Spijker & Paulis

Case [2024] FedCFamC1F 80

FEDERAL CIRCUIT AND FAMILY COURT OF AUSTRALIA

(DIVISION 1)

Spijker & Paulis [2024] FedCFamC1F 80

File number(s): DGC 2643 of 2021
Judgment of: WILLIAMS J
Date of judgment: 22 February 2024
Catchwords: FAMILY LAW – PARENTING – Where the father has perpetrated family violence against the mother and plead guilty to charges – Persistent breaches of a Community Corrections Order and Intervention Order – Consideration of the mothers assertion her parenting capacity would be discernibly affected if the child spent time with the father – Held – The mothers parental capacity would not be discernibly affected – Consideration of whether and if so what time between the child and father would be in the child’s best interests – Orders made for the child to spend time with the father, initially professionally supervised and progressing to unsupervised time
Legislation:

Evidence Act 1995 (Cth) s 140

Family Law Act 1975 (Cth) Pt VII, ss 4AB, 60B, 60CA, 60CC, 60CG, 61DA, 65AA, 68Q
Cases cited:

Banks & Banks [2015] FamCAFC 36

Blinko & Blinko [2015] FamCAFC 146

Housing Commission of New South Wales v Tatmar Pastoral Co Pty Ltd and Penrith Pastoral Co Pty Ltd [1983] 3 NSWLR 378

Keane & Keane [2020] FamCA 99

Mazorski v Albright [2007] FamCA 520

McCall & Clark [2009] FamCAFC 92; (2009) FLC 93-405

Russell v Close (Unreported, Full Court of the Family Court of Australia, 25 June 1993)

Sedgley & Sedgley [1995] FamCA 154; (1995) FLC 92-623

Whisprun Pty Ltd v Dixon (2003) 200 ALR 447; [2003] HCA 48
Division: Division 1 First Instance
Number of paragraphs: 163
Date of hearing: 27-29 November 2023, 13-14 December 2023
Place: Melbourne
Counsel for the Applicant: Ms Rika Teicher
Solicitor for the Applicant: Ressan Lawyers
Counsel for the Respondent: Mr Cameron Allen
Solicitor for the Respondent: MMH Lawyers
Counsel for the Independent Children's Lawyer: Mr Ek Taghdir
Solicitor for the Independent Children's Lawyer: Taft Lawyers

ORDERS

DGC 2643 of 2021

FEDERAL CIRCUIT AND FAMILY COURT OF AUSTRALIA (DIVISION 1)
BETWEEN:

MR SPIJKER

Applicant
AND:

MS PAULIS

Respondent

INDEPENDENT CHILDREN'S LAWYER

ORDER MADE BY:

WILLIAMS J

DATE OF ORDER:

22 FEBRUARY 2024

THE COURT ORDERS THAT:

1.All previous parenting orders concerning the child, X born 2016 (“the child”), are discharged.

2.The mother have sole parental responsibility for the child.

3.The child spend time with the father as follows:

During school term

(a)Immediately following the date of these orders, for eight (8) occasions; occurring once a fortnight for three (3) hours on a weekend, with such time to be supervised by Family Contact Service – Ms B and/or her nominee (“the professional supervisor”) or such other professional supervisor as may be agreed in writing between the parties, and the following shall apply:

(i)Both parents forthwith do all reasonable acts, sign all documents and attend all intake interviews to enable time to commence;

(ii)The time shall commence upon the availability of the professional supervisor;

(iii)The time shall take place at such venue, times and dates as directed by the…

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Spijker & Paulis [2024] FedCFamC1F 80
Case
[2024] FedCFamC1F 80
Decision Date

CaseChat Overview and Summary

The case of Spijker & Paulis involved a dispute between the parents regarding the parenting arrangements for their child. The father sought orders for the child to spend time with him, while the mother opposed any unsupervised time due to concerns about the father's history of family violence and his past breaches of court orders. The court was required to determine whether the mother's parenting capacity would be discernibly impaired if the child spent time with the father and, if not, what time arrangements would be in the child's best interests. The court considered the evidence of family violence, the father's past breaches of court orders, and the mother's capacity to manage her stress and anxiety about the child having a relationship with the father. After weighing the primary and additional considerations under the Family Law Act, the court concluded that the mother's parenting capacity would not be discernibly impaired and that it was in the child's best interests to have a meaningful relationship with both parents. The court made orders for the child to spend time with the father, initially under professional supervision and progressing to unsupervised time, subject to certain conditions and requirements.

The Federal Circuit and Family Court of Australia (Division 1) found that the mother's parenting capacity would not be discernibly impaired by the child spending time with the father. The court considered the evidence of family violence and the father's past breaches of court orders, but concluded that the mother was a resilient parent who could manage her stress and anxiety about the child having a relationship with the father. The court also considered the benefit to the child of having a meaningful relationship with both parents and the need to protect the child from physical or psychological harm. The court made orders for the child to spend time with the father, initially under professional supervision and progressing to unsupervised time, subject to certain conditions and requirements. The orders included provisions for supervised time, requirements for the father to complete parenting courses and counselling, and provisions for changeovers and communication between the parents.

Orders

Orders of the court

DGC 2643 of 2021

FEDERAL CIRCUIT AND FAMILY COURT OF AUSTRALIA (DIVISION 1)

BETWEEN:

MR SPIJKER

Applicant

AND:

MS PAULIS

Respondent

INDEPENDENT CHILDREN'S LAWYER

ORDER MADE BY:

WILLIAMS J

DATE OF ORDER:

22 FEBRUARY 2024

THE COURT ORDERS THAT:

1. All previous parenting orders concerning the child, X born 2016 (“the child”), are discharged.

2. The mother have sole parental responsibility for the child.

3. The child spend time with the father as follows:

During school term

(a) Immediately following the date of these orders, for eight (8) occasions; occurring once a fortnight for three (3) hours on a weekend, with such time to be supervised by Family Contact Service – Ms B and/or her nominee (“the professional supervisor”) or such other professional supervisor as may be agreed in writing between the parties, and the following shall apply:

(i) Both parents forthwith do all reasonable acts, sign all documents and attend all intake interviews to enable time to commence;

(ii) The time shall commence upon the availability of the professional supervisor;

(iii) The time shall take place at such venue, times and dates as directed by the professional supervisor in consultation with both parents;

(iv) The father shall be responsible for the costs of the supervisor.

(v) After the third (3rd) occasion, the father shall be at liberty to be accompanied by his partner, Ms D; and

(b) Thereafter, commencing a fortnight after the last occasion of professionally supervised time pursuant to Order 4(a), for four (4) occasions on alternate Saturdays from 10.00am to 2.00pm, with such times to be supervised by Ms D and to take place in a public location.

(c) Thereafter, commencing on a fortnight after the last occasion of time pursuant to Order 4(b) for four (4) occasions on alternate Saturdays from 10.00am to 4.00pm, with such times to be supervised by Ms D.

(d) Thereafter, commencing a fortnight after the last occasion of time pursuant to Order 4(c), for four (4) occasions on alternate weekends on Saturday from 10.00am to 4.00pm and Sunday from 10.00am to 4.00pm, with such times to be supervised by Ms D.

(e) Thereafter, commencing a fortnight after the last occasion of time pursuant to Order 4(d) for four occasions on alternate weekends from 10.00am Saturday until 4.00pm Sunday with Ms D to be in substantial attendance.

(f) Thereafter commencing a fortnight after the last occasion of time pursuant to Order 4(e), each alternate weekend from 10.00am Saturday until 4.00pm Sunday or 4.00pm Monday if Monday is a public holiday.

(g) Commencing 2025 Father’s Day, if the child is not otherwise spending time with the father, from 5.00pm Saturday until 5.00pm Sunday.

(h) Commencing in 2025, on the child’s birthday from the conclusion of school until 6.00pm and if on weekend, for four (4) hours from 10.00 am to 2.00pm.

(i) At such further and other times as agreed between the parents in writing.

(j) Commencing 2025, during school term holidays, for four (4) consecutive nights from the conclusion of school until at 4.00pm on the day after the fourth night that the child has spent with the father.

(k) Commencing 2026 onwards, during the term school holidays, the child’s live with and spend time arrangements with each parent shall be suspended and, unless otherwise agreed between the parents in writing, the child shall be in the care of each parent as follows:

(i) In all even numbered years, the child shall be in the care of the mother for the first half of the holiday, from the conclusion of school until 5:00pm on the middle Saturday and thereafter, the child shall be in the care of the Father for the second half of the holiday, from 5:00pm on the middle Saturday until the commencement of the new school term.

(ii) In all odd numbered years, the child shall be in the care of the Father for the first half of the school holiday, from the conclusion of school until 5:00pm on the middle Saturday and thereafter, the child shall be in the care of the mother for the second half of the school holiday, from 5:00pm on the middle Saturday until the commencement of the new school term.

(l) Commencing 2026/2027 for the long summer school holidays, the child’s live with and spend time arrangements with each parent shall be suspended and, unless otherwise agreed between the parents in writing, the child shall be in the care of each parent on a week about basis with the child’s holiday to commence with each parent as follows:

(i) For the long summer holidays commencing in 2026 and all even numbered years, the child shall commence the summer holidays with the mother from the conclusion of school in Term 4.

(ii) For the summer holidays commencing in 2027 and all odd numbered years, the child shall commence the summer holidays with the father from the conclusion of school in Term 4.

4. At the conclusion of professionally supervised time, the father shall obtain, at his cost, an observational report from the supervisor and forthwith provide a copy to the mother via her lawyers.

5. After the conclusion of professionally supervised time, unless otherwise agreed between the parents in writing, changeovers shall take place at a public location selected by the mother where there is CCTV coverage, with the mother to provide the father written notice of the location at least seven (7) days prior to the first changeover.

6. The spend time pursuant to Order 3(b) which is supervised by Ms D, shall be conditional upon the father filing with the Court:

(a) An Undertaking by Ms D as to her role as a supervisor, drafted by the Independent Children’s Lawyer; and

(b) A supervised hair follicle test (4-month test) for both drugs and alcohol and providing the mother with a result which does not detect any illicit substances and is ‘low to moderate’ for alcohol, with such hair test to be undertaken no earlier than 1 month prior to commencing this time.

7. The father shall, as soon as practicable, enrol in and complete a Tuning into Kids program and a Triple-P Parenting Program and provide the mother with confirmation of completion from the program provider.

8. The father shall continue counselling/therapy with Ms C or such other psychologist at least once every second calendar month for a year after the commencement of these orders and provide the mother written confirmation of his attendance from his psychologist.

9. The parents shall download the smart phone application ‘AppClose’ (“the phone app”) and, at their own expense or equal expense where necessary, register themselves and connect with each other using the mobile application for the purpose of any necessary communication concerning the child.

10. Each of the parents shall, as soon as practicable, advise and keep the other parent informed of any serious illness, serious injury or medical emergency involving the child whilst in their care, including all details regarding the illness, injury, hospital location, medical practitioners and treatment required.

11. The father shall be at liberty to and hereby authorised by these orders to:

(a) Obtain from the child’s school or extra-curricular activity organisation, at their own expense, all notices, reports and photographs or other information parents are normally provided;

(b) Liaise with the child’s school concerning or extra-curricular activity organiser; and

(c) Liaise with any medical practitioner, medical specialist, hospital or allied health professional who is attending upon the child.

12. Each of the parents shall be at liberty and hereby authorised by these Orders to provide their own and the child’s treating medical and allied health practitioners (including therapists) the following documents:

(a) The Family Report prepared by Ms E dated 22 May 2023; and

(b) Any reports prepared by a professional supervisor.

13. Each of the parents shall be at liberty to provide a copy of these orders to the child’s school, extra-curricular activity organisation or any medical practitioner or allied health professional who is attending upon or treating the child.

14. It is declared pursuant to s 68Q of the Family Law Act 1975 (Cth) that the orders made this day are inconsistent with the Family Violence Final Intervention Order (Case Nr. …) made against the father in mid-2019 in the Suburb G Magistrates' Court and to the extent of any inconsistency, the Family Violence Final Intervention Order is invalid.

15. The Independent Children’s Lawyer be discharged upon the father filing with the Court an undertaking of Ms D.

Note: The form of the order is subject to the entry in the Court’s records.

Note: This copy of the Court’s Reasons for judgment may be subject to review to remedy minor typographical or grammatical errors (r 10.14(b) Federal Circuit and Family Court of Australia (Family Law) Rules 2021 (Cth)), or to record a variation to the order pursuant to r 10.13 Federal Circuit and Family Court of Australia (Family Law) Rules 2021 (Cth).

Section 121 of the Family Law Act 1975 (Cth) makes it an offence, except in very limited circumstances, to publish proceedings that identify persons, associated persons, or witnesses involved in family law proceedings.

Background

Background to the litigation

For the reasons that follow, I am unable to conclude the mother’s parenting capacity would be discernibly impaired by orders providing for the child to spend time with the father, and I will therefore make orders for time to occur. BACKGROUND The father is aged 31 years and is employed full time. He is also studying. The mother is aged 32 years and is employed full time as a manager. The parties commenced a relationship in early 2014. They met approximately six years prior as they were part of a large social group and shared a house with mutual friends for a short period. At the commencement of their relationship, the mother had a son from a previous relationship, F born 2010. The parties commenced cohabitation in mid-2014 and became engaged in early 2015. In 2015 they discovered the mother was pregnant with the child. The first documented incident of family violence occurred in early 2019, which comprised a physical altercation and threat to kill. It is alleged that throughout the relationship, further family violence was perpetrated by the father including incidences in May 2019 and June of 2019. The parties separated on a final basis in May 2019, and thereafter the father continued to see the child sporadically by agreement. In 2019 the father was charged as a result of the early 2019 incident. He was released on bail to appear at the Suburb G Magistrates Court in mid-2019. He plead guilty to these offences and was sentenced to a Community Corrections Order with a condition to complete the Men’s Behaviour Change Program and Choices AOD Program. Around this time, Victoria Police also made an application for an Intervention Order, listing the mother and child as affected family members. The application was listed in mid-2019. The father did not attend this hearing and a Final Intervention Order was made in his absence. Subsequent to these orders being made, the father was convicted of numerous breaches of the Intervention Order and Community Corrections Order. This resulted in the father serving two concurrent Community Corrections Orders, being held on remand, completing community work and various courses in addition to paying several fines. In February 2020, the parties agreed to a parenting plan, however, the mother did not sign the document. The father has not seen the child since 25 February 2020. The fathers Community Corrections Order concluded in mid-2022, and he has not been charged with further breaches since mid-2021. Issues in Dispute The following issues were in dispute:(1)Whether time between the father and the child would affect the mother’s mental health and wellbeing to the extent her parental capacity would be discernibly impaired;(2)If time between the child and the father is ordered, what time is in the child’s best interests. The parties agreed that the mother should have sole parental responsibility for the child. THE PROPOSALS OF THE PARTIESThe father’s proposal The final Minute of orders proposed by the father and sent to my Chambers on 19 December 2023 is Annexure A to these reasons. Documents relied upon by the father

Evidence

Evidence Before The Court

Full text does not contain this section.

Decision

Reasons for decision

As I have determined there should be an order for sole parental responsibility, I am not required to address the statutory pathway set out in s 65DAA.Conclusion – What orders are in the child’s best interests? There was no dispute the child should remain living in the primary care of her mother and that she should have sole parental responsibility. I will make the relevant orders. Both the father and the Independent Children’s Lawyer proposed that the child should spend time with the father initially professionally supervised, and at the conclusion of professional supervision a report should be obtained from the supervisor and provided to the mother. There were some minor discrepancies between the number of supervised visits, however nothing turns on that issue. Thereafter, both proposed the time should progress with Ms D, or another responsible adult, in attendance for time during the day and thereafter to progress to each alternate weekend from 10.00 am Saturday until 4.00 pm Sunday or 4.00 pm Monday if Monday is a public holiday. There were also proposals for school holiday time commencing in 2025 during school term holidays for four consecutive nights, special occasion time and holiday time from 2026 for half of school holidays on a week about basis. Additionally, the father proposed that from 2026 onwards, the child should spend one half of the school holidays with each parent. The father proposed the progression of time with Ms D as a supervisor be conditional upon her filing with the court an appropriate undertaking, the father providing a supervised hair follicle test for both drugs and alcohol, complete a Tuning Into Kids program, a Triple P Parenting Program and continuing to attend counselling/therapy with Ms C at least once every second calendar month. He also proposed to provide the mother with written results of the hair follicle test, confirmation of completion of the two proposed parenting courses and of his attendance on a psychologist. Despite the mother acknowledging that the child was curious about her father and wanted to have a relationship with him, the mother’s final proposal remained that there should be no time between the father and child, although she did abandon her previous proposal for the court to make orders restraining the father from issuing further proceedings for parenting orders without leave of the court. In his final submissions, counsel for the Independent Children’s Lawyer most helpfully provided a factual summary of the evidence during the trial, which was adopted by counsel for the mother. He addressed the evidence of Dr K that the mother provided an impressive level of care for the child and despite her increased levels of stress, she was a resilient parent who was able to pick herself up after facing perceived adversity and will do everything needed to provide excellent care for the child. He submitted, and I agree, the mother will find a way to manage her stress levels and anxiety about the child having a relationship with the father and that supervision reports would assist her in that regard. She should be permitted to provide the reports to Dr K who was willing and able to provide ongoing therapy to her.

Ratio Decidendi

Legal Principle Established

Having determined the mother’s parenting capacity would not be discernibly impacted by the child spending time with the father, I will now consider what parenting arrangements are in the child’s best interests. To do so, I will now address the primary and additional considerations. Primary Considerations I will firstly address the primary considerations. The benefit to the child of having a meaningful relationship with both of the child’s parents Ordinarily, it is in a child’s best interests to have a meaningful relationship with both parents. In Mazorski v Albright [2007] FamCA 520, Brown J at [26], described a meaningful relationship as one “which is important, significant and valuable to the child” and the word meaningful is “a qualitative adjective, not strictly a quantitative one”. In McCall & Clark [2009] FamCAFC 92 the Full Court considered the meaning of s 60CC(2)(a) and said:[119] … the preferred interpretation of benefit to a child of a meaningful relationship in s 60CC(2)(a) is "the prospective approach" although, depending upon factual circumstances, the present relationship approach may also be relevant. We note however that s 60CC(3)(b) requires a court to explore existing relationships between a child and his or her parents and other persons, including grandparents ... [122] In reaching these conclusions, we also consider the legislation requires a court to focus on the benefit to the child of a meaningful or significant relationship. No doubt in the majority of cases there will be a positive benefit to a child of having a significant relationship with both parents, but there will also be some cases where there will be no positive benefit to be derived by a child by a court attempting to craft orders to foster a relationship with one parent if this would not be in the child's best interests. There is no dispute the mother will continue her role as primary carer of the child, and the child will accordingly continue to enjoy a meaningful relationship with her mother. The issue in this case is the benefit of the child having a relationship with her father. Ms E was unequivocal that the child wanted to have a relationship with the father. When questioned about the possible detriment to the child of not having a relationship with her father, Ms E referred to mental health and personality difficulties as being possible long-term impacts. She explained that it is detrimental to any child not to have a parent in their lives, and it would be important for the wellbeing of the child to see that her father has made positive changes, rather than being left with the view that he is a “bad person”. The need to protect the child from physical or psychological harm from being subjected to or exposed to abuse In the Family Report of Ms E dated 22 May 2023, the father admitted to the Family Report writer his verbal abuse of the mother began early in the relationship and escalated when he began daily drinking, approximately 18 months into the relationship. He conceded during the relationship there were three incidents of physical violence, but otherwise denied being physically abusive. [6] [6] Family Report of Ms E dated 22 May 2023, paragraph 12.