Tabakin & Tabakin
[2021] FamCA 172
•31 March 2021
FAMILY COURT OF AUSTRALIA
Tabakin & Tabakin [2021] FamCA 172
File number(s): CAC 780 of 2016 Judgment of: MCCLELLAND DCJ Date of judgment: 31 March 2021 Catchwords: FAMILY LAW – CHILDREN – Interim parenting – Where the mother seeks orders discharging previous orders of the court for the father to be reintroduced to the children through spending supervised time through a contact centre – Where no time has occurred pursuant to those orders – Allegations of sexual abuse of the children by the father –Where the matter is listed for final hearing in seven months’ time – Orders made for the parties and children to attend a s 11F child inclusive conference – Orders made for the supervised contact time to be suspended pending further order of the court. Legislation: Family Law Act 1975 (Cth) ss 11F, 43(1)(c), 60B, 60CA, 60CC, 61DA, 65DAA
Evidence Act1995 (Cth) s 140
Cases cited: A v A (1998) FLC 92-800
B and B (1993) FLC 92-357
Banks & Banks (2015) FLC 93-637
Blinko & Blinko [2015] FamCAFC 146
Cotton & Cotton (1983) FLC 91-330
Cowling & Cowling (1998) FLC 92-801
Deiter & Deiter [2011] FamCAFC 82
Director-General, Department of Family and Community Services (NSW) v the Colt Children [2013] NSWChC 5
Finton & Kimble [2017] FCWA 106
Goode & Goode (2006) FLC 93-286
Johnson & Page (2007) FLC 93-344
Jurchenko & Foster (2014) FLC 93-598
M v M (1988) 166 CLR 69
Masson v Parsons (2019) 266 CLR 554
Mazorski v Albright (2007) 37 Fam LR 518
McCall & Clark (2009) FLC 93-405
N & S (1996) FLC 92-655
Napier & Hepburn (2006) FLC 93-303
Nikolakis & Nikolakis [2010] FamCAFC 52
R & C [1993] FamCA 62.
SS & AH [2010] FamCAFC 13
The Hon John Fogarty, ‘Unacceptable Risk – A Return to Basics’ (2006) 20 Australian Journal of Family Law 249
The Hon Richard Chisholm ‘Unacceptable Risk – A Comparison of the Family Law and Care Jurisdictions’, (Conference Paper, Children’s Court Conference, Parramatta, 1 September 2010)
Number of paragraphs: 115 Date of hearing: 23 March 2021 Place: Sydney by video web conference Counsel for the Applicant: Ms Davis Solicitor for the Applicant: Dillon-Smith Lawyers Solicitor for the Respondent: Mr Fleming of Elizabeth Fleming & Associates Lawyers Counsel for the Independent Children's Lawyer: Mr Ridge of Barker & Barker ORDERS
CAC 780 of 2016 BETWEEN: MS TABAKIN
ApplicantAND: MR TABAKIN
RespondentINDEPENDENT CHILDREN'S LAWYER
ORDER MADE BY:
MCCLELLAND DCJ
DATE OF ORDER:
31 MARCH 2021
PENDING FURTHER ORDER THE COURT ORDERS THAT:
1.Orders 5 to 15, inclusive, of the orders made on 11 November 2019 are suspended until further order of the Court.
2.Orders 1 to 4, inclusive, of the orders made on 11 November 2019 remain in effect.
3.Order 2 of the orders made on 11 November 2019 is amended by adding the words “and shall not spend time with the father without the express written consent of the mother”.
4.Pursuant to s 11F of the Family Law Act 1975 (Cth) (“the Act”), the parties and the children are to attend a meeting or a series of meetings with a Family Consultant nominated by the Child Dispute Section of the Canberra Registry on a date and time to be fixed, with the mother and children to have separate meeting times to the father.
5.Pursuant to s 11C of the Act, such meetings pursuant to Order 3 be reportable and:
(a)The parties must attend at such times, dates and places as the consultant may advise;
(b)The mother must ensure that the children the subject of these proceedings attend at the conference and all meetings as instructed by the Family Consultant and to be available to meet with the Family Consultant;
(c)The Family Consultant is requested to provide to the Court (and, if, in the Consultant’s view, it is appropriate to do so, the parties) a memorandum outlining and reporting on:
(i)Their assessment in respect to the matters set out in s 60CC of the Act including, most relevantly, the children’s attitude to the prospect of spending time with their father.
(ii)Any views or opinions expressed by the children interviewed and any comment regarding the factors perceived to influence or impact upon those views and opinions or otherwise relevant to same;
(d)Following the conclusion of the meeting/s with the Family Consultant the Family Consultant provide a Children and Parents Issues Assessment to the parties, the Independent Children’s Lawyer and the Court.
6.The Family Consultant has permission to inspect the Court file and all documents produced on subpoena once permission to inspect has been granted to a party or the Independent Children’s Lawyer (if any).
7.Noting that the parties are advised that if they fail to attend any appointment with a Family Consultant or fail to comply with any instructions the Family Consultant gives to a party, I DIRECT that the Family Consultant must report the failure to the Court and the Court can then make orders as it considers appropriate on its own initiative or on application by a party or the Independent Children’s Lawyer.
8.Following the conclusion of the meeting/s with the Family Consultant the Family Consultant provide a Memorandum concerning the views and wishes of the children in relation to spending time with the father to the parties, the Independent Children’s Lawyer and the Court.
9.The proceedings are confirmed to proceed to hearing for five (5) days commencing on 25 October 2021 at 10am in the Canberra Registry of this Court.
10.I DIRECT that within 21 days of the date of these orders, the father is to file and serve a Financial Statement and to serve with that Financial Statement the following:
(a)a copy of his taxation returns for the three (3) most recent financial years;
(b)a copy of his taxation assessments for the three (3) most recent financial years;
(c)a copy of his bank records for the period of three (3) years ending on the date of these orders;
(d)the father’s payslips for the past 12 months;
(e)If relevant if the father owns or controls a business, either as sole trader, partnership or a company—the business activity statements and the financial statements (including profit and loss statements and balance sheets) for the three (3) most recent financial years of the business.
11.I DIRECT that, by no later than 4 October 2021, each of the parties is to file and serve:
(a)A single updated consolidated trial Affidavit addressing;
(i)those matters set out in section 60CC of the Act,
(ii)any additional matters that the party considers to be relevant to the Court determining what orders are in the best interests of the child
(b)Any third party witness Affidavits that they intend to rely including attaching reports form treating doctors and or clinicians.
12.No party is to file any further material other than as provided for in these orders without leave of the Court.
13.The Independent Children’s Lawyer be granted liberty to issue such subpoenas as they deem necessary or as are reasonably requested by one or other of the parties.
14.The mother has liberty to issue up to five (5) subpoenas in respect to matters concerning the father’s financial disclosure.
15.Leave be granted to the Independent Children’s Lawyer to uplift and remove all documents produced on subpoena for the purpose of photocopying such documents, with such documents to be returned to the Registry within 48 hours of having been uplifted.
16.The practitioners for the parties are each to file and serve to each of the parties and to my associate by email, … , by no later than five (5) days prior to the hearing, a case outline document setting out the following:
(a)A concise set of orders to be sought if different from those already filed;
(b)A list of the Applications and Affidavits to be read out and if not the whole Affidavit, the relevant paragraphs relied upon;
(c)A chronology of major events of relevance of no more than three (3) pages; and
(d)A bullet-point summary of argument in relation to the issues in dispute.
17.In the event that any party becomes aware of any matter that would prevent the proceedings commencing on the first date allocated or continuing to conclusion on the last date allocated, that party is to forthwith restore the proceedings to the list on 48 hours’ notice to the Court and to each other party.
18.The parties are granted liberty to apply on apply on forty-eight (48) hours’ written notice to my Chambers and to the other parties including in respect to requesting the allocation of a date to hear any Application that may be made by a party after receipt of the s 11F child inclusive conference memorandum.
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 17.02A(b) of the Family Law Rules 2004 (Cth)), or to record a variation to the order pursuant to 17.02 Family Law Rules 2004 (Cth).
IT IS NOTED that publication of this judgment by this Court under the pseudonym Tabakin & Tabakin has been approved by the Chief Justice pursuant to s 121(9)(g) of the Family Law Act 1975 (Cth).
REASONS FOR JUDGMENT
McClelland DCJ:
INTRODUCTION
This decision concerns an Application in a Case filed 2 March 2021 by Ms Tabakin (“the mother”) for parenting orders in respect to the children, X born in 2008 and Y born in 2012 (collectively, “the children”). By way of summary, the mother effectively seeks to discharge and replace the orders made on 11 November 2019. Those orders provide for the mother to have sole parental responsibility for the children, save for a consultation process with Mr Tabakin (“the father”), and for the father to spend supervised time with the children. In place of those orders, the mother proposes that orders to be made for the mother to have sole parental responsibility for the children, with no caveats, and for the father to spend no time with the children “without the express written consent of the Mother”. The father opposes the mother’s Application and seeks that the current interim orders remain in place pending final determination of the matter. The matter is currently listed for final hearing in October of this year.
RELEVANT BACKGROUND AND FACTUAL CONTENTIONS
The mother is currently 37 years of age. The father is currently 36 years of age.
The mother became blind at the age of 17 years.
The parties met during the course of their TAFE studies, in approximately 2001, and commenced cohabitation in approximately 2003 and married approximately one (1) year later.
The parties were in a relationship for approximately 11 years, and married for a period of nine years, prior to separating in 2014. Following separation, they came to an arrangement whereby the children remained primarily in the mother’s care and spent time with the father as agreed between the parties.
Both parties allege that there were instances of physical violence between them during the course of their relationship. However, it is not possible, in these interim proceedings, to make a determination in respect to those respective allegations.
The father contends that he has autism spectrum disorder however, to date, no evidence has been provided to the Court by an appropriately qualified expert to confirm that is the case.
The parties’ oldest daughter X has some learning difficulties and has been diagnosed with autism.
In late 2015, the mother ceased the children spending time with the father following alleged disclosures made by Y that the father had sexually abused her. The father was subsequently charged with indecent assault of a child and possession of child sexual abuse material, though neither charges resulted in a conviction, with the latter being withdrawn before it could proceed to criminal prosecution.
The father has previously been charged with breaching, on three (3) occasions, an Apprehended Domestic Violence Order protecting the mother and the children. In these interim proceedings, the Court is without sufficient information to enable a determination to be made regarding the circumstances in which that conduct occurred.
The parties have been involved in protracted litigation for a period of five (5) years since these proceedings were commenced by an Initiating Application filed by the mother on 18 May 2016. There have been a number of orders made by this Court over the course of the litigation, including with respect to the interim parenting arrangements for the children.
On 9 September 2016, Gill J made orders that the mother have sole parental responsibility for the children and that the father spend supervised time with the children at the mother’s discretion. Those orders were subsequently discharged by consent orders made on 19 March 2018, which provided that the children spend one (1) Saturday each month with the father supervised by the B Centre in C Region (“B Centre C Region”). In 2018, the father spent supervised time with the children on two (2) occasions prior to B Centre C Region advising him that they were unable to continue to facilitate supervised time.
At paragraph 6 of his Affidavit filed 15 March 2021, the father refers to recommendations of Dr D, clinical and forensic psychologist, in her Report dated 12 October 2017, filed with the Court on 26 October 2017, in which he summarises her recommendations as recommending that “it would be beneficial for the children to have regular contact [with the father] and saw no reason to suspect [the father] presented a danger to the children, beyond advising the children not stay overnight”.
That evidence from the father is not, with respect, entirely accurate. At paragraph 249 of her Report, after referring to the application of various criteria, Dr D stated:
In sum, taking into account the aforementioned risk and protective factors, it is my assessment that [the father] is a Low risk of general sexual recidivism but his risk of sexual abuse to a child with whom he has a close and ongoing relationship is likely to be higher, assessed as being in the Moderate range. This risk may equally apply to both male and female children and I do not consider it likely that a stranger or an adult would be at any substantial risk from [the father]. The risk in terms of future behaviour could include both offences that are contact in nature in a “hands on” fashion against a child but also that which is non-contact and based in technology.
At paragraph 250 of her Report, Dr D further stated:
… I have assessed that, on the assumption that what Y disclosed is true and was constitutive of sexual abuse, that [the father] is considered to be a Moderate risk of further sexual abuse with a child he knows and has a relationship with but a Low risk in a more general sense, including with adults or children that are unknown to him. I also consider Y to be quite vulnerable given the history and her apparent desire to please her father and win his approval, in addition to X's claims that Y is afraid that her father is upset with her.
Having regard to the assessment of those issues of risk, Dr D recommended, at paragraph 251 of her Report, the following:
… That the children have access to supervised contact with their father every second weekend during the day time on a Saturday and Sunday. Ideally, this contact could be supervised by members of [the father’s] family however, it is my understanding that none of them believe that [the father] could have sexually abused his children and therefore, I have concerns about the appropriateness of these people supervising contact at this time
On 11 November 2019, this matter came before me for final hearing, however, by consent of the parties, I made the following orders on an interim basis (“the 11 November 2019 consent orders”):
1.That all previous orders are discharged.
2.That the children X (born in 2008) and Y (born in 2012) (“the Children”) live with the Mother.
3.That subject to Order 4, the Mother have sole parental responsibility for the care, welfare and development of the Children.
4.That prior to making any decision relating to the long term care, welfare and development of the Children, except in circumstances of emergency, the following shall apply:
(a)Not less than 21 days prior to making a decision, the Mother shall notify the Father of the decision that needs to be made and her proposal;
(b)If the Father has an alternative view of the proposal, he will provide it to the Mother in writing within 14 days of her notifying him of the proposed decision;
(c)The Mother will give due consideration to the Father’s views and proposal prior to making her decision; and
(d)The Mother shall confirm to the Father in writing the decision she has made.
5.That subject to his compliance with Orders 6-8 below, the Father will spend supervised time with the Children at the B Centre in H Town (or such other supervised contact centre as agreed between the parents in writing) for a period of 2 hours on each alternative weekend, or such period and frequency as is able to be facilitated by the Centre.
6.That the Father will forthwith engage with psychologist Ms F, noting the first appointment is set for 1.30pm on 15 November 2019.
7.That the Father’s treating psychologist, Ms F, is to be provided with:
(a)the Report of Dr D dated 12 October 2017;
(b)the three contact reports of the B Centre H Town dated 19 May 2018; 30 June 2018 and 28 July 2018; and
(c)the letter to the Father from B Centre dated 1 September 2018.
8.That within 3 months of the date of these Orders, the Father shall request that Ms F provide to him, to be forwarded to all parties, a report that confirms:
(a)His regular attendance in accordance with her direction;
(b)His commitment to the therapeutic process; and
(c)His engagement with the therapeutic process.
And it is noted that time in accordance with Order 5 is to commence following the circulation of the report.
9.That within three months of the date of these Orders, the Father will enrol in and attend upon the first available circle of security parenting course.
10.That once time has been occurring for 9 months, the parties will request Dr D to review arrangements for the Children and provide recommendations as to future progress of time.
11.That in the event that time is cancelled or suspended by the Contact Centre in Order 5, the Father has liberty to apply to the Court for Orders.
12.That in the event that time is not cancelled or suspended by the Contact Centre in Order 5, and the Mother believes that time should have been suspended or cancelled, the Mother has liberty to apply to the Court.
13.That the Father is at liberty to send the Children letters cards and gifts through the Mother’s solicitor or such other address as nominated by the Mother.
14.Nothing in these Orders prohibits the Father from bringing small gifts for the Children to the supervised time, subject to the policies of the supervision Centre.
15.That upon receipt of the report of Dr D set out in Order 10, or upon the expiration of 11 months from the date of these Orders, the parties will attend a Family Dispute Resolution Conference to attempt to resolve the ongoing time between the Children and the Father.
16.That the matter be otherwise adjourned to a date in about 15 months’ time.
It is not disputed that the father has not spent any supervised time with the children pursuant to the 11 November 2019 consent orders. Both parties attest that the total time that the father has spent with the children, inclusive of the time spent during the family report interviews being observed by the single expert, Dr D, on 14 September 2017, amounts to four and a half (4.5) hours since late 2015, when the mother ceased the children’s contact with the father.
On 13 November 2019, the Independent Children’s Lawyer communicated by way of telephone with B Centre H Town and subsequently summarised the substance of his conversation in an email to the parties which read as follows:
I have spoken with Ms L from B Centre H Town. She indicates that service is prepared to take on this family again. I discussed with Ms L the likely benefit of B Centre and the father having conversation prior to supervised time commencing to assist both parties to understand issues in the matter. In particular I expressed of a thought that there would be a benefit in B Centre and the father have a common understanding of how his interaction with the children might be managed in circumstances where he may be concerned that he will be criticised if he seeks to manage behaviour by the children. Ms L indicated a willingness to have such a discussion. She also thought it would be useful for B Centre to speak with the children's counsellor which I supported. I will leave it to both of you to get arrangements happening in relation to supervision.
(Emphasis added)
The father contends that he has experienced difficulty in spending time with the children through the B Centre in H Town (“B Centre H Town”) due to the bushfires that occurred over the October 2019 to February 2020 period and, subsequently, due to the impact of restricted operation and shut down of the B Centre H Town resulting from measures associated with the COVID-19 pandemic.
Comparatively, the mother contends that the father is being disingenuous in advancing reasons for failing to take steps to re-establish arrangements for the children to spend time with him at B Centre H Town. The mother contends that the father was in a position to make arrangements for that to occur, prior to the impact of the COVID-19 pandemic in or about March 2020. The mother further contends that, despite asserting that he has been informed that B Centre H Town was closed during a significant part of 2020, there is no evidence that he actually made an enquiry himself. The mother further contends that the father is being disingenuous in expressing difficulties regarding establishing arrangements for the children to spend time with him at the B Centre in Canberra (“B Centre Canberra”). The mother states, in that respect, that the efforts to establish such arrangements at B Centre Canberra to which the father refers occurred prior to the last hearing date, and not in the period subsequent to the 11 November 2019 consent orders.
The mother acknowledges that, since the 11 November 2019 consent orders, the father has complied with Orders 6 through to 8 by engaging with psychologist Ms F. Ms F has provided a Report dated 27 January 2020 which reads:
Dear Colleagues,
Thank you for your referral of [the father] for psychological intervention in regard to suitability to have contact with his children. [The father] has engaged proactively with each session and the requested activities. To date, [the father] has attended four sessions on 15 and 27 November, 11 December 2019 and 22 January 2020.
During our sessions, [the father] has engaged well in discussions about boundary setting, emotional availability and engagement. He has critically analysed examples of a number of parenting styles and shown insight and understanding of motivations and needs of both parents and children. [The father] has discussed his own values in terms of parenting his children and was able to find new methods by which to express those with his children in an artificial environment.
Open and frank discussion regarding the previous contact visits demonstrated that [the father] is responsive to feedback and, along with newer strategies, more comfortable in seeking assistance in the supervised environment. [The father] noted that his previous behaviours were understandably outside of his ordinary functioning as there had been a significant amount of time since seeing the children and he was wary of re-establishing rapport. He now has a greater comprehension of the standards set by the supervisors and is more prepared to redirect the children and monitor his language.
In order to support [the father’s] re-engagement with his daughters, a plan has been agreed by him that our next session will be after the first of his fortnightly contact visits. A second session will occur after another two contact visits have occurred and further sessions will be considered dependent upon progress.
I am supportive of [the father] recommencing fortnightly contact with his children as specified in the Orders of 11 November 2019. Some initial monitoring will occur and it is requested that the B Centre contact reports are made available to myself and [the father] as soon as possible (by email) following contact in order to facilitate discussion during session.
At paragraph 17 of his Affidavit filed 15 March 2021, that father states that:
Since the court appearance on 15 February 2021, I have contacted B Centre Canberra to resume supervised contact and I am currently undergoing intake at B Centre H Town who have since I have confirmed that they are now willing to supervise the time I spend with my children.
It was not contended that, in the period subsequent to 11 November 2019, the father has made an earlier request of that or any other contact centre to supervise the children’s time with him
APPLICATIONS
Orders sought by the mother
The mother seeks orders be made in accordance with her Application in a Case filed 2 March 2021, as follows:
1.That the Mother have sole Parental Responsibility for the Children X born in 2008 and Y born in 2012.
2.The Father shall not spend time with the children without the express written consent of the Mother.
Orders sought by the father
The father seeks orders be made in accordance with his Response to an Application in a Case filed 15 March 2021, as follows:
1. That the mother’s application in a case filed 2 March 2021 is dismissed.
2. The orders of 11 November 2019 continue.
Orders sought by the Independent Children’s Lawyer
In circumstances where this matter was brought on quite urgently, the Independent Children’s Lawyer has not proposed any specific orders.
EVIDENCE
The mother relied on the following documents:
(a)Application in a Case filed by the mother on 2 March 2021 and sealed 3 March 2021;
(b)Affidavit of the mother filed 2 March 2021;
(c)Affidavit in reply of the mother filed 19 March 2021; and
(d)Affidavit of Ms G filed 19 March 2021.
The father relied on the following documents:
(a)Response to an Application in a Case filed 15 March 2021;
(b)Affidavit of the father filed 15 March 2021; and
(c)Affidavit of the paternal grandmother filed 15 March 2021.
THE LAW – CONCEPTS AND PRINCIPLES
The decision of the Full Court in Goode & Goode (2006) FLC 93-286 usefully sets out the approach which should be taken in considering an application for relocation orders on an interim basis. Under the subheading “How should interim proceedings be conducted?”, the Full Court, at [81]–[82], said:
81.In making interim decisions the Court will still often be faced with conflicting facts, little helpful evidence and disputes between the parents as to what constitutes the best interests of the child. However, the legislative pathway must be followed.
82.In an interim case that would involve the following:
(a)identifying the competing proposals of the parties;
(b)identifying the issues in dispute in the interim hearing;
(c)identifying any agreed or uncontested relevant facts;
(d)considering the matters in s 60CC that are relevant and, if possible, making findings about them (in interim proceedings there may be little uncontested evidence to enable more than a limited consideration of these matters to take place);
(e)deciding whether the presumption in s 61DA that equal shared parental responsibility is in the best interests of the child applies or does not apply because there are reasonable grounds to believe there has been abuse of the child or family violence or, in an interim matter, the Court does not consider it appropriate to apply the presumption;
(f)if the presumption does apply, deciding whether it is rebutted because application of it would not be in the child’s best interests;
(g)if the presumption applies and is not rebutted, considering making an order that the child spend equal time with the parents unless it is contrary to the child’s best interests as a result of consideration of one or more of the matters in s 60CC, or impracticable;
(h)if equal time is found not to be in the child’s best interests, considering making an order that the child spend substantial and significant time as defined in s 65DAA(3) with the parents, unless contrary to the child’s best interests as a result of consideration of one or more of the matters in s 60CC, or impracticable;
(i)if neither equal time nor substantial and significant time is considered to be in the best interests of the child, then making such orders in the discretion of the Court that are in the best interests of the child, as a result of consideration of one or more of the matters in s 60CC;
(j)if the presumption is not applied or is rebutted, then making such order as is in the best interests of the child, as a result of consideration of one or more of the matters in s 60CC; and
(k)even then the Court may need to consider equal time or substantial and significant time, especially if one of the parties has sought it or, even if neither has sought it, if the Court considers after affording procedural fairness to the parties it to be in the best interests of the child.
In Cowling & Cowling (1998) FLC 92-801 (“Cowling”) at [18], the Full Court said:
The issue for determination at an interim hearing involves a consideration of what orders should be made to properly regulate the position of the children pending the final determination of the matter. Such proceedings are an abridged process where the scope of the inquiry is necessarily significantly curtailed. As a consequence, the Court needs to exercise considerable caution against being drawn into matters properly dealt with in the trial process. Ordinarily, at interim hearings, the Court should not be drawn into issues of fact or matters relating to the merits of the substantive cases of each of the parties.
Part VII of the Family Law Act 1975 (Cth) (“the Act”) sets out the relevant statutory provisions applicable to proceedings in relation to children. Section 60B(1) of the Act sets out the objects and principles of Pt VII. These are to ensure that the best interests of children are met by:
(a)ensuring that children have the benefit of both of their parents having a meaningful involvement in their lives, to the maximum extent consistent with the best interests of the child; and
(b)protecting children from physical or psychological harm from being subjected to, or exposed to, abuse, neglect or family violence; and
(c)ensuring that children receive adequate and proper parenting to help them achieve their full potential; and
(d)ensuring that parents fulfil their duties, and meet their responsibilities, concerning the care, welfare and development of their children.
Significantly, in Masson v Parsons (2019) 266 CLR 554 at [8], in their joint judgment, their Honours Kiefel CJ, Bell, Gageler, Keane, Nettle, and Gordon JJ gave emphasis to the fact that:
Subdivision B of Div 1 of Pt VII [of the Act], which is headed “[o]bject, principles and outline”, provides, inter alia, in s 60B(1) that the objects of Pt VII include “ensuring that children have the benefit of both of their parents having a meaningful involvement in their lives, to the maximum extent consistent with the best interests of the child”.
(Emphasis in original)
More generally, the Act makes clear that, in exercising its jurisdiction, the Court has a responsibility to “protect the rights of children and to promote their welfare” (Emphasis added): see s 43(1)(c) of the Act . Those rights include:
·The right “to know and be cared for by both their parents”: see s 60B(2)(a) of the Act;
·The right “to spend time on a regular basis with, and communicate on a regular basis with, both their parents and other people significant to their care, welfare and development (such as grandparents and other relatives)”: see s 60B(2)(b) of the Act; and
·The right to “maintain personal relations and direct contact with both parents on a regular basis”: see s 60CC(3)(e) of the Act.
Those rights referred to in s 60B(2)(a) are, however, subject to orders providing for a child to spend time with a parent being “consistent with the best interests of the child” (s 60B(1)(a)) and consistent also with the court’s obligation to protect children from physical or psychological harm (s 60B(1)(b)).
Also of relevance to these proceedings is the object set out in section s 60B(1)(d) of the Act, which is “ensuring that parents fulfil their duties, and meet their responsibilities, concerning the care, welfare and development of their children”.
CONSIDERATION
Competing proposals of the parties
I have earlier set out the parties’ competing Applications in this matter.
In addition to the parties’ respective interim Applications, in circumstances where this matter has been listed for hearing for five (5) days commencing on 25 October 2021, it is necessary for the Court to consider what trial directions are necessary for the progression of the matter.
Parties’ contentions and agreed or objectively verifiable facts
These are set out under the subheading “Relevant background and factual contentions”, set out above.
Presumption of equal shared parental responsibility
Section 61DA of the Act relevantly provides:
(1)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.
(2)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:
(a)abuse of the child or another child who, at the time, was a member of the parent's family (or that other person's family); or
(b)family violence.
(3)When the court is making an interim order, the presumption applies unless the court considers that it would not be appropriate in the circumstances for the presumption to be applied when making that order.
(4)The presumption may be rebutted by evidence that satisfies the court that it would not be in the best interests of the child for the child's parents to have equal shared parental responsibility for the child.
In these interim proceedings, it is not possible to make findings of fact in respect to the contentions of the parties, including most significantly whether the father sexually assaulted the parties’ youngest daughter which, if found, would displace the presumption that an order for equal shared parental responsibility should be made.
However, the parties, by consent, agreed to the 11 November 2019 consent orders giving the mother sole parental responsibility, save to the extent that she is required to consult with the father before making major long-term decisions in respect to the children.
The mother contends that the order obliging her to consult with the father should be discharged on the basis that the father has not engaged cooperatively with the mother in respect to the decisions that she has made and, rather, he has been more focused upon the potential financial consequences of any such decisions which she makes. The difficulty that I have in respect to this issue is, however, that the asserted difficulties in communication with the father have not been addressed in the Affidavits filed by the mother in these proceedings. Accordingly, on the basis of material presented to me, in these interim proceedings, I am not persuaded that there is a need to revisit orders 3 and 4 of the 11 November 2009 consent orders. The mother is not, however, precluded from adducing such evidence at the final hearing.
As an order has previously been made for the mother to have sole parental responsibility, the pathway set out in s 65DAA of the Act for the determination as to whether the children should spend equal or substantial and significant time with a parent does not apply. The Court is, therefore, at large in making orders that it considers to be in the best interests of the children in the context of the issues raised in these interim proceedings.
Determining what is in the best interests of the child
Section 60CA of the Act provides that, in deciding whether to make a particular parenting order in relation to the children, the Court must regard the best interests of the children as the paramount consideration. This is also confirmed in s 65DAA of the Act.
Section 60CC of the Act sets out the list of matters that the Court must consider in determining what is in the children’s best interests. The primary considerations set out in s 60CC(2) of the Act are, as follows:
(a)the benefit to the child of having a meaningful relationship with both of the child’s parents; and
(b)the need to protect the child from physical or psychological harm from being subjected to, or exposed to, abuse, neglect or family violence.
In balancing these considerations, s 60CC(2A) of the Act requires the Court to give greater weight to the need to protect the child from physical or psychological harm from being subjected to, or exposed to, abuse, neglect or family violence: se s 60CC(2)(b) of the Act.
In Banks & Banks (2015) FLC 93-637 at 80,116, [48] –[50], the Full Court outlined a practical approach to applying the considerations set out in s 60CC of the Act, in interim proceedings, in the following terms:
48.It should also be said that in parenting proceedings as in all civil litigation, it will be the issues that are joined that will dictate which s 60CC factors are relevant. By their nature, interim proceedings should be confined to those issues which, in the best interests of the children, require determination prior to a proper determination at trial…
49.… there is a risk that in discussing every s 60CC factor, the judicial officer may lose sight of the forest for the trees. It is also important to stress here that the requirement to “consider” each factor does not mean each must be discussed, especially where the evidence leads inexorably to a particular conclusion: SCVG & KLD (2014) FLC 93-582.
50.When it is obvious that the findings made as to some of the s 60CC factors will be determinative of the child’s best interests on an interim basis, it is a sterile and unnecessary exercise to address other factors. Moreover, it will be a sterile exercise to determine whether or not particular facts are disputed if they are relevant only to one of the non-determinative s 60CC considerations. Properly understood, we do not interpret what was said in Goode as meaning that in an interim case, each and every fact must be characterised as disputed or not; and that each s 60CC factor must be traversed where it is obvious on the facts and issues joined that there are only one or two decisive factors.
In this matter, the two most significant issues are balancing the two primary considerations of the children having a meaningful relationship with both parents as against the potential risks to the children. An additional consideration is the issue of change in arrangements for the children in circumstances where, according to the mother’s evidence, they have weathered quite a difficult period and now appear to be much more settled in their academic, family and social life.
Meaningful relationship
Section 60CC(2)(a) of the Act requires me to consider the “the benefit of the child having a meaningful relationship” with each of the parties. On the other hand, I must consider the issue of the risk associated with the children possibly being subject to physical or psychological harm, neglect or abuse in the care of either of the parties.
In considering that first matter, I note that, in McCall & Clark (2009) FLC 93-405 (“McCall & Clark”) at 83,476, [122], the Full Court said:
…No doubt in the majority of cases, there will be a positive benefit for the child 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 pass orders to foster a relationship with one parent, if it would not be in the best interests.
In McCall & Clark, the Full Court accepted that an appropriate interpretation of the concept of “meaningful relationship” was provided by Brown J in Mazorski v Albright (2007) 37 Fam LR 518 at [26], where His Honour said:
What these definitions convey is that “meaningful”, when used in the context of “meaningful relationship”, is synonymous with “significant” which, in turn, is generally used as a synonym for “important” or “of consequence”. I proceed on the basis that when considering the primary considerations and the application of the object and principles, a meaningful relationship or a meaningful involvement is one which is important, significant and valuable to the child. It is a qualitative adjective, not a strictly quantitive one. Quantitive concepts may be addressed as part of the process of considering the consequences of the application of the presumption of equally shared parental responsibility and the requirement for time with children to be, where possible and in their best interests, substantial and significant.
Further, in Finton & Kimble [2017] FCWA 106 at [37], Walters J said:
The Court is required to consider, as one of a large number of factors, the benefit to the child of having such a meaningful relationship.
In that decision, his Honour referred to several other authorities, including the Full Court decision in Jurchenko & Foster (2014) FLC 93-598 at 79,420, where the Court noted that:
… having a “meaningful relationship” with both parents is but one part of a set of arrangements that makes up a care arrangement. All parts of the arrangement must be considered before deciding what outcome is in the child’s best interests.
Similarly, in Cotton & Cotton (1983) FLC 91-330 at 78,252, Nygh J qualified the desirability of a child maintaining a meaningful relationship with both parents in the following terms:
And that desirability only operates when there is a chance of a meaningful relationship, which is beneficial to the child. It is not, in other words, a question of contact for contact sake. If there is a situation where contact with a parent is, on balance, likely to cause more harm to the child than good, or even is not likely to confer any benefit, then little purpose is served by this Court making orders for such contact. That does not detract from the desirability of the child having a meaningful relationship, but the possibility of a meaningful relationship must first exist.
It is generally accepted that, unless proven otherwise, it is in the best interests of the child to have a meaningful relationship with both of their parents. The evidence presented in these interim proceedings does not, however, enable the Court to make a determination as to whether that is the case in the current circumstances. That determination will, in part, be influenced by findings as to whether the father has sexually assaulted the parties’ youngest child. It will also be influenced by the Courts assessment as to the genuineness of the father’s desire to have a meaningful relationship with children and his commitment to do so.
In that respect, the Court notes, with concern, the fact that the father did not contact B Centre H Town until after this matter was listed for mention and report back, pursuant to the 11 November 2019 consent orders, on 15 February 2021. In respect to that issue, the Court notes the statement by counsel for the father that, after that report back on 15 February 2021, he “made sure it was clear to the father that – what needed to happen in that matter, basically”. The reference to the matter was in response to a question which I had asked “when did the father contact B Centre?” (Transcript 23 March 2021, p.12 line 41 to p.13 line 8).
I respectfully agree with the submission by counsel for the mother that the father’s assertion that he has autism spectrum disorder does not explain his inaction in attempting to arrange for the children to spend supervised time with him.
The father’s evidence, taken at its highest, is that, while he has not taken steps, prior to February 2021, to apply to undertake an intake assessment with a contact centre to supervise the children’s time with him, he did attend visits with Ms F as referred to her in her Report and he did undertake a Circle of Security parenting program (see paragraphs 10 and 11 of the father’s Affidavit filed 15 March 2021).
Nevertheless, despite that evidence, I respectfully agree with the submission by the Independent Children’s Lawyer that:
…on any reading, the father has failed to take advantage of the opportunities that have been presented to him through the course of the litigation, and at time he has done nothing, and at other times, he has done the bare minimum, and has done it in a way that properly characterised as being responsive to the litigation.
(Transcript 23 March 2021, p.17 line 45 to p.18 lines 2)
In summary, the lack of diligence on the part of the father in attempting to set in place arrangements whereby the children would spend supervised time with him raises a significant issue, which will have to be addressed at final hearing, as to whether the father genuinely wishes to set in place arrangements whereby the children regularly spend time with him and, if so, what will be his response if such orders are made. In particular, in that respect, the Court would have real concern about making orders for the children to spend time with the father unless satisfied that the father was genuinely committed to that occurring.
Unacceptable risk
In interim proceedings, it is difficult to identify an unacceptable risk and determine whether reasonable safeguards could mitigate against that risk. In Cowling at 85,006, [18], the Full Court said, in respect to interim proceedings:
… Such proceedings are an abridged process where the scope of the inquiry is necessarily significantly curtailed. As a consequence, the Court needs to exercise considerable caution against being drawn into matters properly dealt with in the trial process. Ordinarily, at interim hearings, the Court should not be drawn into issues of fact or matters relating to the merits of the substantive cases of each of the parties.
Despite the Court’s limited ability to make findings in respect of controversial facts in interim proceedings, the Court is not relieved of that responsibility. In that respect, in SS & AH [2010] FamCAFC 13 (“SS & AH”) at [100], the majority of the Full Court (Boland and Thackray JJ) said:
… 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.
It is to be observed that the reference in SS & AH to “probabilities” does not mean that the Court must find the probable existence of an unacceptable risk of harm before implementing measures to protect a child from that risk. It is clear that, in assessing whether there is a risk that something may happen, “possibilities” are a legitimate basis for finding that there is such a risk, as long as there is a proper basis for those “possibilities”.
The task of the court determining whether an unacceptable risk, in terms of s 60CC(2)(b) of the Act, exists is assisted by having regard to the following principles:
·In devising tests to determine whether unacceptable risk exists, the Courts have endeavoured, in their efforts to protect the child’s paramount interests, to achieve a balance between the risk of detriment to the child from abuse and the possibility of benefit to the child from parental access: see M v M (1988) 166 CLR 69 (“M v M”) at 78; B and B (1993) FLC 92-357 at 79,778.
·It is now well established that “unacceptable risk” does not arise solely in respect of allegations of physical or sexual abuse. The “test” of “unacceptable risk” also requires assessments of risk of future physical and emotional harm: see A v A (1998) FLC 92-800 at 84,996; M v M at 77.
·Such an unacceptable risk can include any or all matters that compromise the safety, welfare and well-being of a child, and is examined in light of an accumulation of factors proved: see Director-General, Department of Family and Community Services (NSW) v the Colt Children [2013] NSWChC 5 at [146]–[148].
·Determining the issue of risk essentially involves applying a risk matrix whereby it is necessary to assess the potential seriousness of the harm in the context of the probability of its occurrence: see Deiter & Deiter [2011] FamCAFC 82 at [61]. That is, there is an obligation on a trial judge to evaluate, not only the extent, magnitude and nature of the harm that might befall the child if there is a future act of abuse or harmful conduct, but also to evaluate the prospect or probability of such an act or conduct occurring that would cause such harm to the child: see N & S (1996) FLC 92-655 at 82,713 (per Fogarty J), cited with approval in Napier & Hepburn (2006) FLC 93-303 and in Nikolakis & Nikolakis [2010] FamCAFC 52 at [95]–[96].
·The components which lead to a conclusion that an unacceptable risk exists need not each be established on the balance of probabilities. The Court may reach a conclusion of “unacceptable risk” from the accumulation of factors, none or some only of which are proved to that standard: see Johnson & Page (2007) FLC 93-344 at 81,890–81,891, endorsing and applying the principles set out in a paper prepared by the Hon John Fogarty, ‘Unacceptable Risk – A Return to Basics’ (2006) 20 Australian Journal of Family Law 249.
·While each factor establishing risk need not be proved to the standard of s 140 of the Evidence Act1995 (Cth), insofar as determining whether an unacceptable risk exists involves a prediction of the future, based on findings of fact, “the confidence one will have in the prediction will be, in part, a reflection of the confidence one has in the factual findings that base the prediction”: see the Hon Richard Chisholm ‘Unacceptable Risk – A Comparison of the Family Law and Care Jurisdictions’, (Conference Paper, Children’s Court Conference, Parramatta, 1 September 2010).
·Having identified the existence of an unacceptable risk, it is then necessary for the Court to assess whether that risk “is able to be sufficiently managed or ameliorated”: see Blinko & Blinko [2015] FamCAFC 146 at [83], referring to Russell & Close [1993] FamCA 62.
The issues of risk alleged by the mother, that the Court is required to consider in these proceedings, are set out in paragraphs 32 through to 39 of the mother’s Affidavit filed 2 March 2021, as follows:
32. I say that if the Father were allowed to begin to spend time with the children now it would completely destabilise the gains, they have both made in this period. I say this is because this time since the orders has been a time for the children which has been free from the anxiety and stress around seeing the father.
33. The Father has spent only around 4.5 hours with the children in the last 5 years. He had two supervised visits at B Centre and then there was the time he saw them during the interview with Dr D.
34. X has actually requested she be allowed to stop using the name Tabakin and use her middle name as her last name.
35. Neither child mentions the Father except that Y will talk about him when she is frightened that she may run into him. This is when we may be going into J Town where the Father lives.
36. Y has been upset when she has seen the Father accidently when we have been in J Town. She gets very distressed and I will have to calm her down.
37. This has only happened on a few occasions. She once said she saw him at the traffic lights when we were in J Town and she became so upset we had to stop the car so I could calm her.
As previously noted, I am not, in these interim proceedings, in a position to make findings of fact and, specifically, whether, and, if so, to what extent, the children would be emotionally and/or psychologically harmed by orders providing that they now commence to see their father on a regular fortnightly basis in a supervised setting. Nevertheless, the fact that I am not able to make that finding does not, as I have indicated, by reference to relevant authorities, relieve me from the obligation of considering the issue.
In considering the issue of risk, I accept that the mother’s evidence, while untested, is nonetheless plausible. I further note the reference in Dr D’s Report, at page 64, to the mother presenting as a “balanced, sensitive and reasonable woman”. In those circumstances, I respectfully agree with the submissions of the Independent Children’s Lawyer, that to leave in place the 11 November 2019 consent orders requiring the mother to facilitate the children spending two (2) hours per fortnight with the father, even in a supervised setting, “has an element of being an experiment with the children rather than being a course that is being taken with confidence that it is in their best interests to do so” (Transcript 23 March 2021, p.21 lines 6–8).
In those circumstances, and in light of plausible concerns expressed by the mother regarding risks associated for the children in commencing to spend time with the father, I am satisfied that there is a real possibility of the children suffering emotional and/or psychological harm if Order 5, of the 11 November 2019 consent orders, remained in place, unless and until there is evidence before the Court indicating that such risk to the children does not present as an unacceptable risk and/or that measures can be taken to mitigate against that risk.
An additional element of risk in this matter is that the mother contends her emotional and psychological well-being would be so impacted by orders providing for the children to spend time with the father that it would adversely impact upon her parenting capacity. In that respect, at paragraph 39 of her Affidavit filed 2 March 2021, the mother states:
I say as in the past the Father has failed to take the opportunities available to him to spend time with the children for over a year. The children have moved on and are doing well. The thought of me having to facilitate time with the children and the father and then to manage any of their subsequent behaviours causes me a great deal of anxiety.
The mother’s evidence in that respect is consistent with the report she previously provided to Dr D which was noted in her Report, at paragraph 53, as follows:
53. [The mother] described herself as someone who can tend to anxiety in situations that are novel and unfamiliar, which is understandable given her blindness. This anxiety has been exacerbated in recent years following Y’s disclosure of alleged abuse at the hands of her father. Further to this, [the mother] stated that she worries more than the average mother about her children because she cannot see them and feels a need to know they are safe. [The mother] noted that her anxiety is primarily cognitive in nature but she will also experience a ‘knot’ in her stomach at times. [The mother] added that she will use ‘self-talk’ to calm herself and rationalise her thinking.
The evidence presented in these proceedings is not, however, such that I am in a position to infer that the mother’s parenting capacity would be adversely impacted by orders providing for the children to spend time with the father. Clearly, in making that assessment, the Court would be assisted by any report or reports from the mother’s treating clinicians addressing that issue.
Nonetheless, for reasons which I have set out above, I am satisfied that, as a result of the existence of a real possibility of the children suffering emotional and/or psychological harm in now commencing to spend time with their father, I propose making an order to suspend Order 5 of the 11 November 2019 consent orders and, as I will explain, other related and redundant orders.
Additional considerations
Section 60CC(3) of the Act sets out additional considerations in determining what is in the children’s best interests. To the extent that it is possible, in these interim proceedings, those are addressed immediately below.
Sub-section (3)(a) – any views expressed by the child and any factors (such as the child’s maturity or level of understanding) that the Court thinks are relevant to the weight it should give to the child’s views
In her Affidavit filed 2 March 2020, the mother has provided evidence that the children do not wish to spend time with their father. That issue has not been further explored since the October 2017 Report of Dr D.
In those circumstances, I propose making orders for the children to attend upon a family consultant for the purpose of the family consultant preparing a child inclusive memorandum in accordance with s 11F of the Act.
To avoid doubt, the family consultant will be requested to prepare that memorandum on the basis of separate interviews with the mother and the father and also separate interviews with the children and, specifically, not with the children in the presence of the father.
Sub-section (3)(b) – the nature of the relationship of the child with each of the child’s parents and other persons, including any grandparent or other relative of the child
As previously noted, the children have only spent four and a half (4.5) hours with their father in the past five (5) years.
The children have, however, spent time with members of the extended paternal family and they have also spent time with their paternal grandparents and great-grandparents.
While evidence was presented from the paternal grandmother, by way of an Affidavit filed in these proceedings, that the mother has been less than diligent in facilitating the time that the children spend with the paternal grandparents, I am satisfied, on the evidence presented, that the mother has acted responsibly in facilitating the children spending time with both their paternal grandparents and their paternal great-grandparents. The mother’s evidence in that respect is set out at paragraphs 15 through to 21 of her Affidavit filed 2 March 2021.
Having regard to that evidence, I again respectfully agree with the submission of the Independent Children’s Lawyer which was as follows:
…what we do have is a set of circumstances where, for some significant period of time, the mother has allowed the children to pursue a relationship with their paternal great-grandparents, and at least their paternal grandmother, I think – but the extended paternal family. The mother did not have to do that, but has done it such that it suggests to me she is alert to and aware of the significance of extended family in the lives of the children. And she has done against what could clearly be seen to be her natural instincts to avoid – avoid the paternal family entirely so as, were she seeking to do so, to exclude any possibility of the children exploring a relationship with the father.
(Transcript 23 March 2021, p.17 lines 29–37)
Sub-section (3)(c) – the extent to which each of the child’s parents has taken, or failed to take, the opportunity, to participate in making decisions about major long-term issues in relation to the child, to spend time with the child, and to communicate with the child
As previously noted, other than for a period of approximately four and a half (4.5) hours, the children have not spent time with the father the last five (5) years.
The father contends that he nevertheless desires to do so. I have earlier expressed real concern regarding the father’s lack of diligence in taking steps to arrange for the children to spend time with him in the period since the 11 November 2019 consent orders.
As raised on several occasions during the course of this interim hearing, the Court is very concerned about the prospect of the continuation of this protracted litigation if it is the case that the father does not genuinely press for orders that the children spend regular time with him.
As noted, I am not in a position to make such a finding of fact in these interim proceedings however, it is nonetheless an issue that will inevitably be further explored at final hearing.
Sub-section (3)(ca) – the extent to which each of the child’s parents has fulfilled, or failed to fulfil, the parent’s obligations to maintain the child
This issue is one of considerable concern to the Court. The mother, who is blind, has been solely responsible for providing for the children’s needs, including sustenance and physical needs, for the past five (5) years without assistance from the father.
The father contends that he has been unable to provide that assistance as a result of the fact that he is unemployed and in receipt of a carer’s pension.
The mother contends, however, that the father has failed to fully disclose his income and contends that he has a greater ability to support the children than he has acknowledged.
This is an issue that will be considered in detail at the final hearing. To enable that to occur, I propose to make an order that the father file a Financial Statement, together with providing supporting documentation regarding his income and expenditure in the past three (3) years.
Sub-section (3)(d) – the likely effect of any changes in the child’s circumstances, including the likely effect on the child of any separation from either of his or her parents, any other child or other person (including any grandparent or other relative) with whom the child has been living
This is also a significant issue in these proceedings. At paragraphs 22 through to 31 of her Affidavit filed 2 March 2021, the mother attests to the children’s current circumstances in respect to their education and engagement in extracurricular and sporting activities, as follows:
22. The children are now both enrolled in M School. X has improved academically in the last year. Previously she was always getting straight Ds. She is now getting Cs and Bs. I say this is because of her being allowed to settle without the anxiety around visits to the Father and ther (sic) ongoing litigation which has been going for 5 years now.
23. It is also because no one at the school knows about the Court case or the past and so the girls have been able to have a fresh start at a school where no one knows anything about them.
24. X is doing Nippers every Sunday and is doing really well. She just attended the M School surfing carnival. She goes to the gym with me every Monday and on Tuesday both children have singing lessons and she will be doing her Stellar exams soon.
25.X has just joined the J Town Acting a theatre group and she is performing in a children’s play which is her first performance.
26.She is swimming two mornings and is socially active with friends and has sleepovers and parties.
27. The girls previously attended K School in H Town. The Father had posted a Facebook page October setting out the allegations and other information about the case.
28. Because of the this (sic) a lot of the parents at the school knew about the Court case and the allegations and it appeared to me that the children were at times left out of invitations by parents at K School and they were labelled as victims.
29. At the previous school Y was having issues around compliance.
30. At M School as it is in another community no one knows the children’s backgrounds they can just be themselves and be children and make new friends without the Court case hanging over them.
31. Y is doing well at school and she does singing, nippers and swimming. She has improved academically over the last 12 months and she sees her school as a safe place. She is above her levels now in reading.
At final hearing, the father would, of course, be entitled to challenge the mother’s evidence in that respect. Nonetheless, the mother’s evidence is again plausible and indicates that the children appear to be doing well. This is in contrast to circumstances where, in the past, the children have experienced difficult personal circumstances, including, the mother contends, as a result of the father posting inappropriate material concerning the parental dispute on the Internet.
In circumstances where there is evidence that X, in particular, experiences challenges, including challenges with her education, the Court, taking a cautious approach in the context of these interim proceedings, is reluctant to make orders which have a real possibility of adversely impacting upon what the mother has attested as being the children’s positive progress.
Accordingly, the issue of change and, specifically, the real possibility that such change could adversely impact upon the children is a further reason why I make orders suspending order 5 of the 11 November 2019 consent orders.
Sub-section (3)(e) – the practical difficulty and expense of a child spending time with and communicating with a parent and whether that will substantially affect the child’s right to maintain personal relations and direct contact with both parents on a regular basis
In circumstances where both parties live in regional New South Wales, the cost of attending a contact centre, including travel costs, is a relevant consideration, but not one which has impacted upon the decision that I have made in respect to this interim application.
In that respect, I note that, at paragraph 16 of his Affidavit filed 15 March 2021, the father stated that he was not prepared to meet travel costs associated with the mother travelling with the children from their residence to attend B Centre in Canberra. The father, instead, contends that the mother should seek government subsidy to fund the travel “for being a blind person”.
Sub-section (3)(f) – the capacity of each of the child's parents, and any other person, to provide for the needs of the child, including emotional and intellectual needs
There is insufficient evidence before the Court for the Court to make a determination in respect to this consideration in the context of these interim proceedings
Sub-section (3)(g) – the maturity, sex, lifestyle and background (including lifestyle, culture and traditions) of the child and either of the child’s parents and any other characteristics of the child that the Court thinks relevant
At paragraph 73 of her Report, Dr D notes that X has been diagnosed with autism and, as at the date of her report, was seeing both an occupational therapist and speech pathologist. Dr D also noted the mother’s report that X, at the time, had poor literacy and was requiring some tutoring.
In that context, the mother’s evidence that X is currently doing well despite those challenges, is significant.
Sub-section (3)(h) – issues pertaining to the culture of the child if the child is Aboriginal or a Torres Strait Islander
This consideration is not relevant.
Sub-section (3)(i) – the attitude to the child, and parental responsibilities, by each of the child’s parents
This will be a significant issue to be traversed and considered in the context of a final hearing. It is not, however, appropriate, for that matter to be considered in the context of these interim proceedings.
Sub-section (3)(j) – any family violence involving a child or a member of the child’s family; and Sub-section (3)(k) – any family violence order that applies or has applied involving the child or a member of the child’s family and if applicable, taking into account a number of stated matters
As previously noted, a significant issue to determine at final hearing is whether the father has, in fact, sexually assaulted the parties youngest child. It is not possible to make a determination in respect to that issue in these interim proceedings.
In his interview with Dr D, the father acknowledged that he has, in the past, breached Apprehended Domestic Violence Orders which name the mother and the children as protected persons. The father’s explanation for his conduct in that respect is, again, a matter that will be the subject of consideration at final hearing. It is not possible to make a determination of that issue in these interim proceedings.
Sub-section (3)(l) – whether it would be preferable to make the order that would be least likely to lead to the institution of further proceedings in relation to the child
These are interim proceedings and, subject to any applications that may be made by either of the parties, prior to final hearing, the matter is listed for final hearing in October.
The Court has previously indicated its concern regarding the fact that the children have been the subject of this litigation for a period of approximately five (5) years, and agrees that the parties and the Court should focus upon an appropriate means for resolving this matter as soon as is reasonably practicable.
Sub-section (3)(m) – any other facts or circumstances the Court considers relevant consideration
No additional considerations have been taken into account in these interim proceedings.
SUMMATION AND ORDERS
I appreciate that, as a result of the orders which I propose to make in these proceedings, including an order suspending the operation of Order 5 of the 11 November 2019 consent orders, and, further, the orders that I propose to make to obtain a s 11F report, the Court, at the final hearing of this matter in October of this year, will be without evidence as to the interaction between the children and the father. Essentially, therefore, rather than being in the position, anticipated by the parties and the Court on 11 November 2019, where it was anticipated the Court could review the children participating in a regime of supervised visits with a view to determining whether the children’s time with the father could move to an unsupervised regime, the Court is effectively back to square one.
That is, the Court is now back to the situation where the October hearing will be considering the similar issue that was before the court in November 2019, that is, whether orders should be made for the children to spend any time with the father and, if so, how much and in what circumstances.
The fact that the parties and the Court are in that position is, with respect, attributed to the inaction of the father in failing to take necessary and appropriate steps to engage with a children’s contact service to supervise the time that the children spend with him.
In circumstances where, unless and until further orders are made, the children will not be spending time with the father including by way of supervised time, Orders 11, 12, 13 and 14 of the 11 November 2019 consent orders are redundant.
The parties have advised the Court that they are not in a position to fund an updated report from Dr D, in accordance with Order 10 of the 11 November 2019 consent orders. In those circumstances, as previously indicated, the Court intends to request the provision of a child inclusive conference memorandum from a family consultant employed by the Court, pursuant to s 11F of the Act.
In circumstances where advice is being sought from a family consultant regarding the appropriateness of the children re-establishing their relationship with the father by commencing to spend time with him, I also propose to suspend Order 10 of the 11 November 2019 consent orders.
Order 15, which relates to the parties attending a Family Dispute Resolution Conference to attempt to resolve the ongoing dispute in respect to time that the children and the father spend together, sits uncomfortably with the orders I make in these interim proceedings which create a circumstances where the children will not be spending ongoing time with the father. Accordingly that order will also be suspended. That is not to say, however, that the parties cannot at any stage, make their own arrangements to attend Family Dispute Resolution as they are advised and see fit.
Accordingly, other than in respect to Orders 1 to 4, I will make orders that the 11 November 2019 consent orders be suspended until further order of the Court. Consistent with proposed order 2 of the mother’s Application in a Case, I will amend Order 2 of the 11 November 2019 consent orders, such that it makes provision for the father to obtain the mother’s express written consent for him to spend time with the children. The mother, in that respect, has indicated that, given the level of maturity of X, she would consider such a request, providing she is satisfied as to the appropriateness of the arrangement.
As this matter is listed for hearing for five (5) days commencing on 25 October 2021, it will also be necessary to make trial directions which will include, as I have noted, a requirement for the father to file a Financial Statement together with providing the mother with supporting documentation confirming his income and expenditure over the past three (3) years.
Accordingly, I make the orders as set out at the commencement of these Reasons for Judgment.
I certify that the preceding one hundred and fifteen (115) numbered paragraphs are a true copy of the Reasons for Judgment of the Honourable Deputy Chief Justice McClelland. Associate:
Dated: 31 March 2021
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