Sandridge and Graycie

FEDERAL CIRCUIT COURT OF AUSTRALIA

SANDRIDGE & GRAYCIE

[2013] FCCA 2037

Catchwords:
FAMILY LAW – Interim residence – family violence – assessment of competing risk factors.

Legislation:

Family Law Act 1975, ss.79A, 60B, 60CC, 60CA

H & W [1995] FamCA 30

Applicant:

MR SANDRIDGE

Respondent:

MS GRAYCIE

File Number:

PAC 3944 of 2013

Judgment of:

Judge Stewart

Hearing date:

22 October 2013

Date of Last Submission:

22 October 2013

Delivered at:

Parramatta

Delivered on:

23 October 2013

REPRESENTATION

Solicitors for the Applicant:

Claremont Legal

Solicitors for the Respondent:

Gounder & Associates

ORDERS

UPON THE COURT NOTING THAT:

For the reasons set out in the judgment delivered by the Court this day these orders are made notwithstanding that they are inconsistent with an Apprehended Violence Order made at the Local Court at Blacktown on 2 October 2013.
Each of the Applicant and Respondent are represented by legal practitioners this day who have explained these orders and the consequences of these orders to them.

THE COURT ORDERS THAT:

The children be returned to the father’s care at 6.00pm this evening, 23 October 2013, with changeover to occur at the McDonald’s Restaurant, (omitted)(omitted).
Until further Order, the children shall live with the father.
Until further order the children, X born (omitted) 2003 and Y born (omitted) 2006, shall spend time with the mother:
(a)Each Sunday from 10.00am until 6.00pm such time to commence on 1 November 2013.
(b)Such further or other time as may be agreed between parties and approved by the Independent Children’s Lawyer from time to time.
For purposes of changeover pursuant to order 3, changeover shall take place at the McDonald’s Restaurant, (omitted) and it is noted that the father will do all such acts and things as may be necessary to ensure that his mother, Ms J, will conduct and facilitate changeover.
Each of the Applicant and Respondent, their servants and agents are hereby restrained pending further order from:
(a)Denigrating or criticising the other in the presence or hearing of the children or allowing any other person to do so; and/or
(b)From discussing these proceedings with or within the hearing of the children or either of them; and/or
(c)Showing or reading any documents produced in these proceedings, or documents produced in any other Court relating to the Applicant and/or Respondent and/or the children to the children.
By consent, by 5.00pm on Friday, 25 October 2013, the children’s passports are to be placed with the Court and not released until further order of this Court.
Pursuant to section 65DA(2) of the Family Law Act 1975, the particulars of the obligations these orders create and the particulars of the consequences that may follow if a person contravenes these orders is set out in Attachment A and these particulars are included in these orders.
Adjourn all applications for further interim hearing at 10.00am on 20 December 2013.
By consent, each of the father and mother shall do all such acts and things as may be necessary to consult with Mr A, Clinical Psychologist, with respect to the care arrangements for the children and their welfare generally including but not limited to:
(a)Any views expressed by the child/ren the subject of parenting orders sought in this case, provided that the child/ren shall not be required to express a view in relation to any matter.
(b)The nature of the relationships of the child/ren with each of the child/ren’s parents and with significant other persons
(c)The willingness and ability of each of the child/ren’s parents to facilitate and encourage a close and continuing relationship between the child/ren and the other parent.
(d)The likely effect of any changes in the child/ren’s circumstances, including the likely effect on the child of any separation from:
(i)either of the parents: or
(ii)any other child, or significant person, with whom the child/ren has/have been living.
(e)The practical difficulty and expense of the child/ren spending time with and communicating with a parent and whether that difficulty or expense will substantially affect the child/ren’s right to maintain personal relations and direct contact with both parents on a regular basis.
(f)The capacity of each parent, or another person, to provide for the needs of the child/ren, including emotional and intellectual needs and if either party lacks capacity whether there are any external matters impacting on that capacity or lack thereof.
(g)The maturity, sex, lifestyle and background (including lifestyle, culture and traditions) other children and of either of the child/ren’s parents and any other characteristics of the child/ren that the reporter thinks are relevant.
(h)Each parent’s attitude to the child/ren and to the responsibilities of parenthood.
(i)Any family violence involving the child/ren or a member of the child/ren’s family.
(j)Such other issues as the report writer considers relevant.
Direct the Independent Children’s Lawyer file an Affidavit from Mr A annexing his report as soon as same becomes available
Direct each of the father and mother be responsible for one half of the cost of Mr A’s report.
Direct that the Court shall, as soon as practicable, forward a copy of these orders to the Registrar of the Local Court at Blacktown.
Leave is granted to the Independent Children’s Lawyer to approach my Associate to seek permission and/or an order for the Independent Children’s Lawyer to be permitted to photocopy documents produced on subpoena issued by her provided that a letter evidencing consent of each the father and the mother is provided with that application.
Certify for attendance of Counsel and the Independent Children’s Lawyer.

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

FEDERAL CIRCUIT COURT
OF AUSTRALIA
AT PARRAMATTA

PAC 3944 of 2013

MR SANDRIDGE

Applicant

And

MS GRAYCIE

Respondent

REASONS FOR JUDGMENT

This matter came before me yesterday. They are parenting proceedings in relation to two children of the parties, X, born on (omitted) 2003, aged 10 years, and Y, born on (omitted) 2006. Y is aged 7 years old. Each of the parties seek that the children live with them and spend limited time with the other parent on a supervised basis.
A very short and brief history given that this matter comes before me as an interim matter. The father was born on (omitted) 1967, he is aged 46. The mother was born on (omitted) 1971, she is aged 42. The parties married on (omitted) 2000. The children were born. As stated, the parties separated on 11 February 2007. The parties have divorced. Since separation, the parties have agreed to and implemented, various care arrangements for the two children. Those care arrangements are variously having the children living with both the mother and the father on a primary basis.
On 15 July 2010 final parenting and property orders were made by the Federal Magistrates Court, as it then was, in Adelaide, providing essentially, and in summary, that the mother lived primarily with the children in Adelaide, and the father spent time with the children during school holidays, given that he lived in Sydney. Following those orders, it appears, (although it is not entirely apparent from the parties’ – voluminous affidavit material, where the children have actually lived from time to time), there is no agreement between the parties as to who has been the primary caregiver for these children.
In January 2011, it is put by the father that the mother sent an email requesting that the eldest child, X live with the father in Sydney. It is unclear to me whether the mother agrees with how that turn of events came about, but it is nevertheless it is agreed that X did live with the father from that time. The mother remained in Adelaide for a short time, until March 2011, with the youngest child, Y. In March 2011 the mother and Y relocated from Adelaide to Sydney and commenced living in the home of the father. There is a dispute between the parties as to the basis of that living arrangement.
Doing the best I can, on the material, it appears that there was no resumption of cohabitation in the sense that it would be considered by this court, a cohabitation or a resumption of cohabitation. Neither party alleges that there was a sexual relationship between the parties, although the mother, alleges that while she slept in a separate bedroom, she was being courted, if you like, by the father, in order to resume a sexual relationship.
The other aspect of this, which seems to have impacted on the dynamics between the parties, is that it is alleged by the mother that whilst essentially courting the mother for a reconciliation of their relationship, the father was also involved with, in a romantic sense, another woman who is now his wife, a Ms K. There has been a considerable amount of material in the parties affidavits devoted to that divergence of facts.
It is agreed that the mother spent time with the children in (country omitted) for the period between October 2011 and December 2011 and again, upon their return, the mother and the children lived in the father's home. It is agreed that the father travelled alone to (country omitted) in February 2012, and that he returned in March of 2012. It is alleged by the father that the mother, upon his return simply disappeared and the father did not know where the mother was. In April 2012 it is alleged by the father that the mother sent him an email asking that she have the children returned to her care, and it is put by the father that, at that time, the mother retained the children against his will.
In, or around April 2012, it is alleged by the father that the mother enrolled the children at (omitted) Public School without the knowledge of the father. The parties attended family relationships counselling in May 2012, and from May 2012 there was an agreement between the parties that the care of the children be shared equally. In January 2013 the parties attended a second mediation at the (omitted) Relationships Centre, and again, the parties essentially shared the care of the children equally from that time.
In March of 2013 there was a further intervention, by consent, where the father and the mother agreed to, and had drafted through the Family Relationship Centre, a new parenting plan whereby the children spend time with the father from after school, Monday, until after school on Friday, and with the mother on every weekend. The mother did not sign that parenting plan. Notwithstanding that parenting plan, it appears that it was implemented and, at the very least, the children experienced life with their father from Monday to Friday, and with their mother on the weekends.
Up until September 2013 it appears that was the arrangement for the children and accordingly, on an interim basis, the best I can do is look at the most recent history for the children and their experience of care by the parties. From the children's point of view, they have lived most weekdays with their father and most weekends with their mother.
There was an incident that occurred on 5 September 2013, which is in dispute. That incident involved the father attending at the mother's home to collect the children after she had removed them from the school earlier that day. The children have remained in the mother's care since that time. It is noteworthy that as a result of that incident, the mother made an application for an Apprehended Violence Order. That application was made by the mother on 14 September 2013, some nine days after the incident is alleged to have occurred. On 16 September, the father was served with an application for an Apprehended Violence Order, and on 2 October that Apprehended Violence Order was heard on an interim basis by the Local Court. An interim order was made, which is annexed to the parties material. That order is to last until 30 October 2013 when the application is to be heard before the court.
The proceedings come before the Court on the application that the father filed on 13 September 2013. He relies on the following material:
a)His initiating application filed 13 September 2013;
b)His affidavit sworn 12 September 2013;
c)His affidavit sworn 11 October 2013;
d)A case outline document handed to the court on 22 October 2013; and
e)An affidavit of his present mother, Ms J, sworn 15 October 2013.
The mother relies on documents as follows:-
a)Her amended response filed on 17 October 2013;
b)Her affidavit sworn on 23 September 2013;
c)Her affidavit sworn on 16 October 2013; and
d)An affidavit sworn by her on 21 October 2013, which is really a document that annexes a psychiatric report by a Dr N, who is a psychiatrist, and who examined the mother at the request of the mother's solicitors. Dr N's report is dated 18 October 2013.
The children are represented by an Independent Children's Lawyer, who has recently been appointed, pursuant to an order of this court on 24 September 2013. Although the Independent Children's Lawyer has been very recently appointed, she has met with the children and did so on 18 October 2013. She has serious concerns with respect to the children's presentation. The Independent Children's Lawyer has also filed a case outline and a Minute of Order Sought.
On 24 September this court also ordered that the parties attend a Child Dispute Conference, which they did. There is a memorandum on the Court File from the Child Dispute Conference. That memorandum says, in summary, that there is, and continues to be, a dispute between the parties as to who has been the children's primary carer during the period of separation, except for a two-month period where the parties agree the father had primary care of the children.
There is a summary of an agreement reached during that conference that there should be shared parental responsibility. I note that the shared parental responsibility agreement is recorded notwithstanding that the father, yesterday, sought if appropriate, a sole parental responsibility order in his favour. It appears that these parents have agreed to attend an anger management program.
The issue remaining in dispute is where the children should live.
The Family Consultant reports, in the memorandum, that the mother alleges physical violence perpetrated against her, by the father, during the relationship. The mother particularised that violence to the Family Consultant. She advised the Family Consultant that there was an Apprehended Violence Order application scheduled for hearing. Notably, she said that the children had witnessed the father's abuse towards her and they were therefore fearful of him. She reported that the father shouted at the children and hit them rarely.
The alternative position was put by the father, where he said that the mother had continued to make false allegations about him and members of his family. He denies being violent towards her, when reporting to the Family Consultant, and indeed, denies it in his material before this Court. He makes other allegations about the mother.
During the Child Dispute Conference the mother claimed that the children were fearful of the father and upset that he and his wife spoke negatively about her in front of them. She said that the children wanted to live with her, and claimed that they wanted to spend no time with their father, particularly the eldest child. The mother claimed that the father forced the children to call his new wife "Mother." She acknowledged that the new wife was otherwise an adequate carer of the children.
The father said that he wanted the children to spend time with both parents, but that they should be primarily with him because he could provide greater stability for them with regard to their schooling. He said that the mother presented as erratic in her decision making and how much input she wanted in the children's lives. He put a position that there were, perhaps, some mental health issues with respect to the mother.
In the memorandum there is:
a)A recommendation for a full family report in these proceedings;
b)A recommendation for anger management programs to be undertaken by both of the parties;
c)A recommendation for a Child Inclusive Conference on a date to be determined by the court;
d)A recommendation for the appointment of an Independent Children's Lawyer.
The Independent Children's Lawyer, and the memorandum from the family consultant, is the only information that I have before me where the author of that information does not have a vested interest in the outcome of the proceedings.
This matter comes before me in a duty list and is an interim determination. As each of the parties gives significantly different accounts of their personal history, and the history for the care of the children. It is impossible, in a list such as this, to make findings as to the veracity or otherwise of each party's version of events. Further, each of the party's material is voluminous, and only a portion of it relates to matters directly relevant to the children's welfare.
Importantly, all parties agree that they will attend upon a joint expert in order to prepare a private family report in these proceedings. There are three experts available, two psychiatric experts, at a cost of $8000 to the parties - and when I refer to "parties" I do not include the Independent Children's Lawyer in that sense - and the third, a clinical psychologist, a Mr A, at a cost of $5000 to the parties. The former psychiatric reports will be available in March of 2014. Mr A, the clinical psychologist, can see the parties next week and have a report available by December.
Mr W, on behalf of the father, agitated for a report to be prepared by a psychiatrist. The Independent Children's Lawyer does not express a preference, and the mother says that it should be Mr A, the clinical psychologist. In this case, I prefer to take the course of the clinical psychologist in terms of who should prepare the report.
First of all, by reason of the timeliness of that report, that would be enough to convince me, in and of itself.
There are pressing and urgent issues in this case, in relation to the welfare of these two young boys, and these issues need to be addressed as a matter of urgency with expert assistance. I am not prepared to have the matter drawn out. It needs to return with further professional opinion this year. Further, the issue of the independent children's lawyer, having subpoena being returned at the end of the month and early November, means that there may be issues in those documents that need to be considered by both the court, the expert, and the independent children's lawyer in the short term. Secondly, the mother has already undergone a psychiatric assessment. In my opinion, the clinical psychologist is qualified to undertake the sort of assessment and family report that this Court requires, and the psychiatric evidence, at least insofar as the mother is concerned, is already before the Court.
I disagree with the submissions made on behalf of the father about the possibility of a further psychiatric assessment and it being more expeditious to have a psychiatrist perform the evaluation. In the event that there is any need for the parties, or either of them, to undertake a further psychiatric assessment, that can be organised in relatively short compass, and an application can be made to this Court if there is disagreement about the same. In any event, I am proposing to return this matter to Court in December.

I am loathe to have the children submit, at this stage, to any form of psychiatric assessment because although the observations of the Independent Children's Lawyer are troubling, I am minded that until September of this year, even with the difficulties experienced between their parents, these children seem to negotiate their lives and were quite successful and performing well.
Nonetheless, there are very significant issues to address within that period. Having seen the children last week, the independent children's lawyer had serious concerns about the emotional and psychological welfare of the children. She has submitted to the Court that during her meeting with them the children could recite in detail the matters referred to in the mother's affidavit filed in the proceedings. The children told the Independent Children's Lawyer that they had been provided with a copy of the “story from the mother’s lawyer” told the Independent Children's Lawyer that the mother had sat them down and, in detail, discussed with them incident of family violence, including some which are alleged to have occurred prior to the children's respective births.
The children told the Independent Children's Lawyer that their mother had consulted them about the contents of the Amended Response. By the observations of the Independent Children's Lawyer, and by no means meaning to extend to her, and with all due respect, qualifications of a psychological or psychiatric nature, she observed them to appear as though they were quiet and affected by the circumstances of their parents and their living arrangements. This is a significant concern, but I am conscious that the Independent Children's Lawyer has no specific expertise in that regard, and therefore, in my view, it is very important to have a psychologist observe the children.
I note that notwithstanding until September 2013 the children had a strong relationship and attachment with their father, and were living substantially with him with the mother's permission, they are now saying that they have fears for their safety while living with the father, based on their knowledge of the mother's case.
The children said to the Independent Children's Lawyer that they did not personally observe any violence perpetrated upon their mother, but rather, that the stories from their mother made them fear for their safety while in the father's care. The Independent Children's Lawyer said that the children had told her that they would like to live with their mother and spend one week of each of the holidays with their father. Little weight can be attached to those views, as an expressed view of their true wishes, in my opinion, and indeed, what is in their best interests.
The principle is clear, and I refer to the case of H & W [1995] FamCA 30, that the court must take the children's wishes into account, but I am not bound by them. In this case, it is my view that the children's wishes should be given little weight given the potential that they have been exposed to influence, and that they have been exposed to inappropriate matters by the mother.
On the basis of the Independent Children's Lawyer's very serious concerns about the psychological and the emotional health of the children in the care of the mother, the Independent Children's Lawyer indicated that she had thought very carefully about the proposal put on behalf of the children to the court.
She says that in all the circumstances the most appropriate course to adopt is to have the children live with the father and his wife and spend supervised time with the mother. She acknowledged that this was a difficult decision to make, but felt that it was required in the circumstances. She acknowledged that she has been very recently appointed and is still conducting investigations. She did point out that until very recently, and at least in the more recent history for these children, they have been living largely with their father and his mother, but spending a lot of time with their mother.
It is acknowledged by the Independent Children's Lawyer that there are serious factual disputes between the parties, the history and care of the children, and the allegations and denials of family violence. Interestingly the Independent Children's Lawyer said that when reporting how they lived with their father and his mother, it would seem that the accounts by the children seems to accord most closely with the account deposed to by the father's wife Ms K, in terms of what their life was like in the home of their father.
The most significant aspect of that, and when I read the affidavit of Ms K, is that it is relatively unremarkable in terms of the day-to-day routine of the children. It appears that they lived a happy life, went to school, were looked after by the father's wife after school, fed snacks during homework, and seemingly had a very normal day-to-day routine.
There were no complaints levelled by the children about any aspect of their life in their father's care, and their fear and desire to remain living with their mother seems to have been engendered by their awareness that there are family violence issues between the adults. The Independent Children's Lawyer said that the children love their mother and are very protective of her.
The father, for his part, proposed that the children live with him. He also sought a recovery order for return of the children. He said the children should spend time with their mother from Thursday to Monday in one week, and Wednesday to Thursday in the other week, half school holidays, special days, and changing over from home to home. He also sought to travel with the children to (country omitted). In the case outline that was put before the court by the father yesterday, he did not resile from that position at first instance, at least in a written document, and said that he continued to seek orders as per his application.
During the case, and following upon the submission of the Independent Children's Lawyer, the father amended his application and concurred with the Independent Children's Lawyer's view that time should be supervised, his suggestion being that it be by private agency at a cost of around $90 per hour, to which he would be able to contribute to the sum of $135 per month. Doing the best I can, if I was to accede to that application, the cost to the mother, of supervised time, would be very significant indeed, and $135 per month would hardly make any sort of contribution to the cost of that supervision.
The mother, for her part, proposed that she be permitted to live with the children in Adelaide, on an interim basis, although she is presently living in New South Wales with the children. I am concerned about the mother's application to move the children, on an interim basis, to Adelaide, on the basis that it seems to me to lack considerable insight as to what the needs of these children might be, and particularly, the needs of these children to have a relationship with their father.
When I pressed Mr D for the mother’s proposals if she was not permitted by the court to live with the children in South Australia, he advised me that the children should live with her and have supervised time with their father. This is notwithstanding the contents of her response filed in this court, that being her Amended Response whereby she sought final orders that the children spend time with their father during school holidays, albeit, only when the apprehended violence order had expired. She also sought that the children must always be in the care of the father when they spend time with him, and he must not delegate his time to any other person. In fairness to her, on an interim basis in her Application, she simply sought that there be a family report ordered and did not actually put any time for the children to spend time with their father in that Application.
The mother has been consistent, at least, in terms of her position that the violence alleged in these proceedings, impacts significantly on the case and her position is thus put. When I asked Mr D whether or not the mother was in a position to put a proposal in the event that the children were to live primarily with their father, he advised me that it was difficult for the mother to formulate a proposal in that regard, but that certainly it should not be supervised, and I understand the mother's proposal to be that the time should not be supervised no matter what I order. Mr D indicated that the mother sought equal shared time with the children in the event that her primary application was not acceded to. I do not take the view that that diminishes the mother's position in this case at all in that I cannot make a finding about family violence, and in the event that she does suffer the effects of family violence, as it was urged on me by Mr D, on her behalf, that it might be difficult in that sense, for her to formulate a proposal.
I must turn to the allegation for family violence made by the mother.

Mr D put every possible position that he was able to, on behalf of the mother, and the impact of family violence on her. He first of all, referred me to the affidavit of Dr N. He asked me to consider, very carefully, Dr N's observations of the mother.
Dr N said, in his report, that in his opinion, the mother was suffering from an adjustment disorder, with anxiety and depressed mood, which he said was a function of the difficulties that she had had with the disappointment in the fact that her plans had gone awry in relation to the reconciliation that she expected with her ex-husband. He said that the shock that he had apparently remarried had also, of course, been a major blow to her, and she had struggled with that, understandably, in his words. He said that she had also been quite affected by the fact that she appears to have been led on by her ex-husband. She had, accordingly, loaned him a substantial amount of money, all of which now presents as major difficulties for her.
I digress, at this point, to say that one of the complaints of the mother, in this case, is that there was a sum of money in the vicinity, as best I can, of around about $100,000 that had been provided by her, to the father, to buy either gold bullion or silver. In fact, she seeks an order in that regard, in her application, namely, that there be a sum of some $68,000 returned to her. It is unclear to me what the jurisdictional basis of that application might be, given that the parties had final property orders in 2010, however, I do not propose to dismiss this application at this stage, but rather, give the mother the opportunity, with the assistance of her legal advisors, to formulate the jurisdictional basis upon which that application might be made, whether that be by way of a section 79A application, an application under the accrued jurisdiction of this court for recovery of debt, or otherwise, and I am in no position to say. Accordingly, in terms of these proceedings, I will simply ask that that application be particularised by the mother's legal advisors prior to the next return date. It seems to be common ground that at least some money was provided by the mother to the father.
Turning back to Dr N, he said at the interview, the patient, being the mother, presented as somebody who had been worn down by repeated psychological trauma. He said that she gave the appearance of someone who is cowed and had adopted a submissive position. She expressed her fear of the ex-husband, and this is not surprising in view of the apparently relentless and regular physical and verbal violence that she has endured. I pause there to note that Dr N, and I do not mean this as any criticism of him, has accepted the history provided by the mother, and that history must be viewed, at least on an interim basis, on the basis that there have been no finding of facts with respect to allegations of physical violence, and those allegations are denied.
The doctor implored that there needed to be a consideration of the mother's cultural situation in that the parties, ethnically are (country omitted), and that there needs to be a consideration that violence towards wives, in that situation, can be considered quite common. I am not sure about that and in any event, I would require expert evidence to make a finding in that regard. He said that certainly the mother appeared to have accepted the violence that she has been exposed to in these terms, and her reaction to the violence had been in terms of acceptance and resignation.
He said that there is little doubt that she has succumbed to the ongoing stress that she had faced and she is certainly quite anxious and depressed about her situation. She continued to be very stressed about what she called "her children's suffering" and she advised the doctor, as seems to be the case in terms of the conference with the Independent Children's Lawyer, that the oldest boy is verbal about the fact that he does not want to be with his father, and that the younger son seems to share his views. The mother, herself, observed that their youngest child seemed to have become more withdrawn. The doctor seemed to think that there should be some ongoing therapy provided for the mother in either a psychological or psychotherapeutic sense.
Given that I am unable to make a finding about family violence in terms of Dr N's report, I simply take it, on face value, that the mother has reported these events to him and there will need to be a full analysis of that during any final hearing of the matter. I will, however, draw no conclusions from the fact that the mother returned to the marriage and sought a reconciliation of the marriage, notwithstanding allegations of continual violence by the father, as I believe to do so, in the absence of any findings, would be quite simplistic and quite unfair to the mother in the circumstances.
Mr D, on behalf of his client urged me to consider the fact that the mother had been assessed by a Victim Services assessor when she made - these are my words - some sort of crimes compensation claim, and that that person also appropriately took into account cultural factors. As a result of that application, the mother was awarded a sum in the vicinity of $10,000 as a victim of crime, which had been discounted by a modest amount to cover some costs. He said that that was a matter that I could take into account in assessing whether or not the violence had occurred.
With the greatest of respect to Mr D, I disagree. It is unclear to me as to how that assessment was reached. I am not disregarding it entirely because the award has been made, and it has been made as a result of an application of being a victim of family violence. However, absent any material about how the decision was reached, it would be unsafe for me to place any serious weight on that in terms of being able to make a finding on an interim basis as to whether or not any violence had occurred. He asked me to consider that even in the absence of being able to make a finding as to any violence there was sufficient concerning material in order to give this Court pause and reflect as to what the appropriate arrangements for these children are. He, of course, asked me to consider the fact that an interim Apprehended Violence Order had been made, and had been made in circumstances where the father was in attendance at Court.
The father’s Counsel, on his part, indicates that there was a significant denial by his client in respect of the mother - any violence directed towards the mother. He asked me to consider that the mother had been firstly, inconsistent in her actions, vis-à-vis, allegations of family violence occurring monthly during the marriage, and that in March 2011 she moved in with the father and there was very little complaint about that.
He said that the only allegation that could be levelled against the father, in the mother's material, aside from the violence, was that there was too much study in his home and not enough extra-curricular activity, and that his client might have been the disciplinarian parent. He says that there is a lack of particularity with respect to the violence alleged by the mother. Whilst it might need to be particularised for final hearing, I cannot ignore that the allegations have been made.
He says that I should take particular notice of the fact that although there was an incident that gave rise to the application for an apprehended violence order on 5 September, that the mother had sent the father an email, on 7 September, offering him time with the children. This email is annexed to the father's affidavit sworn on 11 October 2013 from the mother, to the father, and it says, “Pick up kids on Monday after school and I will not report to Child Support, so do not worry." He says that is a significant inconsistency in the mother’s case and also points to the fact that the mother in her initial affidavit had denied any knowledge of the existence of the email - and I pause to reflect that it had been sent very recently – and the mother had only acknowledged sending the email when it was presented by way of this annexure in the father’s material. In her most recent material, the mother said she remembers the email.
He also points out that the complaint for the Apprehended Violence Order was made a day after the mother was served with the father’s Initiating Application. He says that the apprehended violence order needs to be viewed with some suspicion having regard to those facts. He says that the mother’s allegations of continual and consistent family violence during the marriage need to be viewed in the context of the mother returning to the matrimonial home and seeking a reconciliation with the father. However, as I have already said, I am unprepared to give those facts a very significant amount of weight in terms of being largely in the dark as to findings as to family violence, and if those findings are borne out, how they might have affected the mother in that regard, both psychologically and culturally.
This case is very difficult. However, I am guided by the law that I must apply in these proceedings. In the proceedings for a parenting order a court may make such parenting order as it thinks proper subject to Part VII, division 5 of the Family Law Act 1975. Section 60B sets out the objects of that part and the principles which underlie those objectives.
I note the tension which is evident in this case being that ensuring that the children have the benefit of both their parents having a meaningful involvement in their lives to the maximum extent consistent with the best interest of the child, and secondly, that the children need to be protected from physical or psychological harm and from being subjected to or exposed to abuse, neglect or family violence.
I note the principles underlying the objects: that children have a right to know and be cared for by both their parents regardless of whether their parents are married or separated, have never married or lived together, and children have a right to spend time on a regular basis and communicate on a regular basis with both of their parents and people significant to their care, welfare and development.
Section 60CA of the Act provides that in deciding whether or not to make a parenting order in relation to a child, a court must regard the best interest of the child as the paramount consideration. Section 60CC, subsection (2) sets out the primary considerations I must take into account when determining what is in the best interest of these children.
And section 60CC(2A), introduced into the legislation on 7 June 2012, mandates that I consider the benefit to the child or the children of having a meaningful relationship with both of the children’s parents. But then says - that provides that when determining the best interest of a child, a court is required to consider the:
the need to protect the child from physical or psychological harm from being subjected to, or exposed to, abuse, neglect or family violence.

Section 60CC(2A) provides that in any proceedings that are issued since 7 June 2012, that I give greater weight to the need to protect the child from physical or psychological harm. The need to protect the child from the risk of harm needs to be balanced against the consideration that it is in the child’s best interest to have a meaningful relationship with both parents.
I have referred in detail to the allegations of family violence in this case. I have also referred in detail to the issues raised by the Independent Children’s Lawyer and the concerns expressed by her with respect to psychological and emotional harm to the children, or either of them, as a result of being inappropriately exposed to adult issues. I further digress at this stage to note that the Independent Children’s Lawyer also told me that the children are aware that the mother alleges that the father was engaged in acts of infidelity in terms of his relationship with his present wife. Both parties allege that the children will be subjected to harm if placed in the other party’s care. It is the balancing of this that is the very real difficulty in this case.
I am heartened by the fact that in a very short period of time I am going to receive assistance from a clinical psychologist who will be better able to assess the children’s presentation than I can on the material. However, it seems to me that whilst the allegations of family violence by the mother are significant and concerning and may impact on the ultimate outcome of this case, they do not appear to me to be what is driving this case in terms of the application for primary care. If the allegations have any merit, whatsoever, it is absolutely clear, that from the children’s experience, they have enjoyed living primarily with their father until very recently and that such care was with the imprimatur of the mother.
The exposure of the children to family violence issues in terms of what has been reported to the Independent Children’s Lawyer has not been by direct exposure, and in fact the children reported to the Independent Children’s Lawyer that they had not themselves witnessed any family violence, but were simply aware of what had occurred because their mother told them. Even if the violence has occurred, it is most inappropriate that the children have been exposed to it by the mother in the way that is reported.
I did ask Mr D whether or not she had shown the children the material in this case, and she denied that she had, and from that I take it that she denies the very particular matters that were reported to the Independent Children’s Lawyer by the children, such as sitting on her knee, having the mother turn the pages, having the mother read the affidavit material to them. I take into account her denial that that occurred, and her position that she concedes that inadvertently the oldest child came across the affidavit by chance and managed to read it himself. I do not know what the answer to that is, but in due course the mother will need to spell out exactly what occurred in that regard.
The level of particularity with which the children report to the Independent Children’s Lawyer, the way in which they came to have the knowledge of what is alleged within the relationship seems inconsistent with a chance reading of the affidavit.
What I think is more pressing and more concerning, is the fact that the children seemingly had not only a proper relationship with their father, but an exceptionally good relationship with him in his primary care until very recently, and over the course of a period of seven or eight weeks have reached a position where they appear to be frightened of him and are expressing a view that they do not want to live with him. I am very concerned about that and that impacts significantly on my assessment of the capacity of the mother to promote and nurture a proper relationship between those children, their father and, of course, the other people who are and have been significant in their lives, including, but not limited to their stepmother, Ms K, who seems to have been a very significant and nurturing figure in their lives.
Thus, I am balancing two aspects of potential exposure of the children to harm, and when I assess that potential exposure, sadly, I must assess that it is the exposure to immediate harm which has the capacity to impact the children in a psychological and emotional way and seems already to have impacted on them in that way in terms of their presentation even today, is such that the children appear to be at real risk of immediate harm in the mother’s care. Accordingly, I will make an order that the children by 6 pm this day be returned to the father’s care.
I turn now to consider whether an order for supervised time between the children and their mother is warranted. Having made the assessment that the children are at risk in the mother’s care, I cannot ignore the fact that she has had a very significant involvement in their lives for all of their lives, and to change that immediately, from living solely with her since 5 September - living substantially with her at least from January 2013 until September 2013 - that such a change in their care-giving arrangements would be a very significant aspect and creates significant disruption in their lives, and is likely to cause some stress. I cannot ignore the denial, albeit from the bar table, that the children simply came across the affidavit material in the mother’s care, and that that will need to be tested in a fulsome way at the final hearing of the matter.
I am going to make an order that both parties be injuncted from discussing with the children the issues in these proceedings and the contents of any documents filed in these proceedings, allowing them to hear those sorts of discussions, or allowing any other person to engage in conduct that would be prohibited by that order. In those circumstances, doing the best I can, for the short period of time, I do not believe that it is appropriate that the mother should have supervised time with these children with whom, hitherto, she has had so much involvement and they with her. And in the circumstances, I am going to order, with the benefit of that injunction, that the mother spend each Sunday with the children, from 10 am until 6 pm, until we return to court in December of this year. I pause there to explain my reasoning for not ordering time this week. No doubt the children having expressed the views that they have to the Independent Children’s Lawyer will require some time to settle back into their father’s care and I do not regard it as being in their best interests that they return to their mother this Sunday, but rather commence the time on the following Sunday.
In reaching this conclusion, I have considered all of the matters contained in section 60CC, subsection (3) of the Act. However, in order to explain to the parties how that has occurred I will turn to each section briefly. The children’s views, I acknowledge, and I will insert subparagraph (a) there. The children’s views, I acknowledge, are that they wish to live with their mother and spend only very limited time with their father. However, for the reasons aforesaid, I can give little weight to those views.
When I turn to the willingness and ability of each of the child’s parents to facilitate and encourage a close and continuing relationship between the child and the other parent, I sadly must conclude that, at least on an interim basis, I have serious doubts about the mother’s ability to do that. Not the least of which is the fact that the children have been deprived of the company of their father and their stepmother for a period of about seven weeks.
I have addressed in detail the issue of the likely effect of the changes in the child’s circumstances, including the likely effect on the child or children of any separation from their parents and any other person who they are living with. I note that there is one satisfying aspect of this case and that is that the children will remain at their present school, and that, at least, will provide some sense of stability for them going into the future and going to the next return date.
There is no practical difficulty or expense of the children spending time and communicating with each parent in light of the orders that I have made. In making this order, however, I consider that in assessing whether or not a supervised order should have been made, I considered the fact that it would take a number of months to be – to go through the intake procedure and accepted into a children’s contact centre, and there was a very significant personal financial cost to the parties, but particularly the mother, in terms of the proposal for a private supervision. I have addressed and considered carefully the capacity of each of the parents to provide for the children and have assessed that whilst each make criticisms against the other, it is the father who has the better capacity, at least for this short-term adjournment, to provide for the children.
Subparagraph (g), the maturity, sex, lifestyle, and background, including the lifestyle, culture and traditions of the child – children and their parents and other characteristics that the court thinks are relevant, I take into account here and have taken into account the matters that Mr D properly urged upon me on behalf of mother, particularly her presentation and that it may be at least partially, if not largely, as a result of family violence that she has been subjected to at the hands of the father. Nevertheless, in terms of these proceedings, I must err on the side of caution and adopt a position that, in my view, will do the least harm to each of these children, and will maintain and nurture the relationships that they enjoy with each of their parents.
I have covered, I think, in these reasons, my view as to the attitudes to the child and the responsibilities of parenthood demonstrated by each of the parents. I have considered that if the mother has exposed the children unnecessarily to adult issues, that she may have not – she may not have done so intentionally, but may have done so as a result of a lack of insight or an incapacity not to expose them, having regard to her experience. However, the impact on the children remains the same, regardless of whether such acts are done consciously or unconsciously.
Family violence, I have considered in detail in this judgment. As these orders are interim orders, they will be revisited by this Court in December 2013, and on that basis there is no relevance for the last subsection.
The father and the Independent Children’s Lawyer have urged upon me that I make an order for sole parental responsibility in relation to the father. I note that the extant order in the orders of 2010 is an order for equal shared parental responsibility. And in the circumstances, at the length of this adjournment, my inability to make findings with respect to disputed facts, I do not propose to interfere with that order, and I note and it is important that hitherto and prior to the issuing of these proceedings, the parties, notwithstanding their own personal differences, were very much able to consult with each other with respect to the needs of these children.

I certify that the preceding eighty one (81) paragraphs are a true copy of the reasons for judgment of Judge Stewart

Date: 5 December 2013

[2013] FCCA 2037

23 October 2013

Key Legal Topics

Areas of Law

Family Law

Legal Concepts

Consent

Costs

Injunction

Procedural Fairness

Remedies