Shahin & Shahin
[2022] FedCFamC2F 142
FEDERAL CIRCUIT AND FAMILY COURT OF AUSTRALIA
(DIVISION 2)
Shahin & Shahin [2022] FedCFamC2F 142
File number(s): PAC 4931 of 2010 Judgment of: JUDGE NEWBRUN Date of judgment: 15 February 2022 Catchwords: FAMILY LAW – interim parenting - best interests of children - Orders made Legislation: Family Law Act 1975 (Cth), ss. 60B, 60CA, 60CC, 68B, 69ZL Cases cited: 1 Goode & Goode [2006] FamCA 1346; (2006) FLC 93-286
2 Marvel & Marvel (No 2) [2010] FamCAFC 101
3 Eaby & Speelman [2015] FamCAFC 104
4 Banks & Banks [2015] FamCAFC 36
Division: Division 2 Family Law Number of paragraphs: 143 Date of last submission/s: 6 December 2021 Date of hearing: 6 December 2021 Place: Parramatta Counsel for the Applicant: Mr Dura Counsel for the Respondent: Mr Lawrence Solicitor for the Independent Children’s Lawyer Mr MacDiarmid ORDERS
PAC 4931 of 2010 FEDERAL CIRCUIT AND FAMILY COURT OF AUSTRALIA (DIVISION 2)
BETWEEN: MR SHAHIN
Applicant
AND: MS SHAHIN
Respondent
AND: INDEPENDENT CHILDREN’S LAWYER
ORDER MADE BY:
JUDGE NEWBRUN
DATE OF ORDER:
15 FEBRUARY 2022
PENDING FURTHER ORDER THE COURT ORDERS THAT:
1.That interim Orders 2 to 5 in Exhibit A to the Court’s Orders of 3 July 2019 be suspended.
2.That X born in 2010 and Y born in 2009 (‘the children’) live with the Mother.
3.That unless otherwise agreed between the parents in writing, for a period of 3 months the children spend time with the Father supervised by B Families (or other recognised contact service provider agreed by the parties) located in the Suburb C region, once a fortnight each Saturday between 10.00 am to 2.00 pm, and otherwise as agreed by the parties in writing.
4.That to facilitate the Father spending time with the children pursuant to Order 3, the Mother and the Father are each to:
4.1Contact B Families (or other recognised contact service provider agreed by the parties) within 48 hours of the making of these Orders and make an application for B Families’ supervised children’s contact service.
4.2Provide all information and complete all necessary paperwork as may be requested by B Families (or other recognised contact service provider agreed by the parties).
4.3Attend any intake or assessment appointments as may be requested by B Families on such days and times as nominated by B Families; and
4.4Comply with any other reasonable request or direction of B Families for the purpose of implementing these Orders.
That to facilitate the Father spending time with the children pursuant to Order 3, the Mother is to:
5.1 Ensure that the children attend any intake or assessment appointments as requested by B Families on such days and times as nominated by B Families; and
5.2 Ensure that the children attend on each occasion that the children are scheduled to spend supervised time with the Father as nominated by B Families.
That the Father will be responsible all costs of B Families’ supervised contact service (at the relevant concession or non-concession rate) including, but not limited to, any costs associated with their initial intake assessments, reports, supervision services and appointments attended by the children.
That these Orders operate as the authorisation of both parents to B Families to provide the Independent Children's Lawyer in these proceedings with any information about the parents’ engagement with their supervised contact service or the progress of supervised time that the Independent Children’s Lawyer may require.
That the Mother be permitted to provide the supervisor with a copy of these Orders.
Within 14 days, the Father and the Mother sign up to B Families 'Keeping Kids in Mind Course’ and provide evidence of enrolment and completion.
The Father undertakes to be restrained by injunction from bringing the children into contact with Ms D (born in 1991) by any means whatsoever including by telephone or other electronic means and further in the event Ms D comes into contact with the children, your client is to immediately remove the children and notify the Mother and the Independent Children’s Lawyer forthwith.
That pursuant to s.68B of the Family Law Act 1975 the Father and Mother are restrained by injunction from:
11.1Making any negative, critical, belittling, or derogatory comments in relation to the other parent or members of the other parent’s family or household (including questioning or criticising the parenting decisions and/or parenting capacity of the other parent) to or in the presence or hearing range of either of the children or via written correspondence or on social media
11.2From discussing with or questioning the children about these proceedings and from showing to the children any filed court documents.
11.3From discussing the incident of 19 September 2020 or the associated ADVO Court proceedings with the children
11.4From physically disciplining or chastising the children in any manner.
11.5Exposing the children to excessive conflict or violent behaviour (including physical and verbal abuse) during those periods that the children are in their respective care
12.That for the purposes of the time provided for in these Orders, the Father shall be at liberty to have E attend with him.
13.The parties and ICL are directed to attend Comp Mediation through Legal Aid NSW as soon as practicable following the above supervised visits occurring, as organised by the ICL.
14.Liberty to the ICL to relist the proceedings on seven days’ notice after the above Comp Mediation, in relation to, inter alia, a further interim hearing being appointed in relation to the issue of the children spending time with the Father.
15.The proceedings are adjourned to 20 June 2022 at 9:30am for mention.
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 Shahin & Shahin has been approved pursuant to s 121(9)(g) of the Family Law Act 1975 (Cth).
REASONS FOR JUDGMENT
JUDGE NEWBRUN:
These are short form reasons pursuant to section 69ZL of the Family Law Act 1975 (Cth) (“the Act”).
This Interim Hearing relates to the children, X, born in 2010 (aged 11), and Y, born in 2009 (aged 13).
On 3 July 2019, interim consent parenting Orders were made providing, inter alia, that the children spend time with the Father during school term from after school each alternate Friday until 6 PM Sunday, and from after school until 7 PM each alternate Wednesday, together with one half of the children school holiday periods, and other special time.
The children have not spent significant time with the Father since about late September 2020.
PROPOSALS
The Father sought interim Orders in accordance with his Case Outline filed 3 December 2021; he sought interim Orders, inter alia, that he spend supervised time with the children for up to 4 hours on Saturday supervised by F Contact Centre (however at the interim hearing he submitted that he was content for B Families to provide supervision); that following 6 supervised visits, the Father begin to spend unsupervised time with the children on a graduating basis leading to, inter alia, overnight time, and certain unsupervised school holiday time.
The Mother sought interim Orders in accordance with her Case Outline filed 3 December 2021; she sought interim Orders, inter alia, that the Father spend supervised time with the children through B Families once a fortnight each Saturday between 10 AM to 2 PM but only for a trial period of 3 months. After 3 months of supervision, the parties and ICL should consider the success or otherwise of the supervised time (particularly relating to the re-introduction of the children to the Father through supervised time), and in the absence of any agreement as to future time-with Orders, return to Court for the determination of further interim Orders. The Mother also proposes Orders that the Father complete the Keeping Kids in Mind and an anger management course. At the interim hearing, the Father told the Court that both parties should complete the Keeping Kids in Mind course but he would not agree to attend a recognised anger management course.
The ICL supported the Mother’s proposed Orders.
MATERIAL RELIED UPON
The Father relied upon:
(a)The documents referred to in his Case Outline filed 3 December 2021.
The Mother relied upon:
(a)The documents referred to in her Case Outline filed 3 December 2021.
EVIDENCE INCLUDING THE PARTIES’ RESPECTIVE ALLEGATIONS
The Court does not propose to set out the entirety of the above documentary evidentiary material relied upon at this interim hearing by the parties and ICL.
The Mother is aged 36 years. The Father is aged 47 years. The Mother was born in Australia and the Father was born in Country G.
The Father alleges the parties married in 2007 in Sydney and separated in September 2010 when the Father left the parties’ home.
On 17 June 2011, by consent, the parties agree to final parenting Orders. Inter alia, they agreed that the parties should have equal shared parental responsibility for the children; that the children live with the Mother; and that the children spend time with the Father, unsupervised, on a graduating basis.
The Father married his current wife, Ms D, in about 2014. The Father had met her in Country J and they married there. They had a child, E, who was born in 2015.
The Father refers to the Mother having an AVO placed on him in about 2010/2011.
The Father alleges that in about mid 2011 he began to spend substantial time with the children including every weekend from Friday after work to Sunday 5 PM.
The Father alleges that in about 2014 by agreement with the Mother the children lived with him for one year. He alleges that in about 2015 he moved to a duplex he owned in Suburb K.
The Father alleges that in about early 2016 the Mother took the children and moved to Suburb L and enrolled them in schools there. He alleges they attended that school for two years. At about this time the Father alleges that the Mother married her current husband Mr M. The Father alleges that thereafter he would take the children every weekend from Friday after school to Sunday 5 PM. He alleges that he took the children for an overseas holiday at Christmas 2016 for about two weeks.
The Father alleges that on about Christmas 2017 the Mother moved with her husband and the children to Suburb N. The Father alleges that his time with the children reduced significantly thereafter; he alleges the Mother would only allow him to see the children every second weekend.
The Father alleges that in February 2018 the Mother informed him that the children’s new school was O School.
On 3 July 2019, interim consent parenting Orders were made providing, inter alia, that the children spend time with the Father during school term from after school each alternate Friday until 6 PM Sunday, and from after school until 7 PM each alternate Wednesday, together with one half of the children’s school holiday periods, and other special time.
The Father alleges that on 19 September 2020 the child X and E got into an altercation as they were fighting over a toy. The Father alleges that Ms D pulled the boys apart and asked them not to fight. He alleges that she did not slap or hurt X.
The Father alleges that on 7 October 2020 the police attended his home and served his wife with a provisional AVO. The Father alleges that the AVO Orders did not preclude him or his wife from spending time with the children.
The Father alleges that on 28 January 2021 the AVO matter was dismissed and withdrawn by police.
The Father alleges that on 2 February 2021 his lawyers informed him of receiving a letter from the Mother’s lawyers not agreeing to reinstate his time with the children unless it was supervised.
The Father denies the children have a bad relationship with his wife. He alleges that the children speak enough Arabic to understand his wife and she understands them too. He alleges that his wife’s English has also gotten better over the years. He alleges that his wife loves the children and cares for them as much as her own.
The Father denies that he ever hit his children. He alleges he does not use physical discipline upon them. He alleges the children are generally well-behaved and very rarely does he even raise his voice if they have done something wrong. He denies any allegation that he has touched X inappropriately.
The Father alleges that he is a builder. He alleges he has now moved to Suburb P to be closer to the children’s schools.
The Father states that he has a brother and sister with their partners and children that the children are missing out on. He alleges that the children have a close bond with his wife’s mother.
The Father alleges that he has had no telephone or face-to-face contact with the children since he last saw them on 20 September 2020 and when he saw Y briefly at school on 16 October 2020.
The Mother alleges that throughout the parties’ marriage their relationship was not always good. She alleges she lived in constant fear from the Father. She alleges she was scared to disagree with him because he physically and verbally abused her if she did this. She alleges that on 13 September 2010 she phoned the police whilst the Father was physically attacking her. She alleges on this day the police applied for an interim ADVO for the Mother’s protection against the Father, and that the ADVO was finalised on 7 October 2010.
The Mother alleges that it was in 2016 that the children began telling herself and her husband that they were scared of the Father and that they say what the Father wants to hear so that he doesn’t get angry.
The Mother alleges that Y told her that the Father had kicked him “up his backside” because he didn’t want to wait. The Mother alleges the children have told her and her husband that they have witnessed the Father slap his wife across the face.
The Mother alleges that the Father placed an enormous amount of pressure on the children throughout 2018 about Court information. The Mother alleges she organised psychologist consultations for both children. She annexes counselling records of both children in late 2018 which refer to disclosures by the children that the Father was allegedly placing pressure upon them to in effect prefer the Father’s parenting proposals to the Mother’s (e.g. to “choose” him in Court).
The Mother alleges that on the weekend of 31 August 2018 the children told her that the Father had slapped Y hard on the arm he had broken because he didn’t want to put gel in his hair.
The Mother alleges that in about late February 2019 the child Y told her that he did not want to see the Father and he makes him so stressed.
The family report of Ms Q dated 15 April 2020 was released by the Court to the parties and ICL on 17 April 2020.
The Mother alleges that after the family report was released, both children told her that the Father said, “you got what you want, you want your mum, you got your mum.” X also allegedly told her that the Father told him, “you are my bad son, I only have one good son”, which allegedly upset him.
The Mother alleges that an incident occurred on 25 April 2020 during the school holiday period when the children were in the care of the Father. She alleges that she received a text message from X, “Mum my dad is grilling me about papers”. This child then allegedly clarified to the Mother by text message that the “papers” were “Court papers”. A further text message from this child to the Mother stated that the Father had allegedly said that Y was his only good son.
The Mother alleges that on 20 September 2020 the child X told the Mother and her husband that the Father’s wife had slapped X in the face and bent his thumb. She alleges that the child told her that he got into a fight with E about a toy, the Father’s wife came over and pulled his finger back, so he pushed E, and then she slapped him across the face. The Mother contacted FACS and the police and an ADVO was issued for the protection of X from the Father’s wife. The police told the Mother that they had interviewed the Father’s wife and she had denied the allegations. Later, the Mother proposed, on advice, that the current interim parenting Orders be suspended and that the Father attend a Keeping Kids in Mind Course, an anger management course and that the Father make his wife attend as well.
The Mother alleges that since early January 2021, the child X has stated to the Mother and her husband that he does not want to go back to the Father’s anymore and does not trust him. The Mother alleges that the child Y said that if they go to the Father’s, he is going to grill them.
The Mother alleges that since the incident in September 2020 the children have asked the Mother on many occasions not to see the Father again. The Mother alleges that it has taken a few months for the children to stop having anxiety attacks. She alleges the children have told her that they would not like to see the Father, that the Father will grill them and hit them.
The Mother’s husband is aged 42 years. He alleges that after June 2015 the Mother let him listen into her phone conversations with the Father by placing the phone on speaker mode. He alleges that he consistently heard the Father scream at the Mother. He alleges that the tone of the Father’s voice was more often than not aggressive and his use of profanity in both English and Arabic was consistent.
The Mother’s husband alleges that on one occasion in late 2016 the children told him that they had seen the Father hit his wife in the face because she was not allowed to drive the vehicle. Later the Father denied these allegations.
On 20 September 2020, the Mother’s husband alleges that the child X stated that the husband’s wife had hit him in the face. He alleges that X later told the police that the husband’s wife had slapped him in the face.
The Mother’s husband alleges that on numerous occasions in the past 12 months the Mother has asked the children whether they would like to spend time with the Father and the response has always been no. He alleges that he hears comments regularly such as, “no he will just grill us”, “he will bash me” and “he only cares about court.”
FAMILY REPORT DATED 15 APRIL 2020
The family report writer, Ms Q, interviewed the parties, their partners, and the children on 18 February 2020.
The family report writer stated that the children live with the Mother and spend time with the Father each alternate weekend, from after school Friday until 6 PM Sunday. In addition, she noted that they spend time with the Father each alternate Wednesday from after school until 7PM, and for half of the school holidays.
The family report writer stated that the Father’s wife was born in 1991, aged 38 years. She stated that the parties are both Country G Muslims.
The family report writer stated that it appeared that the children’s time with the Father increased after final parenting Orders were made on 17 June 2011.
The family report writer stated that the Father sought an equal time, week about arrangement in relation to the children and that the Mother sought Orders that she have sole responsibility, the children live with her, and that the children spend time with the Father each alternate weekend for two overnights, as well as for half school holidays.
The Mother alleged to the family report writer that the Father had been physically violent, verbally abusive and controlling towards her during their relationship but, apart from occasional verbal abuse, this had ceased. She claimed she remained wary of the Father.
The Mother and her husband alleged that the children had reported to them that the Father had been violent towards his wife. The Mother alleged that the Father was occasionally violent towards the children and frequently engaged in excessive discipline with E.
The Mother maintained that while the children want to see the Father, they want to live with her.
The Mother stated that she and the Father are unable to communicate in a constructive manner. They are unable to talk face-to-face and only communicate via text message. She said that the Father continues to criticise her and has called her a bad mother.
The Mother claimed the children have a mixed relationship with the Father, declaring that some days they have a ball while on other days they come back distressed because the Father had questioned the children about the matters before the Court.
The Mother claimed that the Father sometimes slaps the children, particular X, although this has reduced.
The Mother raised no concerns about the Father’s wife’s care of the children but she said that the children cannot speak Arabic and the Father’s wife only speaks broken English, so the children find it difficult to communicate with her. She stated the children enjoyed seeing E.
The Father denied there was any violence between himself and his wife. He denied he hits the children, apart from smacking them on the bottom occasionally.
The Mother’s husband stated that the children are distressed when the Father involves them in the parental conflict and speaks to them about the matters before the Court.
The Father’s wife denied that the Father was violent towards her. She admitted they shout at each other occasionally.
Y spoke positively about the Father stating that he loved him and that the Father can be really nice. He stated that the Father’s discipline was fair. He stated that the Father’s wife was nice to him and never hits him although she does yell when he is naughty. He stated that the current living arrangements are going great and he does not want to change them.
X presented as somewhat anxious and stated that he doesn’t want to talk to the family consultant about the matters before the Court because the Father had smacked him after his statements to the family consultant in the Child Inclusive Conference. He declared that he did not want to speak to the family consultant because if the Father loses he was going to bash him anyway.
X stated that there were things he likes about the Father and that he wants to see him. He declared that he is scared of the Father when he is mad. He said that the Father was not angry often. He reported that the Father had smacked him in the past and continues to smack E. He reported that the Father tells all three boys to shut up. He also claimed that the Father teaches E to hit him. He stated that the Father’s wife was sometimes friendly and that he was not fearful of her.
X stated that he wants the current arrangements to remain in place because he feels comfortable living with the Mother, he cannot have his friends over at the Father’s home and that the Mother lets him have sleepover parties. He reported that the Father had placed pressure on him to choose to live in equal time. He said that the Father promised to buy him nice things which made him feel horrible. He stated that he tells the Father things to make the Father happy or sometimes he doesn’t say anything.
The observation session between the children and the Father, his wife and their child was positive. Similarly, the observation session between the children and the Mother and her husband was positive.
Under the heading Evaluation, the family report writer stated that given X’s young age, the Court could not place weight on his stated wishes regarding his parenting arrangements. She stated that the Court could place some weight on Y’s stated wishes.
The family report writer stated that the children appeared to enjoy an established positive relationship with the Mother and her husband. They appear to have a positive relationship with the Father, however, some anxiety was noted and this appeared to be primarily related to the parental conflict and potentially to pressure placed on the children by the Father in relation to their interviews with the family consultant. She stated that X’s claim that the Father had smacked him for comments made to the family consultant in the Child Inclusive Conference interviews were extremely concerning. She stated that if the Court found that the Father had engaged in this behaviour, this would be indicative of physical and emotional abuse and the children may require reduced time or no time with the Father, depending on how frequently the Court determined such behaviour had occurred.
The children presented as negatively impacted by the parental conflict, which has been occurring for most of their lives. They presented as resigned to this conflict as well as fearful of disappointing their parents, particularly the Father. It was not in dispute that the children do generally enjoy their time with the Father.
It appeared likely that the children have, at times, told one or both parents what they believe the parent wants to hear in order to avoid emotional pressure related to the parental conflict.
The family report writer stated that there was nothing in the children’s interview to suggest that they were not providing a genuine account of their feelings and views regarding their preferred parenting arrangements. She stated that the current arrangements appear to be meeting the children’s practical and emotional needs and, in particular, do not appear to have eroded the children’s relationship with the Father.
The family report writer stated that a significant area of parental conflict appeared to be frequent changes of parental residence and changes to the children’s schools, as well as changes to the parenting arrangements. She stated that the children would no doubt benefit from stability, and they expressed a strong desire not to have to change schools again. She stated that the children would also likely benefit from routine spend time arrangements.
In paragraph 110, the family report writer stated the children can be adversely affected through ongoing contact with a person who perpetrates family violence in a number of ways which were discussed by her.
The family report writer stated that based on parental reports, it appeared that the parents have experienced frequent conflict, even after many years of separation, and this has resulted in unilateral decision-making from both parents at times and further family law proceedings. She stated that it was clear that the parties have little capacity to communicate and cooperate in the manner that would be required for an equal time arrangement to be implement it successfully.
The family report writer recommended, unless the Court finds that the children are at an unacceptable risk of harm in the Father’s care, they continue to spend time with him as per the current arrangements.
It was recommended that the children live with the Mother.
It was recommended that unless the Court finds that the Father is intimidating towards the Mother and/or violent towards the children and/or the Father’s wife, that the parents share parental responsibility and that the children spend time with the Father as per the current arrangements.
It was recommended that if the Court finds that the Father poses an unacceptable risk of harm to the children, that the children spend supervised time with him as frequently as is practicable.
The Court takes into account the contents of this family report, including the observations and opinions of the family report writer, whilst acknowledging that the report is untested at this interim stage.
Child Inclusive Conference Memorandum dated 15 March 2021
This conference was held by Ms Q, family consultant, on 5 and 12 February 2021.
The Mother sought Orders, inter alia, that the children spend supervised time with the Father but only if they wish to do so.
The Father told the family consultant that his preferred parenting arrangement was that the children live in a week about, equal time arrangement, but if the Court declines to make such an order that he is seeking that the children live primarily with him and spend time with the Mother “whenever they ask”.
The Mother related the alleged incident in September 2020 when the Father’s wife allegedly slapped X across the face. The Mother stated, with concern, that police have now withdrawn a prior interim ADVO that was put in place to protect the children from the Father’s wife. The Mother stated that the children had previously said that the Father’s wife slaps E in the face. The Mother stated that the children are fearful of the Father’s reaction to their statements to police, and also about being smacked in general.
The Mother related an alleged incident of the children’s school when the Father allegedly had attempted to turn up at the school with an unknown male, in the middle of the day, demanding that the children leave with him. The Mother maintained the children had been fearful during the incident. The Mother claimed to the family consultant that since that incident the Father had allegedly stalked the children by attending upon the school again, in an unknown car, and calling out “give me a minute”. She stated that the children had been fearful and the police were called again.
The Father denied to the family consultant that he or his wife had ever been physically, verbally or psychologically abusive to the children or E. He said he does not believe that the children are fearful of him or his wife. He made exculpatory statements in relation to the above alleged school incidents. He denied he had been angry with the children for what they had said to the family consultant at the family report interviews. He denied stalking the Mother or the children. He confirmed he had sent a message via the gaming device to the children, stating he did so because he was desperate to have contact with them.
The Mother claimed that she and the Father have no capacity to communicate or cooperate and claim to be extremely fearful of him which causes her to wake in the night, fearing he may do something. She said she was currently receiving support from a domestic violence worker.
X was interviewed. He said he was in Year 6.
X stated that after his interview with the family consultant for the family report the Father had asked him what he had told the family consultant and then got angry with him about this. He claimed the Father remained angry for some time and “kept saying I was the bad child because I didn’t say what he wanted me to say”. He claimed that the Father favoured the other child over him as a result of what he told the family consultant at interview.
X said he does not want to have any further contact with the Father. When asked if he loves the Father, he stated that the Father hits him and tried to press charges against him. He claimed that the Father hits the other child and E but did not report that the Father hits him.
X claimed that since ceasing contact with the Father, he is sleeping better and getting less nervous and is doing better at school.
X said that the Father’s wife had hit him on only one occasion but it hurt. He declared he does not want to have any further contact with her. He said he did not want to have any further contact with E because the Father’s wife blames him for E’s behaviour.
X said he may see the Father and his wife under supervision if they participated in counselling and change their behaviour towards him and his brother but he declared, “my Dad will not want to do supervision because he would probably want to hit me. If I come back, he will probably beat me up.”
X claimed to be fearful of the Father. When asked if he was fearful that the Father would be angry at him for giving a statement to police, X declared, “No, I don’t really care. He can’t control me and plus, my Mum is going to protect me.”
As the interview progressed, X stated that he does not want to see the Father, even under supervision, declaring, “I can’t risk it.”
X said that the Father refuses to accept that it is his genuine preference to live with the Mother.
Y was interviewed. He said he was in Year 7 but did not want the Father to know which high school he attends.
He was asked what had occurred in his family and he stated that recently the Father’s wife had hit his brother and accused him of bruising his half brother and tried to press charges against X for assaulting E.
Y maintained that he feels anxious around the Father. He declared that the Father was getting really annoying for turning up at his school unannounced, and that it was embarrassing.
Y maintained that he does not miss seeing the Father and does not want to spend any further time with him in the future. When asked if he thinks the Father loves him, he stated that he didn’t really know. He claimed that he would like the Father to stop trying to contact him.
As to his relationship with the Father’s wife, he stated that she had hit his brother which he is completely against and he does not like that. He did not want to have any further contact with E.
Y was asked how he thought the Mother would feel if he spent time with the Father and he stated that the Mother was worried that the Father may abuse him if this was to occur.
The Mother claimed that after the release of the family report, the Father was angry with the children for their statements to the family consultant, particularly X. She further claimed that the Father commenced harassing the children, telling X that he was his worst child and that he preferred Y to him.
The Mother claimed that after the Father’s hostility towards the children commenced they would beg not to have to spend time with him but she insisted they go, up until the alleged assault of X by the Father’s wife. The Mother claimed that even after this she offered the Father the opportunity to spend supervised time with the children without the Father’s wife present but the Father declined to take up this opportunity.
The Father strongly maintained that the children want to live with him or live in an equal time arrangement. He claimed that the children are fearful that if they share their true views the Mother will be disappointed in them.
The Father stated he does not agree to spend time with the children at a contact Centre because he poses no risk of harm to them.
The family consultant stated that based on information provided by the parties, even if the Court was to find that the Father’s wife had slapped X, this appears to be an isolated incident and no major concerns are held regarding the children being at risk of physical harm from this person.
The family consultant stated that if the Court was to find that the Father had placed emotional pressure on the children in relation to their statements to the family consultant, this would be of more serious concern as this would constitute psychological abuse and it would be understandable that the children would want to avoid being exposed to this and request to cease time with the Father.
She stated that it was possible that a contributing factor to the children’s apparent reticence in spending time with the Father is that they have now made statements to police and fear repercussions about this from the Father.
The family consultant stated that irrespective of the claims and counterclaims of each parent, it is clear that the children’s relationship with the Father has broken down and, given the apparent ongoing escalation in the parental conflict, it appears unlikely that the children’s relationship with the Father will improve in the short to medium term.
The family consultant stated that given that ongoing exposure to parental conflict can lead to significant negative impacts on children’s mental health and well-being, it appears that the least detrimental alternative may be for the children to live with the Mother and spend time with the Father in accordance with their wishes.
The Court takes into account the contents of this Child Inclusive Conference Memorandum, including the observations and opinions of the family consultant, whilst acknowledging that the Memorandum is untested at this interim stage.
LEGAL PRINCIPLES
The relevant principles in relation to parenting proceedings, including interim proceedings, are well settled: see Goode & Goode [2006] FamCA 1346; (2006) FLC 93-286.
In Marvel & Marvel (No 2) [2010] FamCAFC 101, the Full Court of the Family Court of Australia discussed the problems associated with making findings on disputed evidence as follows:
[120] As has frequently been emphasised interim parenting proceedings, and Orders made as a consequence, are a necessary but temporary measure until all the evidence can be tested, evaluated and weighed at a final hearing by the making of final parenting Orders. Decisions judicial officers have to make in interim proceedings are difficult and, often for very good reason, a conservative approach, or one which is likely to avoid harm to a child is adopted. This is often to the understandable distress of a party who may not achieve the outcome he or she desires, or thinks to be in the best interests of their child or children. Interim parenting Orders are frequently modified or changed after a final hearing, and any allocation of parental responsibility made at an interim hearing is disregarded at the final hearing (s 61DB).
…
[122] In SS & AH [2010] FamCAFC 13 the majority (Boland and Thackray JJ) discussed at paragraph 88 of their reasons the care necessary to be exercised in making findings in interim parenting proceedings. Their Honours said:
In our view, findings made at an interim hearing should be couched with great circumspection, no matter how firmly a judge’s intuition may suggest that the finding will be borne out after a full testing of the evidence.
[123] Later, at paragraph 100 their Honours amplified their comments and said:
The intuition involved in decision-making concerning children is arguably of even greater importance when a judge is obliged to make interim decisions following a hearing at which time constraints prevent the evidence being tested. Apart from relying upon the uncontroversial or agreed facts, a judge will sometimes have little alternative than to weigh the probabilities of competing claims and the likely impact on children in the event that a controversial assertion is acted upon or rejected. It is not always feasible when dealing with the immediate welfare of children simply to ignore an assertion because its accuracy has been put in issue.
Of this, the Full Court in Eaby & Speelman [2015] FamCAFC 104 said at [19]:
As would be immediately apparent, this approach enables the Court to appropriately and carefully deal with contentious issues relevant to the welfare of the child, and for those issues to not be ignored.
The Court also refers to the decision of the Full Court of the Family Court of Australia in Banks & Banks [2015] FamCAFC 36, especially at paragraphs 46 to 52. In that decision, the Full Court stated, inter alia, that (at paragraph 49), “It is also important to stress here that the requirement to “consider” each factor (under s60CC of the Act) does not mean each must be discussed, especially where the evidence leads inexorably to a particular conclusion: SCVG & KLD (2014) FLC 93-582”. Further, it stated, at paragraph 50, “When it is obvious that the findings made as to some of the s 60CC factors will be determinative of the child’s best interests on an interim basis, it is a sterile and unnecessary exercise to address other factors”.
Section 60B of the Act sets out the objects of Part VII of the Act relating to children that inform the making of parenting Orders.
In deciding whether to make a particular parenting Order in relation to a child, a Court must regard the best interests of the child as the paramount consideration: section 60CA of the Act.
Section 60CC of the Act provides that in determining what is in the child’s best interests, the Court must consider the matters set out in subsections (2) and (3). In this context the Court refers to its discussion above in relation to Banks & Banks.
Section 60CC of the Act provides that in determining what is in the child’s best interests, the Court must consider the matters set out in subsections (2), the primary considerations, and (3), the additional considerations. In this context the Court refers to its discussion above in relation to Banks & Banks.
Section 60CC(2) provides:
The primary considerations are:
(a)the benefit to the child of having a meaningful relationship with both of the child's parents;
(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).
Further, s 60CC (2A) provides:
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).
DISCUSSION
As to the meaningful relationship primary consideration under s 60CC(2)(a), the children have a meaningful relationship with the Mother, the Mother having been the children’s primary carer from birth to date, and the children will likely benefit from a continuance of those relationships with the Mother.
The children have previously enjoyed a meaningful relationship with the Father, however there is a significant suggestion, on the material before the Court, that those relationships have broken down. There is a significant suggestion from this material that an incident between X and the Father’s wife in September 2020 (X alleges that the Father’s wife slapped him which is denied by her) may have been a catalyst for the children declining to spend time with the Father after this time.
The children may prospectively benefit from the restoration of their former meaningful relationship with the Father if it is safe, physically and psychologically, for them to do so.
Should the children presently spend 3 months of supervised time with the Father, through B Families, once each fortnight, as proposed by the Mother (and supported by the ICL) there is some prospect that their former meaningful relationship with the Father can begin to be redeveloped. Such fortnightly visits (four hours on a Saturday) would permit the children to fully participate in their usual activities on the Saturday (within the fortnight) that they were not spending supervised time with the Father.
The Court has a concern that should the children spend supervised time with the Father once each week as proposed by the Father (for up to four hours each Saturday), there is a real risk that the children may resent their usual Saturday activities being impeded and/or may feel overwhelmed by such regularity of contact with the Father, noting that they have not spent time with him since September 2020. If this risk was to pass, the timely potential redevelopment of their former meaningful relationship with the Father may be adversely affected.
Following such supervised time, the parties and ICL can consider, through the perusal of supervised contact reports, the progress of the children’s reintroduction to the Father, and participate in the ICL’s suggested mediation (the ICL informed the Court at the interim hearing that he had funding for such mediation). Failing any interim parenting agreement between the parties thereafter in respect to future time-with orders, the matter could return to Court for further interim determinations relating to the children’s time with the Father.
As to the need to protect primary consideration under s 60CC(2)(b), the Mother alleges, historically, that the Father perpetrated family violence against her during their relationship. This is denied by the Father. These allegations of the Mother should be seen in the context of the parties agreeing to interim parenting Orders on 3 July 2019 providing for the children to spend time with the Father each alternate Friday until 6 PM Sunday, and from after school each alternate Wednesday until 7 PM, together with block time for one half of the children’s school holidays as well as on special occasions. Again, it would appear that such time pursuant to those Orders was facilitated by the Mother until the alleged incident involving X and the Father’s wife in September 2020. The children have not spent face-to-face time with the Father since that time.
It is apparent that for some time now the Father has sought for the children to live in an equal time shared care arrangement, whereas the Mother had sought, at least up to the incident in September 2020, an arrangement whereby the children spend time with the Father, during school term times, each fortnightly weekend.
The Court has a real concern that the Father may have placed significant emotional pressure upon at least X to favour his parenting proposals in these proceedings, as against the Mother’s proposals, with the significant suggestion that that child may have experienced adverse emotional affects thereby. In this context, on the material before the Court, there is a real suggestion that the Father may have placed such emotional pressure upon at least X in about late 2018 and after the above initial Child Inclusive Conference, and after the release of the family report. This real concern of the Court should also be seen in the context of Order 10 in Exhibit A to the Court’s Orders of 3 July 2019 providing that, “Neither parent will discuss these proceedings with the children.”
In relation to the Court’s above concern, the Court has not overlooked that the Mother entered into time-with Orders on 3 July 2019 and facilitated these Orders being complied with up until September 2020. However, there is a real suggestion, on the material before the Court, that the Mother continued to facilitate such time between the children and the Father up until September 2020, despite her knowledge of such pressure being placed upon at least X, because she wished for the children to maintain their relationship with the Father.
Again, the Mother seeks 3 months of fortnightly supervised time to occur between the children and the Father after which time she would reconsider her interim position on this time-with issue by reference, inter alia, to the outcome of these visits. Whereas the Father seeks for a progression to unsupervised time, gradually increasing, after such 6 visits.
Particularly in light of the Court’s above concern that the Father may have placed significant emotional pressure upon at least X to favour his parenting proposals, and taking into account that such behaviour may have been exerted by the Father despite Order 10 in Exhibit A to the Court’s Orders of 3 July 2019 providing for, “Neither parent will discuss these proceedings with the children”, the Court is of the view that presently there is an unacceptable risk that one or both of the children might be subjected to psychological harm if spending unsupervised time with the Father.
Before the Court considers making an Order relating to the children spending unsupervised time with the Father, it would be important for the Court to consider, inter alia, the success or otherwise of the children’s supervised time with the Father, including the Father’s behaviour with them during such time.
Broadly, there is force to the submissions of the Mother and ICL that it would be premature for the Court to now make, in effect, self executing Orders, as proposed by the Father, that after 6 supervised visits, there be a progression to unsupervised time. The success or otherwise of the proposed 3 months of supervised time should be considered after they have occurred before further interim parenting time-with Orders are considered.
There is a suggestion, on the material before the Court, that the Father may have exerted excessive physical chastisement upon at least X prior to the Mother ceasing to facilitate the children’s time with the Father in September 2020. So as to minimise the risk of this possibly occurring in the future, the Court will make a non-physical chastisement Order in relation to both children applicable to the Father (and also the Mother, acting cautiously, noting she had consented to a mutual Order in this respect).
The Mother seeks an Order that the Father complete a recognised anger management course which is opposed by the Father. X had stated to the family report writer that whilst he is scared of the Father when he is mad, he had said that the Father was not angry often. X had stated to the family consultant at the recent Child Inclusive Conference held in February 2021 that the Father had become angry with him, and remained angry for some time, in respect to what X had related to the Father about his statements to the family report writer. In relation to these allegations made by X to the family consultant, the Court would refer to its previous discussions in respect to the issue of possible emotional pressure having been exerted upon the child by the Father, with the material suggesting that if such emotional pressure occurred then it is not so much an anger issue of the Father but an issue of possible psychological abuse (and in this regard see paragraph 110 of the family report where the family report writer opined that if the Court held concerns regarding the future risk of the Father engaging in behaviour including psychological abuse then it may assist if the Father were to successfully complete a recognised men’s behaviour change program). At this interim stage, it will not be in the best interests of the children to Order the Father to participate in an anger management course.
The Mother seeks an injunction against the Father in relation to the children being brought into contact with his wife. The Father opposes this. In relation to the incident between X and the Father’s wife in September 2020, there is to be a Local Court ADVO hearing in August 2022 in relation to such incident. There is some force to the view of the family consultant from the most recent Child Inclusive Conference held in February 2021 that even if a Court was to find that the Father’s wife had slapped X that this appeared to be an isolated incident. Nevertheless, the child X told the family consultant that he did not want to have any further contact with the Father’s wife and Y expressed his upset about this alleged incident. So as to minimise the real risk that the children may suffer emotional harm if brought into contact with the Father’s wife, it will be in their best interests and appropriate for their welfare that such interim injunction be made.
There is significant conflict between the parties and which appears to have escalated since the alleged events of September 2020. It will be in the best interests of the children that both parties attend the Keeping Kids in Mind course.
The Court would give significant weight to this need to protect primary consideration at this interim stage.
The Court indicates at this interim stage that in applying the primary considerations under section 60CC, the Court is to give greater weight to the need to protect primary consideration, and in this particular case, it does so.
For reasons discussed above under the need to protect primary consideration, equal time or substantial and significant time would not be in the best interests of the children at this interim stage. Such time, theoretically, may be practical.
These Reasons have discussed the relevant considerations under section 60CC of the Act. Evaluating such discussed relevant considerations, it will be in the best interests of the children to make the following interim parenting Orders:
1.That interim Orders 2 to 5 in Exhibit A to the Court’s Orders of 3 July 2019 be suspended.
2.That X born in 2010 and Y born in 2009 (‘the children’) live with the Mother.
3.That unless otherwise agreed between the parents in writing, for a period of 3 months the children spend time with the Father supervised by B Families (or other recognised contact service provider agreed by the parties) located in the Suburb C region, once a fortnight each Saturday between 10.00 am to 2.00 pm, and otherwise as agreed by the parties in writing.
4.That to facilitate the Father spending time with the children pursuant to Order 3, the Mother and the Father are each to:
4.1 Contact B Families (or other recognised contact service provider agreed by the parties) within 48 hours of the making of these Orders and make an application for B Families's supervised children’s contact service.
4.2 Provide all information and complete all necessary paperwork as may be requested by B Families (or other recognised contact service provider agreed by the parties).
4.3Attend any intake or assessment appointments as may be requested by B Families on such days and times as nominated by B Families; and
4.4 Comply with any other reasonable request or direction of B Families for the purpose of implementing these Orders.
5.That to facilitate the Father spending time with the children pursuant to Order 3, the Mother is to:
5.1 Ensure that the children attend any intake or assessment appointments as requested by B Families on such days and times as nominated by B Families; and
5.2 Ensure that the children attend on each occasion that the children are scheduled to spend supervised time with the Father as nominated by B Families.
6.That the Father will be responsible all costs of B Families’s supervised contact service (at the relevant concession or non-concession rate) including, but not limited to, any costs associated with their initial intake assessments, reports, supervision services and appointments attended by the children.
7.That these Orders operate as the authorisation of both parents to B Families to provide the Independent Children's Lawyer in these proceedings with any information about the parents’ engagement with their supervised contact service or the progress of supervised time that the Independent Children’s Lawyer may require.
8.That the Mother be permitted to provide the supervisor with a copy of these Orders.
9.Within 14 days, the Father and the Mother sign up to B Families Suburb R 'Keeping Kids in Mind Course’ and provide evidence of enrolment and completion.
10.The Father undertakes to be restrained by injunction from bringing the children into contact with Ms D (born in 1991) by any means whatsoever including by telephone or other electronic means and further in the event Ms D comes into contact with the children, your client is to immediately remove the children and notify the Mother and the Independent Children’s Lawyer forthwith.
11.That pursuant to s.68B of the Family Law Act 1975 the Father and Mother are restrained by injunction from:
11.1Making any negative, critical, belittling, or derogatory comments in relation to the other parent or members of the other parent’s family or household (including questioning or criticising the parenting decisions and/or parenting capacity of the other parent) to or in the presence or hearing range of either of the children or via written correspondence or on social media
11.2From discussing with or questioning the children about these proceedings and from showing to the children any filed court documents.
11.3From discussing the incident of 19 September 2020 or the associated ADVO Court proceedings with the children
11.4From physically disciplining or chastising the children in any manner.
11.5Exposing the children to excessive conflict or violent behaviour (including physical and verbal abuse) during those periods that the children are in their respective care
12.That for the purposes of the time provided for in these Orders, the Father shall be at liberty to have E attend with him.
13.The parties and ICL are directed to attend Comp Mediation through Legal Aid NSW as soon as practicable following the above supervised visits occurring, as organised by the ICL.
14.Liberty to the ICL to relist the proceedings on seven days’ notice after the above Comp Mediation, in relation to, inter alia, a further interim hearing being appointed in relation to the issue of the children spending time with the Father.
15.The proceedings are adjourned to 20 June 2022 at 9:30am for mention.
I certify that the preceding one hundred and forty-three (143) numbered paragraphs are a true copy of the Reasons for Judgment of Judge Newbrun. Associate:
Dated: 15 February 2022
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