SHARMA & SHARMA

FEDERAL CIRCUIT COURT OF AUSTRALIA

SHARMA & SHARMA

[2017] FCCA 2334

Catchwords:
FAMILY LAW – Interim parenting – father’s proposal to spend unsupervised time with child – mother’s proposal to discharge prior consent interim parenting order that child spend supervised time at the father’s home with the father and paternal grandparents to attend – best interests of child – prior consent interim parenting orders to remain in place.

Legislation:

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

Cases cited:

Goode & Goode (2006) FLC 93-286

Marvel & Marvel (2010) 43 Fam LR 348

SS & AH [2010] FamCAFC 13

Banks & Banks [2015] FamCAFC 36

Applicant:

MR SHARMA

First Respondent:

MS SHARMA

File Number:

PAC 2318 of 2016

Judgment of:

Judge Newbrun

Hearing date:

21 December 2016

Date of Last Submission:

25 May 2017

Delivered at:

Parramatta

Delivered on:

29 September 2017

REPRESENTATION

Solicitors for the Applicant:

Prime Lawyers

Counsel for the Applicant:

Mr Ford

Solicitors for the Respondent:

Forshaw Lawyers

Counsel for the Respondent:

Mr Kenny

Solicitors for the Independent Children's Lawyer:

Claremont Legal

Counsel for the Independent Children’s Lawyer:

Mr Fermanis

ORDERS PENDING FURTHER ORDER

The father’s application in a case filed 23 January 2017 is dismissed, apart from order 3.
The mother’s proposed interim orders 2 and 3 in Exhibit 5 are dismissed.
The mother’s proposed interim order discharging order 2(b) of the Court’s orders of 26 August 2016 is dismissed.
The child live with the mother.

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

FEDERAL CIRCUIT COURT
OF AUSTRALIA
AT PARRAMATTA

PAC 2318 of 2016

MR SHARMA

Applicant

And

MS SHARMA

Respondent

REASONS FOR JUDGMENT

Introduction

This Interim Hearing relates to the child X born (omitted) 2013.
This Interim Hearing relates to the father’s interim parenting orders sought in his Application in a Case filed 23 January 2017, in which he seeks orders, inter alia, that the father spends time with the child on three occasions per week as follows: from after preschool from 3PM until 7PM on Tuesday of each week; on every Thursday from 9AM to 7PM; on every Sunday from 9AM to 7PM; and that such time be unsupervised. (The Court notes that following the initial interim hearing on 21 December 2016, the father filed the above Application in a Case seeking to reopen his case and adduce further evidence on the interim hearing, together with the above referred proposed interim parenting orders. This application to reopen was opposed, and following argument, the Court granted leave to the father to reopen this case and adduce the further evidence.)
The mother’s Response to the above Application in a Case of the father is that such application be dismissed. The mother also seeks an order for a chapter 15 expert report; and an order that order 2(b) of the Court’s orders of 26 August 2016, which provided that the father spend supervised time with the child on Monday each week from 9AM to 11AM at the father’s home, with the father and paternal grandparents to attend, be discharged. She also seeks interim orders as set out in Exhibit 5.
The Independent Children’s Lawyer supported the above proposed orders of the mother.
On 12 July 2016, in the Family Court of Australia, the parties agreed by consent to an interim order that pending the hearing of the father’s interim application, the child live with the mother; the father spend time with the child on a supervised basis, as supervised by Connecting Families, for all such times as may be agreed between the parties, and failing agreement from 10AM until 12 noon on the first Saturday after the date of these orders and then weekly; and at all such other times as may be agreed in writing between the parties.
On 26 August 2016 the parties, by consent, on an interim basis, agreed to vary the above orders such that the father would spend time with the child on a supervised basis, as supervised by Connecting Families, from 9:30AM until 11:30AM each Friday at (omitted), with the father only to attend; on Monday in each week from 9AM to 11AM at the father’s home, with the father and paternal grandparents to attend; and on Father’s Day 4 September 2016, from 9AM to 11AM at the paternal grandparents’ home, with the father and paternal grandparents to attend.

Material relied upon

The father’s material:
a)Initiating Application filed 23 May 2016;
b)Application in a Case filed 23 January 2017;
c)Affidavits of the father filed 23 May 2016, 23 August 2016, 23 January 2017 and 9 May 2017;
d)Affidavits of Ms B (paternal grandmother) filed 23 May 2016, 23 August 2016 and 24 April 2017;
e)Affidavits of Mr A (paternal grandfather) filed 23 May 2016, 23 August 2016 and 24 April 2017;
f)Case outline document handed up in Court on 21 December 2016; and;
g)Written submissions received by email on 26 May 2017.
The mother’s material:
a)Response to Initiating Application filed 5 July 2016;
b)Response to an Application in a Case filed 4 May 2017;
c)Affidavits of the mother filed 5 July 2016 and 4 May 2017;
d)Affidavit of Mr H filed 5 August 2016;
e)Affidavit of Mr S filed 5 July 2016;
f)Affidavit of Mr G filed 5 July 2016;
g)Final Apprehended Violence Order protecting mother and child – Defendant: Applicant father – Order dated 14 March 2014;
h)Case Outline document handed up in Court on 21 December 2016; and
i)Written submissions received by email on 25 May 2017.
The Independent Children’s Lawyer submitted a Case Outline at the Interim Hearing, and provided written submissions by email on 25 May 2017.
Exhibits:
a..Exhibit 1: Sleeve 7, NSW Police, tabbed documents R1 – R10;
b.Exhibit 2: Sleeve 5, (omitted) Hospital, tabbed documents R2 and R3;
c.Exhibit 3: Sleeve 3, NSW Police, tabbed documents R1 and R2;
d.Exhibit 4: Sleeve 1, Medicare, tabbed documents R1 and R2;
e.Exhibit 5: Respondent mother’s proposed orders; and
f.Exhibit 6: Connecting Families Reports (contact reports).
g.A Child Dispute Conference Memorandum to Court dated 1 December 2016 was also considered.

Agreed or undisputed facts unless otherwise stated

The mother was born on (omitted) 1982.
The father was born on (omitted) 1979. The father resides with the paternal grandparents.
The parties married in (country omitted) in (omitted) 2012 and separated on 18 February 2016.
In 1996 the father was convicted of manslaughter. He was 17 years of age when this incident happened. The father asserts there was provocation towards him as the deceased sexually assaulted him in his home. A fight erupted, and the father held the man’s throat. The father cannot recall what happened next. He was found to have had diminished responsibility at the time (the father alleged to the family consultant at the Child Dispute Conference that this was because he had been provoked by the victim). He was diagnosed with depression and anxiety. He was sentenced to 6 years imprisonment at (omitted) juvenile detention centre at (omitted). He completed his sentence at two other juvenile detention centres.
The paternal grandfather was born on (omitted) 1955. The paternal grandmother was born on (omitted) 1955.
The paternal grandparents migrated to Australia from (country omitted) in 1987.
The paternal grandfather was convicted of recruiting a person to assist in carrying out a criminal activity in about 2007. He was convicted at the Burwood Local Court, and was sentenced to weekend detention for 18 months, but was released early, about nine months into his sentence. He had sought to hire a person to cause physical harm to his former daughter-in-law’s first husband with whom she was allegedly having an affair.

Relevant legal principles

The relevant principles in relation to parenting proceedings, including interim proceedings, are well settled: see Goode & Goode (2006) FLC 93-286.
In Marvel v Marvel [2010] FamCAFC 101; (2010) 43 Fam LR 348 the Full Court (Faulks DCJ, Boland and Stevenson JJ), 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 [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.”
The Court also refers to the recent decision of the Full Court of the Family Court of Australia in Banks v Banks (2015) FamCAFC 36, especially at paragraph 46 to 52.
Section 60B of the Family Law Act 1975 (Cth) (“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).
When making a parenting order in relation to a child, the Court must apply a presumption that it is in the best interests of the child for the child’s parents to have equal shared parental responsibility for the child: section 61DA of the Act. When the Court is making an interim order, the presumption applies unless the Court considers that it would not be appropriate in the circumstances for the presumption to be applied when making that order: section 61DA (3).
If the presumption of equal shared parental responsibility in relation to the child applies, and is not rebutted, the Court must firstly consider whether the child spending equal time with each of the parents would be in the best interests of the child and reasonably practicable.
If equal time is found not to be in the child’s best interests, or impracticable, as a result of consideration of one or more of the matters in section 60CC, the Court must consider making an order that the child spends substantial and significant time (as defined in section 65DAA (3)) with the parents, unless contrary to the child’s best interests as a result of consideration of one or more of the matters in section 60CC, or impracticable.
If neither equal time nor substantial and significant time is considered to be in the best interests of the child, or impracticable, then the Court may make such orders in the discretion of the Court that it thinks proper, being orders that are in the best interests of the child, as a result of consideration of one or more of the matters in section 60CC: sections 60CA, 60CC, 65D.

The Best Interests of the Children

Section 60CC Considerations

Subsection (2a) - the benefit to the child of having a meaningful relationship with both of the child’s parents: a primary consideration.

The child has a meaningful relationship with the mother and would benefit from a continuance of that relationship.
The child has a meaningful relationship with the father and would benefit from a continuance of that relationship, provided that the child is not exposed to physical or psychological harm from being subjected to, or exposed to, abuse, neglect or family violence if spending time with the father.
The mother alleges that during the relationship with the father she was the primary carer of the child. This allegation is disputed, it being alleged that the father and the paternal grandmother were the primary carers of the child since birth.
Should the child continue to spend, on an interim basis, supervised time with the father, pursuant to the existing interim orders of the court, there is a reasonable prospect that the child’s meaningful relationship with the father should be able to be maintained. In the context of continued supervised time, the child’s meaningful relationship with the mother should not be detrimentally affected.
The Court gives significant weight to this meaningful relationship primary consideration.

Subsection (2b) - the need to protect the child from physical or psychological harm from being subjected to, or exposed to, abuse, neglect or family violence.

The mother alleges that during the marriage she recalls that the father would get upset easily, and would start shouting and push anything that was in his way.
The mother asserts that the parties travelled to Australia from (country omitted) after they got married in (country omitted) in (omitted) 2012.
The mother alleges that shortly after the parties came to Sydney, she would observe the father get angry quickly, and on about 4 occasions she saw the father punch holes in the bedroom walls. The mother alleges that she recalls the father telling her shortly after they married: “something is just bitting me inside, when I have these problems I don’t know what’s wrong with me.” The mother alleges that when she would ask the father what was wrong, he would say, “I have gone through hell in my life, only I know what I have gone through, during those times I don’t want to speak to anyone, not even you.”
The mother alleges that in about June 2013 there was a family function at the home. She alleges that she saw the father drink beer. She alleges that all of a sudden she observed the father to clench his fist, and start talking to himself, and say words to the effect, “I don’t believe in Hinduism, there is no God.” She alleges that the father then went and broke a bamboo shrine with his hands.
The mother alleges that shortly after coming to Australia, she saw the father and the paternal grandparents in the kitchen. She heard the paternal grandparents telling the father to take his medication. She alleges that the father refused. The mother alleges that after a couple of months the father stopped taking his medication.
The mother alleges that in about 2013/2014 the father and the paternal grandparents and the mother took the father to a psychiatrist. She alleges that the psychiatrist suggested to the father that he take certain needle injections. The mother alleges that to her knowledge the father only took these needles on about four occasions from 2014 to the date of separation.
The mother alleges that during the relationship she did not trust the father alone with the child, and if the paternal grandmother was not available to supervise, the mother would not go to work.
The mother alleges that often when she returned home from work she would find the father and the paternal grandfather intoxicated, and the father would begin to become violent and swear at the mother. The mother alleges that whilst intoxicated the father would often punch walls, doors and destroy furniture items. She alleges that on one occasion the father destroyed the mother’s notepad, and on other occasions she alleges the father destroyed her mobile phones. The mother alleges that she would not receive any support from the paternal grandparents during the father’s outbursts.
The mother alleges that when the father was not working, he would spend the majority of his time drinking, sleeping or smoking. She alleges that the father did very little with the day-to-day care of the child.
The mother alleges that there were occasions when the father would say to her, “keep (the child) away from me, you know that I have problems.”
The mother alleges that when the child was about eight months old, she recalls the father, in the family home, become enraged and returned to the bedroom and pushed over the parties’ wardrobe and the TV. The mother alleges that the father then began to try and take the child from the mother’s arms. The mother alleges she became scared and ran out of the house with the child.
The mother alleges that she recalls that when the father would ask to keep the child away from him, it was during periods of time that he was very quiet, not talking to anyone, and spending extended periods in his room or going out to a hotel.
The mother alleges that on various occasions the paternal grandmother would say to her, “You know we can’t leave (the child) with (the father), I can’t leave (the child) with (the father).”
The mother alleges that during the relationship the father and paternal grandparents were verbally abusive towards her on a regular basis. She alleges that when the father would become angry, he would begin to become physically violent towards her and the child after she was born.
The mother alleges that the father’s failure to take his medication or injections prescribed by his psychiatrist would exacerbate his anger and moods. The mother alleges that the father and the paternal grandparents would often argue about the father taking his medication. The mother alleges that the father would become verbally abusive and shout at the paternal grandparents and bang on their door and threaten them. The mother alleges that from about 2014 she recalls that the paternal grandparents did not ask the father to take his medication and would not say anything.
The mother alleges that in about 2012, when discussing a possible name for the baby to be born, the paternal grandfather became enraged and began yelling and swearing at the mother, together with a threat to rape her. The mother alleges that the father did not assist the mother or stop the paternal grandfather from speaking to the mother in this manner.
The mother alleges that when she was a few months pregnant, she recalls the father was talking to himself very loudly and did not make sense. She alleges that the father then made a derogatory sexual remark to her. She alleges he then went into the kitchen and punched the kitchen glass window and the glass shattered.
The mother alleges that in January 2014 whilst on a trip with the father to the shops, the father slapped the mother and pushed her and grabbed her throat while she was holding the child. The mother alleges the police attended and an Apprehended Domestic Violence Order was granted for a period of one year naming the father as the defendant and the mother and the child as the protected persons. The Apprehended Domestic Violence Order expired on 14 March 2015.

The mother alleges that in July 2015 she returned home and was confronted by the father and the paternal grandparents, who she asked to leave the home. The police were called.
The mother alleges that she found her own accommodation in late August 2015, and the maternal grandfather came to Australia to assist the mother with the child. The child has a warm relationship with the maternal grandparents.
The mother alleges that in late 2015 the paternal grandmother babysat the child. This occurred whilst the mother was at work.
The mother alleges that in early 2016 that the paternal grandparents continued to attend her home unit unannounced and they spent time with the child. The mother states she did not cut off all contact between the child and the paternal grandparents.
The mother alleges that during the relationship the father would often become verbally and physically abusive after he had consumed alcohol.
In about September 2015 the mother alleges that she recalls the father became angry and began to punch the walls in the home. The mother alleges that the father began to swear at her, and said words to the effect, “I don’t want to live with you, I just want to go back to my parents, this unit makes me more mental, and you know I’ve always had a problem.”
The mother alleges that then the father continued to punch the wardrobe and grabbed her phone and threw it on the ground, and started stomping on the phone and broke the phone. A short time later the father told the mother allegedly, “I don’t know what is happening to me, I don’t know why I’m doing these things.”
The mother alleges (denied by the father) that the next day the father said to the mother,
“when I was little my father used to abuse me, he used to tie up my hands on the bunk bed and then begin to beat me, one day he even threw a knife at my stomach and I have a wound.”
The mother alleges that she has seen a scar on the father’s chest.
The mother alleges that in about February 2016 the child’s nappy needed to be changed. The father allegedly grabbed the child and wanted to change the nappy, and then the father allegedly smacked the child on her thigh and her arm and pushed her onto the couch.
The mother alleges that in about mid-February 2016, the father began drinking beer. She alleges the father became angry and was swearing and he pushed the mother against the baby’s cot. The mother called the police. Thereafter, the mother alleges the father remained living with the paternal grandparents. However the mother allowed the father back into her home unit so that he could spend time with the child.
The mother alleges that she has been responsible for the majority of the child’s care since separation. The mother has continued to work casually. The mother obtained the assistance of the maternal grandmother to assist her with caring for the child. The mother alleges that after separation the father would spend time with the child on a regular basis supervised by the mother in a public area.
The mother alleges that in late March 2016 the father was present at her home unit and became angry and began to push the mother. An argument occurred. The mother alleges the father pushed the mother onto the floor and grabbed her throat and began to choke her. The maternal grandmother then intervened. The mother called the police. They attended the premises.
The mother alleges that after separation the paternal grandparents would come to the home unit almost each day to see the child. She alleges that the paternal grandfather at one point became angry when the mother sought to restrict the number of times each week that the paternal grandparents could see the child.
The mother alleges that during April 2016, May 2016, and June 2016 the father spent time with the child supervised by the mother.
The mother alleges that in mid-June 2016 the father approached her and the child and attempted to snatch the child from her arms. The mother alleges the child became distressed and began to cry. The mother alleges that the father continued to attempt to take the child from her arms and began pushing her. The church pastor allegedly intervened.
The mother refers to the father and the paternal grandparents having called the police on numerous occasions alleging that the mother had abused the child. The mother asserts that the police attended her home on various occasions and left after viewing the child. The mother asserts that she has not hurt the child or neglected her.
The mother asserts that she supports the relationship between the child and the father, but she holds some concerns in respect of the father’s untreated mental health and anger, and she is concerned that should she provide the father with unsupervised time, that he will not return the child to her care.
The mother annexes a short medical report from her treating GP who asserts that there is no history or documentation of any mental illness or behavioural disturbance in the mother who has been attending the GP’s practice for the last 4 years.
The maternal grandmother made an Affidavit. She alleges that the paternal grandfather often drank beer to the point of intoxication. She alleges his mood would change and he would become angry and swear, in particular towards the mother.
The maternal grandmother alleges that when she was living with the mother in her unit in early 2016 and the father was present, he would not assist her in caring for the child.
The maternal grandmother alleges that in February 2016 when she was at home with the parties and the child, the father became angry at the child and he grabbed her arm and slapped her.
The maternal grandmother alleges that she observed on many occasions the father become angry and irritable very easily. She alleges she saw him punch walls and punch a mirror in front of the child. She alleges that when this happens the father forgets about everything and punches the walls.
The maternal grandmother alleges that in about March 2016 she observed the father push the mother onto the floor, and then grab the mother by her throat and attempt to choke her. She alleges that she pushed the father away from the mother. She alleges the father was very angry. The mother called the police. The father also called the police.
The maternal grandfather recalls that in about (omitted) 2011 in (country omitted), the father was very quiet, and often looked preoccupied and worried. He alleges that the father appeared to have difficulty comprehending what was being said to him.
The maternal grandfather alleges that the paternal grandfather would often drink beer. He had seen him allegedly become intoxicated.
The maternal grandfather alleges that he heard the father punching walls on one occasion. He alleges that he observed the mother looking frightened and scared in relation to an incident involving a damaged telephone.
The maternal grandfather alleges that on one occasion the father disclosed to him that the paternal grandfather had used to hit the father all the time when the father was small, and punch him.
The maternal grandfather alleges that he recalls an occasion when the father suddenly became very angry at the child and he saw the father push the child into a wall.
The maternal grandfather alleges that on a trip by the parties to (country omitted) on December 2014, with the child, he observed that the father did not assist the mother with the care of the child.
The first cousin of the paternal grandfather made an Affidavit.
He alleges that from his dealings with the paternal grandfather, he has observed that he is a violent and aggressive person. He recalls, whilst the paternal grandfather and his family were living with him, the paternal grandfather physically hitting the father on many occasions.
He alleges that in about 1987 he recalls the paternal grandfather becoming enraged and throwing a knife at the father which became embedded in his stomach (the Court interpolates here that the relevant hospital clinical notes do not refer to the paternal grandfather, referring to the father being with his friends). After this event, he alleges that he saw a change in the father who became withdrawn, depressed and would become angry quite easily.
He alleges that at functions he has seen the paternal grandfather and the father become involved in physical altercations with guests.
He alleges that in about 2005 he recalls a restaurant dinner when the father suddenly became angry and hostile and turned up the dinner table. He ran out of the restaurant in a fit of rage.
He refers to a doctor, his cousin, speaking to the father and the paternal grandparents stressing the importance of the father continuing to take his medication. He alleges that he has been told on numerous occasions by the paternal grandparents that the father is fine and does not need his medication.
He alleges that he observed the father swear at the mother and refer to her in a demeaning manner. He alleges that he recalls on one occasion the mother abruptly attending his home seeking refuge.
He alleges that when the father becomes angry, he has seen him punch walls, yell and swear and become aggressive towards the mother and the child. He believes that the father’s refusal to take his medication impacts negatively on the father as he is unable to control his temper.
He alleges that the paternal grandfather has often drunk alcohol to excess. He alleges that the father also enjoys drinking to excess.

Child Dispute Conference Memorandum to Court 13 December 2016

The father conceded to the family consultant that he slapped the mother on the cheek in a shopping centre during their relationship. He asserted there had been provocation by the mother, in the nature of the mother continually swearing at the paternal grandparents. He confirmed to the family consultant that the paternal grandparents were not there on the day. The family consultant states that the father then said that he felt very depressed when he was with the mother.
The father denied to the family consultant physically assaulting the mother on any other occasions.
The mother told the family consultant that the father had previously threatened to kill her and that he was frequently physically violent towards her.
The father told the family consultant and alleged that the mother physically assaulted him on multiple occasions.
The mother alleged that the paternal grandfather was violent and had threatened to kill her by saying, “Last time I hired hitman. This time I’ll do it with my own hands.”
The father confirmed his conviction of manslaughter to the family consultant. He explicitly denied experiencing any mental health difficulties at the time.
The father told the family consultant that he had been diagnosed with depression and anxiety about four years ago. He said that he took medication for about 10 months.
The father told the family consultant that he had seen a psychologist for counselling on an ongoing basis beginning in 2014. He was not currently attending counselling with this psychologist.
The mother alleged to the family consultant that the father’s unmanaged mental health problems were a significant issue during their relationship. She alleged that the father had previously attended a psychiatrist in (omitted) and he had been prescribed a monthly injection (the Court interpolates here that the father’s treating psychologist’s report of 31 March 2017 refers to a Dr B psychiatrist apparently seeing the father following a diagnosis of depression in 2013).
The father denied to the family consultant that he drank alcohol excessively.
Both parents indicated to the family consultant that they currently have no communication.
Under the heading “Future directions”, the family consultant stated, inter alia, that there was a very significant discrepancy in the accounts provided by both parents about mental health issues. She recommended that given the allegations made in history provided by the parents, it was strongly recommended that a Chapter 15 Report be completed by child and family psychiatrist, or a forensic psychiatrist, or forensic psychologist, with a specialty in children and families. The paternal grandparents could be included in any such further assessment. Finally, the family consultant recommended that a further assessment of the risk issues be completed prior to a determination being made about the child having unsupervised time with father.

Exhibits

Exhibit 1: A police entry for 16 June 2016 refers to an alleged incident in a car park near the child’s childcare centre when the father approached the mother and requested to hold the child and the mother declined. It was alleged that this caused a heated verbal argument causing the child to cry. The mother left the scene with the child in her car.
A police entry for 19 January 2014 alleges an incident at a shopping centre. It is alleged that the parties began to argue about the child’s pram. It is stated that the argument became heated and the father slapped the mother to the left side of her face with his right hand. It is alleged that the father pushed the mother in the throat with his right hand. It is stated that the mother was holding the child in her arms during the alleged assault. It is alleged on attendance by the police that the father admitted that he had slapped the mother and pushed her. It is stated that the father was arrested.
A police entry on 31 December 2013 refers to an alleged verbal argument between the father and the paternal grandfather.
A police entry for 25 January 2011, refers to an alleged incident involving the father banging on a glass door of the house seeking to gain entry. It is alleged that the father’s sister was uncooperative with the police.
A police entry for 17 October 2009 refers to an alleged incident at the paternal grandparents’ home, when an argument occurred between the paternal grandfather and the father; the argument related to the father’s drinking habits. On police attending the premises they spoke to the paternal grandfather who stated that he wanted the father to be removed from his home.
A police entry for 31 July 2005 refers to the police attending the paternal grandparents’ premises in relation to an alleged verbal argument between the paternal grandfather and the father.
A police entry for 18 February 2016 refers to an argument between the mother and the father relating to the father wanting to take the child to the home of the paternal grandparents.
An entry for 7 September 1996 refers to an alleged incident involving the father having an argument with a person and allegedly punching her in the face (nil visible injury). It is alleged that the father has then had an argument with the paternal grandfather and both have had a short scuffle. It is alleged that the paternal grandparents stated that the father had been treated by numerous doctors in relation to his behaviour but at this stage have had no success in diagnosing the problem. It is recorded that the paternal grandfather stated he would continue taking the father to doctors in order to solve his problem.
A police entry for 19 February 2007 alleges that the police had received information that the paternal grandfather was seeking the services of a person to seriously injure his son-in-law.
A police entry for 2 August 2004 alleges that the father and a person with whom the father had been in a relationship for the past 5 months had an argument. It is alleged that the father used both of his hands and grabbed the person around the neck and began to strangle her. It is alleged that the father then grabbed cord from a jumper and wrapped it around the person’s neck, pulling it tight causing the victim to gasp for air. It is alleged that the paternal grandmother and the sister of the father grabbed the father and pushed him off the person. On the person attending upon the police, the police allegedly observed a red mark across the right-hand side of the person’s neck.
Exhibit 2: (omitted) Hospital subpoenaed records; reference is made to an entry for 5 September 1987 in relation to the father recording an epigastric stab wound requiring laparotomy. The clinical notes refer to the incident occurring when the father was with his friends, there being no mention of the paternal grandfather.
Exhibit 3, NSW police, the fathers’ criminal record. The record records, inter alia, an assault conviction in 1996; the manslaughter conviction in June 1998 with the sentence recording a plea of guilty, with the sentence to be served within the juvenile justice system; common assault 19 January 2014 with the sentence being a discharge under “s 32 care conditionally”.
The criminal record of the paternal grandfather is also given; inter alia, it records for 2004, without proceeding to convictions, section 10 bonds with good behaviour for “use carriage service so other is harassed/menaced”, and in relation to contravene Apprehended Domestic Violence Order. It also refers to the February 2007 conviction for recruit other to assist in carrying out criminal activity, with sentence being periodic detention for 18 months.
Exhibit 6: The supervised contact reports in relation to supervised time spent by the child with the father and the paternal grandparents at both (omitted) child care and at the residence of the father are set out. The reports are unremarkable, and generally refer to the child’s positive time spent with the father and paternal grandparents. (No party made any submission to the contrary at the Interim Hearing).

Father’s Affidavits

The father lives with the paternal grandparents. The father works as a (occupation omitted).
The father refers to his manslaughter conviction, “after strangling a man who was attempting to sexually assault me.”
The father contends that the parties separated on 18 February 2016.
The father alleges, inter alia, that the mother inappropriately physically chastised the child by pinching her; and was aggressive towards the father and the paternal grandparents during the relationship.
The father asserts that he does not have any history of drug or alcohol related issues that might impact on the physical or psychological safety of the child.
The father asserts that he has suffered from mental health issues in the past, and in this context refers to the 1996 manslaughter conviction. In his affidavit filed 23 May 2016, the father refers to taking medication for anxiety and depression during his imprisonment. He refers to in 2014, following the making of the final Apprehended Violence Order, taking medication for several months. After discussions with his GP he stopped taking this medication about 10 months previously. He states that he is seeing a psychologist for one appointment approximately each month, to help him cope with his separation from the mother and child. (The Court notes there is a dispute between the parties as to whether or not the father told the mother about his manslaughter conviction at the time their relationship commenced).
The father asserts that both during the relationship and post-separation he acted appropriately in relation to his care and interaction with the child.
The father annexes a letter from a counsellor dated 16 May 2016, inter alia, referring to the father participating in three hour long counselling sessions in May 2016. Inter alia, the sessions were used to look at anger management strategies and self-care for the father. It was stated that as the father had been seeing a psychologist prior to the sessions, the counsellor encouraged the father to continue with her.
The father disputes the contention that the paternal grandfather consumes a lot of alcohol. He disputes the contention that the paternal grandfather “attempted to rape” the mother.
The father, in his affidavit filed 23 January 2017, asserts that he was diagnosed with depression in about 2012 and used to take the medication Cymbalta. It was an antidepressant and he alleges that he has not taken it for about 11 months. He alleges that his depression is now under control. He asserts that he used to feel overwhelmed however, now when a problem occurs, he alleges that he breaks it down into smaller problems and feels that he can accomplish a task.

The father asserts that in early January 2017 he made attempts to obtain a report on his mental health treatment and diagnosis from Dr B in (omitted). He asserts that he was informed that Dr B will be unable to provide a report until the middle of February.
The father alleges that he acted in self-defence in relation to an alleged dog incident in about 2009 in relation to a third party.
The father alleges that he did not expose his penis to his parents in 2005.
The father alleges that arguments with the paternal grandfather and himself in October 2009 and December 2012 did not escalate and he alleges there were no threats or any violence at this time.
The father refers to his manslaughter conviction and refers to his frustration and anger that a sexual predator had attacked him and he had lost years in prison because of it. The father alleges that it took him a long time to address these issues and he felt that he struggled as each day went on.
The father asserts that the paternal grandfather is a good man who has supported him through his troubles.
The father annexes a report of Dr R in (omitted), the father having attended upon him on 20 January 2017.
The report of this doctor is not a treatment report. It appears that the doctor relied upon a history given by the father at the consultation. The father disclosed to the doctor his manslaughter conviction and the incident in relation to it; the doctor records, apparently as to the father’s presentation during his account of this matter
(The father) began to show signs of hyper arousal and hypo arousal activation. For example, he stated that his heart was racing, and it was evident that he was emotionally overwhelmed. (The father) stated that he experienced physical numbing of his legs, was unable to think and appeared to shut down momentarily during this time. He was coached to resource himself by grounding and using techniques to bring him back into the window of tolerance. This will not be discussed here in this report as it does not have the scope for such elaboration.
The father reported to the doctor that he was currently not taking any medication. He refers to previous prescription medication and injections, taken for 12 months. In this context Dr B, psychiatrist, who the father saw for a couple of visits, was mentioned.
The doctor noted the father presented as somewhat reserved and quiet, showing clear signs of anxiety.
The doctor refers to the administration of two tests in the context of a psychological assessment of the father. The results revealed the father’s depression, anxiety and stress levels were all within the normal range. The doctor stated that according to a Post Traumatic Stress Disorder questionnaire, the father was experiencing symptomatology analogous with Post Traumatic Stress Disorder.
The doctor, in his discussion and conclusion, stated that the father showed signs of compassion and empathy for the victim of the manslaughter incident, and he also appeared to be traumatised by this experience.
The doctor opined that the child would benefit from the time she spends with the father and his extended family. Based on the doctor’s observations, it was his opinion that the father poses no threat to the child. It was recommended by the doctor that the father re-engage in psychological intervention to assist in dealing with the implicit memories of the traumas he has endured throughout his life.
The father alleges that the mother, in about late December 2016, was improperly withholding the child spending time with the father and was providing medical certificates in this context.
The father asserts that in early January 2017 the mother agreed to increase his time to be spent with the child to 4 hours on two separate dates in January 2017.
The father asserts that he loves the child and the child loves him. He denies he poses a risk to the child or that he cannot take care of her. He accepts that the incident of 2014 in the shopping centre was not appropriate of him.
In his Affidavit filed 9 May 2017, the father annexes a report dated 31 March 2017 from his counsellor who he sees once every 3 to 4 weeks, psychologist Ms A.
The report from this psychologist states that it is written in support of the father’s intended application to gain additional, unsupervised visitation with the child.
The psychologist states that he has provided psychological therapy to the father in 2014 – 15, and again in 2016. He states that the father was initially referred on 29 January 2014 by Dr S for the treatment of recurrent symptoms of anxiety, depression and anger management.
The psychologist reports that since initially meeting with the father, he had reported ongoing conflict between the mother and the paternal grandparents, and, “This had caused much of (the father’s) low mood and anxiety and anger outbursts.”
The psychologist reports that the father reported that he was kicked out of the family home in February 2016, but returned three weeks later. The father reported to the psychologist that there was some physical altercation and the police were called in, and no charges were laid.
The psychologist stated that the father related a history of learning difficulties, and was diagnosed with an intellectual disability. He attended a school that had support classes for students with disabilities. It was reported to the psychologist that the father exhibited some behavioural difficulties and was reluctant to attend school. He left school in year 10.
The psychologist took a history from the father that he was prescribed antidepressants at the age of 15 or 16 years. There were significant issues with the father’s behaviour during his late teen years. He was assessed by a psychiatrist during that period. The father, the psychiatrist reports, was diagnosed with depression in 2013 by another treating psychologist and was prescribed Cymbalta by his family doctor, Dr S. The father was also seen by Dr B psychiatrist, who confirmed the diagnosis of depression. The psychologist reports the father ceasing to take antidepressants in 2015 a few months prior to the consultation at the end of March 2016.
The psychologist reports on 18 February 2017 the father completed a depression, anxiety and stress Scale and scored within the normal limits. On 17 March 2017, the father reported to the psychologist, via a telephone call, that he was finding it hard to cope with his current situation. He felt increasingly depressed about the separation from the child. He was commenced on a new course of antidepressants.
The psychologist reports that the father referred to a manslaughter conviction. The father reported an incident in January 2014 involving the mother. He refers to losing control but the police charges being later dropped.
The mental state examination of the psychologist reports no evidence of hallucinations, delusions or thought disorders. There were memory deficits which are part of the father’s intellectual disability, and are further exacerbated by high levels of stress. The psychologist states that the father’s mood is generally positive although a noticeable change occurs when he speaks about the separation from his family, especially the child.
The psychologist reports that while the father was initially accessing therapy for the treatment of depression and anger management, the symptoms had shown significant improvement over the past 12 to 18 months, enabling him to cease taking antidepressant medication. However, the psychologist states, in the past two weeks, the father reported that he had to commence on antidepressants again at the advice of his doctor. The father had reported that the stress of not being able to see the child for longer periods was affecting his psychological well-being. The psychologist reports that the father has indicated his capability to share in the care of his daughter in a responsible and loving way, which is evident, according to the psychologist, in the supervised contact reports. The psychologist states that it is his recommendation to carefully consider the supporting evidence of the father’s ability and positive parenting within a safe and loving environment.
In the father’s Affidavit filed 9 May 2017, the father attaches up-to-date supervised contact reports from Connecting Families. Again, it is noted that these reports are generally positive of the child’s time spent with the father and paternal grandparents, and no significant incident is noted.

Affidavits of paternal grandparents

The paternal grandfather refers to his close relationship with the father and the child.
The paternal grandfather, inter alia, refers to, in 2012, telling the mother that he hired a hitman, got caught, and served some time in weekend detention, in relation to his ex-daughter-in-law’s affair with his daughter’s first husband. He refers to his conviction and weekend detention and early release. He states that he is very ashamed and embarrassed by his actions and is sorry that he got involved in this criminal activity. He also refers to his actions being senseless, silly, and that it was the stupidest thing he had ever done. He regrets it every day of his life. He refers to making enquiries for a hitman to burn the faces, with acid, of the former daughter-in-law and the former partner of his daughter. He refers to cultural stigmatisation relating to divorce.
In one Affidavit, he annexes a May 2007 psychiatric report relating to the hitman incident and in which the psychiatrist, inter alia, refers to the paternal grandfather’s symptoms of a depressive disorder from which he is recovering. A June 2007 psychiatric report from the treating psychiatrist of the paternal grandfather refers, inter alia, to the father suffering from an adjustment disorder with mixed anxiety and depressed mood, and having suffered symptoms of an adjustment disorder at the time he committed the offence.
The paternal grandfather refers to his alleged care of the child. He alleges that the mother was aggressive towards his family and the father. He alleges the mother has mental health issues and anger management issues. He alleges that the mother has been obstructive and sought to undermine the child’s relationship with the father and paternal grandparents.
The Court notes the paternal grandfather’s denials of numerous allegations made in the mother’s Affidavit filed 5 July 2016, including alleged intoxication and aggression.
The Court notes the paternal grandfather’s denials and assertions in relation to the Affidavits of Mr S and the maternal grandfather.
The paternal grandfather alleges that he does not consume alcohol to excess. He does not feel that he poses a risk to the child or to the mother.
The paternal grandmother, in her Affidavits, refers, inter alia, to her past care of the child, escalating arguments between the mother and the paternal family, and her close relationship with the child. The Court notes her allegations and also relevant denials of the mother’s Affidavit filed 5 July 2016. The Court notes her allegations and also relevant denials of the maternal grandparent’s Affidavits filed 5 July 2016.
The paternal grandmother refers to the paternal grandfather being an idiot for trying to arrange a hitman, had attempted to prevent him from doing this and had told him many times not to do it. She had told him that he was stupid for doing this.
The paternal grandmother alleges she has not seen the paternal grandfather threaten the mother with rape. She alleges that the mother slapped her on the face, and verbally abused her.

Summary of need to protect primary consideration

At this interim stage, based on the evidence before the Court, the Court has concerns in relation to the father and the paternal grandparents spending unsupervised time with the child.
These concerns arise cumulatively from:
·the mother’s allegations of family violence perpetrated against her by the father, on at least one occasion in the presence of the child (and noting the father’s admission of slapping the mother on the face in 2014);
·the mother’s allegations relating to the father’s mental health, in the context of her allegations against the father of unusual, angry and violent behaviour by him. In this context, the court also notes the report of Dr R which arguably suggested an unusual emotional reaction by the father during the discussion relating to his manslaughter conviction, which was not explored in the report. The court refers to the assault charge in January 2014 being arguably dealt with by the court pursuant to section 32 of the Mental Health Act. The court also notes in this context the father’s apparent anger management treatment (eg by Ms A; although there is little express reference to this treatment in her report);
·the mother’s allegations that the paternal grandfather has threatened her;
·the mother’s allegations of the paternal grandfather’s past excessive alcohol consumption, and allegations relating to the father’s adverse reactions having consumed alcohol;
·allegations by the mother, and material before the Court, suggesting a capacity for the father and the paternal grandfather to become involved in serious disputation with each other, and alleged mistreatment by the paternal grandfather towards the father historically;
·the paternal grandmother’s arguable alignment and closeness to the father and the paternal grandfather, suggesting she may not act sufficiently protectively towards the child were, for example, the father and/or the paternal grandfather to be intoxicated and/or be involved in an argument involving anger or aggression. In this context, the court notes the paternal grandmother’s mere comment that the paternal grandfather was an idiot for trying to arrange a hitman on her first daughter-in-law, and her prior knowledge of the paternal grandfather’s intentions in this context. Further, in this context, the court notes the paternal grandmother’s allegation that she has never observed the paternal grandfather to drink alcohol to excess, whilst noting the paternal grandfather’s history given to Dr P, psychiatrist, of his significant intoxication leading up to the hitman incident.
The Court’s concerns, above, remain, despite the significant denials of the father and the paternal grandparents in relation to the mother’s allegations.
Further, those concerns remain despite the father’s reports from his treating psychologist and psychologist Dr R.
Dr R’s report appears to be based on one consultation with the father and was based upon a history given by the father and does not address to any significant extent the competing allegations and related material presently before the Court, including the mother’s allegations relating to the perpetration of family violence against her by the father, and her allegations relating to her concerns in respect to the father’s mental health (and alleged incidents involving the father in that context). Subject to noting that the father had numerous consultations with Ms A, psychologist, the same comments can be made as to her report.
The Court also observes, in this context, that the Medicare subpoenaed material suggests the father consulting with psychiatrist Dr C from August 1991 to about June 1994; psychiatric consultations with Dr U and Dr E in August-September 1994; a psychiatric consultation with Dr O in June 2012; psychological consultations with Ms Q from October 2012 to March 2013; and psychiatric consultations with Dr B in August 2013. There is no significant objective material before the Court relating to these practitioner’s consultations with the father, although there is reference to a psychologist’s diagnosis of depression in 2013 and to Dr C and Dr B by psychologists Ms A and Dr R.
The Court has not overlooked the extensive and positive supervised reports relating to the child’s time with the father and paternal grandparents, over a not insignificant time. However, despite this material the court’s concerns remain.
The Court notes the father’s and his parent’s criticisms of the mother’s care and behaviour with the child. In this context it is not without relevance that they seek no order that the child not live primarily with the mother.
The Court is of the view that there is a need to protect the child from the risk of being exposed to family violence if spending unsupervised time with the father and the paternal grandparents. In the view of the Court, at this interim stage, there is an unacceptable risk of the child being exposed to family violence in spending unsupervised time with the father and the paternal grandparents, whether together or separate.
The Court has considered the mother’s application to discharge order 2(b) of the Court’s interim consent parenting orders of 26 August 2016. Such proposed order would have the effect of not permitting the father and paternal grandparents to spend supervised time with the child also on each Monday for 2 hours besides the time at (omitted). Such proposed order would not be in the child’s best interests as the father’s meaningful relationship with the child may be detrimentally affected.
The Court notes the mother’s submission as to (omitted) arguably being a safer place for supervised time to occur within the context of the allegations made by the mother against the father and paternal family in these proceedings. Yet the Court notes that supervised time has been occurring not only at (omitted) but at the father’s residence, in the presence of the paternal grandparents, for a significant time now, without serious incident, and that such time between child and father and paternal grandparents has generally been positive.
Further, in this context, it is not without relevance that interim consent parenting order 2(b) of August 2016 was agreed upon when the mother was represented by counsel. Whilst the Court has considered the mother’s assertions that she was not fully aware of the contents of certain subpoenaed material relating to the past behaviour of the father and paternal grandfather, nevertheless, it is reasonably apparent that the mother was previously aware, and aware prior to agreeing to the interim consent orders, of, inter alia, the fact of the criminal convictions pertaining to the father and the paternal grandfather, had made serious allegations of family violence perpetrated against her by the father, had expressed concerns in relation to the father’s mental health in this context, and had also made serious allegations against the paternal grandfather.
The Court gives significant weight to this need to protect primary consideration.

Section 60CC(3) - Additional Considerations

(a) Any views expressed by the child and any factors (such as the child maturity or level of understanding) that the Court thinks are relevant to the weight it should give to the child’s views

The child is too young to express a relevant view.

(b) The nature of the relationship of the child with each of the child’s parents; and other persons (including any grandparent or other relative of the child)

The child would appear to have close and affectionate relationships with both sets of grandparents.
Otherwise, the Court refers to its discussion above under the meaningful relationship primary consideration.

(c) The extent to which each of the child’s parents has taken or failed to take the opportunity; to participate in making decisions about major long-term issues in relation to the child; and to spend time with the child; and to communicate with the child

At this interim stage, it would appear that both parents have taken such opportunities.

(ca) The extent to which each of the child’s parents has fulfilled, or failed to fulfil, the parent’s obligations to maintain the child

The father asserts that he has paid child support for the child in the sum of about $200-$300 per week. In his Affidavit filed 23 January 2017, he states he pays $100 week in child support, which is more than the child support assessment for the mother. In this Affidavit, he states that he pays about $290 a week for time to see the child.

(d) The likely effect of any changes in the child’s circumstances, including the likely effect on the child of any separation from either of his or her parents; or any other child, or other person (including any grandparent or other relative of the child), with whom he or she has been living

Should the child not continue to spend supervised time with the father and the paternal grandparents at the father’s home, there is a risk that the child’s apparent close and affectionate relationship with the paternal grandparents might be adversely affected.

(e) The practical difficulty and expense of a child spending time with and communicating with the parent and whether that difficulty or expense will substantially affect the child’s right to maintain personal relations and direct contact with both parents on a regular basis

The father asserts that his expenditure on supervised time is considerable by reference to his usual income. It is unclear on the evidence as to whether the paternal grandparents have the financial capacity to assist him in this context, whilst noting the paternal grandfather remains working.

(f) The capacity of each of the child’s parents; and any other person (including any grandparent or other relative of the child), to provide for the needs of the child, including emotional and intellectual needs

At this interim stage, both parents would appear to have such capacity, including the paternal grandparents, however, the Court refers to its discussion above under the need to protect primary consideration.

(g) The maturity, sex, lifestyle and background (including lifestyle, culture and traditions) of the child and of either of the child’s parents, and any other characteristics of the child that the court thinks are relevant

Not applicable.

(h) If the child is an Aboriginal child or a Torres Strait Islander child: the child’s right to enjoy his or her Aboriginal or Torres Strait Islander culture (including the right to enjoy that culture with other people who share that culture); and the likely impact any proposed parenting order under this Part will have on that right

Not applicable.

(i) The attitude to the child, and to the responsibilities of parenthood, demonstrated by each of the child's parents

Subject to the Court’s discussion above under the need to protect primary consideration, both parents would appear to have such appropriate attitudes.
The court also notes the competing allegations that the mother has deliberately sought to limit the father’s role in the child’s life.

(j) Any family violence involving the child or a member of the child's family.

The Court refers above to its discussion under the need to protect primary consideration.

(k) If a family violence order applies, or has applied, to the child or a member of the child’s family – any relevant inferences that can be drawn from the order, taking into account the following: the nature of the order; the circumstances in which the order was made; any findings made by the Court in, or in proceedings for, the order; any other relevant matter.

A final Apprehended Domestic Violence Order was made for the benefit of the mother and the child against the father on 14 March 2014. In his Affidavit filed 23 January 2017, the father states that there are presently no Apprehended Violence Orders between the parties. And Apprehended Violence Order listed 9 January 2017 was withdrawn by the police, he alleges.

(l) Whether it would be preferable to make the order that would be least likely to lead to the institution of further proceedings in relation to the child.

These are interim proceedings.

m) Any other fact or circumstance that the Court thinks is relevant.

As to proposed order 3 in Exhibit 5, the Court is not persuaded that the present material before the Court justifies the making of that order in relation to the paternal grandfather, acting in the best interests of the child. As to proposed order 2 in Exhibit 5, there is no persuasive evidence to justify making this order, noting existing order 2(a) of the Court’s orders of August 2016, and it will not be in the best interests of the child to make this order.
The Court observes that apart from the specific proposed orders by the father in his Application in a Case filed 23 January 2017 seeking unsupervised time with the child, the balance of the orders appear to be predicated on the premise that the Court would make an order for the child to spend unsupervised time with the father, and in any event the material before the Court would not justify the making of these other proposed interim orders. At this interim stage it will not be in the best interests of the child to make those other orders.

Summary

At this interim stage, it will be in the best interests of the child, evaluating the above discussed considerations under section 60CC of the Act, to make interim orders as follows:
(1) The father’s application in a case filed 23 January 2017 is dismissed, apart from order 3.
(2) The mother’s proposed interim orders 2 and 3 in Exhibit 5 are dismissed.
(3) The mother’s proposed interim order discharging order 2(b) of the Court’s orders of 26 August 2016 is dismissed.
(4) The child live with the mother.

I certify that the preceding one hundred and ninety-four (194) paragraphs are a true copy of the reasons for judgment of Judge Newbrun

Date: 29 September 2017

[2017] FCCA 2334

29 September 2017

Key Legal Topics

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Civil Procedure

Administrative Law

Legal Concepts

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Jurisdiction

Standing

Procedural Fairness

Natural Justice