Sarina & Donald
[2023] FedCFamC2F 574
•17 May 2023
FEDERAL CIRCUIT AND FAMILY COURT OF AUSTRALIA
(DIVISION 2)
Sarina & Donald [2023] FedCFamC2F 574
File number(s): CAC 629 of 2023 Judgment of: JUDGE MANSFIELD Date of judgment: 17 May 2023 Catchwords: FAMILY LAW – PARENTING – Interim hearing – Suspension of previous final orders – Conflict between parents about parenting approach to sexuality and gender identity - Whether or not the father poses an unacceptable risk. Legislation: Family Law Act 1975 ss 4, 4AB, 60CC, 60CC(2), 60CC(2A), 60CC(2)(b), 60CG, 69ZL, 69ZW
Federal Circuit and Family Court of Australia (Family Law) Rules2021 Part 7.1, Rule 10.09
Cases cited: Eaby & Speelman [2015] FamCAFC 104
Goode & Goode [2006] FamCA 1346
Isles & Nelissen [2022] FedCFamC1A 97
Marvel & Marvel [2010] FamCAFC 101
Re K (1994) FLC 92-461
Rice & Asplund (1979) FLC 90-725
Division: Division 2 Family Law Number of paragraphs: 60 Date of last submission/s: 15 May 2023 Date of hearing: 15 May 2023 Place: Canberra Counsel for the Applicant: Dr Behrens Solicitor for the Applicant: Elringtons Solicitor for the Respondent: Mr Cameron of Hijazi Curran Cameron Lawyers ORDERS
CAC 629 of 2023 FEDERAL CIRCUIT AND FAMILY COURT OF AUSTRALIA (DIVISION 2)
BETWEEN: MS SARINA
Applicant
AND: MR DONALD
Respondent
ORDER MADE BY:
JUDGE MANSFIELD
DATE OF ORDER:
17 MAY 2023
THE COURT ORDERS THAT:
1.The Orders made 24 December 2020 are suspended.
2.X born in 2010 and Y born in 2014 (together “the children”) will spend time with the father from 11.00am to 2.00pm each Sunday, such time to be exercised in a public place with changeover to occur outside B Store in C Shopping Centre, City D.
3.The father is otherwise restrained from taking the children into his care.
4.The mother will facilitate the children communicating with the father by telephone, FaceTime or video (but not Messenger Kids):
(a)at any reasonable time when either of the children requests to do so; and
(b)each Tuesday at 6.30pm; and
(c)each Saturday at 11.30am.
5.Pursuant to Rule 7.04 and 7.05 of the Federal Circuit and Family Court of Australia (Family Law) Rules2021 the parties and the Independent Children’s Lawyer will forthwith confer for the purpose of agreeing on a single expert witness to be appointed in this matter (“the single expert”), with such expert to prepare a report to the Court as soon as practicable.
6.Pursuant to Rule 7.05 of the Federal Circuit and Family Court of Australia (Family Law) Rules2021 the parties and the Independent Children’s Lawyer will confer for the purpose of preparing an agreed letter of instructions to the expert, including an assessment of the father.
7.The parties are to share equally in the cost of the single expert, and it is noted that the parties and the children are likely to have to travel to Sydney for interviews by the single expert and will bear their own costs of travel, with the mother to bear the children’s costs of travel.
8.The parties have liberty to re-list in the event the parties and the Independent Children’s Lawyer are unable to agree as to the matters set out in Orders 5 and 6 above.
9.The parties are restrained from discussing any aspect of these proceedings, including but not limited to, anything which the children have said to CYPS and/or the mother in the presence or hearing of the children or permitting others to do so.
10.Pursuant to Section 68L of the Family Law Act 1975 an independent children’s lawyer is appointed for the children X born in 2010 and Y born in 2014 and Legal Aid is requested to facilitate such appointment as soon as possible.
11.Upon notification of the identity of the independent children’s lawyer, each party shall forthwith provide to the independent children’s lawyer a copy of all documents filed by them in the proceedings.
12.The matter is adjourned for mention on 5 September 2023 at 12noon before a Judicial Registrar.
Note: The form of the order is subject to the entry in the Court’s records.
Note: This copy of the Court’s Reasons for judgment may be subject to review to remedy minor typographical or grammatical errors (r 10.14(b) Federal Circuit and Family Court of Australia (Family Law) Rules 2021 (Cth)), or to record a variation to the order pursuant to r 10.13 Federal Circuit and Family Court of Australia (Family Law) Rules 2021 (Cth).
Section 121 of the Family Law Act 1975 (Cth) makes it an offence, except in very limited circumstances, to publish proceedings that identify persons, associated persons, or witnesses involved in family law proceedings.
IT IS NOTED that publication of this judgment by this Court under a pseudonym has been approved pursuant to s 121(9)(g) of the Family Law Act 1975 (Cth).
EX-TEMPORE REASONS FOR JUDGMENT
JUDGE MANSFIELD:
This is a decision on an interim hearing in the matter of Ms Sarina as the Applicant mother and Mr Donald as the Respondent father concerning two children – X who is 12 years old and Y who is 8 years old.
The parents were married in 2008 and separated in May 2018. At separation X was 7 and Y was 4. Since separation the children have been in a shared care week about arrangement and on 24 December 2020 the parents entered into final orders made by consent to that effect along with equal shared parental responsibility.
In early 2023 the mother contacted Child and Youth Protection Services (CYPS) to report her concerns arising from what the children were telling her about the father when in his care. The concerns were about the inappropriate and sexualised behaviour that the father was engaging in and exposing the children to. She says she had hoped that CYPS would investigate it and advise her as to what she should do.
The children last spent time with the father in early 2023. On 6 April 2023, the mother caused her lawyers to write to the father’s lawyers to the effect that she was withholding the children and outlining her concerns. On 13 April 2023, the mother filed an Initiating application.
MATERIAL
The material I have taken into account for the applicant is:
·The Application in a Proceeding filed on 11 May 2023;
·The Minute of Orders sought by the Mother dated 15 May 2023 (‘Exhibit 1’)
·The Affidavit of Ms Sarina sworn or affirmed 13 April 2023 (‘Exhibit 2’);
·The Notice of Child Abuse, Family Violence or Risk filed on 13 April 2023 (‘Exhibit 3’); and
·The Case Outline Document filed 11 May 2023.
The material I have taken into account for the respondent is:
·The Response to the Application in a Proceeding filed on 9 May 2023;
·The Affidavit of Mr Donald sworn or affirmed 8 May 2023 (‘Exhibit 5’);
·The Notice of Child Abuse, Family Violence or Risk filed on 9 May 2023 (‘Exhibit 7’); and
·The Case Outline Document filed 11 May 2023.
Both parties relied on material contained in the documents produced by Child and Youth Protection Services pursuant to a section 69ZW of the Family Law Act 1975 order made by the Court on 14 April 2023 (Exhibit 4) and material contained in the father’s tender bundle of 11 May 2023 (Exhibit 6).
RELEVANT LAW
This is an interim hearing and accordingly, shorter reasons are permitted pursuant to section 69ZL of the Family Law Act 1975 (‘the Act’).
The Full Court in Goode & Goode [2006] FamCA 1346 recognised that interim cases, such as this, can be difficult as there are often conflicting facts and disputes between the parties as to what constitutes the best interests of the child. The Full Court sets out at paragraphs 81-82 the approach to be adopted in interim parenting matters including:
(a)Identify the parties competing proposals;
(b)Identify the issues in dispute;
(c)Identify any agreed or uncontested relevant facts; and
(d)Consider the matters in section 60CC of the Act and make findings if possible.
Neither party sought or submitted for orders concerning the allocation of parental responsibility. I am satisfied that, on the state of the untested evidence in this interim hearing, it would not be appropriate in the circumstances for the presumption for equal shared parental responsibility to be applied. Section 60CA of the Act provides “In deciding whether to make a particular parenting order in relation to a child a court must regard the best interests of the child as the paramount consideration.”
Section 60CC of the Act sets out the list of matters that the Court must consider in determining what is in the children’s best interests. The primary considerations set out in s 60CC(2) of the Act 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.
In balancing these considerations, section 60CC(2A) of the Act requires the Court to give greater weight to the need to protect the child from physical or psychological harm from being subjected to, or exposed to, abuse, neglect or family violence.
Section 60CG of the act relevantly provides “In considering what order to make, the court must, to the extent that it is possible to do so consistently with the child's best interests being the paramount consideration, ensure that the order …. does not expose a person to an unacceptable risk of family violence [and] the court may include in the order any safeguards that it considers necessary for the safety of those affected by the order.”
THE PARTIES COMPETING PROPOSALS
By her Initiating Application, the mother sought interim orders to the effect that:
(c)The existing final parenting Orders dated 24 December 2020 be suspended.
(d)The Children live with her;
(e)The father be restrained from removing the Children from her care;
(f)An Independent Children's Lawyer be appointed;
(g)The parties participate in the preparation of a Child Impact Report;
(h)The father undergo a forensic psychiatric assessment;
(i)The children have no physical contact with the father but be able to communicate with them at all times.
At hearing, counsel for the mother tendered a Minute of Orders Sought to the same effect except that:
(a)Provided the father agree to the safety plan proposed by CYPS, the children spend time with the father from 11.00am-2.00pm every Sunday in a public place;
(b)A single expert witness be appointed to prepare a report as soon as practicable.
By the Response filed on 9 May 2023, the father sought orders to the effect that:
(a)The mother’s application be dismissed;
(b)The existing final parenting Orders dated 24 December 2020 remain in force;
(c)The mother be restrained from withholding the children.
At hearing, the father did not press the order seeking that the mother’s application be dismissed – by way of Rule 10.09 of the Federal Circuit and Family Court of Australia (Family Law) Rules2021 and application of the so-called rule in Rice & Asplund (Rice & Asplund (1979) FLC 90-725) or otherwise. It was acknowledged by both parties and the court that the rule can be applied at any stage of the proceedings. The father otherwise pressed the other orders sought.
In plain terms, I understand the mother’s case to be that the father exposes the children to overly sexualised behaviour, discussions and concepts to the extent that their psychological, physical and sexual health is in jeopardy. She says the circumstances amount to an unacceptable risk of harm. The mother adds allegations of neglect with respect to provision of food and inadequate showering. The mother adds allegations of excessive and physical disciplining of the children and unwanted contact (hugs). The mother adds allegations of a history of sexually abusive behaviour towards her by the father prior to separation. The mother adds an allegation that there is a possibility that the father is masturbating in the presence of the children in the dark when they are in their bed.
In plain terms, I understand the father’s case to be that the mother’s complaints are implausible or otherwise amount to value judgements and parenting decisions that the parents have to work through, that the circumstances do not pose any risk of harm to the children, the mother’s allegations are mischievous, there is nothing to see here and everyone should just move on. It is not clear what the father was proposing should then happen if they obtain the orders that they seek which is a return to the previous orders.
ISSUES IN DISPUTE
The mother makes many allegations ranging from sexual assault to how often the children shower in the father’s care. In his evidence the father responds to each of the allegations made by the mother. It is not necessary to address each of them and attempt to determine each of them for the purposes of this interim hearing. All of the evidence has been read and taken into account. The father denies that there is a risk to the children.
There is really only one issue in dispute for the purposes of this interim hearing. That is whether or not the father, poses an unacceptable risk to the children during their time with them.
On the question of unacceptable risk, the Full Court in Isles & Nelissen [2022] FedCFamC1A 97 established that:
(a)Factual findings about the past and fact based enquiry about the future are two different things;
(b)Risk does not need to be established on the balance of probabilities in the same way that facts are proven;
(c)Risks of harm are postulated from known historical facts and present circumstances;
(d)In assessing whether there is a risk that something may happen, ‘possibilities’ are a legitimate basis for finding that there is such a risk, as long as there is a proper basis for those ‘possibilities’;
(e)Allegations of family violence should be cast and considered in the terms of section 4 and section 4AB of the Act;
(f)The assessment of risk is an evidence-based conclusion and it is not discretionary. The finding about whether an unacceptable risk exists, based on known facts and circumstances, is either open on the evidence or it is not. It is only the overall judgment, expressed in the form of orders made in the children’s best interest, which entail an exercise of discretion.
AGREED OR UNCONTESTED FACTS
The mother is 41 and the father is 43 years old. The father identifies as non-binary. The father finds the categorization of biological male and the pronouns of ‘he’, ‘him’ and ‘his’ offensive. Other background facts are covered in the introduction above.
Child and Youth Protection Services (CYPS) material
Initiated by the mother’s recent reports, CYPS have commenced an appraisal process. CYPS produced material in response to a subpoena, inspected by the parties and some of it adduced into evidence. It is anticipated the appraisal process will be completed soon. CYPS have drafted and proposed a ‘safety plan.’ The father is reluctant to sign a ‘safety plan’ in circumstances where doing so suggests they accept the issues as raised within the plan are necessary.
From within the Child Concern Report Form of 22-24 March 2023:
Under ‘Team Leader Comment’
The concerns are for emotional abuse and risk of sexual abuse by the father, due to ongoing inappropriate behaviours bordering on grooming. The girls are of an age where they are coming into puberty (8 and 12) and have expressed concerns about their father’s behaviour. The father reportedly walks around naked, watches them shower, doesn’t allow them to close the door when showering, hugs them whilst he is naked despite them asking him to stop, comes into the female bathroom with them at the pool as he identifies as non- binary, despite the girls not wanting him to come in with them, comes into the girls bedroom a few times a week in the middle of the night standing over them and breathes heavily. Whilst there is no overt allegation of sexual abuse, the father’s behaviour appears to be having a significant impact on the girl’s wellbeing and could be a risk factor for sexual abuse and grooming in future.
There are concerns for an element of control and secrecy around the father threatening to take the girls money away if they try to shut the bathroom door, and that they are not allowed to tell their mother. The girls have reportedly seen their father pin his new partner up against the wall, grabbing and yelling at her on occasions. There have been no prior interventions. There is a history of concern in relation to the father’s behaviours: coercive control against the mother, multiple incidences of sexual abuse of the mother, grabbing and pinning [X] up against a wall.
I agree with the recommendation for a 7 day appraisal due to the cumulation of concerns impacting on the girls, and the father’s alleged history of sexual violence and control.
From within the Child Concern Report Form of 14 April 2023:
Under ‘CYPS History’
This is the 8th report received in regards to the children, with the two previous reports regarding family violence occurring between the parents, the first being in 2018 previous themes of concerns reported in [early] 2022 – The mother’s partner came and then left, when the mother went upstairs and father demanded sex while in the room with the girls and started to try and rape the mother.
Region E Policing advise CYPS that “At this stage, the matter will not be allocated for investigation.” One of the reasons includes “The disclosures lack context and may have a different interpretation to what is being suspected.”
Under ‘Findings and recommendations:’
Assessor has formed reasonable suspicion that the children may be at risk of emotional abuse and sexual abuse, and whilst mother is acting protectively at present, assessor is of the view that should they return to father's they may be in need of care and protection.
Findings
Firstly, I find there is a distinct lack of willingness or ability for the parents to communicate in order to effectively co-parent with respect to complex long-term issues like sexuality and gender identity.
The mother says the children prefer and continue to refer to their father as “dad.” The father says the children call their father “F” rather than dad. There is no evidence that the parents have had a conversation about this between them. The father deposes “From the conversations I have had with the children, I understand that [Ms Sarina] takes issue with this.”
The mother says that X told her in 2021 (at age 10 or 11 years old) that she was gay and a year later surprised her mother by telling her that she had not told her father for a while for fear that “he would parade [her] about”. The mother says that X does not identify as transgender or as a boy. There is no evidence of a conversation between the parents about what X is saying to the mother.
In contrast, the father deposes:
In Mid 2021 [X] began dressing in masculine clothing. She cut her hair quite short, and she was speaking with me openly about how she didn't like ‘girly things and girls’. [X] has been open about these discussions with me. After a number of months of [X] expressing herself in this way, I told her: “I want you to understand puberty and the options available if you want to speak with someone other than your mother and I about what you are feeling, you can request that”. [X] said to me: “I don’t know yet if I want to be a girl or boy in the long run” In response to this, I told her “Puberty is not reversible”. I do recall that I mentioned that people going through similar things have elected to take puberty blockers. [X] said to me after this conversation “I think I am ok just being a girl”. I responded and said: “That’s absolutely fine. If you ever want to talk about it please bring it up and we can talk about it all together”.
Another conversation occurred sometime later, [X] and I had a neutral discussion in relation to transgender persons. We spoke about surgery options that some transgender people have for gender affirmation.
There is no evidence of a conversation between the parents about what X is saying to the father. There is no evidence of a conversation between the parents about the subjects of reversibility of puberty or surgery options that some transgender people have for gender affirmation. There is no evidence to suggest that when the father says to X “we can all talk about it together” that it would actually occur and if it were to occur, that it would be a respectful conversation of benefit to the child.
The father further deposes:
In 2021, [X] also advised me: “I’m not interested in [G] (her previous flame) anymore, I really like this girl named [H].”
[X] has been open with me and content to have these communications with me. I understand [Ms Sarina] is resistant to my involvement.
At no time did I encourage or suggest that [X] needed to be a boy, nor that she was ‘transgender,’ as alleged by [Ms Sarina] in her Affidavit.
There is no evidence of a conversation between the parents about the appropriateness or dynamic of the relationships the father is referring to. I infer the father’s use of the words “her previous flame” is meant to infer a romantic relationship. In 2021, X was 10 or 11 years old.
The parents were unable to communicate about the mother’s concerns around whether or not the father is providing sufficient food for X at school. She arranged for her partner to provide some lunch money to X. The mother deposes it may be some kind of peer pressure or body image issue. The mother says X said it is nothing more than she doesn’t like the sauce the father gave her. Upon discovering the money, the father asked Y to message the mother about what the money was for. Y and X later deleted their messages to and from the mother and were upset when the father asked what the message said and why they were deleted. Perhaps X has a body image or eating problem, perhaps she doesn’t. Either way, the parent’s inability to communicate means that a potentially very serious issue is not recognised, or a very simple issue is perceived by the children as something they have to cover up.
I do not accept that the email correspondence from December 2019 at pages 43-46 of the father’s tender bundle is evidence of the parties communicating with each other in respect of big issues. The issues covered in those communications are not major issues and whilst the language is reasonably civil, there is significantly more allegation and defending going on that constructive agreement.
Secondly, I find the father is unable or unwilling to reflect upon their behaviours and consider them from the children’s perspectives.
The mother alleges that the father took highly sexual in nature photos of the children playing dress ups and posted them on Facebook. In response the father deposes “[In late] 2021 during lockdown, the children had a dress up day and asked me to take photographs. I understood [X] had watched a fashion show on the TV or iPad prior to the dress up party. The children chose the theme. They were dressing up posing like fashion models. They were having a fun time and did a catwalk runway. Annexed hereto and marked with the letter “E” is a copy of the photographs.”
The photos at Annexure E, in my view, are not illustrative of a child’s game. They are not indicative of play time led by the children. The children are heavily and skilfully made up arguably well beyond the ability or experience of children that age. The whole look of the scene encompasses an appreciation of a fashion show well beyond the novelty, silliness or excessiveness that a child could be expected to perceive an adult fashion show as. A child could be expected to smile or laugh in at least one of the many photos if they were enjoying a game. The facial expressions they use are not natural. The father posted the photos to social media. The photos are not indicative of a proud parent posting photos of their children’s achievements or experiences for posterity or community amongst friends and family. It is open to find, and I do so, that they were posted by the father as a parent proud of what their self has achieved with respect to their children.
The mother says that X complained of embarrassment about the clothes the father wore with her to a concert. The mother deposed that X said “dad wore cut-off shorts so his butt cheeks were visible, a see-through white crop top so that his nipples were visible, fishnet stockings and large platform shoes” ... “I was so embarrassed , and I begged him to change but he just yelled at me.” The mother was not there. Her knowledge of whatever the father wore being an issue for X could only be because X chose to tell her about it.
The father deposes “I often wear gender neutral/unisex clothing or fashion items that are both ‘female’ or ‘male’ at times. I recall on one occasion; [X] asked me not to wear a feminine shirt and crop top on another occasion I recall saying to [X]: ‘I let you wear what you want to wear, within reason, please let me do the same’. [Ms Sarina] alleges at Paragraph 23 of her Affidavit that I wore inappropriate clothes to the concert with [X]. I can tender a photograph of what I wore. My outfit was not inappropriate.”
These are not disputes about mutual freedom of choice as to colour or style. In this case it is a vehicle to the issue of deliberate and explicit expression of gender identity to and of prepubescent and impressionable children.
A further example is whatever happened with the homeless man. On the father’s evidence, it was a completely innocuous and positive role modelling experience to the children firstly of benevolence and charity and then merely clarifying to a stranger as to how the children refer to them as F and not dad. Again, the mother was not there. Again, her knowledge of anything happening at all could only be because the children chose to tell her about it. If it was as innocuous as the father says, what would have made it worthwhile talking about for the children? Why would the father feel it necessarily to clarify loudly to a homeless man and whilst walking away how their children refer to them. It is likely that the children did not perceive whatever happened in the same way as the father says it did and it is likely the father is either unable or unwilling to consider that experience through the perception of the children.
I also take into account the correspondence between the parents about the father continuing to hug or allow other people to hug the children when they have expressed that they do not want that to happen.
Thirdly, I find the absence of evidence that is not an extension of sexuality or gender identification is evidence of a lack of child focus. There is a distinct lack of evidence about the sorts of things that would be useful in determining the physical and mental health of the 12 and 8 year old children at their stage of development. For example, their attendance, participation and performance at school, their peer relationships (beyond X’s ‘flames’), any extra-curricular activities or interests (beyond catwalk fashion shows), their relationships with extended family or other key people in their lives, their eating habits, sleeping habits and general well-being.
The matters in section 60CC of the Act
The father submits that the potential damage to the benefit of the children’s relationship with the father outweighs any risk of harm. I do not agree that is the case. Even if the two primary considerations were evenly balanced, section 60CC(2A) of the Act requires the Court to give greater weight to the need to protect the children from harm.
On the exercise of factual findings about the past, I find that:
(a)There is a distinct lack of willingness or ability for the parents to communicate in order to effectively co-parent with respect to complex long-term issues like sexuality and gender identity;
(b)The father is unable or unwilling to reflect upon their behaviours and consider them from the children’s perspectives; and
(c)There is an absence of age appropriate focus on the children’s lives.
On the exercise of a fact based enquiry about the future, I find that:
(a)The likelihood of ongoing and escalation of conflict as between the parents is high.
(b)The likelihood of the children being exposed to conflict as between the parents is high.
(c)There is a risk of the children being abused by way of indirect use in a sexual activity or by way of exposure to sexual abuse.
(d)There is a higher risk of the children being psychologically harmed.
(e)On the mother’s evidence, the children are not coping with the lifestyle and parenting choices of the father, the dysfunction is escalating, the father is unable or unwilling to see it and is encouraging it. On the father’s evidence, the father is appropriately managing whatever issues are being raised by the children. It is not clear to me however why the mother would be making the allegations of what the father says are false or at least misrepresented. It does not seem to me to be out of a spiteful campaign to alienate the children or to deprive the father of time with the children. My inclination is to prefer the assessment of the mother.
On the evidence, it is open to find that there is a risk of harm, and unameliorated, the risk is unacceptable.
Because of the way the father presented his case, I expressly state that the findings and following orders are not manifestations of the imposition of values upon the parents’ respective parenting. The father’s case that they have not said or done anything in the parenting of the children that is inappropriate let alone of potential to cause psychological harm is not hopeless. With the development of further evidence, including expert opinion, it may be that the father is right and the mother is wrong. In the meantime however, the law is clear that a court needs to take a conservative approach at an interim hearing:
In Marvel & Marvel [2010] FamCAFC 101, the Full Court commented at paragraph 120:
As has frequently been emphasised interim parenting proceedings, and orders made as a consequence, are a necessary but temporary measure until all the evidence can be tested, evaluated and weighed at a final hearing by the making of final parenting orders. Decisions judicial officers have to make in interim proceedings are difficult and, often for very good reason, a conservative approach, or one which is likely to avoid harm to a child is adopted. This is often to the understandable distress of a party who may not achieve the outcome he or she desires, or thinks to be in the best interests of their child or children…
I do not accept that a change to the week about arrangement will cause irreparable damage to the relationship between the children and their father as submitted on behalf of the father. Firstly, the evidence is that the current arrangement is no longer working and increasingly so. Secondly, it will be an interim arrangement with scope for change in the foreseeable future.
Unfortunately, the children are going to be exposed to circumstances consequential to these proceedings by virtue of being interviewed at some stage.
The Orders
On the available evidence, I am satisfied that the orders sought by the mother on an interim basis are in the best interests of the children.
Order 1 suspending the previous final orders is plainly necessary.
Order 2 provides for both children to have face to face and unsupervised time with the father. The mother sought as a precondition that the father sign a copy of the CYPS 9 May 2023 Safety Plan. I decline to make that a precondition for the following reasons:
(a)I take into account the submissions on behalf of the father that they do not necessarily disagree with the purpose of the plan to make the children feel comfortable in their home, but signing it amounts to a concession that it is necessary at all. It is not appropriate to leverage the father into a process outside of this court on pain of no time with the children.
(b)The interim orders do not provide for the children to be in the father’s home which is the environment that the plan is aimed at.
(c)The finding of risk is already sufficiently ameliorated by:
(i)The condition that the time occur in a public place and for only 3 hours; and
(ii)The reality of these now ongoing proceedings.
Order 3 is self-evident in light of Order 2 and these reasons.
Order 4 is supportive of maintaining the benefit to the relationship between the children and the father.
Orders 5-8 are consistent with the principles for conducting child-related proceedings in section 69ZN of the Act and Part 7.1 of the Federal Circuit and Family Court of Australia (Family Law) Rules 2021 concerning experts.
That the children are insulated as much as possible from these proceedings is in their best interests and Order 9 seeks to provide for that.
Having regard to the guidelines for the appointment of an independent children’s representative in Re K (1994) FLC 92-461, I consider that the children’s interests require independent representation as:
·The case involves allegations of child abuse, whether physical, sexual or psychological.
·There is an apparently intractable conflict between the parents with respect to some major long-term issues.
·There are real issues of cultural differences affecting the children.
·The sexual preferences of either or both of the parents or some other person having significant contact with the children are likely to impinge upon the children’s welfare.
·The conduct of either or both of the parents with the children is alleged to be anti-social to the extent that it seriously impinges on the children’s welfare.
I certify that the preceding sixty (60) numbered paragraphs are a true copy of the ex tempore Reasons for Judgment of Judge Mansfield. Associate:
Dated: 17 May 2023
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