SOLAGE & HIGHGATE
[2018] FamCA 780
•28 September 2018
FAMILY COURT OF AUSTRALIA
| SOLAGE & HIGHGATE | [2018] FamCA 780 |
| FAMILY LAW – CHILDREN – Interim Parenting – Best interests of the children – Where consideration of applicable principles – Where father has long standing mental health issues and recent alcohol issues– Where father not fulsome in disclosure of his mental health issues – Where consideration of risk to the children – Where mother is the primary carer of the father – Where Independent Children’s Lawyer has concerns for the children in the father’s care – Where father has perpetrated family violence – Where mother should have sole parental responsibility – Where children to have supervised time with the father. |
| Family Law Act 1975 (Cth) ss 60B, 60CA, 60CC, 61DA, 65DAA Mental Health (Forensic Provisions) Act 1990 (NSW) s 32 |
| Banks & Banks [2015] FamCAFC 36 Deiter & Deiter [2011] FamCAFC 82 Eaby & Speelman (2015) FamCAFC 104 George & George [2013] FamCAFC 182 Goode and Goode [2006] FamCA 1346 McCall & Clark [2009] FamCAFC 92 Marvel v Marvel (No. 2) [2010] FamCAFC 101 Mazorski v Albright[2007] FamCA 520 MRR v GRR [2010] HCA 4 Smith & Smith [2017] FamCAFC 226 SS & AH[2010] FamCAFC 13 |
| APPLICANT: | Ms Solage |
| RESPONDENT: | Mr Highgate |
| INDEPENDENT CHILDREN’S LAWYER: | David Duncombe |
| FILE NUMBER: | PAC | 5387 | of | 2016 |
| DATE DELIVERED: | 28 September 2018 |
| PLACE DELIVERED: | Parramatta |
| PLACE HEARD: | Parramatta |
| JUDGMENT OF: | Foster J |
| HEARING DATE: | 13 August 2018 |
REPRESENTATION
| COUNSEL FOR THE APPLICANT: | Ms Grew |
| SOLICITOR FOR THE APPLICANT: | Matthews Folbigg Pty Ltd |
| COUNSEL FOR THE RESPONDENT: | Mr Gordon |
| SOLICITOR FOR THE RESPONDENT: | ABF Legal |
| COUNSEL FOR THE INDEPENDENT CHILDREN’S LAWYER: | Ms Druitt |
| SOLICITOR FOR THE INDEPENDENT CHILDREN’S LAWYER: | Dignan And Hanrahan Solicitors and Attorneys |
Orders, Pending further order:
That the mother have sole parental responsibility for the children X born … 2010 and Y born … 2011.
That the children live with the mother.
That the children spend time with the father as agreed between the mother and father in writing such writing to include SMS or email communication and in default of agreement as follows:
(a)each alternate weekend for a period of three months from this date on a day agreed between the parties in writing such writing to include SMS or email communication and in default of agreement on a Saturday for not more than four hours under the supervision of a community-based professional supervision service to be agreed between the parties in writing such writing to include SMS or email communication and in default of agreement such service as is nominated by the Independent Children’s Lawyer provided always that the cost of such supervision shall be paid by the father;
(b)thereafter each alternate weekend on a day agreed between the parties in writing such writing to include SMS or email communication and in default of agreement on a Saturday for not more than six four hours under the supervision of either:
(i)a community-based professional supervision service to be agreed between the parties in writing such writing to include SMS or email communication and in default of agreement such service as is nominated by the Independent Children’s Lawyer provided always that the cost of such supervision shall be paid by the father; or
(ii)an adult supervisor known to the children (not being Ms B) as agreed between the parties in writing such writing to include SMS or email communication and in default of agreement an adult supervisor approved by the Independent Children’s Lawyer.
That the father be and is hereby restrained from:
(a)contacting or approaching the mother except via her legal representative;
(b)approaching or contacting the children;
(c)approaching the children’s school;
(d)attending at any sporting or extracurricular events;
(e)authorising or encouraging any third-party to approach or contact the children;
save and except with the mother’s express consent in writing such writing may include SMS or email communication.
That the Independent Children’s Lawyer have liberty to relist these proceedings on short notice by application to the Court in Chambers in appropriate circumstances.
Note: The form of the order is subject to the entry of the order in the Court’s records.
IT IS NOTED that publication of this judgment by this Court under the pseudonym Solage & Highgate has been approved by the Chief Justice pursuant to s 121(9)(g) of the Family Law Act 1975 (Cth).
Note: This copy of the Court’s Reasons for Judgment may be subject to review to remedy minor typographical or grammatical errors (r 17.02A(b) of the Family Law Rules 2004 (Cth)), or to record a variation to the order pursuant to r 17.02 Family Law Rules 2004 (Cth).
| FAMILY COURT OF AUSTRALIA AT PARRAMATTA |
FILE NUMBER: PAC 5387 of 2016
| Ms Solage |
Applicant
And
| Mr Highgate |
Respondent
REASONS FOR JUDGMENT
The matter for determination is an interim parenting application arising from proceedings commenced by the applicant mother on 22 February 2018.
Initially, the mother commenced proceedings for final property settlement by way of her Initiating Application filed on that date. However, in his Response filed 13 April 2018 to the mother’s Initiating Application the father sought final orders as to parenting.
Property proceedings were resolved by consent orders made 19 April 2018 that substantially provide that the proceeds of the parties’ home sale (of about $383,000.00) be divided and the mother receive 70 per cent of the proceeds and the father 30 per cent.
The father sought by way of final parenting orders that, in summary, provided as follows:
a)that the mother and father have equal shared parental responsibility for the children X born in 2010 and Y born in 2011;
b)that the children live with the parents essentially in an equal time arrangement being with the father in week one from 6.30 pm Sunday evening until before school Wednesday and in week two from after school Friday to before school Wednesday and half of all school holiday periods and that otherwise the children live with the mother.
The mother filed an Amended Initiating Application on 17 May 2018 seeking final parenting orders that, in summary, provided:
a)that the mother have sole parental responsibility for the children provided that she consult the father;
b)that the children live with the mother;
c)that the children spend time with the father provided it is safe to do so on alternate weekends during school term from after school Friday until before school Tuesday and in the other week from after school Monday to before school Tuesday and for half school holidays.
Both the mother and father sought specific orders relating to special occasions.
The present matter for determination arises by reason of the father’s Application in a Case filed 13 April 2018.
In his Application in a Case, the father sought interim parenting orders that provided for:
a)the mother and father to have equal shared parental responsibility for the children;
b)for the children to live with the mother;
c)that the children spend time with the father during school term in each alternate week from Monday after school until Thursday before school and on the first weekend of each calendar month from after school Friday until before school Monday;
d)that the children spend time with the father for one half of the midyear school holiday periods and substantially for one half of the Christmas school holiday period;
e)otherwise, the father sought various specific issues orders as to mutual exchange of information as to residential addresses, a restraint on the mother from relocating the children’s place of residence more than 10 kilometres from their current residence, restrained from changing the children’s school or extracurricular activities without the consent of the other;
f)that each parent be permitted to attend any sporting or cultural activity in which the children are participating at times when the children are not spending time with that parent.
The mother in her Amended Response filed 13 June 2018 to the father’s Application in a Case sought the following interim parenting orders:
a)that the mother have sole parental responsibility for the children;
b)that the mother provide consent to enable the father to receive school reports newsletters and other school correspondence in relation to the children;
c)that the mother provide to the father copies of medical or health reports relating to the children;
d)that the children live with the mother;
e)that the father be restrained from:
i)assaulting, harassing, intimidating or abusing the mother,
ii)contacting or approaching the mother,
iii)approaching or contacting the children at school or at any sporting or extracurricular events,
iv)authorising or encouraging any third-party to approach or contact the children,
v)attending at the children’s educational sporting or cultural activities.
On 14 June 2018 by consent pending interim hearing orders were made, in summary, as follows:
a)that the children live with the mother;
b)that the father be restrained from:
i)contacting or approaching the mother except via her legal representative,
ii)approaching or contacting the children,
iii)approaching the children’s school,
iv)attending at any sporting or extracurricular events,
v)authorising or encouraging any third-party to approach or contact the children.
Context
The mother and father commenced cohabitation in 2007. They married in 2009.
They separated in late 2015.
The subject children are the children of their relationship.
The mother is presently aged 32 and the father is presently aged nearly 39.
The father’s evidence
The father relied upon:
a)his affidavits filed 13 April 2018 and 10 July 2018;
b)the affidavits of Ms B filed 13 April 2018 and 10 July 2018;
c)the affidavit of Ms C psychologist filed 10 August 2018.
Prior to separation and in December 2014 the father was exposed to a workplace incident that resulted in him, it appears, suffering from post-traumatic stress disorder.
In April 2015 he was admitted to the D Hospital as an inpatient. He acknowledges that as a consequence of messages sent by him to the mother an interim apprehended violence order was made by the Local Court at Suburb E on 7 May 2015.
The father was discharged from D Hospital in mid-May 2015 and returned to the then matrimonial home at Suburb F. At about this time the mother obtained independent accommodation. The father asserts that the children remained thereafter in his primary care until early October 2015.
In early October 2015 the mother was at the Suburb F property and there was an incident between the mother and father. The father was arrested and charged with breaching the interim apprehended violence order. A provisional apprehended violence order was issued preventing the father from contacting the mother or the children.
Subsequently, in November 2015, the charge of breaching the apprehended violence order was dismissed by reason of the father invoking the provisions of s 32 of the Mental Health (Forensic Provisions) Act 1990 (NSW) that provides:
(1) If, at the commencement or at any time during the course of the hearing of proceedings before a Magistrate, it appears to the Magistrate:
(a) that the defendant is (or was at the time of the alleged commission of the offence to which the proceedings relate):
(i) cognitively impaired, or
(ii) suffering from mental illness, or
(iii) suffering from a mental condition for which treatment is available in a mental health facility,
but is not a mentally ill person, and
(b) that, on an outline of the facts alleged in the proceedings or such other evidence as the Magistrate may consider relevant, it would be more appropriate to deal with the defendant in accordance with the provisions of this Part than otherwise in accordance with law,
The manner in which the Local Court proceedings were dealt with in itself raises some questions.
The father asserts that he started struggled with his mental health as long ago as early 2012. It appears that his mental health impacted upon the parties’ relationship and his interaction with the children.
The father did not return to work after taking sick leave in February 2015 and was discharged from the New South Wales public service in February 2016.
The father asserts that from November 2015 the children were with him from Monday morning until Thursday morning and then each fifth weekend. From November 2016 the father alleges that the mother only permitted the children to be with him on weekends. The mother informed him of her fears as to risk to the children by reason of the father’s PTSD.
The parties attended mediation in March 2017 and thereafter the father spent time with the children one Sunday each month until August 2017 with changeovers at the father’s sister’s home.
Regrettably, in September 2017, the father was arrested and charged with high range drink-driving. Subsequent to separation the father commenced a relationship with Ms B, introducing her to the children in November 2016. In October 2017 the father and his partner moved to the premises at G Street, Suburb F that was close to the children’s school. They plan to marry shortly.
More recently the mother has permitted the father to attend at the children’s swimming squad and at their sports matches on Saturdays.
The father presently attends upon his local general practitioner, a clinical psychologist, Ms C, and a consultant psychiatrist, Dr H. His depression and anxiety, he asserts, is managed with medication. The father attends upon his psychologist weekly and his psychiatrist monthly.
Ms B is aware of the father’s diagnosis of PTSD and observes that he takes antidepressant medication daily and medication for anxiety of a night if needed. She has further observed that he can sometimes become anxious in unfamiliar surroundings and on occasions appears hyper vigilant and is easily startled. She has, otherwise, observed that the father’s memory is “not all that good and he often has to write things down so that he does not forget”. She says that she has no fear for her safety in the father’s presence.
In early June 2018 the mother expressed further concerns as to the father’s mental health and stopped the children’s time with him.
The father’s treating psychologist, Ms C, reports that the father commenced treatment with her in the acute stages of PTSD and observes that there has been an overall improvement of functioning. The father, she says, has engaged well in therapy and in her view there is no current identified risk based on his current presentation. As to the father’s high range drink-driving offence, she observes that this was in the context of the father having a relapse and self-medicating with alcohol coupled with his medication. This incident was managed with counselling, initial abstinence and controlled drinking only in social settings.
The mother’s evidence
The mother relied upon her affidavits filed 17 May 2018, 13 June 2018 and 9 August 2018.
The mother says that since separation and from about 2016 the children have lived with her and spent time with the father during school terms, each week from after school Monday until before school Thursday and some holiday periods.
The mother further asserts that she has been “subject to extensive family violence perpetrated by the father”.
She says that in arrangements for the children to spend time with the father she has endeavoured to mitigate any risk to the children by agreeing that the children spend time with the father almost exclusively during school term time when there is structure and routine to the day. She, otherwise, relies on the significant caring role of the father’s partner when the children are in his home. She seeks ongoing information as to the father’s mental health diagnosis and prognosis and has received assistance from the father’s family.
She says that during cohabitation the father was controlling particularly in relation to her workplace arrangements and by checking messages and calls on the mother’s mobile phone. She alleges an assault at the hands of the father in 2009 as a consequence of which police attended at the then matrimonial home. She asserts that on an earlier occasion she had been punched in the eye by the father and sought medical treatment in relation to her injuries. On another occasion in late 2009 she recalls an argument with the father, waking up at the bottom of the stairs and being taken to J Hospital.
She says that the father’s alcohol consumption increased dramatically after the birth of the second child with the father verbally abusing her and accusing her of being unfaithful.
In 2011 she attended with the father on his general practitioner and a mental health plan for the father was prepared. From 2012 the father commenced threatening self-harm when he was angry. In 2014 following an argument the father said to her “I’m going to fucking kill myself” and he left the home on foot. The mother later found the father at the Suburb F lookout. A short time later she was assaulted by the father in the presence of the children during which the father caused damage to the home. The mother removed herself and the children and went to her father’s home. The parties attended counselling in 2014 in relation to relationship issues.
In April 2015, whilst attending residential professional training in K Town, the father was to care for the children for the week that the mother was to be away. The father in an agitated state telephoned the mother and said “I’m just going to end it all…..”. The mother caused the police to attend at the home and the father was taken by ambulance to L Hospital. The father was later scheduled and admitted to the D Hospital. The police commenced apprehended violence proceedings against the father as referred to above.
The father requested that the mother drop the AVO proceedings asserting that he would lose his job. The mother says that she agreed that the AVO conditions be varied to allow the father to return to the matrimonial home.
After the father’s discharge from hospital he did not return to employment. He continued to attend D Hospital for outpatient treatment.
The parties remained living separately in the matrimonial home until October 2015, although the mother frequently took the children and stayed at her father’s home or elsewhere. The father would on occasion collect the child X from school until the mother arrived home at about 5.00 pm.
In October 2015 the mother informed the father of her intention to finally separate from him. The father became aggressive and assaulted the mother while she was holding the child, Y. The mother attended at the local police station who returned to the home with the mother.
The father was arrested and charged with breach of the AVO order. The mother obtained separate rental accommodation for herself and the children.
The mother was unaware that the charge relating to the breach was dealt with under mental health provisions.
The mother acknowledges that the children have a loving relationship with the father and his time on school days provides structure and reduces the prospect of the father being erratic and angry with the children.
The mother complains that the father’s history provided by him to his treating psychiatrist, Dr H, is inaccurate and incomplete.
The mother presently occupies a rented three bedroom home with appropriate amenities for herself and the children. She remains employed as a public servant. She provides financially for the children without contribution from the father.
In early June 2018 the mother became more concerned for the safety of the children in the father’s care. From that date she did not provide the children to the father. Her concerns arose from the father in September 2017 being arrested for driving offences relating to alcohol, having a blood alcohol reading of 0.236. Circumstances of this offence revealed in documents produced on subpoena (Exh “L”) reveal that the father was uncooperative and hostile with the police and he was remanded in custody for a period until he was collected by a responsible person. This charge against the father was also discharged under the provisions of s 32 of the Mental Health (Forensic Provisions) Act 1990 (NSW) conditional upon the father remaining in the care of his treating psychiatrist, Dr H, who provided a medico legal report to the Local Court
Dr H’s report dated 3 November 2017 only became known to the mother in early June 2018. The report opines, in summary:
a)that the father resorted to alcohol use in excessive quantities as a coping method for his PTSD and major depressive disorder;
b)that the father had developed a secondary alcohol use disorder in response to his emotional symptomology;
c)that the father displays significant psychological impairment;
d)that the charge before the Court was a direct outcome of his psychiatric disorder;
e)that the father will require ongoing treatment including frequent consultations with his psychiatrist, medication and enrolment in a PTSD program.
The father has not provided any disclosure as to ongoing treatment by Dr H.
The children continue to live with the mother in her rented premises and continue to attend M School. The mother is assisted in schooling arrangements for the children by after-school care, her brother and also her father. The children’s present schooling arrangements involve the mother and children undergoing significant travel. In the event that she has sole parental responsibility for the children she proposes to move the children to a local public school closer to her present residence.
Objective Evidence
Documents from the New South Wales Police Service (Exh “L”) corroborate the mother’s assertion as to incidents involving the New South Wales police and their attendances at incidents involving the parties.
Documents from Dr H (Exh “K”) include a medical report from him dated 20 December 2016 that includes the following:
Following his discharge from hospital [Mr Highgate] reported that he deteriorated. He described a heightened levels of anxiety and a marked loss of self-esteem and self-confidence. He also reported persistent depressive symptoms. His depression was marked to the point of experiencing suicidal ideation. As a method of coping he had resorted to increasing consumption of alcohol…. Following his referral to me by his family physician I obtained a history consistent with development of a Post traumatic stress disorder, chronic in duration and a comorbid major depressive disorder.
The report further noted:
current symptoms comprise ongoing ruminations about his adverse work-related experience, heightened levels of anxiety, irritability and agitation and proneness to aggressivity. He experienced sleep impairments. He continues to experience troubled dreams. I have expressed concerns about his outbursts of anger. He displays impairments in his memory, hypervigilance and difficulties with concentration. He continues to reveal ongoing symptoms pertaining to his post-traumatic stress disorder and major depressive disorder….. I am of the opinion that his symptoms must be deemed to be permanent.
The father was first referred to Dr H for psychiatric assistance in August 2015. Dr H’s report dated 13 September 2017 reveals that the father remains on medication of Lovan 20 mg per day and Seroquel 25 mg nocte. In Dr H’s report dated 3 November 2017 (Exh “B”) prepared in relation to the alcohol-related driving offences, Dr H observes in relation to the father:
…. He has withdrawn socially. He has also experienced feelings of detachment and estrangement from others. There has been ongoing irritability with angry outbursts and this has intruded into his relationship with his family. He has remained hypervigilant and prone to exaggerated startle responses. There have been impairments with concentration. [Mr Highgate] has also experienced an apprehensive expectation of further untoward events occurring. He has been persistently depressed, sad and unhappy. His ability to be productive has been significantly compromised…….. Mr Highgate demonstrates diagnostic criteria for the following psychiatric disorders: post-traumatic stress disorder, chronic in duration, comorbid major depressive disorder, chronic in duration and alcohol use disorder, currently in remission.
Dr H was of the opinion that the offence with which the father had been charged was a direct outcome of his psychiatric disorder … “It is my opinion that he does suffer from a mental condition for which treatment is available in a mental health facility”.
The Independent Children’s Lawyer (“ICL”)
The ICL identified the following issues of concern:
a)the risks to the children in the event that the father does self-medicate with alcohol while spending time with the children;
b)the capacity of the parents to communicate about the children;
c)the parenting capacity of the father given his psychiatric history;
d)the father’s lack of insight into his abuse of alcohol;
e)the father and his supporters lack of judgment as to matters of concern and legitimate interest to the mother;
f)the damage done to the parenting relationships resulting from the father and his partner’s failure to keep the mother informed as to the father’s mental health circumstances.
The ICL sought orders that in summary:
a)required the father to undertake Carbohydrate Deficient Transferrin (CDT) testing within 24 hours of a request from the ICL;
b)that in the event that the father fails to undertake CDT testing as requested or fails to provide a testing result of 1.6 per cent CDT or less or provides a testing result which is greater than 1.6 per cent CDT then his time with the children shall be suspended until such time as he provides to the ICL a further certificate confirming a CDT testing result of less than 1.6 per cent;
c)that after 14 days from receipt by the ICL and solicitor for the mother of testing showing that the father tests less than 2 per cent CDT then the father shall have time with the children for two hours fortnightly supervised by an agreed Contact Service for the first three months after these orders and on any resumption of time pursuant to the order above and on the improvement of CDT to less than 1.6 per cent thereafter such supervision by a person, not being Ms B, as agreed between the parties and the ICL for up to four hours once a week.
Clearly the ICL has significant concerns for the children should they be in the care of the father.
The children and parenting issues assessment
The parties and the children attended upon a family consultant for the purpose of the preparation of a Child Responsive Program Memorandum (Exh “F”).
Regrettably, the preparation of the report predates the more significant disclosures in relation to the father’s mental health issues referred to above.
The children both reveal they wish to spend time with both parents.
The mother’s allegations as to physical violence and verbal abuse at the hands of the father and his controlling behaviour are repeated in the memorandum.
The father conceded to the family consultant that towards the end of their relationship on several occasions each week he would drink between six and 10 beers in a session.
As to the father’s mental health, the father reported to the family consultant that he at first sought assistance due to work-related stress in 2012. He reported that he was diagnosed with PTSD in 2015. He would take photographs of the children because he felt he may not see them again and reported that he had become emotionally detached from the mother and the children and that they would have witnessed him crying a lot. The mother reported that she believed that the father was not transparent with his mental health professionals and that she does not have a clear understanding of his current mental state.
The mother reported concerns not as to the father physically harming the children but being worried that if he were mentally unwell or under the influence of alcohol he may become paranoid, scream and yell, or threaten to kill himself again.
The mother reported that he was unable to understand the mother’s objection to him and his partner attending upon children’s activities when they are in the mother’s care. The mother reported that she found this intrusive and that she became anxious around the father worrying that he will “lose it”.
In evaluation the family reporter noted that the primary issue appears to be the ability of the parties to effectively communicate and co-parent. If the Court finds the mother’s reports of family violence to be accurate this will have a serious impact on her ability to co-parent with the father. The father acknowledged that he suffered from serious mental health issues and has used alcohol excessively. The family reporter expresses the view that he may be minimising the impact of these issues on the mother and the children.
As to future direction, the family reporter recommended that the parents communicate regarding parenting arrangements via email and that each parent attend the children’s activities only when the children are in their care unless arranged otherwise by agreement. It was further recommended that if the Court determines that the father had perpetrated family violence (as is conceded by him) it may assist if he undertakes and completes a men’s behaviour change program.
Interim Applications
In Marvel v Marvel (No 2)[2010] FamCAFC 101 the Full Court discussed the difficulties associated with making findings on contested evidence in the following terms:
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).
In SS & AH[2010] FamCAFC 13 the majority (Boland and Thackeray 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.
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.
In Deiter & Deiter [2011] FamCAFC 82 the Full Court was particularly concerned with the situation where the contested facts related to an assessment of risk and said at [61]:
… Risk assessment comprises two elements - the first requires prediction of the likelihood of the occurrence of harmful events, and the second requires consideration of the severity of the impact caused by those events. In our view, the assessment of risk in cases involving the welfare of children cannot be postponed until the last piece of evidence is given and tested, and the last submission is made. We accept, however, that it is always a question of degree depending on the evidence that is before the Court.
In George & George [2013] FamCAFC 182 the Full Court cited Deiter & Deiter (supra) in confirming that the mere fact that matters are in dispute does not mean the Court can ignore concerns that are raised in the material before it.
In Eaby & Speelman (2015) FamCAFC 104 the Full Court on the same issue relevantly observed:
18.…that does not mean that merely because the facts are in dispute the evidence on the topic must be disregarded, and the case determined solely by reference to the agreed facts.
In Banks & Banks [2015] FamCAFC 36 the Full Court said:
47.As the Full Court pointed out in Goode, the fact there will often be little uncontested evidence in interim proceedings means that only limited consideration may be able to be given to the relevant s 60CC factors.
48.It should also be said that in parenting proceedings, as in all civil litigation, it will be the issues that are joined that will dictate which s 60CC factors are relevant. By their nature, interim parenting proceedings should be confined to those issues which, in the best interests of the child, require determination prior to a proper determination at a trial. The fact such disputes are commonly dealt with in overcrowded court lists makes it even more desirable to identify with precision those issues which can, or should, be resolved on an interim basis.
49.Although the primary judge discussed all the potentially relevant factors in her ex tempore reasons, that luxury will not always be available. Furthermore, there is a risk that in discussing every s 60CC factor, the judicial officer may lose sight of the forest for the trees. It is also important to stress here that the requirement to “consider” each factor does not mean each must be discussed, especially where the evidence leads inexorably to a particular conclusion: SCVG & KLD(2014) FamCAFC 42.
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. Moreover, it will be a sterile exercise to determine whether or not particular facts are disputed if they are relevant only to one of the non-determinative s 60CC considerations. Properly understood, we do not interpret what was said in Goode as meaning that in an interim case, each and every fact must be characterised as disputed or not; and that each s 60CC factor must be traversed where it is obvious on the facts and issues joined that there are only one or two decisive factors.
The Law
The relevant principles in relation to parenting and interim proceedings are well settled Goode and Goode [2006] FamCA 1346. The High Court in MRR v GRR [2010] HCA 4 affirmed those principles.
Section 60B of the Family Law Act 1975 (Cth) (the Act) outlines the objects and principles underlying Part VII of the Act.
(1)The objects of this Part are to ensure that the best interests of children are met by:
(a) ensuring that children have the benefit of both of their parents having a meaningful involvement in their lives, to the maximum extent consistent with the best interests of the child; and
(b) protecting children from physical or psychological harm from being subjected to, or exposed to, abuse, neglect or family violence; and
(c) ensuring that children receive adequate and proper parenting to help them achieve their full potential; and
(d) ensuring that parents fulfil their duties, and meet their responsibilities, concerning the care, welfare and development of their children.
(2)The principles underlying these objects are that (except when it is or would be contrary to a child's best interests):
(a) children have the right to know and be cared for by both their parents, regardless of whether their parents are married, separated, have never married or have never lived together; and
(b) children have a right to spend time on a regular basis with, and communicate on a regular basis with, both their parents and other people significant to their care, welfare and development (such as grandparents and other relatives); and
(c) parents jointly share duties and responsibilities concerning the care, welfare and development of their children; and
(d) parents should agree about the future parenting of their children; and
(e) children have a right to enjoy their culture (including the right to enjoy that culture with other people who share that culture).
Section 60CA provides that in deciding whether to make a particular parenting order, the Court is to regard the best interests of the child as the paramount consideration.
Section 60CC then outlines the primary (sub-s (2)) and additional (sub-s (3)) considerations that the Court is to take into account in determining what is in the best interests of the child.
Section 61DA(1) of the Act provides that when making a parenting order, 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. The presumption does not apply where:
a)there are reasonable grounds to believe a parent (or a person who lives with the parent) has engaged in abuse of the child or family violence [s 61DA(2)]; or
b)in interim proceedings where the Court considers that it would not be appropriate in the circumstances for the presumption to be applied when making that order [s 61DA(3)].
In Smith & Smith [2017] FamCAFC 226 at [38] the Full Court in referring to s 61DA(3) said:
[38]In Marvel v Marvel (2010) 43 Fam LR 348 the Full Court, while recognising the burden on judges in busy courts of negotiating legislation of “labyrinthine complexity”, nevertheless said this about the “exclusion” in s 61DA(3):
107.… The exclusion may also be relevant where there are numerous and complex factual issues which are incapable of determination at an interim hearing. The practical effect of the application of s 61DA(3) is that the task and complexity of decision-making on a narrow issue or issues is reduced. However the task still requires some reference to s 61DA(1) and (2) and the giving of reasons, which may be very brief, why it is considered appropriate for the exception in s 61DA(3) to be applied …
The presumption may be rebutted if the Court is satisfied that an order for equal shared parental responsibility would not be in the child’s best interests [s 61DA (4)].
If the presumption in s 61DA is to apply and the Court makes an order for equal shared parental responsibility, this “triggers” the operation of s 65DAA which requires the Court to consider whether equal time or substantial and significant time with each parent is in the child’s best interests and reasonably practicable.
Best Interests
The Primary Considerations: s 60CC(2)
The primary considerations are:
a)the benefit to the child of having a meaningful relationship with both of the child's parents; and
b)the need to protect the child from physical or psychological harm from being subjected to, or exposed to, abuse, neglect or family violence.
In applying the considerations set out in subsection (2), the Court is to give greater weight to the consideration set out in paragraph (b).
Section 60CC(2)(a) – “meaningful” relationship
In Mazorski v Albright[2007] FamCA 520; Brown J considered ordinary definitions of the term “meaningful” and observed:
[26] What these definitions convey is that “meaningful”, when used in the context of “meaningful relationship”, is synonymous with “significant” which, in turn, is generally used as a synonym for “important” or “of consequence”. I proceed on the basis that when considering the primary considerations and the application of the object and principles, a meaningful relationship or a meaningful involvement is one which is important, significant and valuable to the child. It is a qualitative adjective, not a strictly quantitive one. Quantitive concepts may be addressed as part of the process of considering the consequences of the application of the presumption of equally shared parental responsibility and the requirement for time with children to be, where possible and in their best interests, substantial and significant.
In McCall & Clark [2009] FamCAFC 92 at [121] the Full Court accepted as appropriate this interpretation by Brown J of “meaningful relationship”.
The children have established relationships with both parents. The mother presents as the children’s primary carer both historically and at present. The children, it appears, have a primary attachment to the mother. It is appropriate that she continue in that role.
The children’s relationship with the father is regrettably overshadowed by his mental health issues and concern for the children if in his care.
Subject to an assessment of risk it is appropriate that orders facilitate a continuing meaningful relationship with both parents but protectively in regard to the father.
There is, otherwise, significant conflict between the parties exacerbated by the separation and issues over the father’s historical conduct and mental health concerns.
This consideration is indicative of orders as sought by the ICL and the mother being made.
Section 60CC(2)(b) – need to protect
This factor is of great significance to the mother in the context of this matter. The mother expresses great concern as to the children’s wellbeing in the care of the father. The father’s mental health has only been fully revealed by reason of more recent documents produced. They evidence a long standing significant psychiatric disorder coupled with emotional dysregulation. The father’s reluctance to properly address the need for fulsome disclosure is concerning.
To address these concerns the ICL proposes, subject to CDT testing, limited and supervised time for the children with the father. The mother seeks that there be no time. It is appropriate in light of risk issues to provide for the father’s time to be more constrained and supervised.
The Additional Considerations
Section 60CC(3) sets out the additional considerations. The more relevant consideration are discussed below.
a)any views expressed by the child and any factors (such as the child's maturity or level of understanding) that the court thinks are relevant to the weight it should give to the child's views;
The children are aged eight and nearly seven. Their wishes are noted in the Child Responsive Memorandum. Yet their wishes must be subject to the need to protect them from risk in the father’s care.
b)the nature of the relationship of the child with:
(i)each of the child's parents; and
(ii)other persons (including any grandparent or other relative of the child);
This has been discussed above in detail and need not be repeated here.
c)the extent to which each of the child's parents has taken, or failed to take, the opportunity:
(i) to participate in making decisions about major long-term issues in relation to the child; and
(ii) to spend time with the child; and
(iii)to communicate with the child;
This has been discussed above in the context of the parties’ relationship before and after separation. The mother has recently ceased the children’s time with the father. Yet the father presents as keen to engage in the children’s lives and has done so.
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 mother is the primary carer for the children and asserts she receives no financial support from the father. The father will need to consider this issue at an early date. It is no credit to him.
d)the likely effect of any changes in the child's circumstances, including the likely effect on the child of any separation from:
(i)either of his or her parents; or
(ii)any other child, or other person (including any grandparent or other relative of the child), with whom he or she has been living;
Save for issues as to the children’s time with the father, there is no significant change proposed except for the mother’s proposal for more convenient schooling arrangements in her role as primary carer.
e)the practical difficulty and expense of a child spending time with and communicating with a parent and whether that difficulty or expense will substantially affect the child's right to maintain personal relations and direct contact with both parents on a regular basis;
This is not a relevant factor.
f)The capacity of:
(i)each of the child's parents; and
(ii)any other person (including any grandparent or other relative of the child);
to provide for the needs of the child, including emotional and intellectual needs;
There are significant issues as to the father’s capacity in this regard. This will be an issue to be addressed at final hearing where consideration can be given to a Single Expert report.
The father’s capacity is reflected in concerns held by the mother. He should be given the opportunity to properly engage with the children in safe circumstances that will test his emotional regulation and capacity to property interact with the children.
g)the attitude to the child, and to the responsibilities of parenthood, demonstrated by each of the child's parents;
This consideration will await more fulsome evidence at trial. There is conflict in the parties’ evidence as to their relationship before and after separation. The father’s relationship with the children had been overshadowed by his mental health issue for some years before separation. His conduct and mental health issues ongoing will need to be considered in the context of a final hearing.
h)any family violence involving the child or a member of the child's family;
On the evidence such as it is and having regard to the father’s own admission and objective evidence referred to above, there has been family violence perpetrated by the father, violence to which the children were exposed.
k)if a family violence order applies, or has applied, to the child or a member of the child's family--any relevant inferences that can be drawn from the order, taking into account the following:
(i) the nature of the order;
(ii) the circumstances in which the order was made;
(iii) any evidence admitted in proceedings for the order;
(iv) any findings made by the court in, or in proceedings for, the order;
(v) any other relevant matter;
The AVO circumstances are referred to above. The father’s breach of the AVO order was established but he was dealt with by reason of his long standing mental health issues.
i)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 and the making of final orders will await trial and final determination.
A review of the primary and additional considerations above as to the child’s best interests are clearly indicative of the children remaining in their present circumstances with the mother as their primary carer and with the father having time much the same as provided for in the ICL’s proposal. There is no evidence as to the relevance as to the CDT testing results in terms of orders sought by the ICL. However, appropriate supervision will be sufficiently protective of the children.
The Presumption: Parental Responsibility
The Court is satisfied that in the circumstances of this matter, where there are reasonable grounds to believe that there has been family violence perpetrated by the father, the presumption as to equal shared parental responsibility should not apply.
It is appropriate that pending further order such responsibility be held by the mother.
Equal or Substantial and Significant Time
For the reasons set out above as to the best interests of the children equal time or substantial and significant time with the father is not in their best interests.
Orders will thus be made pending further order for the mother to have sole parental responsibility for the children, for the children to live with the mother and for the children to have supervised time with the father.
I certify that the preceding one hundred and two (102) paragraphs are a true copy of the reasons for judgment of the Honourable Justice Foster delivered on 28 September 2018.
Associate:
Date: 28 September 2018
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