SANDERSON & MEARES

[2015] FCCA 2637

FEDERAL CIRCUIT COURT OF AUSTRALIA

SANDERSON & MEARES [2015] FCCA 2637

Catchwords:
FAMILY LAW – Parenting – interim orders – where mother alleges family violence in relationship – where mother proposes substantial change to a contact arrangement that has been in place since June 2014 – where mother’s case plainly misconceived – where the evidence does not support the mother’s contentions.

Legislation:

Family Law Act 1975, ss.60B, 60CA, 60CC, 61DA, 65DAA

Goode & Goode [2006] FamCA 1346
MRR v GR [2010] HCA 4

Applicant: MS SANDERSON

Respondent: MR MEARES

File Number: WOC 424 of 2015

Judgment of: Judge Altobelli

Hearing date: 16 September 2015

Date of Last Submission: 16 September 2015

Delivered at: Wollongong

Delivered on: 14 October 2015

REPRESENTATION

Solicitors for the Applicant: Rachel Stubbs & Associates

Solicitors for the Respondent: Hansons Lawyers

Solicitors for the Independent Children's Lawyer: Helen Volk Lawyers

ORDERS PENDING FURTHER ORDER

1. That the Children, X born (omitted) and Y born (omitted) 2009, live with the Mother.

2. That the Children spend time with the Father as follows:

   (a)During NSW Public School Terms:

   (i)each Friday, from after school until 6.30pm;

   (ii)each alternate weekend, from 9:30am Saturday until 5.30pm Sunday.

   (b)Subject to the Father being substantially available to care for the children, for one half of the NSW Public School holidays:

   (i)being the second half in odd numbered years for the Term 1, 2 and 3 school holiday periods;

   (ii)being the first half in even numbered years during the Term 1, 2, and 3 school holiday periods;

   (iii)each alternate week during the 2015/2016 Christmas school holiday periods, and in lieu of agreement, from 3pm Friday until 3pm the following Friday, each alternate week;

   (c)3pm 25/12/2015 until 5.30pm 26/12/2015;

   (d)from 9am until 5pm on Father’s day;

   (e)for 4 hours, which shall reduce to 2 hours on school days, on each of the children’s and the father’s birthday.

3. That the time the children spend with the Father, pursuant to these Orders, shall be suspended:

   (a)from 3pm 24/12/2015 until 3pm 25/12/2015;

   (b)from 9am until 5pm on Mother’s day;

   (c)for 4 hours, which shall reduce to 2 hours on school days, on each of the children’s birthdays and the mother’s birthday.

4. That, for the purpose of facilitating the time the children spend with the Father pursuant to these Orders, where changeover does not occur at the children’s school, the parents each do all things necessary, sign all necessary documents, pay all necessary fees, to apply to use the services of Catholic Care Supervised Contact and Changeover Centre in (omitted) to facilitate changeover.

5. That upon acceptance by (omitted) of the application of the parties to utilities the services of (omitted) for supervised changeover, that changeover occur at (omitted) where changeover does not occur at the children’s school.

6. That if changeover is to occur on a non school day or time, and (omitted) is unavailable to facilitate changeover, or the parties’ application is refused or terminated, then Changeover shall occur at McDonald’s Family Restaurant at (omitted), and the parties shall each do all things necessary to facilitate changeover so occurring.

7. That each parent be at liberty to arrange for a responsible adult, known to the children, to facilitate changeover, if they are unavailable to do so themselves.

8. That each parent be responsible for meeting the children’s needs during the time the children are in their respective care, including providing clothing, meals and hygiene.

9. That the Father return the children’s school uniforms to the Mother at the conclusion of the time the children spend with him where such time commenced at the conclusion of school.

10. That the children be at liberty to take their own belongings with them to the home of the other parent, and each parent will facilitate the return to the child, of any item left at the home of the other parent, within 24 hours of a request to do so.

11. That each parent be restrained from making critical or derogatory remarks about the other parent, or member of the other parent’s family or household in the presence or within hearing of either of the children, and shall immediately remove the children from the presence of any other person who does so.

12. That the Father be restrained from consuming alcohol or being under the influence of alcohol in excess of the legal driving limit during any time the children are in his care.

13. That each parent facilitate the children communicating with the other parent by telephone, Skype or Face Time:

    (a)at any time they express a wish to do so, with the parent who has the care of the children to facilitate the children contacting the other parent; and

    (b)at 5.30pm each Tuesday and Thursday, with the parent wishing to communicate with the children, to contact the parent with the care of the children.

14. That the Father be restrained from requiring the child, X, to do homework for more than 15 minutes on any one day that the children are in his care.

15. That each parent be restrained from physically disciplining either child during any time the children are in their care.

16. That each parent be restrained from:

    (a)Discussing these proceedings;

    (b)Showing any document pertaining to these proceedings to the children;

    (c)Discussing the Mother’s proposed relocation;

    (d)Discussing the Mother’s proposal to change the children’s school;

    (e)Encouraging the children to keep secrets from the other parent;

    (f)With the children, or within their presence or hearing, without the leave of the Court.

FURTHER ORDERS:

1. The matter be listed for a 3 day Final Hearing in 2017 on a date and time to be advised.

2. The Independent Children’s Lawyer is at liberty to file terms in the Registry for the purposes of orders being made in Chambers regarding the appointment of an expert.

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

FEDERAL CIRCUIT COURT
OF AUSTRALIA
AT WOLLONGONG

WOC 424 of 2015

MS SANDERSON

Applicant

And

MR MEARES

Respondent

REASONS FOR JUDGMENT

Introduction

1. These reasons for judgment explain the interim orders the Court has made in relation to two children:  X born (omitted) 2007, 8 years old, and her brother, Y born (omitted) 2009, 5 years old.

Background

1. The Applicant in this case is the children’s mother.  She is 32 years old and is a (occupation omitted) of an (employer omitted).  The Respondent is the children’s father.  He is 40 years old and is a self-employed (occupation omitted).  The parents commenced their relationship in 2001, married in 2003, and separated in June 2014.

2. By consent, on 7 July 2015, orders were made for the children to live with their mother and spend time with their father each Friday from after school until 7:00pm, and each alternate weekend from 9:30am on Saturday until 7:00pm on Sunday.  It is common ground that these orders reflected the post-separation arrangement pertaining to the children that the parents had themselves implemented.

3. After separation the Mother commenced a relationship with a man who resides in Brisbane.  In her Application filed 5 May 2015 she seeks final orders that would enable her to relocate the children to Brisbane.

4. For the time being, however, the Mother seeks orders on an interim basis that she have sole parental responsibility, that the children live with her, and spend supervised time with their father.  Indeed, it should be noted that on a final basis the Mother proposes that the Father have no contact with the children by any means whatsoever.

5. The Father proposes on an interim basis that the children live with the Mother while she continues to reside in (omitted), and to spend unsupervised time with him each afternoon from after school until 7:00pm, and each alternate weekend from after school Friday until 7:00pm Sunday, as well as half the school holidays and special occasions.  If the Mother relocates, the Father seeks orders on a final basis that the children live with him and spend time with her.

6. It will be apparent, therefore, that the proposals advanced by each parent are very different.

7. On an interim basis, the Independent Children’s Lawyer proposes, in effect, a continuation of the existing arrangement, save that changeovers not occurring at the children’s school and be facilitated by the changeover service at Catholic Care Supervised Contact Centre.

8. The Minutes of Orders proposed by both parents and the Independent Children’s Lawyer are reproduced in the first schedule to these reasons.

The Evidence

1. In the Mother’s case, she relied on her two Affidavits filed 21 April 2015 and 11 September 2015.  A very helpful case outline was filed on her behalf.

2. In the Father’s case, he relied on his Affidavit of 29 June 2015.  A case outline was also filed on his behalf together with an aide‑mémoire drawing the Court’s attention to specific evidence.

3. The Independent Children’s Lawyer’s case relied on the Child Dispute Conference Memorandum to Court of 7 July 2015.  The Independent Children’s Lawyer provided an extensive case outline.

4. A considerable quantity of documents were produced on subpoena by (omitted) Sexual Assault Service;  Dr V, psychiatrist;  Dr J, a general practitioner;  the (omitted), New South Wales Police; and Bright Beginnings.  Relevant reference will be made to the evidence tendered. 

5. It is useful, however, to summarise the Child Dispute Conference Memorandum at this point.  It records the Mother’s allegation of a history of family violence which included primarily emotional and verbal abuse, as well as controlling behaviour.  She reported that she had only developed insight into the dynamics of the relationship at the time of separation and has now received support from domestic violence services, as well as being diagnosed with Post-Traumatic Stress Disorder (“PTSD”).  Her primary concern was recorded as being for the children’s continuing exposure to potentially emotionally abusive behaviour.  No concerns were raised by her about the children’s physical safety.  Whilst the Father denied perpetrating family violence, he acknowledged that the relationship was a conflicted one.

6. The Mother alleged that the father consumed alcohol to excess during the relationship, often binge drinking.  The Father reported that he no longer drinks alcohol and has not done so since 2014.  The Mother reported that she had been diagnosed with PTSD following separation, and that throughout the relationship was diagnosed with postnatal depression, anger management issues, and reactive depression. 

7. Both parents reported concerns about X, her sensitivity, and her learning difficulties.  The Family Consultant recorded that both parents acknowledged that the children were present at times of parental conflict.  It seems common ground that the paternal grandparents had been heavily involved in the children’s care since birth.  The Family Consultant recorded that X in particular is aware of the Mother’s plan to relocate, and both parents identified that she has been anxious and stressed.  Both parents identified that the children have expressed reservation about relocation.

8. The Family Consultant records: 

   The mother’s proposal is fairly extreme in extinguishing all contact with the father.  Some feedback was given to both parents on the benefit to children in maintaining a relationship with both parents and for having them meaningfully involved, provided this does not place the children at risk of harm.

Applicable Law

1. In determining parenting matters under Part VII of the Family Law Act 1975 (hereafter referred to as ‘the Act’) the Court must regard the best interests of the child as the paramount consideration: s.60CA.

2. 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.

3. 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.

4. 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)     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)     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; and

   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) 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.

1. In MRR v GR [2010] HCA 4, the High Court said

   8.  Sub-section (1) of s 65DAA is headed "Equal time" and provides:

   "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."  (emphasis added)

   Sub-section (2) makes provision for where a parenting order provides that a child's parents are to have equal shared parental responsibility for the child (par (a)) but the Court does not make an order for the child to spend equal time with each of the parents (par (b)).  In such a circumstance the Court is obliged to:

   "(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."

   Sub-section (3) explains what is meant by the phrase "substantial and significant time".

   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".

2. 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.

3. The Full Court’s decision in Goode & Goode [2006] FamCA 1346 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 Arguments Advanced

1. Briefly stated, the Mother’s argument was that the Father had perpetrated family violence throughout the relationship and that this was exacerbated when he was under the influence of alcohol, which was generally at least once per week on his day off work.  In addition, the Mother was concerned about the Father’s treatment of X and how he had sought to manage her reading difficulties.  The Mother contended that she had a diagnosis that the PTSD that she suffers is a result of the abusive relationship.  The Mother also alleges that the Father’s parenting has had a negative impact on X’s learning and development.  Specifically, the Mother contends that the presumption of equal shared parental responsibility does not apply because of family violence.

2. Briefly stated, the Father’s case is that the Mother has grossly exaggerated the issues of family violence and alcohol consumption during the course of the marriage.  On his behalf, it was contended that even a brief examination of the objective evidence reveals that the Mother made no complaint about these issues until after separation.  Whilst the Father conceded that at times he behaved inappropriately towards the Mother, he asserted that she did likewise to him, and that she had anger management issues that sometimes manifested in her being physically violent to him.  The Father concedes that at times he drank to excess and that this was inappropriate on the occasions that occurred.  On his behalf, it was asserted that the evidence goes nowhere near justifying an order for supervised time, in circumstances where there has been a well-established and successful parenting arrangement for the children. The Father would like to increase his time with the children.

3. In short, the Independent Children’s Lawyer’s case is that the evidence before the Court does not justify making any radical changes to the existing parenting arrangement.  The Independent Children’s Lawyer submitted that, based on interviews with the children, they were enjoying time with their father and quite happy.

Discussion

1. The most efficient way to consider the evidence before the Court is to organise it by reference to the primary and additional considerations set out in s.60CC.

Meaningful Relationship

1. All of the evidence before the Court suggests that both children have a meaningful relationship with both of their parents. The post-separation parenting arrangements that they put in place reflects this belief. Whilst the Mother contends that she was reluctant to enter into the interim consent orders on 7 July 2015, which merely formalised a well‑established existing arrangement for the children, her ex post facto reluctance does not detract from the strong inference that the Court draws that she agreed to this arrangement because the children have a meaningful relationship with their father. Whether the children’s relationship with the Father becomes less meaningful if the Court orders supervised time at a contact centre is hard to know. Intuitively one would have thought that dramatically reducing the Father’s time with the children, and the circumstances in which it takes place, would have a quantitative as well as qualitative impact on his meaningful relationship with them.

Protection from Harm

1. The Mother’s case that there is a need to protect the children from harm, such that their time with their father should be in a supervised contact centre, is unsupported by the evidence on which she relies.  In reality, her case is plainly misconceived.  To adopt a submission made on behalf of the Father, the Mother’s case “drastically overreaches”. 

2. It is simply not possible to make findings of family violence on the evidence before the Court. To the extent that this Court might otherwise form an impression about allegations, but not make findings at an interim hearing, it is not even possible to form an impression. There is no evidence to corroborate the Mother’s assertion of the family violence that she describes until the reports that she makes well after separation, initially to the police, and then to other services with whom she engages. The Father makes limited admissions. Indeed, the impression formed from the totality of the evidence that they both give is that this was an often tumultuous relationship. The Mother clearly suffered from anger management issues and depression, matters which she does not highlight in her affidavits, but which are apparent from the documents produced on subpoena. Moreover, the impression formed from the evidence is that the contention that she was reactive at times may well be correct.

3. It should be noted that this Court is not saying that family violence did not take place.  What it is saying is that it is neither possible to make findings, nor even to form an impression, that the violence asserted by the Mother in her evidence took place, having regard to the evidence that is before the Court today.

4. As for the assertions of risk of psychological or emotional harm to the children, the same conclusion follows.  X clearly has learning difficulties, but to somehow suggest that it was the Father’s conduct, and his conduct alone, that either caused or exacerbated this issue, is yet another example of the Mother “drastically overreaching”.  As the Independent Children’s Lawyer submits, the two parents clearly have different parenting styles, but that does not make one parent’s style necessarily emotional abuse.

5. It follows that the Mother’s case that, somehow, any anxiety that X suffers is inextricably attributable to her witnessing family violence, is not made out.  This was a tumultuous relationship at times.  The impression formed is that both parents were active participants.  The children were exposed to this at times. 

6. The Court must record its concern about the way in which the Mother’s case was presented in this regard.  Some measure of objectivity was called for, but little was present.  As requested, the Court looked at each and every of the documents that the Mother’s case supposedly relied on in support of her contentions.  Most of these documents were entirely self-serving.  They were the Mother’s reports, based on her subjective interpretation of historic events.  Those providing assistance to her, and who dutifully made business records, for the most part simply recorded what the Mother said.  With one exception, no one took issue with what was being reported by her.  The reality is that none of the voluminous documents to which the Court was referred have assisted the Mother’s case in any way.

The Children’s Views

1. The only evidence about this is through the Independent Children’s Lawyer who met with both of the children. The Independent Children’s Lawyer reported that the children presented as happy, cooperative and well cared for.  No concerns were expressed by them about either parent. The Independent Children’s Lawyer formed the impression that both children are very fond of both parents.  X is reported as expressing missing her father between visits and liked it when her father assisted her with her reading.  To the extent that reliance can be placed on this evidence, it is plainly inconsistent with the Mother’s proposal.

Nature of the Childrens’ Relationships

1. Even in the Mother’s case, it is conceded that the children have a close relationship with their father and paternal grandparents.  The Mother contends that the issue is, however, protecting them from the risk of harm caused by their father, which would be achieved by imposing supervised contact.  Absent a finding about risk of harm, however, it must be implicit in the Mother’s case that the children do have a good relationship with their father.

The extent to which each parent has taken opportunity to be involved in the childrens’ lives

1. The Court is required to consider the extent to which each of the parents has taken, or failed to take, opportunities to do things such as participate in decision making and spending time and communicating with the children. Despite the Mother’s concerns about the Father, and very much to her credit, she has facilitated the children’s time with him. It is hard to criticise the Father for taking those opportunities that were offered. On behalf of the Mother, however, it was submitted that, despite her best efforts, she cannot work with the Father given her presentation of PTSD. The Court cannot find, however, that the Mother in fact suffers from PTSD and, even if she did, it would not be possible to find on the evidence before the Court that it was attributable to the Father. The Mother’s treating doctor and psychiatrist appear to have formed their diagnosis purely on the basis of the Mother’s report. The Court does not rule out the possibility that she does suffer from PTSD and that the Father’s actions somehow contributed to this, but neither a finding nor an impression to that effect is available in the course of these interim proceedings.

Likely Effect of Change

1. The Court is required to consider the likely effect of change in the children’s circumstances. The Mother’s proposal presents a very drastic change in the children’s lives. This was acknowledged in submissions. The Mother’s proposal was, of course, predicated on satisfying a Court that there was a need to protect the children from harm. This has not been borne out.

2. The Father’s proposal invites the Court to extend his time so that it commences on Friday evening, as well as enable him to see the children each day from after school until 7:00pm.  There is some attraction in the Father’s proposal.  The evidence suggests that the children are cared for in after-school care as their mother is out working, and, thus, this care could be provided by the Father who would be home during this time, as he was historically throughout the relationship.  In addition, a Friday start time would enable a changeover to take place at school. The Court has decided, however, that these are matters best considered after a report has been obtained and  at a final hearing.  It would be too much change to impose on the children, particularly given the acknowledgement that they are aware of the parental conflict. 

Practical Difficulty

1. Issues of practical difficulty and expense would arise with some acuteness if the Court made the orders that the Mother proposes.  The Independent Children’s Lawyer submits, and the Court accepts based on its own knowledge and experience in this matter, that a period of many months would elapse before the parents would have access to the supervised access centre in (omitted).  The Mother has made no proposal as to what should happen in the meanwhile.

Parental Capacity

1. Each parent raises concerns about the other’s parenting capacity.  The Mother contends that the Father cannot provide for the childrens’ emotional and intellectual needs.  In particular, the Mother bases this on her allegation that the Father would force X to sit at the dinner table and recite words or letters for up to two hours several days a week, or forcing the child to stand on a table to read, causing her to become anxious and withdrawn.  A more objective interpretation of these events would suggest that the Father was as concerned as the Mother was in relation to X’s learning difficulty and was actively, regularly and systematically involved in encouraging her to read.  He does not seem to dispute that, at times, X stood on a table to read.  The assertion that this has somehow caused X anxiety is based entirely on the Mother’s own reports.  The assertion that her developmental problems have stemmed from her exposure to family violence are plainly unsupported by the evidence before the Court.  It is interesting, indeed, that X told the Independent Children’s Lawyer that she liked her father assisting with her reading.

2. The Mother raises relatively minor issues about the condition of the children when returned to her care.  This is best addressed by orders, rather than by the imposition of supervision.  In short, none of the matters relied on by the mother support her contention about the father’s lack of parenting capacity.  The Independent Children’s Lawyer was quite correct in submitting that these two parents have different parenting styles.  It may well be that the mother is highly judgmental of the father’s parenting style.

3. The Father’s concerns about the Mother’s capacity to meet the children’s emotional needs primarily focuses on the extreme proposal that she makes to the Court of the imposition of supervised time, and then ultimately a relocation to Brisbane, and a final proposal for no contact.  At this point in time, and having regard to the evidence before the Court at present, it is easy to understand the Father’s concern in this regard.  To the extent that the Father, and even the Independent Children’s Lawyer, tacitly raise concerns about the Mother’s ability to prioritise her children’s needs over her own, all the Court can say is that there is an argument to be made and this is evidence to be closely considered at a final hearing.  It is interesting to observe that, within weeks of meeting her current partner, the Mother was considering a relocation to Brisbane.  If she had thought about the consequences of this on the children it is certainly not borne out in her evidence.

Parental Attitudes

1. The Court is required to consider issues pertaining to parental attitudes.  Again, each is critical of the other.  There is no evidence before the Court that would suggest that, whatever their attitudes are, an order for supervised contact is required.  The Court must record, however, its concerns about the Mother’s attitude as reflected in her proposal that the Court make an order that the Mother be forthwith permitted to enrol the children into (omitted) Public School.  Doing the best to understand the Mother’s case in this regard, it seems to be based on her subjective concern that since X started her current primary school she has demonstrated very limited educational, emotional and social progress.  She advances no evidence whatsoever about how the children’s lot would be improved by changing schools.  The records produced by the (omitted) are quite extensive.  (omitted) Primary School, where X attends, appears to have been very diligent, if not exhaustive, in its attempts to support X with her learning difficulties.  If the Mother had any concerns about their approach to X there is no record of her having expressed the concern.  Indeed, the only record of the Mother expressing concern to the school is found in a note dated 21 May 2015 which says:

   Ms Sanderson not happy that I was not supportive of her move to Queensland.

2. The preceding record indicates that the Mother had told the school on 11 May 2015 that she was moving to Queensland with the children.  The note records an effort by the author of the note, probably the school principal, Ms W, in which she:

   …said that perhaps Ms Sanderson needed to think about whether it was the right thing to take the children away from their father.

3. Later in the note the author of the note records:

   I said the children appear very happy to see their dad and grandparents.  X runs into his arms when she sees him. 

4. A reasonable inference to be drawn from this evidence is that postulated on behalf of the Father, that is, that the reason for changing the children’s school is, in fact, dissatisfaction with the advice given to the Mother to reconsider the appropriateness of the proposed relocation.  Whether this inference is drawn or not, the fact is there is no evidence to support the Mother’s proposal to change the children’s school, and regrettably this reflects very poorly on her attitude about parenting and to the responsibilities of parenthood.  Adults are expected to prioritise their children’s needs above their own.

Family Violence

1. The Court is required to consider family violence.  This has been discussed above.

Parental Responsibility

1. The Mother sought an order for sole parental responsibility.  There is absolutely no basis for making such an order at an interim hearing.  The evidence plainly does not support this. 

2. The Independent Children’s Lawyer submits that the Court should decline to make an order allocating parental responsibility on an interim basis pursuant to s.61DA(3). The Court agrees. There is much more evidence to be led in this case and the evidence needs to be tested. Whilst this means that the Court is not required to consider equal time or substantial and significant time, it is apparent from the evidence that equal time is neither in the best interests of the children nor reasonably practicable, primarily because of the high level of conflict between these parents.

Conclusion

1. An order for substantial and significant time is in the best interests of the children and is reasonably practicable.  This is reflected in the agreement that the parents have themselves entered into. 

2. When one has regard to all of the evidence, the order proposed by the Independent Children’s Lawyer is in the children’s best interests.  The only major difference to the existing arrangement is that changeovers be facilitated at a supervised contact centre when it is not happening at school. Given the level of conflict between the parents and their distrust for each other, this is an appropriate change to make to the existing arrangement but, until this facility becomes available, the existing arrangement should continue.

3. Having regard to the delays that exist in this registry, both in obtaining hearing dates and family reports, it is appropriate to set the matter down for a hearing.  It will be allocated three days. Appropriate trial directions will be made. Leave will be granted to the Independent Children’s Lawyer to file a Minute of Order in relation to an appropriate report.

I certify that the preceding fifty-four (54) paragraphs are a true copy of the reasons for judgment of Judge Altobelli

Associate: 

Date:  14 October 2015

Schedule One

Interim orders sought by the Applicant Mother

Awaiting word doc version

Interim orders sought by the Respondent Father

Awaiting word doc version

Interim orders Sought by the Independent Children’s Lawyer

1. That the Children, X born (omitted) 2007, and Y born (omitted) 2009, live with the Mother.

2. That the Children spend time with the Father as follows:

   (b)During NSW Public School Terms:

   (i)each Friday, from after school until 6.30pm;

   (ii)each alternate weekend, from 9:30am Saturday until 5.30pm Sunday.

   (c)Subject to the father being substantially available to care for the children, For on half of the NSW Public School holidays:

   (i)Being the second half in odd numbered years for the Term 1, 2 and 3 school holiday periods;

   (ii)Being the first half in even numbered years during the Term 1, 2, and 3 school holiday periods;

   (iii)Each alternate week during the 2015/2016 Christmas school holiday periods, and in lieu of agreement, from 3pm Friday until 3pm the following Friday, each alternate week;

   (b)3pm 25/12/2015 until 5.30pm 26.12.2015;

   (c)From 9am until 5pm on Father’s day;

   (d)For 4 hours, which shall reduce to 2 hours on school days, on each of the children’s and the father’s birthday.

3. The time the children spend with the father, pursuant to these Orders, shall be suspended:

   (b)From 3pm 24/12/2015 until 3pm 25/12/2015;

   (c)From 9am until 5pm on Mother’s day;

   (d)For 4 hours, which shall reduce to 2 hours on school days, on each of the children’s birthdays and the mother’s birthday.

4. That, for the purpose of facilitating the time the children spend with the father pursuant to these Orders, where changeover does not occur at the children’s school, the parents each do all things necessary, sign all necessary documents, pay all necessary fees, to apply to use the services of CatholicCare Supervised Contact and Changeover Centre in (omitted) to facilitate changeover.

5. Upon acceptance by (omitted) of the application of the parties to utilities the services of (omitted) for supervised changeover, that changeover occur at (omitted) where changeover does not occur at the children’s school.

6. If changeover is to occur on a non school day or time, and (omitted) is unavailable to facilitate changeover, or the parties’ application is refused or terminated, then Changeover shall occur at McDonald’s Family Restaurant at (omitted) and the parties shall each do all things necessary to facilitate changeover so occurring.

7. That, each parent be at liberty to arrange for a responsible adult, known to the children, to facilitate changeover, if they are unavailable to do so themselves.

8. That each parent be responsible for meeting the children’s needs during the time the children are in their respective care, including providing clothing, meals and hygiene.

9. That the father return the children’s school uniforms to the mother, at the conclusion of the time the children spend with him where such time commenced at the conclusion of school.

10. That the children be at liberty to take their own belongings with them to the home of the other parent, and each parent will facilitate the return to the child, of any item left at the home of the other parent, within 24 hours of a request to do so.

11. That each parent be restrained from making critical or derogatory remarks about the other parent, or member of the other parent’s family or household in the presence or within hearing of either of the children, and shall immediately remove the children from the presence of any other person who does so.

12. That the father be restrained from consuming alcohol or being under the influence of alcohol in excess of the legal driving limit during any time the children are in his care.

13. That each parent facilitate the children communicating with the other parent by telephone, Skype or Face Time:

    (a)at any time they express a wish to do so, with the parent who has the care of the children to facilitate the children contacting the other parent; and

    (b)at 5.30pm each Tuesday and Thursday, with the parent wishing to communicate with the children, to contact the parent with the care of the children.

14. That the father be restrained from requiring the child, X, to do homework for more than 15 minutes on any one day that the children are in his care.

15. That each parent be restrained from physically disciplining either child during any time the children are in their care.

16. That each parent be restrained from:

    (a)Discussing these proceedings;

    (b)Showing any document pertaining to these proceedings to the children;

    (c)Discussing the mother’s proposed relocation;

    (d)Discussing the mother’s proposal to change the children’s school;

    (e)Encouraging the children to keep secrets from the other parent;

    (f)With the children, or within their presence or hearing, without the leave of the court.