Sander and Sander

Case •

[2016] FCCA 568

•

17 March 2016

FEDERAL CIRCUIT COURT OF AUSTRALIA

SANDER & SANDER [2016] FCCA 568
Catchwords:
FAMILY LAW – Children – parenting orders – interim orders – best interests of the children – benefit to the children of having a meaningful relationship with parents – need to protect children from harm – whether unacceptable risk to children in spending time with father – whether father’s time with children needs to be supervised – whether children should spend time with father overnight.
Legislation:
Family Law Act 1975(Cth), ss.60B, 60CA, 60CC, 61DA, 65DAA, 68L
Cases cited:
In the Marriage of Doyle (1992) 106 FLR 125
Goode & Goode [2006] FamCA 1346; (2006) 36 Fam LR 422; FLC 93-286
Harrison & Woollard (1995) 18 Fam LR 788; FLC 92-598
Mazorski & Albright [2007] FamCA 520
McCall & Clark [2009] FamCAFC 92; (2009) 41 Fam LR 483; FLC 93-405
Applicant: MR SANDER
Respondent: MS SANDER
File Number: SYC 7798 of 2014
Judgment of: Judge Scarlett
Hearing date: 4 February 2016
Date of Last Submission: 4 February 2016
Delivered at: Sydney
Delivered on: 17 March 2016

REPRESENTATION

Counsel for the Applicant: Mr Breeze (direct brief)
Solicitor for the Respondent: Ms Monastiriotis
Solicitors for the Respondent: Slater & Gordon Lawyers
Counsel for the Independent Children's Lawyer: Ms Murphy
Solicitors for the Independent Children's Lawyer: John Spence & Associates

ORDERS

UNTIL FURTHER ORDER

  1. All earlier previous parenting Orders are discharged.

  2. The Respondent Mother is to have sole parental responsibility for the children of the marriage X born (omitted) 2010 and Y born (omitted) 2012.

  3. The children X and Y are to live with the Mother.

  4. The children X and Y are to spend time with the Father from 1:00pm to 5:00pm each Saturday with such time to be supervised by the maternal great-aunt MS S until such time as the Father demonstrates to the Independent Children’s Lawyer that he has complied with the Orders (5), (6), (7) and (8) following.

  5. Within fourteen (14) days from the date of these Orders the Father must enrol at a Parenting After Separation Course as nominated by the Independent Children’s Lawyer and provide evidence of such enrolment to the Independent Children’s Lawyer and the Mother’s solicitor within two (2) days of such enrolment.

  6. Within fourteen (14) days from the date of these Orders the Father must enrol in an anger management course as nominated by the Independent Children’s Lawyer and provide evidence of such enrolment to the Independent Children’s Lawyer and the Mother’s solicitor within two (2) days of such enrolment.

  7. The Father must undergo CDT testing for alcohol use on a monthly basis for a minimum of three (3) months the first of which is to take place within fourteen (14) days from the date of these Orders and provide a copy of the test result to the Independent Children’s Lawyer and the Mother’s solicitor within twenty-four (24) hours of receiving such result.

  8. The Father must undertake a chain of custody urine drug screen which must be performed in accordance with the current Australian/New Zealand Standard (AS/NZ 4308/2008 procedures for specimen collection and the detection and quantitation of drugs of abuse in urine) on at least one occasion each month as directed by the Independent Children’s Lawyer the first of which is to take place within fourteen (14) days of the date of these Orders and provide a copy of the test result to the Independent Children’s Lawyer and the Mother’s solicitor within twenty-four (24) hours of receiving such result.

  9. PROVIDED THAT:

    (a)the Father provides evidence to the Independent Children’s Lawyer and the Mother’s solicitor of his compliance with Orders (5), (6), (7) and (8) above; and

    (b)the results of the tests provided in Orders (7) and (8) above show a negative result;

    THEN Order (4) above is suspended and the following Orders will apply:

  10. The children X and Y are to spend time with the Father:

    (a)From 9:00am to 5:00pm each Saturday;

    (b)For a period of two (2) hours on each of the children’s birthdays;

    (c)For a period of two (2) hours on the father’s birthday;

    (d)From 9:00am to 5:00pm on Father’s Day; and

    (e)From 2:00pm to 5:00pm on Christmas Day.

  11. If on any subsequent occasion the Father produces a CDT test result or a urinalysis drug screen result which shows the presence of alcohol or illicit drugs then Order (10) above will be suspended and Order (4) will recommence.

  12. The Father must not consume alcohol or administer to himself any illicit substance at any time when he is spending time with the children in accordance with these Orders or for twenty-four (24) hours beforehand.

  13. The parties are restrained from:

    (a)making any critical or derogatory remarks to or about the other party in the presence or hearing of the children or either of them or permitting any third person to do so; and

    (b)discussing these proceedings with the children or either of them or showing them any documents connected to these proceedings or permitting any third person to do so.

  14. Within fourteen (14) days from the date of these Orders the Mother must enrol at a Parenting After Separation Course as nominated by the Independent Children’s Lawyer and provide evidence of such enrolment to the Independent Children’s Lawyer and the Father’s solicitor within two (2) days of such enrolment.

  15. The Father is entitled to obtain school reports, newsletters and other information from the school or pre-school attended by the children and this Order constitutes authority to the respective school and pre-school for the father to obtain such reports.

  16. Changeover where the children go from the care of one parent to the care of the other will be as agreed between the parents or failing agreement as nominated by the Mother.

  17. The Application is transferred to the docket of Judge Boyle to be listed on a date to be fixed.    

IT IS NOTED that publication of this judgment under the pseudonym Sander & Sander is approved pursuant to s.121(9)(g) of the Family Law Act 1975 (Cth).

FEDERAL CIRCUIT COURT
OF AUSTRALIA
AT SYDNEY

SYC 7798 of 2014

MR SANDER

Applicant

And

MS SANDER

Respondent

REASONS FOR JUDGMENT

Application

  1. This is an Application for interim parenting orders by the Father, who is the Applicant in the substantive proceedings. The proceedings concern the parties’ two daughters, X, born on (omitted) 2010 and therefore aged 5 years and 10 months, and Y, born (omitted) 2012 and so aged 3 years and 5 months.

  2. There were interim Orders made by consent on 13th May 2015, providing for the children to live with the Mother and spend time with their father for four hours each Saturday. This time is being supervised by the maternal great aunt, Ms S.

Orders sought

  1. The Father seeks orders, not as in his original interim Application, which has been somewhat overtaken by events, but as in Annexure “A” to the Case Outline prepared by his Counsel, Mr Breeze. The orders he seeks are:

    1. The children X (born (omitted) 2010) and Y (born (omitted) 2012)(“the children”) are to live with the mother and spend time with father as follows:

    1.1    From the making of these orders for a period of 6 weeks,

    (i)      Each Saturday from 9am until 5pm, and

    (ii)    Each alternate Sunday from 9am until 5pm, and

    (iii)Each Wednesday, from the conclusion of school until 8pm, and

    1.2    From 18 March 2016, for a period of 6 weeks,

    (i)Each alternate weekend, from 9am Saturday until 5pm Sunday, and

    (ii)Each Wednesday, from the conclusion of school until 8pm, and

    1.3    From 27 April 2016, until otherwise ordered,

    (i)Each alternate weekend from 9am Saturday until 5pm Sunday, and

    (ii)From the conclusion of school each Wednesday until the commencement of school each Thursday, but if such time falls within the NSW School Holidays, from 3pm Wednesday until 9am Thursday.

    2. For the purpose of a change over that does not involve school, each changeover is to occur at the carpark of (omitted).

    3. For the purpose of a changeover that involves the pick up or drop off to and from school, the father is to collect the children from their school or drop them off at the school.

    Notations

    (a)The court notes that the Father agrees to the making of these orders on a strictly without admissions basis as to the fact that his time with the children is limited to that ordered above.

    (b)On a without admission basis, the father agrees that he will not consume alcohol or take any illicit substances 24 hours prior to his time with the children, or whilst he is spending time with the children.

    (c)If overnight time is ordered, the Father will immediately purchase and install a bed for each child.      

  2. The Mother does not agree with these proposed orders. She raises issues about the Father’s drug use and his issues with anger management. Accordingly, the orders she seeks in her Proposed Minute of Orders set out in her Outline of Case Document address these issues:

    Pending further Order:

    1. That the children X born (omitted) 2010 and Y born (omitted) 2012 live with the Mother.

    2. That the children spend time with the Father for a period of four hours each Saturday from 1:00 pm to 5:00 pm with such time to be supervised by the Maternal Great-Aunt, Ms S or failing such, a Contact Centre.

    3. That the Father do all things necessary to undergo a urinalysis for drugs of abuse (“the test”) with an organisation of the Mother’s nomination and for this purpose the Father must:

    (a)Undertake all reasonable enquiries to ensure that the procedures for the test are in accordance with Australian Standard AS/NZS 4038:2008 prior to using any organisation for the screen;

    (b)Provide a urine specimen supervised in accordance with the specimen collection procedures set out in Australian Standard AS/NZS 4308:2008;

    (c)Provide all reports from the test to the Mother/mother’s legal representative within 24 hours of receipt of such report;

    (d)Pay all costs associated with the test, including any confirmatory testing of the test if required;

    (e)Undertake the test within 48 hours of receiving a request in writing from the Mother’s legal representative and such requests are to be no more than once a month in frequency.

    4. That in the event of the production of an abnormal drug screen report, the children’s time with the Father pursuant to Order 2 hereof be suspended.

    5. That the Father forthwith do all such acts and things necessary to enrol in and complete an Anger Management Course, and that for the purpose of this Order, the Husband and/or his legal representative shall notify the Wife’s solicitors when such course is complete.

  3. The Independent Children’s Lawyer, in a Minute of Orders tendered at the hearing, proposed a serious of conditions which, if the Father were to fulfil, would lead to his having unsupervised time with the children from 9:00am to 5:00pm each Saturday.

  4. The proposed orders are:

    1.  Further to the orders made on 13 May 2015.

    2.  That the father shall:

    (a)Undergo CDT testing for alcohol use on a fortnightly basis for a minimum of two months and shall provide a copy of the test result within 24 hours of the date of the report to the Independent Children’s Lawyer and the Mother’s solicitor.

    (b)Attend for alcohol, drug, depression[1] and anger management therapy on a regular basis not less than once a fortnight and provide evidence of enrolment in such therapy within 24 hours from the date of enrolment and evidence of regular attendance to the Independent Children’s Lawyer.

    [1] This word is handwritten and not very legible

    (c)Attend a Parenting course as recommended by the Independent Children’s Lawyer and provide evidence of enrolment to the Independent Children’s Lawyer within 48 hours of enrolment.

    (d)Provide, as soon as practical, or within one month, a report from the father’s treating medical practitioner or practitioners with respect to the impact or potential impact on the father and/or the father’s behaviour of the regular consumption by the father of prescribed steroids.

    3. Subject to receipt by the Independent Children’s Lawyer of the first satisfactory CDT test result provided for in order 1 and otherwise ongoing compliance by the father with order 1(a),(b), (c), (d), the father’s time pursuant to the 13 May 2015 orders shall be  varied and the father shall spend unsupervised time with the children each Saturday from 9am until 5pm, and such further time as may be agreed between the parties, pending further order.

    4. That the father shall not, at any time when he spends time with the children, consume alcohol or any illicit substance 24 hours prior to spending time with the children or during the time he spends with the children.

    5. Each party is restrained from making critical or derogatory remarks about the other party or members of their family in the presence or within the hearing range of the children and each party shall do all things reasonably necessary to ensure that no other person makes any critical or derogatory remarks about the other party or members of their family in the presence or within the hearing range of the children.

    6. Each party is restrained from discussing these proceedings with the children and shall do all things reasonably necessary to ensure that no other person discusses these proceedings with the children.

    7. Liberty to the Independent Children’s Lawyer to relist the matter on  7 days’ notice.

    8.  That the mother shall attend a Parenting course.

    9. That the Father shall be at liberty to obtain reports and other information from the school or preschool the children attend and this order constitutes authority to the schools for the father to obtain such reports.        

Background

  1. The Father was born on (omitted) 1971. He is now 44 years of age.

  2. The mother was born on (omitted) 1974. She is now 41 years of age.

  3. The parties were married on (omitted) 2007.

  4. There are two children of the marriage:

    a)X was born on (omitted) 2010 and is therefore now 5 years and 11 months old; and

    b)Y was born on (omitted) 2012 and is therefore now 3 years and 6 months old.  

  5. The children live with their mother.

  6. The parties initially separated in February 2011, before Y was born, but were reconciled in about August of that year. They separated on a final basis on 20th December 2013. They are now divorced.

  7. In about May 2014 a Final Apprehended Domestic Violence Order was made against the Father by the Local Court. It remained in force for a period of 12 months.

  8. The Father commenced these proceedings by filing an Initiating Application and supporting documents on 11th December 2014. The Application was originally returnable on 16th March 2015 but was adjourned to 13th May. On that date the parties entered into Interim Consent Orders, providing that the children would live with the Mother and spend time with the Father from 1:00pm to 5:00pm each Saturday. The time was to be supervised by the maternal great aunt.

  9. On 14th July 2015 the Father pleaded guilty to possessing two vials of steroids.

  10. The parties attended a Child Dispute Conference with a Family Consultant on 6th August 2015. The Family Consultant noted that the limited time which the children spent with their father and the limited range of activities and routines would curb the opportunity for the children to establish and maintain meaningful relationships with their father.

  11. On 8th September 2015 an Order was made that an Independent Children’s Lawyer should be appointed under the provisions of s.68L of the Family Law Act 1975 (Cth).

  12. An interim Apprehended Violence Order was made against the Father on 3rd November 2015, naming the Mother as the protected person.

  13. Between 9th and 11th November 2015 there were proceedings in the District Court of New South Wales against the Father in respect of charges of robbery and assault. The proceedings were adjourned to a date in June 2016.

  14. On 28th January 2016 in the Local Court at Hornsby a final Apprehended Domestic Violence Order was made against the Father.

Evidence and Submissions

  1. The Father relied on the following documents:

    a)His Initiating Application of 11th December 2014;

    b)His affidavit of 24th August 2015;

    c)His affidavit of 3rd February 2016;[2]

    d)The affidavit of Ms M affirmed 18th October 2015; and

    e)The Child Dispute Conference Memorandum to Court of 6th August 2015.

    [2] Whilst it has been the practice in this Registry that a party may rely on only one affidavit per witness in interim proceedings, and an order to this effect was made on 2 February 2016, many practitioners still seem not to understand this practice or, alternatively, are unable to count.

  2. The Mother relied on the following documents:

    a)Her Response filed on 27th May 2015;

    b)The Notice of Risk filed that same day; and

    c)Her affidavit affirmed 3rd February 2016.

Submissions on behalf of the Father

  1. Counsel for the Father, Mr Breeze, submitted that the children are not at an unacceptable risk of harm in the care of their father, such that a supervision order would be necessary. The order for supervision has been in place for almost nine months and there is no evidence that the Father has posed any risk of harm to the children. The Mother has facilitated the children spending time with the Father each week.

  2. The supervisor, Ms S, the maternal aunt, has not given any evidence of any risk of harm to the children.

  3. The Mother told the Family Consultant at the Child Dispute Conference that the Father had never physically harmed the children and has otherwise made no allegation to that effect.

  4. Mr Breeze submitted that the provisions of s.65DAA(2) of the Family Law Act 1975 (Cth) direct the court to consider whether an order should be made providing for the children to spend substantial and significant time with the Father. The best interests of the children support the proposition that there should be a substantial increase in the children’s time with their father.

  5. The Child Dispute Conference Memorandum contains objective and highly probative evidence supporting the need for the children to have more time with their father. The limited time and limited range of activities will curb the opportunity for the children to establish and maintain meaningful relationships with their father. Further, the parents’ reports about the children’s behaviour suggest that they are happy to spend time with the Father and they would enjoy spending greater amounts of time with him.

  6. It was submitted that a graduated increase in time, leading to three nights per fortnight until the final hearing would give proper effect to the best interest principles.

Submissions on behalf of the Mother

  1. The solicitor for the Mother, Ms Monastiriotis, told the Court that there was no issue that the children love their father or that he loves them. It was conceded that there had been no incidents of problematic behaviour by the Father during the period of supervision but this was because of the supervision.

  2. It was submitted that the Mother still considers the father to pose a risk to the children. He does not seem to understand the impact of his behaviour. The Court should take a very cautious approach to time with the Father on an interim basis.

  3. The Mother seeks a continuation of the present Orders that provide for the children to spend supervised time with the Father for four hours a week. In addition, she seeks that he should undergo drug testing and an anger management course.

  4. The Mother has made allegations of family violence and has concerns about the Father’s drug and alcohol use and his severe depression. Her view is that the children’s time with the Father should be supervised and limited to daytime only.

  5. It is submitted on behalf of the Mother that the proposed weekly face to face time will allow the children to maintain a meaningful relationship with their father. The Court should take a cautious approach with respect to the need for supervision having regard to the Mother’s allegations that the Father has suffered from depression and suicidal ideation, that he has partaken in drug use and excessive alcohol consumption, is currently facing charges of robbery, theft and assault, and there has been  a history of family violence during the time when the parties lived together. One incident took place when the older child was present in the home but was not a direct witness at the time.

  1. It was further submitted that the children’s primary attachment is to their mother, who has been their primary carer. The Mother maintains that after the parties separated she initiated time for the children to see the Father but he failed to maintain a constant regime of time. Even after the interim consent Orders were made in May 2015 the Father elected to cancel a number of his visits with the children without giving the Mother any reason.

  2. Ms Monastiriotis also submitted that the Mother’s proposal does not involve any change in the children’s primary place of residence with the Mother. However, the proposal does allow for a meaningful relationship between the children and both parents. Further, given the children’s young ages and the inconsistency of the time spent with them by the Father to date, the Father’s proposal would likely lead to a considerable change in the children’s circumstances, noting that neither child has been separated from the Mother for long periods of time.

  3. It was further submitted that there would not be any practical difficulty or expense in the children spending time with their father in accordance with the Mother’s proposal, as the maternal Aunt has agreed to continue supervising the children’s time with him.

  4. Ms Monastiriotis submitted that the Mother has concerns about the Father’s mental health and his failure to maintain a consistent routine with the children.

  5. Further, there have been several Apprehended Domestic Violence Orders in place, and there is currently such an order in place for twelve months. A copy of the Order, made by the Hornsby Local Court on 28th January 2016, is annexed to the Mother’s affidavit.

  6. The Mother seeks an order that she should have sole parental responsibility for the children given the allegations of family violence throughout the marriage. It was submitted that it is not in the children’s best interests for the parents to have equal shared parental responsibility for the children, having regard to the Mother’s fears of the Father.

  7. The Mother is also of the view that an equal time arrangement between the parents is not appropriate given the age of the younger child and the children’s primary attachment to their mother.

  8. Finally, it was submitted that the Mother’s proposal provides for the children to develop a meaningful relationship with their father but also takes into account the fact that the children have not spent overnight time with their father since the parties separated in December 2013.

Submissions on behalf of the Independent Children’s Lawyer

  1. Counsel for the Independent children’s Lawyer, Ms Murphy, submitted that the issues for determination were:

    a)Whether the children’s time with their father should continue to be supervised;

    b)Increase in time the children spend with their father;

    c)Overnight time for the children with their father; and

    d)Drug or alcohol testing; anger management and/or therapy.

  2. Ms Murphy noted that the Family Consultant had reported that the children love spending time with their father and they would benefit from more time with him. She referred the Court to the decisions of McCall & Clark[3] and Mazorski & Albright[4] as to the benefit to the children of having a meaningful relationship with both of their parents.

    [3] [2009] FamCAFC 92; (2009) Fam LR 483; FLC 93-405

    [4] [2007] FamCA 520

  3. The parties’ evidence does not identify that the children were exposed to family violence although it was mother’s evidence that there had been several incidences of serious family violence. The Father was convicted of assault in January 2011. He was convicted of an assault on the mother during an incident in January 2014.

  4. The Mother alleges that the Father has been suicidal in 2008 and in April 2014 and has abused steroids and alcohol.

  5. The ICL submitted that the wishes of the children are important and realistic weight should be attached to their wishes. Ms Murphy referred the Court to the decisions of Harrison & Woollard[5] and In the Marriage of Doyle[6].

    [5] (1995) 18 Fam LR 788; FLC 92-598

    [6] (1992) 106 FLR 125

  6. It was further submitted that the children appear to have a strong relationship with their mother and a happy relationship with their father. Both parents report that the children love spending time with their father.

The Parties’ Proposals

  1. The Father proposes that:

    a)The children should continue to live with the Mother;

    b)The children should spend time with him without supervision in a graduated program, commencing with:

    i)Each Saturday from 9:00am to 5:00pm;

    ii)Each alternate Sunday from 9:00am to 5:00pm; and

    iii)Each Wednesday from the conclusion of school until 8:00pm.

  2. The Mother proposes that:

    a)The children should continue to live with her;

    b)The children should spend time with the Father for four hours each Saturday from 1:00pm to 5:00pm supervised by Ms S or at a contact centre;

    c)The Father should undergo urinalysis to detect the presence of drugs of abuse; and

    d)The Father should undergo an anger management course.

  3. The Independent Children’s Lawyer proposes that:

    a)The Father should undergo CDT testing for alcohol use on a fortnightly basis;

    b)The Father should attend for alcohol, drug, depression and anger management therapy on a regular basis;

    c)The Father should attend a parenting course;

    d)The Father should provide a report from his treating medical practitioner about the impact on his behaviour of the regular consumption of steroids;

    e)Upon his compliance with these requirements, the Father’s time with the children should increase to 9:00am to 5:00pm each Saturday unsupervised;

    f)The Father should not consume alcohol or any illicit substance 24 hours prior to or during spending time with the children;

    g)There should be mutual restraints on the parties from making critical or derogatory remarks about the other;

    h)There should be mutual restraints on the parties from discussing the proceedings with the children;

    i)The Mother should attend a parenting after separation course;

    j)The Father should be at liberty to obtain school reports and other school information about the children; and

    k)Changeover should be as agreed between the parties or failing agreement as nominated by the mother.

Agreed or uncontested relevant facts

  1. The children have lived with the Mother since the parties separated in December 2013. They have seen their father in accordance with the Interim Consent Orders made on 13th May 2015. This time has always been supervised, for a period of four hours at a time.

The Relevant Law in regard to Parenting Applications

  1. When the Court is considering making parenting orders, whether final orders or orders until further order (i.e. interim orders), it must have regard to various sections of the Family Law Act 1975 (Cth) that are to be found in Part VII of the Act. In particular, it should have regard to the provisions of:

    a)Section 60B, which contains the objects of Part VII and the principles underlying those objects;

    b)Section 60CA, which requires the Court to regard the best interests of the child as the paramount consideration;

    c)Section 60CC, which sets out the way that the Court determines what is in a child’s best interests;

    d)Section 61DA, which deals with the presumption that it is in a child’s best interests for his or her parents to have equal shared parental responsibility for the child; and

    e)Section 65DAA, which requires the Court to consider equal time or substantial and significant time with each parent where an order has been made that the parents should have equal shared parental responsibility for the child.

  2. All of those matters have been considered, so far as they are relevant. The matters in sections 60CC, 61DA and 65DAA will be discussed further.

Relevant matters in section 60CC of the Family Law Act

  1. The Full Court of the Family Court in Goode & Goode[7]requires the Court at first instance to consider the matters in s.60CC that are relevant and, if possible, make findings about them, noting that:

    (in interim proceedings there may be little uncontested evidence to enable more than a limited consideration of these matters to take place)[8].

    [7] [2006] FamCA 1346; (2006) 36 Fam LR 422; FLC 93-286

    [8] (2006 36 Fam LR 422 at 445 [82]

  2. In this case, and in many other interim parenting cases, the issues really concern the two primary considerations in subsection 60CC(2), being on the one hand the benefit to the children of having a meaningful relationship with both of their parents and, on the other, the need to protect the children from physical or psychological harm from being subject to or exposed to abuse, neglect or family violence. The Court is required by s.60CC(2A) to give weight to the latter consideration.

  3. There is no doubt that the children have been in the care of their mother since the parties separated and have seen their father on a weekly basis for four hours at a time, but I am not satisfied that this limited arrangement is beneficial to the development of the children’s relationship with their father. This view appears to be supported by the opinion of the Family Consultant expressed in the Child Dispute Conference Memorandum to Court.

  4. There are limitations placed on the children’s time with their father, not only because it is relatively short, but because of the constant presence of the supervisor, the children’s maternal great aunt. The arrangement does not allow the father to have any interaction with the children on special and significant occasions, such as birthdays, Father’s Day and Christmas Day.

  5. The current arrangement is limited and artificial and is not sustainable in the long run. It has been in effect for ten months now and needs to be changed to allow the children’s relationship with their father to progress. It should not go into its second year unchanged.

  6. At the same time, priority must be given to the children’s safety. It is conceded by the Mother that the Father has never physically harmed the children, but she expressed a fear to the Family Consultant that “he may ‘snap’ and harm the children”.  The evidence in support of this contention seems to be flimsy, at best.

  7. There are risk factors, however. The Father has a conviction for assault and there is a current Apprehended Domestic Violence Order in place, which extends until January 2017. The orders restrain the Father from assaulting, molesting, harassing, threatening or otherwise interfering the Mother or persons with whom the Mother has a domestic relationship, i.e. the children.

  8. There are concerns about the extent of the Father’s drinking and his use of steroids. He has been said to have suffered from depression and to have been suicidal in the past. The Mother seeks an order that the Father attend further anger management courses. In her affidavit of 3rd February 2016 the Mother deposes at paragraph [58] that she wants the current interim parenting arrangements to remain in place “at least until Mr Sander’s criminal matters have been dealt with”.[9]

    [9] Affidavit of Ms Sander 3.2.2016 at paragraph [58]

  9. With respect, it is difficult to see the connection between the criminal charges faced by the Father and the Mother’s expressed wish for the Father’s time with the children to be supervised. According to the Mother’s affidavit at paragraphs [35] to [42], the Father was arrested in November 2014 for robbery and assault, allegedly having taken cash and equipment belonging to the Mother’s (omitted) business and having assaulted an employee of the business named Ms J.

  10. With respect, whether the Father is convicted or acquitted of those charges would not appear to have any bearing on whether his time with the children should be supervised. What, if anything, will change after the criminal proceedings have been concluded? It may be, of course, that he may be sentenced to imprisonment if he is found guilty, which would have an effect on any parenting arrangement, but short of that there is difficulty in seeing any connection.

  11. In my view, the Father needs to establish that he does not pose a threat of harm to the children from steroid use, abuse of alcohol or unrestrained anger. It would appear that both he and the Mother should attend a parenting after separation course as recommended by the Independent Children’s Lawyer.

  12. Once the Father has embarked on these steps and provided proof to the Independent Children’s Lawyer that he has done so, then the parenting arrangements can be somewhat liberalised. I am not satisfied that there will be any need for the supervision to continue into its second year.

  13. It does not seem appropriate at this stage that there should be overnight time between the children and their father, especially as they have not spent more than four hours at a time with him and noting the age of the younger child, Y. Y was born on (omitted) 2012 and it would be preferable to wait until she has reached her fourth birthday before overnight time with the Father starts.

  14. It would be in the children’s interests to see their father, even for a comparatively short time, on such occasions as their birthdays and Father’s Day.

Equal shared parental responsibility and section 61DA of the Family Law Act

  1. The Court is required to decide whether the presumption in s.61DA of the Act that equal shared parental responsibility is in the best interests of the children does or does not apply.

  2. The answer is simple; it does not apply. Subsection 61DA(2) provides that the presumption does not apply if there are reasonable grounds to believe that a parent of the child has engaged in family violence. The evidence is that the Father has been convicted of an assault and there is an Apprehended Domestic Violence Order in force.

  3. I intend to make an order that the Mother is to have sole parental responsibility for the children until further order. As provided by s.61DB of the Act, the allocation of parental responsibility will be considered afresh when the Court is considering making final orders.

Section 65DAA of the Family Law Act

  1. As I do not propose to make an order that the parties should have equal shared parental responsibility for the children but that the Mother is to have sole parental responsibility, it is unnecessary to consider the matters set out in subsections 65DAA(1) and (2).

Orders that are in the children’s best interests

  1. In my view, the orders that are in the child’s best interests are that, until further order:

    a)The Mother should have sole parental responsibility for the children;

    b)The children should live with the Mother;

    c)The Father should enrol in:

    i)a parenting after separation course as directed by the Independent Children’s Lawyer; and

    ii)an anger management course as directed by the Independent Children’s Lawyer;

    d)The Father should undergo CDT testing on a monthly basis for a minimum of three (3) months and provide a copy of each test result to the Independent Children’s Lawyer and the Mother’s solicitor within twenty-four (24) hours of receiving such report;

    e)The Father should undergo chain of custody urinalysis for the purpose of detection of drugs of abuse on at least one occasion each month as directed by the Independent Children’s Lawyer; and

    f)Provided that the Father can demonstrate that he has enrolled in the above courses and undertaken the above tests without a negative result, then the children are to spend time with the Father:

    i)From 9:00am to 5:00pm each Saturday;

    ii)For a period of two (2) hours on each of the children’s birthdays;

    iii)For a period of two (2) hours on the Father’s birthday;

    iv)From 9:00am to 5:00pm on Father’s Day; and

    v)From 2:00pm to 5:00pm on Christmas Day.

  2. There will then be no further requirement for supervision.

  3. The Father will be restrained by injunction from consuming any alcohol or administering to himself any illicit substance during the times when the children are in his care or four twenty four (24) hours beforehand.

  4. The Mother should enrol in a parenting after separation course as directed by the Independent Children’s Lawyer.

  5. The parties will be restrained by injunction from:

    a)making critical or derogatory remarks about the other party in the presence or hearing of the children; and

    b)discussing the proceedings with the children.

  6. The Father will be permitted to obtain copies of all school reports and other information from the children’s school and preschool.

The future progress of the matter

  1. A Family Report was ordered on 8th September 2015 but has not yet been completed.

  2. There are also property proceedings on foot. The parties were directed to attend a Conciliation Conference with a Registrar on 12th January this year, but for some reason a request was received the day before to vacate the Conference. As the property issues remain unresolved, the parties will need to make arrangements to attend a conciliation Conference.

  3. The proceedings will be transferred to another Judge for the purpose of the matter proceeding further.

I certify that the preceding eighty (80) paragraphs are a true copy of the reasons for judgment of Judge Scarlett

Date:  17 March 2016


Key Legal Topics

Areas of Law

  • Family Law

Legal Concepts

  • Remedies

  • Injunction

  • Procedural Fairness

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Cases Citing This Decision

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Cases Cited

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Statutory Material Cited

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Mazorski & Albright [2007] FamCA 520
Bardot and Benjamin [2013] FCCA 1024
Goode & Goode [2006] FamCA 1346