Stavrou & Stavrou - [2021] FedCFamC1F 164

FEDERAL CIRCUIT AND FAMILY COURT OF AUSTRALIA DIVISION 1
Stavrou & Stavrou [2021] FedCFamC1F 164

File number(s): PAC 3161 of 2019

Judgment of: HANNAM J

Date of judgment: 29 October 2021

Catchwords: FAMILY LAW – CHILDREN – Interim parenting – Review of a Senior Registrar’s decision – Where the father seeks orders that the parents hold equal shared parental responsibility for the children and that his interim time with the children increase given their ages and developmental stage – Where the mother opposes the father’s application and seeks orders confirming the current parenting arrangement providing the father defined time with the children during the weekend and one week day – Where the ICL supports orders for an increase in the father’s interim time but proposes a different time regime to the father – Where at the hearing the parties agreed that the most salient risk factor to the children is their exposure to parental conflict particularly in the context of changeover events – Where the mother otherwise alleges that the children are at risk of harm in the father’s care on a number of bases but only pursued some at interim hearing – Where the father alleges that the mother has little capacity to support the children’s relationship with him – Where Court is satisfied that changeover orders made at the interim hearing mitigate risks relating to parental conflict – Where the Court is of the view that the current parenting arrangement fosters a meaningful relationship between the children and the father such that there is no need to increase children’s time with their father to promote an “optimal relationship” – Orders made confirming current parenting arrangement relating to children’s time with father as sought by the mother.

Legislation:
Federal Circuit and Family Court of Australia (Family Law) Rules 2021 r 14.07

Family Law Act 1975 (Cth) ss 60CA, 60CC, 61C, 61DA, 65DAC

Cases cited:
Deiter & Deiter [2011] FamCAFC 82

George & George [2013] FamCAFC 182

Godfrey & Sanders [2007] FamCA 102

Goode & Goode (2006) FLC 93-286

Mazorski & Albright [2007] FamCA 520

McCall & Clark (2009) FLC 93-405; (2009) 41 Fam LR 483; [2009] FamCAFC 92

SS & AH [2010] FamCAFC 13

Division: Division 1 First Instance

Number of paragraphs: 158

Date of hearing: 14 September 2021

Place: Sydney

Counsel for the Applicant: Mr Samson SC

Counsel for the Respondent: Ms Gillies SC

Solicitor for the Applicant: Watts McCray Pty Ltd

Solicitor for the Respondent: Williamson & Learmonth Solicitors

Solicitor for the Independent Children’s Lawyer Ms Dodson
ORDERS

PAC 3161 of 2019

BETWEEN:
MS STAVROU

Applicant

AND:
MR STAVROU

Respondent

INDEPENDENT CHILDREN'S LAWYER

Intervener

ORDER MADE BY:

HANNAM J

DATE OF ORDER:

29 OCTOBER 2021

ORDERS
THE COURT ORDERS THAT:
1.Orders 1, 3, 4 and 5 of the interim orders made by Senior Registrar Tran on 2 July 2021 are discharged.
2.The father’s Amended Case Application filed 22 April 2021 seeking that the parties equally share responsibility for the children and that the children’s time with him increase is dismissed.
PENDING FURTHER ORDER:
3.The children are to spend time with the father as follows:
(a)In relation to the child X born … 2013:-
(i)From after school each Wednesday to 6.30 pm.
(ii)From 9.00 am Saturday to 5.00 pm Sunday each alternate weekend.
(iii)From 9.00 am to 5.00 pm each Thursday during school holiday periods.
(iv)From 3.00 pm Christmas Day to 12.00 noon Boxing day.

(b)In relation to the child Y born … 2018:-
(i)From after preschool at 2.00 pm to 6.30 pm each Wednesday, this order to be suspended during school holidays.
(ii)From 9.00 am to 5.00 pm each alternate Saturday and then 9.00 am to 5.00 pm on the Sunday of the same weekend.
(iii)From 9.00 am to 5.00 pm each Thursday during school holidays.
(iv)From 3.00 pm to 8.00 pm Christmas Day.

(c)Such other times as may be agreed between the parties.

THE COURT NOTES THAT:
A.Orders made on 14 September 2021 relating to changeover arrangements remain in place.
B.Restraints relating to each parent and the mother’s former partner Mr Q made with the parties consent on 2 July 2021 remain in place.

Note: The form of the order is subject to the entry in the Court’s records.
Note: This copy of the Court’s Reasons for judgment may be subject to review to remedy minor typographical or grammatical errors (r 10.14(b) Federal Circuit and Family Court of Australia (Family Law) Rules 2021 (Cth)), or to record a variation to the order pursuant to r 10.13 Federal Circuit and Family Court of Australia (Family Law) Rules 2021 (Cth).
Section 121 of the Family Law Act 1975 (Cth) makes it an offence, except in very limited circumstances, to publish proceedings that identify persons, associated persons, or witnesses involved in family law proceedings.
IT IS NOTED that publication of this judgment by this Court under a pseudonym Stavrou & Stavrou has been approved pursuant to s 121(9)(g) of the Family Law Act 1975 (Cth).
REASONS FOR JUDGMENT
HANNAM J:
INTRODUCTION

A mother (“the mother”) who is engaged in proceedings relating to a property settlement and the future parenting arrangements for her two children (“the children”) seeks a review of interim parenting orders (“the orders”) made by a Senior Registrar on 2 July 2021. The orders she seeks to review relate to the time the children are to spend with their father (“the father”).
Rule 14.07(1) of the Federal Circuit and Family Court of Australia (Family Law) Rules 2021 provides that such an application for review is to be heard as an original hearing.
The father seeks that the mother’s application be dismissed and that the Court re-make interim orders with respect to the children’s time with him in the same terms as the orders under review.
The Independent Children’s Lawyer (“the ICL”) proposes an interim arrangement that differs from that proposed by each of the parties, which would see the children’s time with their father increase but not to the same extent as the father proposes. The ICL also seeks additional orders with respect to changeover which will provide for that to occur without the parents coming into contact with one another.
At the hearing before me on 14 September 2021, all parties agreed that the most significant issue for the children at the heart of this dispute is their exposure to an extremely high level of conflict between the parents and that it is critical for the children that this be reduced. For this reason, orders in relation to changeover to take immediate effect were agreed upon between the parties and were made with their consent.
The remaining question for me to determine is whether the proposals of the father or the ICL are proper, or whether the parenting arrangement prior to the making of the orders on 2 July 2021 should continue having regard to the best interests of the children being the paramount consideration.
BACKGROUND
The parties who are both in their 30’s formed a relationship and then began living together in 2011 or 2012. They married in 2013.
The mother contends that from an early stage in their relationship the father engaged in conduct towards her that falls within the definition of family violence. The father denies that he behaved in such a manner and this is a significant issue in dispute between the parties to which I will return.
In the course of their relationship the parties had two children, a daughter who was born in 2013 and is now aged seven (“the daughter”) and a son who was born in 2018 and is now aged three (“the son”).
The mother claims that when the relationship was intact the father frequently smacked the daughter in an attempt to discipline her. It is the mother’s case that she and the father separated on 11 November 2018 after an occasion when the father smacked this child then aged five and that following an argument between the parents about this matter, he also assaulted her.
Although the father denies physically abusing both the daughter and the mother on this occasion, there is no dispute between the parties that on the following day, 12 November 2018, the mother reported the incident to police and a provisional Apprehended Domestic Violence Order (“ADVO”) was made against the father for her protection. As a result of the incident on 11 November 2018 the father was also charged with assaulting the mother.
After the ADVO was served on the father I understand that he was required under its terms to leave the former family home. After leaving, the father moved next door to the home of the paternal grandmother, in which other members of the extended paternal family also live.
After the parties separated, they initially reached agreement about parenting arrangements whereby the children who were then aged five and eight months respectively remained living with the mother and spent time with the father during the day each Sunday. Initially the son spent less time with the father than the daughter, but by April 2019 the parties had agreed for both children to spend the same amount of time with the father.
A few months later, the parties subsequently agreed that the daughter, who was by this stage almost six, would spend increasing time with the father including overnight each fortnight. Additional time for the children with their father on a weekday afternoon was also introduced.
In March 2019 both the criminal charge against the father and the application for a final ADVO were dismissed.
These parenting proceedings were commenced in the Federal Circuit Court in July 2019 and the father deposes that around that time the mother formed a relationship with a new partner (“the mother’s subsequent partner”). The mother deposes that this relationship began in September or October 2019.
On 18 September 2019 interim parenting orders were made with the parties’ consent in the Federal Circuit Court which confirmed a similar arrangement to that which had been agreed previously for the children to spend time with the father each Wednesday afternoon/evening to 6.30 pm and each alternate weekend. The son’s weekend time was during daytime only, while the daughter spent overnight time with the father on the Saturday.
As a result of these arrangements there were multiple changeovers for each of the children every week and such changeovers generally occurred directly between the parents on each occasion.
On two occasions in December 2019 there were incidents between the parties at changeover. The mother’s subsequent partner was involved in one such changeover and according to the father behaved provocatively on that occasion.
The mother contends that her relationship with her subsequent partner ended in January 2020, though there was a later reconciliation with him.
In February 2020 the proceedings were transferred to this Court.
The parties were divorced in March 2020.
In April 2020 the family were seen by a family consultant for the purposes of the Child Responsive Program. In her Memorandum to Court, the family consultant identified that the key issues in the dispute for the children were whether or not the father had perpetrated family violence against the mother and the nature and impact of that violence; whether or not the father had been abusive towards the children in the course of discipline; and the most appropriate living and spending time arrangements with each of their parents.
The meeting with the family consultant was somewhat limited due to restrictions associated with the COVID-19 pandemic at that time and the assessment consisted of telephone interviews with each parent and review of documents only.
In her evaluation, the family consultant reported that the mother made serious allegations regarding controlling and abusive behaviours perpetrated by the father and that if such allegations are true, including allegations of ongoing intrusive and aggressive behaviours by him, then such behaviour is likely to be detrimental to the mother’s ability to co-parent in a child-focused manner. It is also reported that the mother made allegations of physical abuse perpetrated by the father towards the children and the family consultant recommended that if the Court finds veracity to such allegations, any time the father spends with the children be supervised and that the father engage in a parenting course to develop alternative discipline strategies to manage the children’s behaviour. It was also recommended by the family consultant that each parent be engaged in any psychological treatment that is sought for the daughter to assist them both in responding in a consistent manner to this child’s anxieties.
At various times between April and July 2020 the mother failed to facilitate the children spending time with the father. Although it is not entirely clear, these instances appear to arise from disputes between the parties about interpretation of the orders. As I understand it, police have been involved on some occasions including on 10 May and 5 June 2020.
The mother alleges that on 5 June 2020 when she was moving from the former family home the father who was present next door made the shape of a gun with his fingers and pointed them towards her as a threat. The police apparently investigated this allegation at the time and police records indicate (Exh 2, pg 15) that as at 11 June 2020 there was an ADVO in place for the protection of the mother against the father.
By mid-2020, the mother was once again in a relationship with her subsequent partner and pregnant with his child.
On 2 July 2020 there was an interim hearing listed before a Senior Registrar. Although it is not entirely clear, I understand that by this time the mother had again ceased making the children available to the father and the father had raised concerns about risks to the children posed by the mother’s subsequent partner. At the hearing, the parties consented to orders that the time between the children and the father resume forthwith with a small adjustment, being an extension of the son’s time with the father on alternate Saturdays. In addition, other orders were made including a restraint on each of the parties from physically disciplining the children, and a restraint on the mother from leaving the children alone with her subsequent partner.
Throughout July and August 2020, each of the parties made allegations against the other about the care provided in each household. So far as the mother’s allegations are concerned, this is extended to complaints about the paternal grandmother and other members of the extended paternal family.
In late 2020, the mother gave birth to a child whose father is the mother’s subsequent partner (“the mother’s other child”).
On 21 December 2020, there was a violent incident at the mother’s home in which she was injured by her subsequent partner and required hospitalisation. The mother reported the incident to police and her subsequent partner was charged and an ADVO made for her protection against him. This incident also caused that relationship to come to an end.
According to the mother’s affidavit, in February 2021 the daughter made various complaints about fears associated with spending time with her father and concerning complaints of a sexual nature in the father’s household.
There were at least two further incidents at changeover between the parties in February 2021, one of which appears to have been reported to police by the mother in relation to the alleged conduct of the paternal grandmother.
One further occasion involving police occurred during a counselling session for the daughter in late February 2021 at which appointment both parents were present. According to police records, the father contacted police to inform them of the mother’s presence at this appointment and when police arrived at the premises advised them that he merely wanted to report that the mother had attended the session even though it was his time with the children that weekend. No further action was taken by police other than advising the father about the possibility of varying the court orders then in place.
From this date, the mother claims the daughter became increasingly distressed and fearful about her time in the father’s household and was concerned generally about police being involved with the mother. As I understand it, the daughter did not continue her engagement with the psychologist at the time even though it had been raised by the psychologist in an email to both parents that she held concerns about the daughter “internalising trauma from both parents”.
Throughout March and April 2021 the children continued to spend time with the father pursuant to court orders though the mother remained concerned about the father’s capacity to care for them. In her affidavit, she makes a litany of complaints about the children returning to her care unwell or injured and otherwise complains that the father failed to inform her of these matters at changeover.
On 22 April 2021 the father amended his interim application seeking orders that the parties equally share parental responsibility for the children and the children’s time with him increase. Other orders were sought by him including in relation to notification requirements between the parties and certain restraints on them and in relation to the mother’s subsequent partner. Although the mother was agreeable to the notification provisions and the various restraints on the parties, she proposed in her Amended Response that the children’s live-with and spend time with arrangements be dealt with following an expert assessment of the family.
On 29 April 2021 orders were made with the consent of the parties appointing a single expert. On that day the parties also agreed that the hearing of the father’s interim application be adjourned to a date in late June 2021.
Throughout May and early June 2021 the mother continued to raise concerns about the children and their time with the father based on reports she said the children made to her and other concerning behaviours displayed by them. On at least one occasion she instructed her solicitors to convey her concerns in an email to the father though little discussion between the parents ensued thereafter.
As the parents’ capacity to communicate with each other remained very limited, the ICL arranged for them to attend family therapy which they commenced in mid-June 2021.
On 28 June 2021 a hearing of the father’s interim application proceeded before a Senior Registrar via audio/video link. On 2 July 2021 judgment was delivered and interim orders made (“the July 2021 orders”) providing in summary that:
·All previous parenting orders be discharged as of 16 July 2021;
·The children live with the mother;
·The children spend increasing time with the father graduating to substantial and significant time;
·The children spend special occasions with each parent;
·Changeover occur at the children’s pre-school/school or otherwise at a local petrol station;
·The parties be restrained during changeover from engaging in various behaviours including discussing the parenting proceedings, recording the other parent and using explicit language in their communications; and
·The parties be restrained from bringing the children into contact with the mother’s subsequent partner.
A number of orders within the July 2021 orders were also made with the parties’ consent including that:
·The parties take all necessary steps to facilitate each of the children attending at psychological therapy;
·The parties participate in therapeutic counselling with a nominated counsellor for the purposes of improving their co-parenting relationship;
·The parties be restrained from physically disciplining the children;
·The parties ensure that the children are provided with their own bedding when they are in the care of each parent;
·Each party be restrained from denigrating the other in the presence or hearing of the children; and
·Certain procedures be followed relating to the children’s school affairs as well as in the case of a medical emergency.

At the conclusion of the court event on 2 July 2021 the mother made an oral application seeking a stay of the orders made by the Senior Registrar on that day. The Senior Registrar then made a further order staying the July 2021 orders for 14 days conditional upon the mother filing an Application for Review within seven days.
On 9 July 2021 the mother’s solicitor emailed the mother’s Application for Review to the Court’s filing address which was later sealed on 30 July 2021.
Between 15 and 16 July 2021 the parties’ legal representatives exchanged email correspondence concerning the father’s time with the children that was to commence in accordance with the July 2021 orders on the weekend starting 17 July 2021. The father sought confirmation from the mother that she would comply with court orders and make the children available to spend time with him that weekend. In her response, the mother insisted that the July 2021 orders were stayed until the determination of her Application for Review. She indicated that as a consequence of the stay, the parenting arrangement prior to the Senior Registrar’s orders (the arrangement pursuant to orders made in September 2019 and amended by orders dated 2 July 2020) (“the prior parenting arrangement”) remained in place.
Ultimately, while maintaining their respective positions about the correct interpretation of the July 2021 orders the parties agreed that the children’s time with the father should follow the prior parenting arrangement. This occurred until the end of July 2021 when the mother refused to make the children available to the father as the dispute about the interpretation of the July 2021 orders had not been resolved.
On 5 August 2021 I made an order with the consent of the parties staying the Senior Registrar’s orders of 2 July 2021 until the hearing of the mother’s review application listed on 14 September 2021.
In the weeks leading up to the hearing of the mother’s review application the children spent time with the father in accordance with the prior parenting arrangement. On at least two occasions within this period the mother alleges the daughter made certain remarks that were concerning to the mother. At one point the mother also proposed that this child continue to engage with a psychologist which was to be facilitated electronically due to the restrictions associated with the COVID-19 pandemic, but no agreement about this matter was forthcoming from either the father or the ICL.
THE REVIEW HEARING
The parties’ competing applications
At the hearing before me on 14 September 2021 the mother sought a review of the July 2021 orders arguing that the increase in the children’s time with the father under those orders were not in the children’s best interests.
It was initially sought on the mother’s behalf that the determination of the children’s spend-time with arrangements be adjourned until after an assessment of the family by the single expert, which the Court was advised is to occur in around March 2022. That adjournment application was ultimately abandoned, and counsel for the mother confirmed that the mother seeks an order that the father’s application for an increase in the children’s time with him be dismissed. It is the mother’s proposal that the parenting arrangement under the September 2019 orders and amended by the July 2020 orders providing for the children to spend time with the father each Wednesday afternoon/evening and each alternate weekend (daytime only for the son and overnight time for the daughter), be confirmed.
At the hearing, the father contended that the July 2021 orders increasing the children’s time with him ought to remain in place given such time arrangement is more consistent with the children’s ages and stages of development. The orders he seeks would see the son’s time with him gradually increase until at the end of a period of eight months both children would spend time with him each alternate weekend from Friday to Sunday and one school night each week and half of each school holiday period.
The ICL does not support either parent’s proposal entirely. While the ICL generally agrees that the children’s time with the father should increase, she proposes a different time regime to the father. She seeks orders that the children spend time with the father each alternate weekend from 9am Saturday to 5pm Sunday and one school night each week for a period of three months. After three months, the ICL proposes that the children’s weekend time increase to each alternate weekend from the conclusion of school on Friday to 5pm Sunday, and that they continue to spend one school night each week in the father’s care. Unlike each of the party’s proposals, the ICL’s suite of orders does not differentiate the time the son is to spend with the father from the daughter’s time.
Changeover orders
Apart from the issue of the children’s time with the father, the parties agreed at interim hearing that a salient matter to be addressed in the proceedings is the children’s exposure to high levels of parental conflict, particularly in the context of changeover. The ICL had proposed that a contact agency be used to facilitate changeover for the children which the parties generally agreed should take immediate effect.
At the conclusion of the hearing, orders were made regarding changeover providing in summary that:
·The parties are restrained from personally attending changeover for the purposes of the children spending time with the father or from arranging any person to attend changeover on their behalf except in accordance with this order;
·For these purposes where the children’s time with the father begins or ends when the children are at school or childcare, changeover is to occur at school or childcare. Only the parent delivering or collecting the relevant child from school or childcare is to attend at changeover; and
·Where the children’s time with the father begins or ends other than at school or childcare, a private fee paying supervised changeover service shall be utilised and the children are to be exchanged at a nominated location or as directed by the contact service. This contact service shall be Sydney Supervised Contact Worker unless otherwise agreed between the parties and the costs shall be paid by the parties in equal shares.
After making these orders, judgment on the parties’ competing applications regarding the children’s time with the father was reserved.
THE LAW & DISCUSSION
The relevant principles in relation to parenting and interim proceedings are set out in Goode & Goode (2006) FLC 93-286 ("Goode").
Goode sets out a framework for the conduct of interim proceedings which involves identifying competing proposals (as has been identified above), identifying the issues in dispute and identifying the agreed or uncontested relevant facts.
Assessment of Risk
When considering interim orders, the Court may, and in some circumstances must, also have some regard to the matters in dispute. There is a long line of authority to the effect that a court must make an assessment of disputed facts relating to alleged risks to children.
In SS & AH [2010] FamCAFC 13 their Honours said at [100]:
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 mere fact that matters are in dispute does not mean the Court can ignore concerns that are raised in the material before it (see George & George [2013] FamCAFC 182, a decision of the Full Court citing Deiter & Deiter [2011] FamCAFC 82 ("Deiter")).
In Deiter the Court was particularly concerned with the situation where the contested facts related to an assessment of risk. The Full Court 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.
At the interim hearing there was some brief exploration of risks arising in each parent’s household, though it became apparent, and it appeared not to be in dispute, that the most significant risk of harm from which the children should be shielded at this interim stage relates to their exposure to parental conflict.
While it was generally contended on the mother’s behalf that the father had no capacity for an increase in the children’s time with him, the nub of submissions advanced on her behalf seemed to focus on the daughter’s psychological state and in particular, the emotional difficulties experienced by this child. In the course of the hearing the mother’s counsel also referred briefly to some other issues of significance such as family violence and the father’s physical discipline of the daughter, but when asked about the “greatest risk” posed by the father founding the mother’s concerns, emphasis was ultimately placed on the “toxicity of the parental relationship”.
The father in his application maintained that other than the risks associated with exposure to high levels of parental conflict, there are concerns about the mother’s capacity to facilitate the children’s relationship with him arising from the nature and history of complaints made by her. Although the ICL’s case appeared to align more with the father than with the mother, insofar as the ICL also noted some concerns with the mother’s allegations made against the father, the ICL concluded that the main domain of harm to the children arises from exposure to the ongoing conflict between the parents.
RISKS SAID TO BE POSED BY FATHER
The mother’s case about the risks posed by the father is in my view somewhat difficult to understand. In particular, it would appear from the tenor of the mother’s affidavit that she contends that there are many domains of harm arising in the father’s household including harm arising from sexual and physical abuse, exposure to family violence and other violent conduct from members of the paternal family, neglect and significant impairments in the father’s parenting capacity that would lead to a suggestion that the father poses a risk of harm to the children that is unacceptable.
As was submitted by counsel for the father at the interim hearing, it seems curious in light of the mother’s affidavit that not only was there no contention made by the mother that the father poses an unacceptable risk of harm to the children, but it was maintained on her behalf that the greatest risk posed to the children founding her concerns about increasing the father’s time arises from the toxic nature of the parental relationship.
Submissions made on the mother’s behalf appeared to otherwise narrow the ambit of risk said to be posed by the father to the father’s limited parental capacity and an isolated alleged incident of physical abuse of the daughter and mother, namely the November 2018 incident. These discrete issues pursued by the mother at interim hearing are discussed below.
The father’s parental capacity
It is the mother’s case that deficits in the father’s parental capacity are such that it is not in the children’s best interests that their time with him increase. She contends that there are a number of “significant deficits” in the father’s responsibilities towards parenting and specifies in her submissions that significant questions arise relating to the father’s capacity to “care for the children, provide for them emotionally and support their development (for example by way of assisting with homework)”.
In her affidavit the mother makes various complaints about the nature of care provided in the father’s household which depend largely on complaints made by the children or her observations of their presentation when returning home from the father’s care. These complaints include:
·The daughter returning to the mother with apparent allergic skin reactions;
·The daughter returning to the mother with a packet of lollies despite recommendations from the child’s immunologist to the contrary;
·The son coming home with a swollen eye;
·The daughter presenting with ulcers on her tongue;
·The son complaining of being smacked by the father;
·Both children presenting with other illnesses or injury;
·The son becoming increasingly aggressive after returning home from the father; and
·Each child making other negative comments about occurrences in the father’s household including their interactions with other members of the extended paternal family.
The mother also complains about the father failing to inform her at changeover of any medication he has administered to the children or whether the children have been provided with dinner. She also alleges that the father has refused to assist the daughter in completing her homework and has also declined to attend or contribute financially to the children’s extra-curricular activities.
Curiously, despite the nature of complaints made by the mother in her affidavit, such matters were neither identified in written or oral submissions as grounding a need to protect the children from physical or psychological harm in the father’s care as contemplated under s 60CC. Rather, it was submitted on the mother’s behalf that the Court would adopt a “cautious approach”, particularly having regard to the daughter’s ‘anxieties’ which the mother’s counsel appeared to suggest were a function of the child’s experience in the father’s care and his parenting more generally.
At various points of her affidavit the mother deposes to the daughter exhibiting a significant degree of anxiety after returning from spending time with the father. For example, the mother recounts several conversations said to have taken place between she and this child in which the child makes a number of comments “of concern” including:
·“That was too much time at daddy's”
·"I don’t want to go to daddy's today I feel sick”
·“Daddy heard me, Daddy heard me saying his (sic) is videoing you… Daddy will hurt me…because I told you”
·“…Daddy told me not to tell mummy anything. Daddy recorded my voice. He will get angry on the weekend. [The paternal grandmother] will get really mad. Scared. I think daddy will take me to [the grandmother] closet and hurt me”
·“I hold my worries in…I feel that dad is going to video me. I'm scared”
·“Every time I got upset and cried, daddy told me to get over it or I'll take you to mum”
On some of these occasions the mother deposes that the daughter was “hysterically crying” throughout the conversation or had difficulty going to bed because she was “so emotional”.
The mother has in the past engaged the daughter with a psychologist due to difficulties with this child’s mental health. On 23 April 2020, one psychologist (“Dr T”) with whom the child engaged on at least three occasions, conducted a “Conners Assessment” in which the mother highlights the following conclusion was made:
[The daughter]’s score on the Stress problems scale was in the clinical range above the 97th percentile. These results indicate that the DSM should be consulted to determine whether [the child] meets diagnostic criteria for Stress Problems.
In both written and oral submissions made on the mother’s behalf it was argued that the difficulties exhibited by the daughter is corroborated by this Conners Assessment and that significant weight should be attached to it in finding that this child particularly suffers from “anxiety”. It was reiterated in oral submissions that while changeover events may be “a factor” in the child’s anxieties “it goes deeper than that”, appearing here to maintain that the father’s parental capacity is the main cause for the child’s anxieties.
The father denies each of the mother’s allegations concerning his care of the children. The ICL submits that there is no evidence that would suggest that an increase in the children’s time with the father is not in their best interests due to deficiencies in the father’s capacity to meet the children’s needs.
While I accept the daughter is experiencing emotional difficulties, and in any event this matter appears to be generally agreed between the parties, I have serious concerns about the “Conners Assessment” being an appropriate and valid measure of the child’s anxiety issues for reasons to which I will return. I am otherwise of the view that the circumstances most likely underlying the child’s difficulties relate to her exposure to the parental dispute, not alleged deficiencies in the father’s parenting.
Alleged violence perpetrated by the father
In addition to qualms about the father’s parental capacity, the mother makes many allegations that the father has been the perpetrator of family violence. This issue was not the main focus of submissions made on the mother’s behalf at the interim hearing, and to the extent it was raised, the focus was on one incident (rather than the numerous matters raised in the mother’s affidavit). However, at one point it was submitted that the father had no capacity to meet the needs of the children if their time with him were increased on the basis of his excessive use of physical discipline, particularly towards the daughter, and significant family violence perpetrated towards the mother.
The main incident explored at the interim hearing capturing the mother’s concerns in relation to both of these matters occurred in November 2018 and marked the end of the parties’ relationship. As explained when setting out the background, the father was charged with assaulting the mother in relation to this incident, and was subsequently acquitted of the charge.
In their respective affidavits, the parties provide differing accounts of the November 2018 incident. On the mother’s evidence, on the evening of 11 November 2018 as the daughter was resisting going to sleep, the mother said to the child “go to sleep why don’t you listen”. She says that she “tapped [the daughter] lightly on her bottom” and left the room telling the father to “deal with the child”. The mother deposes that when she went downstairs she could hear the father yelling at the daughter and six loud smacks. She deposes to running upstairs and that when she arrived at the child’s bedroom the father was still smacking the child on the bottom. She stopped the father by pulling him away from her and both parents then walked out of the daughter’s room. She adds that she and the father then had an argument outside the daughter’s room and in the course of that argument she was assaulted.
The mother attaches a photograph (Exh 2, pg 20) of welts said to have been occasioned when the father smacked the child on this occasion. That photograph depicts red markings around the child’s buttocks. When interviewed by the family consultant for the purposes of the Child Responsive Program the mother made similar allegations about the father repeatedly hitting the daughter on the bottom, with sufficient force to leave welts. The mother also informed the family consultant that the father hit her in the face when she intervened on this occasion.
In his interview with the family consultant, the father is recorded to have said that he had smacked the daughter on the bottom but denied that he hit her hard enough to leave a mark.
Police records indicate that both parties were interviewed about the November 2018 incident but the focus of police at the time was clearly on the incident between the parties. In relation to the alleged physical abuse of the daughter only the following is recorded:
[the parties] argued about how to properly discipline…version conflict here, but in sum police are satisfied that the child had been behaving poorly and both [the parents] hit her on the bottom. The child wasn’t stuck anywhere apart from the bottom – she sustained redness but no lasting injury. There isn’t sufficient evidence to negate a claim of lawful chastisement. Directly after delivering his smacks to the child, the [father] approached the accused and they argued…(as written)

The father maintains in these proceedings that the mother herself was verbally and physically aggressive towards the daughter as a result of the child’s non-compliance that evening of 11 November 2018 and that she smacked the child herself on the bottom numerous times before requesting that he “deal with her”. While the father then deposes to giving the daughter “three smacks for being disobedient” he does not address the mother’s allegations that he had hit this child with sufficient force to leave marks.
So far as the alleged assault of the mother during the November 2018 incident is concerned, while it is common ground between the parties that following this incident the father was charged with assault and an ADVO was made against him for the protection of the mother, there is significant dispute as to the events that transpired.
According to the mother, after the daughter was physically abused by the father, the parents engaged in an argument. In the course of the argument the mother deposes that the father slapped her in the face which caused her to fall backwards into the staircase bannister and sustain a bruise.
The father denies any violence towards the mother on this occasion (and otherwise), and in refuting the mother’s account of this incident (which is fairly consistent with her complaint in the criminal proceedings) refers to the dismissal of the ADVO application in early 2019 and criminal charge. The father relies upon a copy of the Magistrate’s judgment delivered in the criminal proceedings dated 18 March 2019 (Exh 1, pg 112-115) in which a number of adverse findings are made in relation to the mother. Some comments made by the Magistrate specifically referred to by the father include the following:
During her cross-examination, the complainant [the mother] answered a number of the questions put to her with the answer “I don’t remember”. In respect of some of those answers, I found it difficult to accept, bearing in mind the importance of the incident that she would not remember the detail she was being asked about.
…
…That is my observations of the complainant in the witness box; the fact that the response to several questions she had no memory, where I would expect her to have a memory; the fact that she failed to mention calling the sister; I have a significant number of concerns about the evidence of the complainant.
Other than this disputed instance of physical violence between the parties, the mother maintains that the father perpetrated significant family violence towards her during their relationship including verbal abuse and controlling and coercive behaviour which I understand the father denies. At the interim hearing however, little by way of oral submission was said on her behalf in relation to these matters beyond stating that they indicate that the father has “no capacity for an extension of time”.
Discussion
Although I am unable at this interim hearing to make positive findings, the nature and magnitude of risks posed by father as contended by the mother must be assessed.
In relation to matters other than the children’s exposure to the parental conflict, I consider on the evidence available to me that it is unlikely that the father will be found at final hearing to have significant impairments to his parental capacity such that he poses a risk of harm to the children on this basis. In weighing the probability of competing claims in this regard, I attach weight to the following:
·Conversations with the children and comments made by them upon which the mother relies in arguing that there are several deficits in the father’s parental capacity do not amount to anything more than assertions as to these matters;
·Most of the mother’s contentions regarding the father’s care of the children have not grounded notifications made to the Department of Family and Community Services (as they were then known) (“the Department”). According to departmental records produced on subpoena, only two reports have been made to the Department. One in November 2018 relates to physical chastisement of the daughter during the November 2018 incident. The second report made in May 2020 relates to the daughter displaying a high level of distress after returning from the father’s care, presenting with burn and bruises to her hip and also disclosing that the parties’ son had also been hit by the father. Only the latter of these reports was referred to secondary assessment and on the mother’s own evidence after caseworkers conducted a safety assessment and interviewed the daughter at the mother’s home in August 2020 the investigation was closed as the child did not raise any concerns with the father and identified him as a “safe person”;
·Although the mother deposes that she sought medical attention for the children in relation to certain illnesses and injuries they presented with upon returning home from the father’s care, she adduces no medical evidence to corroborate her claims that the children were ill or injured when spending time with their father;
·There is evidence in correspondence between the parents and school authorities dated June 2020 (Exh 5, pg 29-30) of the father being supportive of a suggestion made by the daughter’s school to engage this child in school counselling in response to concerns about her difficulties. It appears from the email exchange that the mother was not agreeable to such an arrangement in circumstances where the child’s psychologist engaged by the mother at the time “view[ed] [the child] as happy at school and [the child] sees school as her safe place” and had “suggest[ed] additional counselling does not seem to be required at this time”;
·I have some concerns that despite the general tenor of the mother’s allegations about the children’s wellbeing in the father’s care she has not at any stage sought that the father’s time be reduced or that it be supervised. Since the commencement of proceedings she has consented to orders which provide that the children spend regular unsupervised time with the father, including subsequent orders that the son’s time with him increase.
It may well be that further evidence particularly arising from an expert assessment of the family may clarify the mother’s concerns relating to the father’s capacity. However, in the absence of any such evidence, and for the reasons given, I do not consider that there are particular concerns about a risk of harm to the children arising from any alleged impairments in the father’s capacity to meet their needs on the available evidence.
Further, I do not consider it likely that the daughter’s presentation and behaviour will be found to be related to any risks posed by the father or shortcomings in his care of this child. The nexus between the child’s emotional state and the father’s parenting in his household was not thoroughly developed by the mother’s counsel in either written or oral submissions. Rather, the Court was invited to place significant weight on the Conners Assessment which concluded that the child scored in the clinical 97^th percentile on a “Stress problems scale”.
In my view, very little weight can be attached to the Conners Assessment relied on by the mother for various reasons. First, I cannot be satisfied as to the validity of the daughter’s test results in circumstances where little is known about the expertise of the assessor, being Dr T who administered the test to the child during a counselling session in April 2020. No evidence of Dr T’s qualifications is provided beyond a brief report letter addressed to the child’s family doctor (Exh 2, pg 47) in which Dr T’s signature merely identifies herself as a “Clinical Psychologist Registrar”.
Importantly, in drawing conclusions about the child, the Conners Assessment relies solely on the mother’s observations and ratings about the child’s behaviour.
Further, the assessment tool utilised in the “Conners Assessment” has on its face been developed by a self-identified “expert in child and adolescent behaviour”, who according to the assessment report holds a Doctor of Philosophy and is located in the United States (Exh 2, pg 79). Although the Conners assessment tool purports to have wide application and is said to be “reliable and valid” in assessing youth from many cultures, I cannot attach significant weight to the results of this assessment of themselves. The assessment report itself contains the caveat that any results obtained “must be combined with information from other sources and be confirmed by a qualified clinician before a conclusion is made that an actual problem exists”. In the present case, not only is there ambiguity around the existing qualifications of the clinical assessor as discussed, but there is no evidence as to what, if any, other sources and information have been utilized to inform the child’s psychological assessment.
Next, even if I were satisfied as to the overall validity of the Conners Assessment, I do not accept that it is a measure of anxiety as the mother contends. As pointed out by counsel for the father, the assessment, though touching upon matters relating to emotional dysregulation and anxiety, is explicitly stated to be an instrument “designed to assess Attention Deficit/Hyperactivity Disorder (ADHD)” (Exh 2, pg 58).
While I consider that the Conners Assessment has little probative value to the question of whether the daughter experiences anxiety as a result of any risks inherent in the father’s care, there can be little doubt that the daughter is suffering emotionally. It appears to be an agreed fact between the parents that this child is displaying symptoms of emotional disturbance, though the father maintains in his affidavit that this is not as a result of risk issues in his household. He contends that the child’s anxiety has been brought about from various factors including the child’s separation from him, the parties’ separation, changes in the child’s circumstances including the formation of the mother’s relationship with her subsequent partner and the introduction of a new sibling, and exposure to the parental dispute more broadly.
When interviewed for the purposes of the Child Responsive Program in April 2020, both parents raised concerns about the daughter’s emotional functioning and the mother in particular reported that both parties “agreed that the child required extra emotional support” but could not agree on a psychologist. It was recommended by the family consultant that both parents engage in any psychological treatment that is sought for the child to assist them in responding in a consistent manner to her anxieties. There is no dispute that between 2020 and early 2021 the daughter did engage with at least two psychologists and there have been more recent orders agreed to by the parties providing that this child commence attending upon a different psychologist nominated by both parents.
While at this stage I am unable to make findings about the true nature or extent of the daughter’s psychological difficulties and the Court will likely benefit from expert opinion on this matter when it is available, I assess that there is a real possibility that the child is emotionally affected principally by exposure to the paternal dispute and conflict between her parents. It suffices to note at this point that records produced by the child’s most recent treating psychologist (“Dr B”) include an email sent from Dr B to both parents dated 2 March 2021 (Exh 5, pg 62) in which the following is concluded:
[The daughter] is internalising the trauma from both parents. As recommended, you both [the parents] need to see how to make it a smooth and easy process for yourself and each other for [the daughter]’s mental health.
At this point [the daughter] doesn’t want to discuss her parents (Avoidance) and I am using this time to build rapport and trust and getting to learn about her bio-psycho-social aspects. (emphasis added)
I now turn to the risks said to be posed by the father arising from the mother's allegations of family violence and excessive physical discipline of the children.
First, I note that although these matters were only peripheral rather than at the centre of the mother’s case, they were identified as “key issues” by the family consultant in her Memorandum to Court dated April 2020 (Exh 3).
In the Memorandum the family consultant reports that when interviewed the mother made serious allegations regarding controlling and abusive behaviours perpetrated by the father and concluded that if such allegations are true, including allegations of ongoing intrusive and aggressive behaviours by him, then such behaviour is likely to be detrimental to the mother’s ability to co-parent in a child-focused manner. The family consultant also reported that the mother made allegations of physical abuse perpetrated by the father towards the children and recommended that if the Court finds veracity to such allegations that any time that the father spends with the children be supervised and that the father engage in a parenting course to develop alternative discipline strategies to manage the children’s behaviour.
Despite the family consultant’s assessment as to the centrality of the matters just summarised, there was in my view no real exploration by either party or the ICL of the potential risks to the children arising from these matters. There was also no particular focus on the family consultant’s recommendations and none of the parties’ proposals for interim orders seem related to an assessment of these risk factors.
As mentioned earlier, the main event that was the subject of submissions at the interim hearing relating to both risk issues was the November 2018 incident.
So far as the physical discipline of the daughter by the father during the November 2018 incident is concerned, I note that it is the father’s own evidence that he administered at least three smacks to the child on this occasion. It seems likely that the red marks apparent on the child’s bottom in the photograph were occasioned as a result of this physical discipline.
While on this basis there may be a risk to both children relating to excessive physical discipline by the father, it is unlikely in my view that a court will find at final hearing that the father poses an unacceptable risk of harm to them on this basis in the future. There is no evidence of ongoing physical discipline of either child and as from July 2020 each parent has been restrained by court order from doing so.
I also consider it likely that a court will attach weight to the safety assessment conducted by the Department in response to reports of physical abuse of the children. As discussed earlier, on the mother’s own evidence caseworkers attended her home in August 2020 and interviewed the daughter separately and concluded that this child did not raise any concerns about the father and identified him as a “safe person”. Coupled with the fact that the father has since participated in an anger management course and has also completed several parenting programs to date, I consider it unlikely that a court will find at a future final hearing that there is a real risk the father will physically abuse the children.
In written submissions concerning family violence allegedly perpetrated against the mother, it is argued on her behalf that little weight can be attached to the magistrate’s findings concerning this event given the criminal standard of proof does not apply in the family law jurisdiction. Even though it may ultimately be found in family law proceedings that the father did assault the mother on this occasion, she can be taken to accept that she does not consider that any risks to the children arising from their exposure to family violence are unacceptable. She has not on any occasion sought an order that the children spend no time with the father or that this time be reduced. Neither has the mother at any stage sought that the father’s time with the children be supervised. Her current interim proposal seeks to confirm the prior parenting arrangement whereby the children spend unsupervised time with their father on a somewhat regular basis. She also does not seek sole parental responsibility for the children.
For the foregoing reasons, I do not consider the mother’s allegations of physical abuse of the children and family violence to be a weighty matter in relation to risk at this interim stage.
RISKS SAID TO BE POSED BY THE MOTHER
Although the father does not characterise this matter as one which raises a specific risk of harm to the children, he raises serious concerns about the mother’s ability to support the children’s relationship with him and her overall approach in making a litany of complaints and allegations against him.
At interim hearing, counsel for the father referred generally to the mother’s failure to involve him in major affairs relating to the children’s care and health. For example, it was noted that when the mother presented the daughter to a psychologist for intervention in 2020, the mother was adamant about not informing the father or requiring his presence at the session, or otherwise involving him in this process. The ICL in her oral submissions also referred to the mother’s actions in this regard and relied upon psychologist’s records from the session (Exh 5, pg 35) which the ICL submits not only indicates that the psychologist was engaged solely by the mother but demonstrates the mother’s staunch position in excluding the father from this process.
The father also submits that the mother has in the past breached court orders by failing to make the children available to him as required.
In keeping generally with the father’s contention that the mother has little capacity to facilitate the children’s relationship with him, it is also submitted on the father’s behalf that the mother makes a number of new allegations of risk against the father for the purposes of this application which had not been disclosed at the time of the hearing before the Senior Registrar on 2 July 2021. For example, the mother now makes various complaints about the father of a sexual nature including that the children are exposed to pornography in his household and that he sleeps naked with the daughter.
In this regard, counsel for the father argued that the mother is “conflating allegations” in an attempt to obtain the orders she seeks. The fundamental inconsistency in the mother’s position is also noted by the father’s counsel in that the mother makes a plethora of allegations against the father and the paternal household, but does not seek an order that the children spend no time with him or that the children’s time with him be supervised.
The father also raises some concern about a risk previously present in the mother’s household being the presence of the mother’s subsequent partner who lived with the mother and children for some months following the parties’ separation and with whom the mother now shares an infant child. Risks about the mother’s subsequent partner arise from a violent incident between the mother and the partner in December 2020 which led to the breakdown of that relationship and ultimately resulted in a final ADVO made against the partner for the mother’s protection for two years.
The father maintains some concerns about the mother’s insight and protective capacity in relation to her relationship with her subsequent partner. However in these proceedings he concedes that the risk to the children arising from the partner is no longer a live issue as any such risk is sufficiently mitigated by the order agreed to by the mother and supported by the ICL restraining her from bringing the children into contact with that person.
Discussion
Although the father’s contentions about the mother’s alleged behaviour and attitude towards the children’s relationships with him are not characterised as matters of “risk”, I must still assess the likelihood of his contentions being found proved as they are central to the orders he seeks.

In this regard I consider that the father’s contentions would appear inconsistent with his description of the mother when interviewed by the family consultant in April 2020 as a “good mother”.
Recently the parents have also agreed to orders relating to notification requirements between them concerning the daughter’s progress with the psychologist nominated by the parties, the children’s school affairs, and medical issues relating to the children such as medical emergencies. I consider it unlikely that if the mother was adamant in restricting the children’s relationship with their father she would consent to orders maintaining his involvement in such important matters relating to the children.
The father’s concerns about the overall veracity of the mother’s allegations which he contends is undermined by the widening of her case of risk against him, is not a matter capable of determination at this interim stage. A court at final hearing is likely to have more evidence available to it and will be in a better position to test the evidence particularly through cross-examination.
THE MOST SIGNIFICANT RISK OF HARM TO THE CHILDREN – PARENTAL CONFLICT
As touched upon numerous times in these Reasons, the only risk of harm to the children that the parties agree on is that which arises from the conflictual and toxic nature of the parties’ relationship.
The evidence adduced by each party and the ICL clearly supports a finding that from around the time of separation the parents have engaged in toxic communication and on numerous occasions incidents between them have involved police. Police records produced on subpoena also record a great degree of hostility and tension between the parties and their respective households. For example, although the parents depose to only some of the following events and differ in their accounts of the surrounding circumstances, it is recorded by police that:
·In December 2018 the parties engaged in a heated argument on the driveway over the daughter who was seated in the front seat of a vehicle. The father is said to have made threats about the maternal uncle on this occasion. While the mother is recorded to have sought an ADVO at the time, she told police she did not have any immediate concerns for her or the children’s safety. It is further recorded by police that “it appears the parties have reported each other in a ‘tit for tat’ manner, stemmed (sic) from unresolved issues surrounding the custody of their children”.
·In March 2019 during a changeover event the father is recorded to have waited in his vehicle to avoid conflict with the mother but on several occasions the mother has seen the paternal aunt recording her during delivery of the children. The mother reported this to police but was advised that recording in a public place is not an offence and police recommended that the parties undertake changeover at a police station to avoid any further conflict.
·In May 2020 police were called in relation to an allegation that the mother was verbally abused by the father during a changeover event relating to the daughter. It was reported that during this exchange the son had reached out to the father to ‘high-five’ him and that when the father asked to hug the son the mother refused and the father is said to have “sworn at her whilst she was walking back to her house with the children”. According to police records, CCTV footage of the incident was obtained and after review of the video and audio police did not observe any swearing or any offences being committed.
·In June 2020 the mother alleges that the father pointed his fingers in the shape of a gun towards her which was also apparently observed by the daughter. In the same month the mother reported concerns to police about the father being involved in taking photos of her home and being intrusive towards her privacy. An interim ADVO was made against the father for the mother’s protection.
·On two occasions in February 2021 during changeover events the mother alleges that the paternal grandmother who was also present verbally abused her in the presence and hearing of the children which she reported to police.
·On 27 February 2021 during a counselling session between the daughter and her psychologist at which the parents and both children were present, the father contacted police and expressed concern about the mother’s presence at the appointment reporting that it was his time with the children. Police attended but no further action was taken.
Given the number of changeover events that occur each week under the current time arrangement and the close proximity of the paternal households to each other, and as the children’s exposure to the hostility in the parental relationship is at such high levels, it appears to be mutually recognised that protective orders should be put in place to mitigate risks in this regard.
At the interim hearing before the Senior Registrar in July 2021, interim orders were made providing that in the event the parents are required to facilitate changeover in person they be restrained from engaging in various behaviours including discussing the parenting proceedings, recording the other parent or allowing a third party to record the other parent, and using explicit language in their communications. The parties also agreed on this occasion to orders that they each be restrained from denigrating the other parent in the presence or hearing of the children and that they both participate in therapeutic counselling with a nominated counsellor for the purposes of improving their co-parenting relationship.
Despite some merit in the orders just described, and according to the mother some improvement in the parties’ communication as a result of family therapy commenced in July 2021, there was a general agreement at the outset of these proceedings that there remains a need to shield the children from the high level of conflict between the parents.
In these circumstances, orders were made at the conclusion of the interim hearing as proposed by the ICL and slightly amended in the course of the hearing. These orders which the parties agreed should take immediate effect, provide in summary that the parties are restrained from personally attending changeover unless the children’s time with the father begins or ends when the children are at school or childcare in which instance only the parent delivering or collecting the relevant child from school or childcare is to attend. Otherwise, where the children’s time with the father begins or ends other than at school or childcare a private supervised changeover service is to be utilised.
Such an arrangement in my view, minimises the opportunity of parental and familial conflict, to which the children would otherwise be exposed if the parents maintained face to face contact in any changeover setting.
Although for the reasons given, there is no other likely risk to the children other than parental conflict which I consider appropriately addressed at this stage, I am not satisfied that the children’s time with the father should increase as proposed by the father and the ICL having regard to the children’s best interests for the following reasons.
BEST INTEREST CONSIDERATIONS
In applying the law to the facts, the Court must uphold the relevant Objects and Principles in the part of the Act dealing with parenting.
Section 60CA provides that 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.
The best interests of the child are determined as a result of consideration of the matters set out in s 60CC.
The primary considerations, which are contained in s 60CC(2), 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.
Section 60CC(2A) provides that in applying these considerations, I am required to give greater weight to the need to protect the child from harm than to the benefit to the child of having a meaningful relationship with both parents.
Although the meaning of "meaningful relationship" is not defined in the Act, it has been interpreted as meaning a relationship which is "important" or "significant".[1]
[1] McCall & Clark (2009) FLC 93-405; (2009) 41 Fam LR 483; [2009] FamCAFC 92; Mazorski & Albright [2007] FamCA 520 at [26].
Both the father and the ICL’s proposal would see the children’s time with the father increase although at different rates. Both proposals have the same effective endpoint in relation to the time the children will spend with the father.
Both the father and the ICL submit that there is no evidence of alleged shortcomings in the father’s capacity to meet the children’s needs such that the orders they propose are not in the children’s best interests. They each contend that an arrangement increasing the father’s time is in the children’s best interests having particular regard to the children’s ages and developmental stage, and argue that the “very narrow and defined time” the children currently spend with their father precludes him from being engaged in an ordinary routine of care for each child and limits the son in particular from enjoying a meaningful relationship with the father.
In seeking that the current parenting arrangement be confirmed, the mother must be taken to accept that the children receive a benefit from having a meaningful relationship with their father. As noted earlier, although the mother contends that there are a number of risks posed by the father, she does not seek that his time with the children be reduced.
There is nothing to suggest that the children are deprived of a meaningful relationship with their father under the current parenting arrangement. This arrangement has effectively been in place since September 2019 with slight adjustments made in July 2020. Under that arrangement, the children have ample opportunity to be involved in the parental household and under these orders their relationships with their non-primary carer is preserved. While this arrangement may not foster optimal relationships between the children and the father, the legislation does not aspire to this but rather aspires to promote meaningful relationships.[2]
[2] Per Kay J in Godfrey & Sanders [2007] FamCA 102 at [36].
Although there are also complaints about the father’s ability to assist with the daughter’s homework in the context of time limitations, that in my view does not result in a diminution of quality of the relationship. It is the father’s own evidence that in the time spent in accordance with the current parenting orders he has been “actively engaged in activities with the children” including outdoor and indoor activities, trips to the beach and local park, attending church, and enjoying regular family events such as family barbeques with the paternal family. He further deposes that he currently shares a “close relationship with both of the children” as do members of the extended paternal family.
Against this background, increasing the children’s time in an incremental fashion as sought would do no more than improve an already meaningful relationship with their father. While this may be advantageous in some respects, as stated by the authorities, it is not the task of the Court to make orders to promote an “optimal relationship”.
In the circumstances of this case, the benefit to the children of having a meaningful relationship with both parents is not outweighed by the need to protect them from harm. The most salient matter of risk for the children is exposure to parental conflict. As discussed, I am satisfied that this risk is sufficiently mitigated by orders made relating to changeover.
Additional considerations
Section 60CC(3) sets out additional considerations, a number of which are not able to be applied in this case. Those considerations which are relevant and applicable are as follows.
The daughter who is aged eight and the son aged three, have not expressed views in any manner to which weight may be attached. Although the family were assessed as part of the Child Responsive Program, neither child was interviewed due to their young ages.
There is also currently no available expert evidence in relation to the nature of the children’s relationship with each parent and others. It can be assumed however that given the children have lived with the mother since separation they have an established attachment relationship with her as primary carer. As the parents have also agreed on orders that the children spend time with the father since the commencement of proceedings, notwithstanding the mother has at some stages failed to facilitate this time, it can be assumed the children also share important relationships with their father from which they also receive a benefit. It is also likely that the children have established relationships with members of the paternal family such as the paternal grandmother, aunt and cousins given they currently share a home with the father. On all of the proposals under consideration, these relationships will be fostered.
The mother’s application would see the current arrangements for the children’s time with the father remain and will not bring about any change in the circumstances for the children that have been in place for over a year. Although it was raised in written submissions on the mother’s behalf that the present time regime “objectively has not been a success in their present form”, she does not seek an order that the father’s time be reduced.
If orders are made as sought by the father and ICL, the most significant change in my view is the introduction of overnight time for the son. While I accept the ICL’s submission that there is benefit in introducing some sense of consistency in the regime of time the children are to spend with their father, I hold some concerns about instituting overnight time for the son where he has not spent overnight time with the father since birth and there may well be another application to change interim arrangements following the release of the expert’s report. In other words, the mother’s proposal compared to the suite of orders sought by the father and the ICL is less likely to invite disruption to the stability of the children and in particular the son.
The capacity of each of the children’s parents to provide for the needs of the children including the need to have a meaningful relationship with the parent with whom they are not living is likely to be a significant feature of the final hearing in light of the way in which the interim applications were run. I cannot make any findings of this nature in these proceedings but do not assess any alleged impairment in the father’s parenting capacity as a weighty matter at this interim stage for the reasons discussed. I note that orders were also made with the consent of the parties on 2 July 2021 providing that each parent ensure that the children are provided with their own bedding in each parent’s household and that the parents take all necessary steps to facilitate each child attending upon psychological therapy. Other orders were made by consent restraining the parties from physically disciplining the children and from denigrating the other parent in the presence and hearing of the children.
While it is common ground between the parties that the daughter is experiencing psychological and/or emotional difficulties, I do not consider this a weighty matter in considering the competing proposals of the parties. There is insufficient evidence to suggest that these difficulties arise solely or largely as a result of this child’s care in either parent’s household. As discussed, I consider it more likely that this child is affected by her exposure to conflict between the parties and the parental dispute. It was generally recommended by the family consultant in the Child Responsive Program Memorandum that the parties respond in a consistent manner to this child’s difficulties. The parties have since agreed to orders nominating an agreed upon registered psychologist for the daughter. A clearer understanding about what may be in this child’s best interests may arise from a report from this new treating psychologist, as well as any opinion formed by the expert in the upcoming expert assessment of the family.
Although the mother deposes to a significant history of family violence perpetrated by the father during their relationship, these allegations did not form a major part of the case she ran at the interim hearing. It was made clear on the mother’s behalf that the greatest risk posed by the father grounding her concerns about increasing the children’s time with him relates to the toxicity of the parental relationship. While the mother also makes some allegations of family violence relating to members of the paternal family, I do not consider this a weighty matter in these interim proceedings given she does not seek orders that the father’s time be supervised or that any restraints be made in respect of contact with these people.
When considering whether to make an interim order, the Full Court has also said that regard should be had to its likely duration.[3] It is unlikely that this interim parenting arrangement will be in place for an unduly lengthy period of time given the expert assessment of the family is soon to occur and once the expert’s report has been released the final hearing may then be listed if the dispute is not otherwise resolved.
[3] Deiter & Deiter [2011] FamCAFC 82.
PARENTAL RESPONSIBILITY
The father seeks a further order that the parents equally share parental responsibility for the children which the mother and ICL oppose. The mother does not seek an order for parental responsibility at this interim stage.
Unless the Court makes an order changing the statutory conferral of joint parental responsibility, s 61C(1) of the Act provides that each of the parents of a child has parental responsibility for the child.
In Goode (supra), the Full Court held that there is a difference between parental responsibility, which exists as a result of s 61C, and an order for shared parental responsibility, which has the effect set out in s 65DAC. The Full Court held that, in the former, as there is no court order in effect, the parties will exercise the responsibility either independently or jointly. On the other hand, once the Court has made an order allocating parental responsibility between two or more people, including an order for an equal shared parental responsibility, the major decisions for long-term care and welfare of children must be made jointly, unless the Court otherwise provides.
Section 61DA provides that 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. The presumption does not apply if there are reasonable grounds to believe that a parent of the child (or a person who lives with a parent of the child) has engaged in abuse of the child or another child in the family or family violence. Further, when making interim orders the presumption applies unless the Court considers that it would not be appropriate.
In my view, it is not appropriate to apply the presumption at this interim stage where there are untested allegations relating to family violence. It is also not appropriate to apply the presumption having regard to the conflict-laden relationship between the parents. In these circumstances, it would not be appropriate to make any order for equal shared parental responsibility. Accordingly, at law, the parents will each continue to hold parental responsibility for the children.
CONCLUSION

Having regard to each of the best interests considerations and other matters referred to under the additional considerations, I consider it proper to make interim orders as sought by the mother confirming the father’s time under the parenting arrangement prior to the July 2021 orders. I am of the view that those orders are in the children’s best interests.
For the foregoing reasons, I make the orders set out at the forefront of these Reasons, noting that the orders relating to changeover made on 14 September 2021, and other restraints on the mother’s subsequent partner and each parent consented to by the parties on 2 July 2021, remain in place.

I certify that the preceding one hundred and fifty-seven (158) numbered paragraphs are a true copy of the Reasons for Judgment of the Honourable Justice Hannam.
Associate:
Dated: 29 October 2021

File number(s):	PAC 3161 of 2019
Judgment of:	HANNAM J
Date of judgment:	29 October 2021
Catchwords:	FAMILY LAW – CHILDREN – Interim parenting – Review of a Senior Registrar’s decision – Where the father seeks orders that the parents hold equal shared parental responsibility for the children and that his interim time with the children increase given their ages and developmental stage – Where the mother opposes the father’s application and seeks orders confirming the current parenting arrangement providing the father defined time with the children during the weekend and one week day – Where the ICL supports orders for an increase in the father’s interim time but proposes a different time regime to the father – Where at the hearing the parties agreed that the most salient risk factor to the children is their exposure to parental conflict particularly in the context of changeover events – Where the mother otherwise alleges that the children are at risk of harm in the father’s care on a number of bases but only pursued some at interim hearing – Where the father alleges that the mother has little capacity to support the children’s relationship with him – Where Court is satisfied that changeover orders made at the interim hearing mitigate risks relating to parental conflict – Where the Court is of the view that the current parenting arrangement fosters a meaningful relationship between the children and the father such that there is no need to increase children’s time with their father to promote an “optimal relationship” – Orders made confirming current parenting arrangement relating to children’s time with father as sought by the mother.
Legislation:	Federal Circuit and Family Court of Australia (Family Law) Rules 2021 r 14.07 Family Law Act 1975 (Cth) ss 60CA, 60CC, 61C, 61DA, 65DAC
Cases cited:	Deiter & Deiter [2011] FamCAFC 82 George & George [2013] FamCAFC 182 Godfrey & Sanders [2007] FamCA 102 Goode & Goode (2006) FLC 93-286 Mazorski & Albright [2007] FamCA 520 McCall & Clark (2009) FLC 93-405; (2009) 41 Fam LR 483; [2009] FamCAFC 92 SS & AH [2010] FamCAFC 13
Division:	Division 1 First Instance
Number of paragraphs:	158
Date of hearing:	14 September 2021
Place:	Sydney
Counsel for the Applicant:	Mr Samson SC
Counsel for the Respondent:	Ms Gillies SC
Solicitor for the Applicant:	Watts McCray Pty Ltd
Solicitor for the Respondent:	Williamson & Learmonth Solicitors
Solicitor for the Independent Children’s Lawyer	Ms Dodson

PAC 3161 of 2019
BETWEEN:	MS STAVROU Applicant
AND:	MR STAVROU Respondent
INDEPENDENT CHILDREN'S LAWYER Intervener

ORDER MADE BY:	HANNAM J
DATE OF ORDER:	29 OCTOBER 2021