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.

   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.

   [51] In our view, the undisputed facts here lead inexorably to the conclusion that it would not be in the child’s interests to be required to move to Australia pending the trial. In arriving at this conclusion we ought to record, without condescending to particulars, that it is arguable the primary judge was led into error in coming to a different conclusion by the way in which the case was presented to her.

   [52] In the following discussion, we will detail the most significant s 60CC factors we have taken into account in reaching our decision. The absence of discussion of any particular s 60CC factor does not reflect any failure to consider it. Rather, it reflects our assessment that such factor has no sufficient relevance in the circumstances of this case to displace the determinative significance of those factors we specifically address.

4. Section 60B of the Family Law Act 1975 (Cth) (“the Act”) sets out the objects of Part VII of the Act relating to children that inform the making of parenting orders.

5. In deciding whether to make a particular parenting order in relation to a child, a Court must regard the best interests of the child as the paramount consideration: section 60CA of the Act.

6. Section 60CC of the Act provides that in determining what is in the child’s best interests, the Court must consider the matters set out in subsections (2) and (3).

The Best Interests of the Children

Section 60CC Considerations

(2)(a) - The benefit to the child of having a meaningful relationship with both of the parents:  a primary consideration

1. The children have a meaningful relationship with the mother and would benefit from a continuance of that relationship. The Court notes the children have a primary attachment to the mother; note paragraph 136 of the Family Report.  

2. The child [Y] has a meaningful relationship with the father. The child [X]’s relationship with the father is presently strained and fractured.  At the interview with the Family Report writer, the Court notes the younger child refused to cuddle the father and simply said “goodbye” to the father, waved and left.

3. At paragraph 134 of the Family Report, the Family Report writer  stated:

   On 7 April 2016 I spoke by telephone to Ms M who has been providing counselling to the father. Ms M explained her concerns about [X]; namely that she has become involved in the adult issues, is anxious and concerned about her mother and is somewhat enmeshed with her mother. However, Ms M felt that [X] was genuinely fearful of her father, that the father has not listened to [X] and has low insight and skills in terms of appropriate emotionally connecting with [X].

4. The Court refers to paragraph 143 of the Family Report, which states:

   With respect to the children’s relationship with their father, I think that matters are quite complex. [X] is currently in a position where she would prefer to have no relationship with her father whatsoever. When I tested her on this, the extent of her opposition to her father was very high insofar as she said she would never want to see him again and nor would she even attend his funeral if he passed away … Her views were rigid, black and white and unswayable. She could not recall one good thing or even a neutral thing about her father.

5. The child [Y] would benefit from a continuance of his meaningful relationship with the father. It would appear to the Court, in relation to the child [X], that she too would benefit from a meaningful relationship with the father, and the Court refers to proposed family therapy later in these reasons.

6. Should this Court not make an interim order that the children spend time with the father from the conclusion of school on Friday until 5:00pm on Sunday, leaving Ryan J’s order 3(a) in place (being 10:00am Saturday to 5:00pm Sunday), there is a risk, particularly in the absence of family therapy being ordered to take place immediately with a view to repairing the child [X]’s relationship with the father, that that child’s existing relationship with the father might be adversely affected if emotional distress at changeovers is experienced by the child on Saturday mornings.

7. However, in the view of the Court at this interim stage, there is a much greater and significant risk of the child [X]’s relationship with the father being adversely affected if this Court makes a parenting order that the children’s time with the father on alternate weekends commences after school on Fridays, having the net effect of the children spending two (2) consecutive nights with the father on those alternative weekends; the evidence before the Court, both referred to in the Family Report (particularly relevant paragraphs of the Family Report referred to immediately below) and in Annexure M of the mother’s affidavit (referring to oppositional behaviour by the child [X] other than at the immediate moment of changeover, during the period from 31 March 2016 to 12 July 2016, including impulsive and noncompliant behaviour by her, such as running away, when spending time with the father, as well as resistance to spending two [2] consecutive nights with the father) indicates that the child [X] is likely to be oppositional to spending from Friday after school to Sunday at 5:00pm, necessitating spending two (2) consecutive nights with the father, and would likely experience emotional distress, and may well further act non-compliantly or impulsively accordingly.

8. In the above context, the Court notes the following relevant paragraphs of the Family Report: 

   a)paragraph 103 - that [X] mostly worries about going to the father’s home; 

   b)paragraph 109 - relating to this child always feeling uncomfortable around the father; 

   c)paragraph 134 - relating to the Family Report writer’s conversation with the counsellor Ms M, who had been providing counselling to the father; Ms M explained her concerns about this child, namely, that she has become involved in the adult issues, is anxious and concerned about her mother and is somewhat enmeshed with her mother. However, Ms M felt that [X] was genuinely fearful of her father, that the father had not listened to [X] and had low insight and skills in terms of appropriate emotionally connecting with [X];

   d)paragraph 143 - relating to this child’s extent of opposition to the father being very high; 

   e)paragraph 151 - stating that the father has been stretched at times and he is perhaps not overly skilled in managing a complex psychological situation with this child; 

   f)paragraph 156 - stating that the relationship between this child and the father is delicate at the moment and of great importance, and the father needs professional assistance to manage this; 

   g)paragraph 161 - stating that any time with orders which have this child spending more extended time away from the mother should be considered sensitively;  and

   h)paragraph 164 - where the Family Report writer states that:

   … I think the biggest risk in the short term of the children spending overnight time with the father will be that [X] will strongly and intensely resist this. She is likely to continue to contact her mother during times she is with her father and to intensely express her dislike of this situation. If this behaviour is not managed sensitively and consistently by both parents, then the risk is that [X] will become more psychologically distressed, possibly alienated from her father, and may become non-compliant or impulsive.

(2)(b) - The need to protect the child from physical or psychological harm, from being subjected to or exposed to abuse, neglect or family violence

1. As to the father’s proposed orders regarding setting aside the existing injunctions pertaining to exposing the children to pornography, noting paragraphs 13 and 14 of the orders of 23 July 2015, the father relies upon his affidavit filed 8 June 2016, at paragraphs 14 and 15. The Court notes paragraphs 27, 28, 29, 69, 70, 71, 72, and 148 of the Family Report writer’s report which, relevantly for the purposes of this Application in a Case, refers, inter alia, to the parties’ factual disputations in respect of the father’s use of pornography in the context of his care of the children, which disputations cannot be resolved at this time and should be tested at trial, together with the opinions of the Family Report writer in this context.

2. The Court notes that when Ryan J re-exercised the Court’s discretion, she left undisturbed the raft of injunctions (again, see paragraph 54 of Her Honour’s judgment) when making orders for the children to spend overnight time with the father.

3. The father’s statements at paragraphs 14 and 15 of his affidavit, including his reference to submitted support from the Family Report writer in her report, in this context, do not, in the view of the Court at this interim stage, provide a persuasive evidential basis to set aside the injunctions, and again, this injunction issue should await trial; its continuation will be in the best interests of the children, pending further order.

4. As to the father’s applications to set aside order 15 of the interim orders of 23 July 2015, being an injunction restraining the father from bringing the children into contact with two (2) particular adult persons when in his care at any time, again the Court refers to Ryan J’s re-exercise of the Court’s discretion in the face of the unchallenged injunction in this context.

5. The Court notes the father’s affidavit (paragraph 13) and his reference to the Family Report writer. The Court notes paragraph 42 of the Family Report writer’s report referring to the friend Mr A, and the children reporting being scared and frightened, on the mother’s version. The Court notes paragraph 82 of the Family Report referring, inter alia, to the child [X] expressing her fear and dislike of the family friend “[R]” to the father. In the view of the Court, at this interim stage, this further material does not provide a persuasive evidential basis to set aside this particular injunction, and again, this particular injunction issue should await trial; its continuation will be in the best interests of the children, pending further order.

6. As to the father’s proposed interim parenting order that the children’s time with the father, on alternate weekends, should commence from Friday after school and continue until Sunday 5:00pm, involving the children, in particular, the child [X], spending two (2) consecutive nights with the father, the father relies in particular on the Family Report writer’s statements at paragraph 166 of the Family Report. At paragraph 166, the report writer states, inter alia:

   I also think that the care arrangements may better support the needs of the children by reducing changeovers between the parents such that the children’s time with the father should commence after school on Friday. In my view the most taxing aspect of the changeover for the children is the emotional distress they experiencing in “leaving” their mother.

7. In relation to paragraph 166 of the Family Report, the Court notes that it is not bound to simply implement, by way of a further interim order, the apparent recommendation of the Family Report writer in paragraph 166. It is quite appropriate for the Court, at this interim stage, to examine the Family Report writer’s recommendation by reference to any apparent reasoning of the writer, including the factual basis for such recommendation.

8. At this interim stage, whilst the Court takes into account the writer’s recommendation, in particular by reference to apparent difficulties of changeovers occurring prior to the Family Report writer’s interviews (see paragraphs 39 and 40 of the report), the Court cannot clearly discern from the recommendation how the Family Report writer, when effectively recommending that the children spend two (2) consecutive nights with the father (from Friday after school to 5:00pm Sunday) reconciles other parts of her report in which she states, in particular, that the child [X] will strongly and intensely resist spending overnight time with the father, and if such oppositional behaviour is not managed sensitively and consistently by both parents, then the risk is that this child will become more psychologically distressed, possibly alienated from the father, and may become non-compliant or impulsive (paragraph 164), in conjunction with those parts of her report in which she states, inter alia, that the father is relatively poorly equipped to handle the emotional intensity of this child, and may at times become irritable and dismissive of her (paragraphs 151 and 156 of the Family Report).

9. In this context, in relation to the apparent recommendation of the Family Report writer at paragraph 166, the Court notes that the writer does not articulate whether the apparent ordeal of changeovers for the children represents a greater or lesser risk for the child [X]’s emotional wellbeing, as opposed to the arguably more significant risk of this child experiencing greater emotional trauma whilst in the care of the father, if required, to begin spending time with him on alternate weekends, from Friday after school to 5:00pm Sunday, again noting paragraphs 151, 156, and 164 in particular of her report.

10. Further, and in any event, the Court notes that the Family Report writer was not able to consider the mother’s evidence in her affidavit filed 18 August 2016 (see paragraphs 10, 11, 12, 37 to 40, and Annexures A and M of that affidavit in particular), relating, inter alia, to the child [X]’s oppositional behaviour when spending time with the father from about 17 March 2016 to July 2016, other than at times of changeover, including non-compliant and impulsive behaviour such as running away from the father to return to the mother, and oppositional behaviour to spending overnight time with the father and overnight time with the father comprising two (2) consecutive nights. This factual material referred to in the mother’s affidavit tends to confirm the Family Report writer’s identification in paragraph 164 of her report that:

    … the biggest risk in the short-term of the children spending overnight time with the father will be that [X] will strongly and intensely resist this. She is likely to continue to contact her mother during times she is with her father and to intensely express her dislike of this situation.If this behaviour is not managed sensitively and consistently by both parents, then the risk is that [X] will become more psychologically distressed, possibly alienated from her father and may become noncompliant or impulsive.

11. At this interim stage, the Court is of the view that if the children’s time with the father was to commence on Fridays after school, with such time continuing until Sunday 5:00pm, involving the child [X] in particular spending two (2) consecutive nights with the father, there is a real and significant risk that she will be emotionally detrimentally affected, and, as the Family Report writer suggests (paragraph 164), will become possibly alienated from the father or may become non-compliant or impulsive.

12. The Court is mindful of the changeover issue on the Saturday mornings identified by the Family Report writer, causing, inter alia, distress to the children (although the Court notes from Annexure M to the mother’s affidavit in particular that many changeovers appear to have been facilitated since the Family Report writer’s interviews on 16 March 2016), however, the Court is concerned at this interim stage, on the evidence now before the Court, that there is likely to be a greater risk of psychological harm (and possibly physical harm to this child if acting impulsively, including running away from the father’s care) to the child [X] in requiring her to commence spending her time with the father from Friday after school and continuing to 5:00pm Sunday.

13. The Court gives this need to protect primary consideration significant weight at this interim hearing.

14. Whilst the Court has, in particular, concentrated on the child [X], in the above discussion, there may well be a risk that the child [Y] is exposed to increased oppositional behaviour by the child [X], in the context of commencing alternate weekends with the father from Friday after school to 5:00pm Sunday.

Section 60CC(3) - Additional Considerations

(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

1. The six (6) year old child [Y] told the Family Report writer that he sees the father on weekends. He said the father sometimes could be nice, but not all the time. [Y] presented as a gregarious, sociable, and highly distracted six (6) year old. His views of the father, as expressed to the Family Report writer, should probably not be accorded significant weight.

2. The child [X] presented as a composed, mature and highly articulate 10 year old child in year 5 to the Family Report writer. She said she worries about going to the father’s home. She stated that she has always felt uncomfortable around the father and he scares her.  She said the father had never hit or hurt her. This child told the Family Report writer, in response to a question as to what the worst thing was about spending time with the father, and she said that the father took a video of her having a tantrum; she asked the father to stop and the father said he had to show the videos to the Court. This child, at paragraph 112 of the Family Report writer’s report, expressed strong views not to want to spend time with the father if she had a choice. She expressed very negative views about the father. She stated she felt unloved by him and that he doesn’t care. She stated, paragraph 114, that she doesn’t like going to the father’s house.

3. The child [X] stated that the father’s friend Mr A, she does not like, and he is my “foe”. He would shout and raise his voice at her. This child referred to seeing a photo of the father carrying [R], “in such a way that it felt like he liked her and was going to marry her.” The mother, at paragraph 118 of the Family Report, told the father that the child [X] doesn’t trust Mr A. The child [X] told the Family Report writer that she is scared the father will get remarried and she will have another mother.

4. The child [X] said she writes things in her diary to relieve her stress, and also does martial arts to relieve stress.

5. The Court notes the Family Report writer’s comments, at paragraph 161 of the Family Report, stating, inter alia, that the child [X]’s views are best understood as a confused mix of anger, hurt and betrayal, not just because of her father’s alleged actions but because of her grief and loss at her parents’ separation and the loyalty which she feels towards her mother. In this paragraph the Family Report writer states however, that she thinks that they also express the child [X]’s relative preference for time with her mother and her anxiety about being away from her mother. She states, consequently, that any time with orders which have the child [X] spending more extended time away from her mother should be considered sensibly.

6. Despite the underlying possible reasons suggested by the Family Report writer for the child [X]’s views regarding the father, they nevertheless should be given significant weight, particularly in light of this child’s oppositional behaviour when spending time with her father.

(b) Nature of the relationship of the child with each of the child’s parents; and other persons (including any grandparent or other relative of the child)

1. The child [Y] (but not [X]) was apparently fond of the paternal extended family. The children have a good relationship with the paternal extended family. 

(c) The extent to which each of the child’s parents has taken, or failed to take, the opportunity to participate in making decisions about major long-term issues in relation to the child; and to spend time with the child; and to communicate with the child

1. Both parents would appear to have taken the opportunity to so participate, spend time with the children, and communicate with the children

3(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

1. It would appear that both parents have so fulfilled these obligations.

3(d) The likely effect of any changes in the child’s circumstances, including the likely effect on the child of any separation from either of his or her parents; or any other child, or other person (including any grandparent or other relative of the child), with whom he or she has been living

1. The Court refers to its discussion above under the need to protect primary consideration.

3(f) The capacity of each of the child’s parents; and 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

1. The mother would appear to have such capacity. The Court notes the Family Report writer’s view (paragraph 155) that the mother “has a blind spot in her parenting insofar as she hasn’t realised the impact on the children of long-term estrangement from the father.”

2. The Court refers to its discussion above under the need to protect primary consideration.

3. According to the Family Report writer (paragraph 157), both parents have extremely limited capacity to facilitate and encourage the children’s relationship with the other parent.

3(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

1. According to the Family Report writer, the child [X] has been seeing the psychologist for about two (2) years and found it quite helpful.

2. According to the Family Report writer (paragraph 138), the child [X]’s relationship with the mother is one now characterised as anxiety to a degree that is developmentally abnormal; it is an aligned relationship where [X] has identified herself with the mother to the extent that the mother’s concerns have become her own.

3(i) The attitude to the child, and to the responsibilities of parenthood, demonstrated by each of the child’s parents

1. Subject to the Court’s discussion above under the “need to protect” primary consideration and under the additional consideration section 60CC(3)(f) (the capacity of the parents and other persons to provide for the needs of the child, including emotional and intellectual needs), both parties would appear to have demonstrated appropriate attitudes to the children and the responsibilities of parenthood.

3(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

1. At this interim stage, the Court is concerned that there is a real risk of further proceedings should it make the interim order sought by the father in particular, the interim order seeking to increase the children’s time with the father.

3(m) Any other fact or circumstance that the court thinks is relevant

1. The Family Report writer, at paragraph 144, expresses her opinion that the child [X]’s fractured relationship with the father urgently needs professional assistance. The Court notes the Family Report writer’s comments at paragraph 82 of the Family Report that even the father felt the child [X] needed a lot of counselling. At paragraph 167 of the Family Report, regarding the parents and the children engaging the services of a neutral family counselling service to assist with professional repair of the relationship between the child [X] and the father, the Court notes the parties are content for a (omitted family counselling service) family therapist to assist the family in these respects. The Court is of the view that such family therapy should commence as soon as possible and would be in the best interests of the children.

2. Evaluating the above discussed considerations under section 60CC of the Act, the Court is of the view, at this interim stage, that it would not be in the best interests of the children to make the proposed parenting order sought by the father (with the exception of discharging order 12 of the Court’s orders of 23 July 2015, which is to be discharged by consent).

3. It will be in the best interests of the children to undergo family therapy through (omitted family counselling service) with a view to assisting in the repair of the child [X]’s relationship with the father. Should such therapy be successful in this respect, the father could, if so advised, consider making a further application to the Court seeking to spend increased time with the children, as sought at this interim hearing. 

4. The Court is of the view that the father’s proposed orders in Exhibit C appropriately reflect the Family Report writer’s recommendations for family therapy and such order will be in the best interests of the children. Accordingly, the Court makes the following orders and directions.

I certify that the preceding sixty-seven (67) paragraphs are a true copy of the reasons for judgment of Judge Newbrun

Date: 11 November 2016