TAMAL & SEMAK
[2017] FamCA 172
•22 March 2017
FAMILY COURT OF AUSTRALIA
| TAMAL & SEMAK | [2017] FamCA 172 |
| FAMILY LAW – CHILDREN – INTERIM PARENTING – Best interests of the children – Family violence – Where the father has pleaded guilty to assaulting the mother – Where the father unilaterally removed two of the children to Country E – Where the father refuses to return the youngest child to Australia – Where the mother has not seen the youngest child for over two years – Where the paternal family was complicit in the removal of the children – The mother have sole parental responsibility for the children – The children live with the mother – The children to spend time with the father as agreed – The children be placed on the airport watch list – The father be restrained from leaving Australia – The father to return the youngest child to Australia – Recovery order issued. |
| Family Law Act 1975 (Cth) ss 60B, 60CA, 60CC, 61DA, 65DAA, 67Q |
| Banks & Banks [2015] FamCAFC 36 Deiter& Deiter [2011] FamCAFC 82 Eaby & Speelman (2015) FLC 93-654 George & George [2013] FamCAFC 182 Goode and Goode [2006] FamCA 1346 Marvel v Marvel[2010] FamCAFC 101 Mazorski v Albright[2007] FamCA 520 McCall & Clark (2009) FLC 93-405; [2009] FamCAFC 92 MRR v GRR [2010] HCA 4 |
| APPLICANT: | Ms Tamal |
| RESPONDENT: | Mr Semak |
| INDEPENDENT CHILDREN’S LAWYER: | Ms Carroll |
| FILE NUMBER: | PAC | 5255 | of | 2015 |
| DATE DELIVERED: | 22 March 2017 |
| PLACE DELIVERED: | Parramatta |
| PLACE HEARD: | Parramatta |
| JUDGMENT OF: | Foster J |
| HEARING DATE: | 13 March 2017 |
REPRESENTATION
| SOLICITOR FOR THE APPLICANT: | Ms Khalil of Fay Rose Legal |
| SOLICITOR FOR THE RESPONDENT: | Mr Simons of Remington & Co |
| SOLICITOR FOR THE INDEPENDENT CHILDREN’S LAWYER: | Ms Carroll of Crawford Ryan Lawyers Pty Ltd |
It Was Ordered On 13 March 2017, Pending Further Order That
The mother have sole parental responsibility for the children B born … 2007, C born … 2009 and D born … 2012.
The said children live with the mother.
The children spend time with the father at times reasonably agreed by the mother and father in writing such writing to include SMS or email communication.
That until further order, the father Mr Semak born … 1971 and the mother Ms Tamal born … 1984, their servants and/or agents be and are hereby restrained by injunction, and irrespective of authenticated consent as contemplated in Part VII of the Family Law Act 1975, from removing or attempting to remove or causing or permitting the removal of the children B born … 2007 (female), C born … 2009 (male) and D born … 2012 (male) from the Commonwealth of Australia AND IT IS REQUESTED that the Australian Federal Police give effect to this order by placing the names of the said children on the Family Law Watchlist in force at all points of arrival and departure in the Commonwealth of Australia and maintain the children’s names on the Watchlist for the said period or until the Court orders its removal.
The father Mr Semak born … 1971 be restrained from leaving the Commonwealth of Australia AND IT IS REQUESTED that the Australian Federal Police give effect to this order by placing the name of the father on the Family Law Watchlist in force at all points of arrival and departure in the Commonwealth of Australia and maintain the father’s name on the Watchlist pending further order of this Court.
The father, within 24 hours, deposit at the Parramatta Registry of this Court any current passport held by him and any passports issued for the said children with such passports to remain in possession of the Registrar of the Family Court of Australia pending further order.
The father shall within one month of this date do all things necessary and sign all necessary documents so as to cause the return of the child, D born … 2012 to the Commonwealth of Australia and into the care of the mother.
The father shall within 24 hours of making arrangements for the return of the child and any accompanying person inform the mother’s solicitors forthwith of the child’s travel arrangements including date and time of arrival.
Pursuant to s 67Q of the Family Law Act 1975 a recovery order issue directed to the Marshal of the Family Court of Australia, all officers of the Australian Federal Police and all officers of the Polices Forces of all the States and Territories of Australia requiring them to find and recover the child D born … 2012 and to return/deliver the said child to the Applicant mother and for that purpose to stop and search any vehicle, vessel or aircraft and to enter and search any premises or place in which there is at any time reasonable cause to believe that the said child may be found.
Leave is granted to the Independent Children’s Lawyer and the mother’s solicitors to relist the proceedings on short notice in appropriate circumstances by application to the Court in Chambers.
The parties and the Independent Children’s Lawyer are granted leave to issue such subpoena as they consider relevant to the issues for determination before the Court with such subpoena to be returnable by no later than Friday 28 April 2017.
Leave is granted to the Independent Children’s Lawyer to have photocopy access to all documents produced on subpoena in these proceedings.
The proceedings are otherwise adjourned for further directions before a Registrar at 11.00am on Tuesday, 18 April 2017.
The matter is reserved to a date to be fixed for delivery of judgment.
The Court Notes That
For the purposes of the order made today, the father is personally present in Court with his solicitor and present whilst the above orders were pronounced by the Court.
Note: The form of the order is subject to the entry of the order in the Court’s records.
IT IS NOTED that publication of this judgment by this Court under the pseudonym Tamal & Semak has been approved by the Chief Justice pursuant to s 121(9)(g) of the Family Law Act 1975 (Cth).
Note: This copy of the Court’s Reasons for Judgment may be subject to review to remedy minor typographical or grammatical errors (r 17.02A(b) of the Family Law Rules 2004 (Cth)), or to record a variation to the order pursuant to r 17.02 Family Law Rules 2004 (Cth).
| FAMILY COURT OF AUSTRALIA AT PARRAMATTA |
FILE NUMBER: PAC 5255 of 2015
| Ms Tamal |
Applicant
And
| Mr Semak |
Respondent
REASONS FOR JUDGMENT
On 23 December 2016 the applicant mother filed a parenting Application in the Federal Circuit Court of Australia seeking parenting orders in relation to the children B born in 2007, C born in 2009 and D born in 2012.
The mother sought orders on a final basis that in summary provided that she have sole parental responsibility for the children, that the children live with her and that the children spend time with the father as agreed. Otherwise, the mother sought orders restraining the father and herself from removing the children from the Commonwealth of Australia.
In circumstances referred to below, the mother also sought interim orders that in summary provided for orders that:
a)the father and the mother be restrained from removing the children from the Commonwealth of Australia,
b)that the father deposit with the Parramatta Registry of this Court the children’s passports,
c)that within 72 hours the father do all things necessary to cause the return of the child D to Sydney by air and cause the child to be delivered into the care of the mother,
d)that the father be restrained from leaving the Commonwealth of Australia until he complies with the preceding order,
e)that the father be placed on the Airport Watch List,
f)that a Recovery Order issue in relation to the child D to secure the return of that child to the mother, that otherwise the children live with the mother and spend supervised time with the father.
The mother’s application was first listed before Judge Dunkley on 12 January 2017. On that date orders were made for the father to file his Response and any affidavit material and that proceedings be transferred to this Court.
Otherwise, it was ordered by Judge Dunkley that pending further order:
a)that the father and the children B and C be restrained from leaving the Commonwealth of Australia and
b)that their names be placed upon the Airport Watch List.
c)that the father lodged his passport with the Registry Manager of the Federal Circuit Court of Australia at Parramatta and that an Independent Children’s Lawyer be appointed for the subject children.
Proceedings were first listed in this Court on 7 February 2017 and adjourned to the Registrar’s call over duty list on 9 March 2017. The father was ordered to file his Response and any affidavit to be relied upon by him by 28 February 2017.
On 9 March 2017 the father’s application for adjournment was refused and proceedings were adjourned to the judicial duty list 13 March 2017. It was noted by the Registrar that the child D remained in Country E living with the paternal grandmother.
The mother’s application for interim orders was heard on 13 March 2017 and by reason of the urgency of the circumstances relating to the children, particularly the child D, following submissions orders were made as set out at the forefront of these reasons for judgment and reasons for judgment were reserved. The following are those reasons for judgment.
The mother relied upon her affidavit filed 23 December 2016.
Notwithstanding the late filing, the father relied upon his Response filed 10 March 2017, his affidavit filed 3 March 2017 and the affidavit of his sister Ms Semak filed 10 March 2017.
The Mother’s evidence
The mother is presently aged 32 and is an Australian citizen. The father is presently aged 45 and is an Australian citizen.
The father also holds Country E citizenship.
The parties commenced cohabitation in Country F in March 2005 and married in Country G in 2006.
The parties moved to reside in Sydney in late August 2006 and have lived in Australia since that time save for two short periods of about six months each when the parties resided in Country E. The last period of residence in Country E ended in August 2010.
All of the children were born in Australia and are Australian citizens.
The parties separated in March 2014 when the mother left the then family home with the children and for a period resided in a women’s refuge. The mother asserts that during the relationship the father was violent towards her and threatened her and the children. She further asserts that he was controlling of her and that she was fearful of him. She recites a series of incidents when she has been subjected to physical assaults and abuse by the father.
The mother alleges that in September 2013 she was seriously assaulted by the father, suffering swelling and bruises to her head and face and partial hearing loss in her left ear. The father was charged with the offences of assault occasioning actual bodily harm and common assault. He was granted bail pending hearing.
As a consequence of the abuse during the relationship and on 17 December 2013 New South Wales Police (‘NSW Police’) took out a provisional apprehended domestic violence order (‘ADVO’) against the father for the protection of the mother and the children. A final ADVO was made at Parramatta Local Court on 16 July 2014 for a period of 12 months for the protection of the mother and the children.
A further apprehended violence order was made against the paternal grandmother Ms H Semak for the protection of the mother on 16 July 2014.
The father had been under treatment by Dr I, a clinical psychiatrist, since September 2012 for major depression. It appears that in late 2014 he continued to be medicated.
On 8 November 2014 the father was taken to J Hospital by his mother and sister who expressed concerns for his mental health. The father was admitted but later left the hospital in company with his mother and sister. The hospital contacted police and the father declined to return to the hospital: Exh “C”.
On 3 December 2014 Dr I provided a medical report in relation to the father confirming the father’s diagnosis of recurrent major depression and panic disorder since September 2012. He reported that the father’s condition had deteriorated significantly over the last several months and more recently the father had been diagnosed with major depression with melancholic features. The father remained on medication and on review on 3 December 2014 was found to be in a state of major depression with severe agitation. It was recommended that due to the father’s deteriorating mental state that he have urgent psychiatric hospitalisation to ensure his safety and suitability for a course of electroconvulsive therapy.
Subsequently on 8 December 2014 the father was admitted to K Hospital as an involuntary patient and diagnosed on admission with agitated depression. A Mental Health Tribunal enquiry determined that the father had treatment resistant severe agitated depression.
Since separation the father had spent irregular time with the children and demonstrated little interest in the child B. The mother permitted the father to spend time with the children on an irregular basis including some overnight time.
The mother agreed for C and D to spend time with the father from the morning of Sunday, 28 December 2014 until the morning of Monday 29 December 2014 in the presence of his family. On Monday 29 December 2014 the paternal grandmother requested that the boys remain with the paternal family until the evening of Tuesday 30 December 2014.
On Tuesday, 30 December 2014 the mother attended the father’s home to collect the children D and C. There was no one present and the property appeared locked up.
The mother made urgent enquiries of the NSW Police in relation to the whereabouts of the children who were in the father’s care and was informed that on 29 December 2014 the father had left Australia with the children D and C: (Exh “D”). The mother asserts that the father had unknown to her removed C’s passport from her possession and procured a passport for D without her consent.
The father remained in Country E with both children in the period from 30 December 2014 until 25 October 2015. The mother was able to speak to the children at times via Skype or telephone. The father refused the mother’s requests for the children to be returned to Australia.
The mother arranged to meet the father in the Middle East on 21 October 2015 on the pretence of reconciliation. The father met the mother in the Middle East but only brought the child C with him.
The mother was able to obtain possession of C’s passport and was able to return to Sydney with him only.
The father has consistently refused to return the child D to the mother’s care and concerningly has said to the mother “you will see your son in the next life”. The mother has not seen the child D save for electronic communication since December 2014.
The father returned to Australia in late November 2016 apparently in the hope of resuming his relationship with the mother. The father left the child D in Country E with the paternal grandmother.
The father was arrested on 1 December 2016 for breach of his bail conditions and on 2 December 2016 was granted conditional bail including the surrender of his passport in relation to the pending criminal charges. The mother is of the understanding that the criminal matters are now finalised with the father pleading guilty and receiving a fine of $500.00.
She fears that upon the return of the father’s passport, which had been surrendered as a condition of his bail, the father will again seek to depart Australia.
The Father’s evidence
The father in his Response seeks, in effect, orders that the child D live with him and otherwise the other two children live with the mother. He opposes any order that facilitates the return of the child D to Australia.
The father denies the mother’s assertions as to his violence notwithstanding his plea of guilty to charges of assault and the making of a final ADVO order for the mother and children’s protection.
He asserts a conflictual relationship between himself and the mother and complains of her behaviour in the presence of the children. He makes salacious allegations of her engaging in sexual activity in a car in the presence of the children after separation.
He concedes he is being treated for “deep depression”. He asserts a need to return to Country E for treatment and proposes to live there.
He concedes that the child D presently lives in City L, Country E with his mother in an apartment and is attending school.
He complains that the mother has prevented the children in her care from engagement with the wider paternal family in Sydney. Although it appears that the father’s sister was complicit in the removal of the two children from Australia, from the sister’s affidavit it appears she has had significant contact with the children in the mother’s care.
The father’s sister makes complaint as to the mother’s conduct in relation to the children and the mother’s personal conduct the verity of which will be determined at a final hearing.
Interim Parenting
In Marvel v Marvel[2010] FamCAFC 101; (2010) 43 Fam LR 348 the Full Court, discussed the difficulties associated with making findings on contested evidence as follows:
120. As has frequently been emphasised interim parenting proceedings, and orders made as a consequence, are a necessary but temporary measure until all the evidence can be tested, evaluated and weighed at a final hearing by the making of final parenting orders. Decisions judicial officers have to make in interim proceedings are difficult and, often for very good reason, a conservative approach, or one which is likely to avoid harm to a child is adopted. This is often to the understandable distress of a party who may not achieve the outcome he or she desires, or thinks to be in the best interests of their child or children. Interim parenting orders are frequently modified or changed after a final hearing, and any allocation of parental responsibility made at an interim hearing is disregarded at the final hearing (s 61DB).
121.…………In SS & AH[2010] FamCAFC 13 the majority (Boland and Thackray JJ) discussed at paragraph [88] of their reasons the care necessary to be exercised in making findings in interim parenting proceedings. Their Honours said:
“In our view, findings made at an interim hearing should be couched with great circumspection, no matter how firmly a judge’s intuition may suggest that the finding will be borne out after a full testing of the evidence.”
122. Later, at paragraph [100] their Honours amplified their comments and said:
“The intuition involved in decision-making concerning children is arguably of even greater importance when a judge is obliged to make interim decisions following a hearing at which time constraints prevent the evidence being tested. Apart from relying upon the uncontroversial or agreed facts, a judge will sometimes have little alternative than to weigh the probabilities of competing claims and the likely impact on children in the event that a controversial assertion is acted upon or rejected. It is not always feasible when dealing with the immediate welfare of children simply to ignore an assertion because its accuracy has been put in issue.”
(See also Keats [2016] FamCAFC 156)
In Deiter & Deiter [2011] FamCAFC 82 the Court was particularly concerned with the situation where the contested facts related to an assessment of risk and where it was said at [61]:
… Risk assessment comprises two elements - the first requires prediction of the likelihood of the occurrence of harmful events, and the second requires consideration of the severity of the impact caused by those events. In our view, the assessment of risk in cases involving the welfare of children cannot be postponed until the last piece of evidence is given and tested, and the last submission is made. We accept, however, that it is always a question of degree depending on the evidence that is before the Court.
In George & George [2013] FamCAFC 182 the Full Court in referring to Deiter & Deiter said that the mere fact that matters are in dispute does not mean the Court can ignore concerns that are raised in the material before it. In Eaby & Speelman (2015) FLC 93-654 the Full Court (Thackray, Ryan & Forrest JJ) on the same issue observed:
18. …that does not mean that merely because the facts are in dispute the evidence on the topic must be disregarded, and the case determined solely by reference to the agreed facts.
In Banks & Banks [2015] FamCAFC 36 the Full Court said:
47. As the Full Court pointed out in Goode, the fact there will often be little uncontested evidence in interim proceedings means that only limited consideration may be able to be given to the relevant s 60CC factors.
48. It should also be said that in parenting proceedings, as in all civil litigation, it will be the issues that are joined that will dictate which s 60CC factors are relevant. By their nature, interim parenting proceedings should be confined to those issues which, in the best interests of the child, require determination prior to a proper determination at a trial. The fact such disputes are commonly dealt with in overcrowded court lists makes it even more desirable to identify with precision those issues which can, or should, be resolved on an interim basis.
49. Although the primary judge discussed all the potentially relevant factors in her ex tempore reasons, that luxury will not always be available. Furthermore, there is a risk that in discussing every s 60CC factor, the judicial officer may lose sight of the forest for the trees. It is also important to stress here that the requirement to “consider” each factor does not mean each must be discussed, especially where the evidence leads inexorably to a particular conclusion: SCVG & KLD(2014) 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 60CCfactor must be traversed where it is obvious on the facts and issues joined that there are only one or two decisive factors.
The relevant principles in relation to parenting and interim proceedings are well settled Goode and Goode: [2006] FamCA 1346. The High Court in MRR v GRR [2010] HCA 4 affirmed those principles.
Section 60B of the Act outlines the objects and principles underlying Part VII of the Act.
(1) The objects of this Part are to ensure that the best interests of children are met by:
(a) ensuring that children have the benefit of both of their parents having a meaningful involvement in their lives, to the maximum extent consistent with the best interests of the child; and
(b) protecting children from physical or psychological harm from being subjected to, or exposed to, abuse, neglect or family violence; and
(c) ensuring that children receive adequate and proper parenting to help them achieve their full potential; and
(d) ensuring that parents fulfil their duties, and meet their responsibilities, concerning the care, welfare and development of their children.
(2) The principles underlying these objects are that (except when it is or would be contrary to a child's best interests):
(a) children have the right to know and be cared for by both their parents, regardless of whether their parents are married, separated, have never married or have never lived together; and
(b) children have a right to spend time on a regular basis with, and communicate on a regular basis with, both their parents and other people significant to their care, welfare and development (such as grandparents and other relatives); and
(c) parents jointly share duties and responsibilities concerning the care, welfare and development of their children; and
(d) parents should agree about the future parenting of their children; and
(e) children have a right to enjoy their culture (including the right to enjoy that culture with other people who share that culture).
Section 60CA provides that in deciding whether to make a particular parenting order, the Court is to regard the best interests of the child as the paramount consideration.
Section 60CC then outlines the primary (sub-s (2)) and additional (sub-s (3)) considerations that the Court is to take into account in determining what is in the best interests of the child.
Section 61DA of the Act provides that when making a parenting order, the Court must apply a presumption that it is in the best interests of the child for the child’s parents to have equal shared parental responsibility. The presumption does not apply where:
a)there are reasonable grounds to believe a parent has engaged in abuse of the child or family violence [s61DA(2)],
b)in interim proceedings where the court considers that it would not be appropriate in the circumstances for the presumption to be applied when making that order [s61DA(3)].
c)if the court is satisfied that an order for equal shared parental responsibility would not be in the child’s best interests [s61DA(4)]
If the presumption in s 61DA is to apply and the Court makes an order for equal shared parental responsibility, this “triggers” the operation of s 65DAA which requires the Court to consider whether equal time or substantial and significant time with each parent is in the child’s best interests and reasonably practicable. If an order for equal shared parental responsibility is made by consent the Court may but is not required to consider equal or substantial and significant time [s65DAA(6)].
In the circumstances of this matter as discussed, it is clear by reason of his conviction that there has been domestic violence perpetrated by the father. On this basis, the presumption will not apply. By reason of the best interest considerations discussed below the mother shall have parental responsibility pending further order.
Best Interests
The Primary Considerations: s60CC (2)
The primary considerations are:
a)the benefit to the child of having a meaningful relationship with both of the child's parents; and
b)the need to protect the child from physical or psychological harm from being subjected to, or exposed to, abuse, neglect or family violence.
In applying the considerations set out in subsection (2), the Court is to give greater weight to the consideration set out in paragraph (b). This is a pertinent consideration in this matter.
s60CC(2)(a) – “meaningful” relationship
In Mazorski v Albright[2007] FamCA 520; Brown J considered ordinary definitions of the term “meaningful” and observed:
[26] What these definitions convey is that “meaningful”, when used in the context of “meaningful relationship”, is synonymous with “significant” which, in turn, is generally used as a synonym for “important” or “of consequence”. I proceed on the basis that when considering the primary considerations and the application of the object and principles, a meaningful relationship or a meaningful involvement is one which is important, significant and valuable to the child. It is a qualitative adjective, not a strictly quantitive one. Quantitive concepts may be addressed as part of the process of considering the consequences of the application of the presumption of equally shared parental responsibility and the requirement for time with children to be, where possible and in their best interests, substantial and significant.
In McCall & Clark (2009) FLC 93-405; [2009] FamCAFC 92 the Full Court at 83,476 accepted as appropriate this interpretation by Brown J of “meaningful relationship”.
There are significant factual disputes between the father and mother as to the history of their relationship and more particularly the circumstances as to the father’s behaviour and mental health issues. Two children presently reside with the mother as primary carer representing a settled arrangement and it is important that such continue. The child D has unilaterally been removed from the mother’s care by the father and his family by subterfuge and deceit.
It is appropriate that the child D, now aged four, be reunited with his mother and his siblings. This would represent to the child a meaningful relationship going forward. Final parenting issues may then be determined appropriately.
The children’s relationship with the father is more problematic and overshadowed by the father’s mental health issues and a fear that the father or members of his family may again seek to remove the children from the mother’s care.
This consideration is in itself virtually determinative of the present interim application.
s60CC(2)(b) – need to protect
This factor is also substantially determinative of the present interim application.
The Court needs to proceed cautiously until such time as appropriate evidence is available and tested in relation to the father’s mental health and the risks, if any, that such may represent to the children. The evidence of the father’s mental health practitioner and his admission to hospital is of significant concern.
The psychological trauma for the child D in being removed from his mother’s care at a tender age can only be surmised. His father is in Australia with little prospect of being able to leave, the child is isolated in Country E with his grandmother who was complicit in the child’s removal and retention. The need for the child to be protected from psychological harm is patent. The father has the capacity to cause the child to be returned to the mother’s care.
As can be seen there are significant issues for final determination after the appropriate testing of all the evidence, not the least of which is the testing of the evidence of the father’s treating mental health professionals.
The Additional Considerations
S60CC(3) sets out the additional considerations:
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;
b)the nature of the relationship of the child with:
(i) each of the child's parents; and
(ii) other persons (including any grandparent or other relative of the child);
c)the extent to which each of the child's parents has taken, or failed to take, the opportunity:
(i) to participate in making decisions about major long-term issues in relation to the child; and
(ii) to spend time with the child; and
to communicate with the child;
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;
d)the likely effect of any changes in the child's circumstances, including the likely effect on the child of any separation from:
(i) either of his or her parents; or
(ii) any other child, or other person (including any grandparent or other relative of the child), with whom he or she has been living;
e)the practical difficulty and expense of a child spending time with and communicating with a parent and whether that difficulty or expense will substantially affect the child's right to maintain personal relations and direct contact with both parents on a regular basis;
f)the capacity of:
(i) each of the child's parents; and
(ii) any other person (including any grandparent or other relative of the child);
to provide for the needs of the child, including emotional and intellectual needs;
g)the maturity, sex, lifestyle and background (including lifestyle, culture and traditions) of the child and of either of the child's parents, and any other characteristics of the child that the court thinks are relevant;
h)if the child is an Aboriginal child or a Torres Strait Islander child:
(i) the child's right to enjoy his or her Aboriginal or Torres Strait Islander culture (including the right to enjoy that culture with other people who share that culture); and
(ii) the likely impact any proposed parenting order under this Part will have on that right;
i)the attitude to the child, and to the responsibilities of parenthood, demonstrated by each of the child's parents;
j)any family violence involving the child or a member of the child's family;
k)if a family violence order applies, or has applied, to the child or a member of the child's family--any relevant inferences that can be drawn from the order, taking into account the following:
(i) the nature of the order;
(ii) the circumstances in which the order was made;
(iii) any evidence admitted in proceedings for the order;
(iv) any findings made by the court in, or in proceedings for, the order;
(v) any other relevant matter;
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;
m)any other fact or circumstance that the court thinks is relevant.
Many of the above considerations will be canvassed at final hearing where any disputed facts can be determined.
As discussed the determination of this urgent application is readily resolved by reference to the primary considerations above.
Orders are made as set out at the forefront of these reasons for judgment.
I certify that the preceding sixty eight (68) paragraphs are a true copy of the reasons for judgment of the Honourable Justice Foster delivered on 22 March 2017.
Associate:
Date: 21 March 2017
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