TENNENT & TENNENT

[2018] FamCA 708

FAMILY COURT OF AUSTRALIA

TENNENT & TENNENT [2018] FamCA 708

FAMILY LAW – CHILDREN – Interim Parenting – Where the mother raises concerns about the father’s parenting capacity and inappropriate behaviour with the child – Where the father raises concerns about the mother’s mental health and enmeshment with the child – Where the child seeks to spend more time with the father – Where the parents live a significant distance apart – Where the Family Consultant and the Independent Children’s Lawyer are supportive of the child spending more time with the father – Where supervised contact reports indicate no issues of risk or parenting capacity in the father’s time with the child – Where the parents appear to have polarised views of parenting – Where the evidence at this stage supports the contention that the mother is somewhat controlling and inflexible – Where it is appropriate for the child to spend gradually increasing time with the father – Where the father’s time with the child does not need to be supervised – Orders made substantially as proposed by the Independent Children’s Lawyer.

Family Law Act 1975 (Cth) ss 60B, 60CA, 60CC, 61DA, 65DAA

Banks & Banks [2015] FamCAFC 36
Deiter & Deiter [2011] FamCAFC 82
Eaby & Speelman (2015) FamCAFC 104
George & George [2013] FamCAFC 182
Goode and Goode [2006] FamCA 1346
Marvel v Marvel (No. 2)[2010] FamCAFC 101
Mazorski v Albright[2007] FamCA 520
McCall & Clark [2009] FamCAFC 92
MRR v GRR [2010] HCA 4
Smith & Smith [2017] FamCAFC 226
SS & AH[2010] FamCAFC 13

APPLICANT: Mr Tennent

RESPONDENT: Ms Tennent

INDEPENDENT CHILDREN’S LAWYER: Legal Aid NSW Parramatta Family Law

FILE NUMBER: PAC 1311 of 2018

DATE DELIVERED: 12 September 2018

PLACE DELIVERED: Parramatta

PLACE HEARD: Parramatta

JUDGMENT OF: Foster J

HEARING DATE: 13 August 2018

REPRESENTATION

COUNSEL FOR THE APPLICANT: Ms Christie

SOLICITOR FOR THE APPLICANT: Barkus Doolan

COUNSEL FOR THE RESPONDENT: Mr Longworth

SOLICITOR FOR THE RESPONDENT: Fox & Staniland Lawyers

SOLICITOR FOR THE INDEPENDENT CHILDREN’S LAWYER: Ms Ryan of Legal Aid NSW Parramatta Family Law

Orders Pending Further Order:

1. That the mother, Ms Tennent, and father, Mr Tennent, have equal shared parental responsibility for the child, X born … 2012.

2. That the child live with the mother.

3. That the child spend time with and communicate with the father as agreed between the parties in writing, such writing may include SMS or email communication, and in default of agreement as follows:

   (a)by telephone as agreed between the parties but failing agreement each Tuesday and Thursday that the child is not otherwise in the father’s care with the father to telephone the child on the mother’s mobile number between 4.30 pm and 5.30 pm provided always that the mother shall ensure that the child is available to take the father’s call and that the child is afforded reasonable privacy when talking to the father;

   (b)on two consecutive days from 9.00 am until 3.00 pm  on the first weekend after the date of these orders with such time to occur in Sydney;

   (c)from 9.00 am Saturday to 5.00 pm Sunday on the third and fifth weekend after the date of these orders with such time to occur in Sydney;

   (d)thereafter each alternate weekend from after school Friday (or 4.00 pm if a non-school day) until 5.00 pm Sunday with such time to occur in Sydney;

   (e)from 3.00 pm 24 December until noon 25 December such time to occur in Sydney;

   (f)for two separate periods during the 2018/2019 Christmas school holiday period the first for a period of four nights and the second for a period of seven nights as agreed between the parties in writing, such writing may include SMS or email communication, but failing agreement from 9.00 am 7 January until 5.00 pm 11 January and then from 9.00 am 20 January until 5.00 pm 27 January; and

   (g)thereafter commencing in the 2019 school year during school terms each alternate weekend from after school Friday (or 4.00 pm if a non-school day) until 5.00 pm Sunday such time to occur in Sydney;

   (h)commencing in the 2019 term one school holiday period and for each of the term one, two and three school holiday periods thereafter for seven nights as agreed in writing such writing may include SMS or email communication between the parties but failing agreement from 9.00 am on the first Saturday of such holiday periods until 5.00 pm on the middle Saturday of such holiday periods.

4. That both parties are at liberty to attend on occasions significant to the welfare of the child including occasions relating to the child’s education, religious education, extracurricular activities, sporting activities and other occasions significant to the welfare of the child.

5. That the mother be and is hereby restrained from causing the child to attend upon any counsellor, family therapist, psychologist or psychiatrist without the written consent of the Independent Children’s Lawyer.

6. That for the purposes of changeovers where otherwise not at school, subject to agreement otherwise between the parties in writing such writing may include SMS or email communication, the mother or her nominee known to the child shall deliver the child to the father or his nominee known to the child at B Street, Suburb D at the commencement of the child’s time with the father and the father or his nominee known to the child shall return the child to the mother or her nominee known to the child at C Street, Suburb E.

7. That each of the parties are restrained from denigrating the other party or any member of that party’s extended family in the hearing or presence of the child and shall use their best endeavours to not allow any other person to do so.

8. That the father shall ensure that he has an appropriate approved child restraint available in his car for the purposes of transporting the child therein.

9. That the parties shall ensure that each of them shall carry the child’s Epipen with them at all times when the child is in their care.

10. That these orders providing for equal shared parental responsibility constitute an authority to enable each party to obtain information from the child’s school in relation to the child’s progress and development including but not limited to copies of school reports and newsletters and permits each party to attend at the school for the purposes of parent/teacher interviews or for other purposes relevant to the child’s development and education from time to time.

11. That the parties shall within 24 hours of any change notify the other of any change to their residential address, landline telephone number or mobile telephone number.

12. That the parties shall as soon as practicable notify the other in the event of the child suffering any serious illness or injury or being hospitalised whilst in their care.

13. That these orders providing for equal shared parental responsibility constitute an authority to enable either party to obtain information from the child’s treating medical practitioner or any other health practitioner upon which the child attends.

14. That the mother shall upon receiving one written request from the Independent Children’s Lawyer, such request communicated to her solicitors by letter or email, to do all things necessary to undertake CDT testing within 48 hours of such request being received by her solicitors and she shall cause her solicitors to provide the results of such test within 48 hours of such results being made available to the Independent Children’s Lawyer and to the father’s solicitors.

15. That the mother is restrained from consuming any more than two standard alcoholic drinks during any 24-hour period that the child is in her care.

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 Tennent & Tennent 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 1311 of 2018

Mr Tennent

Applicant

And

Ms Tennent

Respondent

And

Independent Children’s Lawyer

REASONS FOR JUDGMENT

1. On 27 March 2018 the applicant father filed an Application initiating proceedings in this Court.  In that Application he sought orders in relation to the child of his relationship with the respondent mother, that child is X born in 2012.

2. In summary, the father sought final orders as to parenting that provided for:

   a)the mother and father to have equal shared parental responsibility for major long-term decisions relating to the child;

   b)the child to live with the mother in Sydney; and

   c)the child to spend time with the father as agreed between the parties but in default of agreement on alternate weekends during school term, for half school holidays and full-time on other special days including Father’s Day, Easter and at Christmas.

3. Otherwise, the father sought a raft of specific issues orders relating to the child.

4. Concurrently with the filing of his Application initiating proceedings, the father filed an Application in a Case seeking interim parenting orders in relation to the child.  In summary, that Application in a Case sought interim orders that provided:

   a)that the child live with the mother;

   b)that the child spend time with the father during school terms each alternate weekend from 6.00 pm Friday to 6.00 pm Sunday and otherwise as agreed between the parties;

   c)that the child spend time with the father for one half of the school holiday periods;

   d)that the child is otherwise to spend time with the father on special occasions including Easter, Father’s Day and at Christmas;

   e)that the child be able to communicate with the father by telephone Skype or other electronic means each alternate day when the child is in the care of the mother; and

   f)for other specific issues orders as to changeovers, defining school holidays, liberty to attend on occasions relating to the child schooling, sport and other extracurricular activities and that the mother provide him with copies of the child school reports, newsletters and other circulars issued by the school.

5. In support of his interim application, the father relied upon his affidavit filed 8 August 2018.

6. The mother in answer to the father’s Initiating Application filed a Response to that application on 4 May 2018.  In that Response by way of final orders the mother sought, in summary, the following orders in relation to the child X:

   a)that the mother have sole parental responsibility for the child;

   b)that the child live with the mother;

   c)that the mother have leave to amend orders sought as to the child’s time with the father upon receipt of an expert’s report;

   d)that the father communicate with the child by telephone or electronic means at 6.00 pm on Tuesday and Thursday each week; and

   e)various other specific issues orders as to exchanging telephone and residential addresses, liberty to attend parent teacher meetings and interviews and communicate with the school, that the mother retain the child’s passport and mutual non-denigration orders.

7. On 4 May 2018 the mother filed a Response to the father’s Application a Case.  In that Response she sought parenting orders by way of interim orders as follows:

   a)that the mother have sole parental responsibility for the child;

   b)that the child live with the mother;

   c)that the father’s time with the child be supervised by a professional supervision agency and occur each alternate Sunday from 9.00 am until 3.00 pm at such location as is agreed between the parties;

   d)that the paternal grandfather be at liberty to attend the child’s supervised time with the father;

   e)that the father be restrained during supervised time from driving or operating a motor vehicle with the child unless the supervisor is present, lifting the child by the hands or arms, changing the child’s clothes or undressing the child including assisting the child to go to the bathroom, picking up the child by placing his hands under and through the child’s legs, taking his clothes off or being naked in the presence of the child;

   f)that the father be at liberty to attend without a supervisor at events at the child’s school to which parents are ordinarily invited and the child’s soccer games and to communicate with the child by telephone or electronic means at 6.00 pm on Tuesday and Thursday each week;

   g)that the father be at liberty to attend parent/teacher meetings and to communicate with the school about the child’s education; and

   h)that the father attend upon his general practitioner for the purpose of obtaining a referral to an appropriately qualified practitioner to address issues of anger management.

8. The mother relied upon her affidavit filed 10 August 2018 and the affidavit of Ms J filed 4 May 2018.

Context

1. The father is aged 45 and lives at Town G on the New South Wales North Coast in a two-bedroom home unit.  The mother is aged nearly 44 and resides in the northern suburbs of Sydney in a two-bedroom home unit.  The distance between the parties is about six hours drive.

2. The parties commenced cohabitation in mid-2007 and married in November 2010.  They separated on a final basis in mid-September 2017.

3. The child X is the only child of their relationship and he is presently six years of age.  The child has an allergy for which an Epipen is prescribed.

4. The father is in full-time employment as a manager of a business in Town K on the New South Wales North Coast.  He asserts that he has flexible arrangements that would permit him to have weekend and other time with the child. 

5. The father had previously been out of full-time work in the period from October 2015 to January 2017 when he obtained his current employment.  Subsequent to obtaining his present employment the father commuted from the family home in Brisbane, staying in Town F mid-week and returning to Brisbane on weekends.

6. Following separation and in December 2017 the parties sold the then matrimonial home in Brisbane.  The mother then relocated with the child to Sydney to live in proximity to the maternal grandparents.

7. Subsequent to separation the father travelled from his home at Town J to Brisbane on weekends to spend time with the child.  The mother would only facilitate time with the child at the then matrimonial home in Brisbane or in her presence.  The mother has not permitted the father to take the child to his home. 

8. The father, to placate the mother’s concerns has offered to spend time with the child in the presence of various adult supervisors but the mother has not agreed and requires herself to be present.

9. On 8 May 2018 relevantly interim orders were made by consent as follows:

   1. That by no later than 5.00 pm on Thursday 10 May 2018, the Mother shall provide to the Father's solicitors written notice of the following:

   1.1 The names, addresses and contact telephone numbers for all medical practitioners (including but not limited to general practitioners, psychologists, psychiatrists, counsellors and mental health workers) upon whom the Mother has attended for any purpose from 2 May 2012 to date;

   1.2 The names, address and contact telephone numbers for all medical practitioners (including but not limited to general practitioners, psychologists, psychiatrists, counsellors and mental health workers) currently attended by the Mother; and

   1.3 A listing of any and all medications (if any) currently and/or historically prescribed to and/or taken by the Mother for any mental health issue.

   WITHOUT ADMISSIONS AND WITHOUT PREJUDICE PENDING INTERIM HEARING OF EACH PARTY'S PENDING PARENTING APPLICATION WHICH THE COURT HAS INDICATED MAY BE HEARD IN THE JUDICIAL DUTY LIST ON 13 AUGUST 2018:

   1. That the child [X] born … 2012 ("X") shall live with the Mother.

   2. [X] shall spend time with the Father, under supervision with a supervisor from [the H Service] or such other agreed supervision agency that may be available to commence supervised time forthwith, each alternate weekend from 9.00 am until 3.00 pm on Saturday and from 9.00 am until 3.00 pm on Sunday, commencing on the weekend of Saturday 19 May 2018.

   3. The Mother shall deliver [X] to the Father at the home of the Father's uncle and aunt at [Suburb D] at the commencement of [X's] time with the Father, and the Father shall return [X] to the Mother at the same property at [Suburb D] at the conclusion of time spent.

   4. On Saturdays when [X] spends time with the Father during [X's] soccer season, the Father (with supervision) shall take [X] to his soccer matches and for this purpose the Mother shall inform the Father, in writing, of the location at which such matches are being played.

   5. The Mother shall be at liberty to attend to observe [X's] soccer matches on Saturdays when [X] is in the Father's care but she shall not approach [X] or interfere with the time [X] spends with the Father on such days and shall positively encourage and direct [X] to depart with the Father following all such matches.

   6. IT IS NOTED that the Mother proposes to pack a day bag for [X] when he spends time with the Father and such day bag shall include [X's] Epipen.

   7. Each party shall forthwith do all acts and things, sign all documents and participate in all intake procedures and interviews as may be required to engage [the H Service] or other such agreed equivalent supervision agency so as to enable [X] to forthwith commence spending time with the Father.

   8. The cost of engaging a supervisor to supervise [X's] time with the Father pursuant to these Orders shall be paid by the parties from funds derived from the sale of the parties' former matrimonial home in Queensland, being funds to be held on trust for the parties by the Mother's solicitors, Fox & Staniland. Each party shall forthwith do all acts and things and give all instructions and directions to the solicitors holding such funds to authorise payment of the costs of supervision when payment falls due.

   9. The Father be at liberty to attend, without a supervisor at:

   9.1 all events at [X's] school to which parents are ordinarily invited or are expected to attend; and

   9.2 [X's] soccer games which occur on weekends when [X] is not otherwise spending time with the Father pursuant to these Orders.

   10. The Father shall ensure that his car has appropriate and fitted car seat for [X].

   11. That following each occasion of supervised time, the parties shall request from the supervisor of [X's] time a written supervision report that shall be provided to each party. The cost of such reports shall also be met from the proceeds of sale of the parties’ former home in Queensland.

10. The father has spent time with the child in terms of the above interim arrangements.  Written reports as to the father’s time with the child have been provided by the supervision agency.

The father’s evidence

1. The father asserts that from about 2014 the mother’s relationship with the child became more enmeshed and that she became restrictive and controlling in terms of the father’s relationship with the child.

2. On the child attending preschool at the age of four the mother attended the preschool on a very regular basis working as a volunteer on the days that the child was in attendance.  The mother withdrew the child from the preschool after about two months.

1. The father asserts that the mother’s approach to parenting of the child is very controlling, rigid and inflexible, rule-based and overprotective. A letter from Dr Q who saw the parties together at the time of separation identifies the “polarised views of the parties as to parenting” with the mother’s examples of the father’s negligence appearing as “quite normal parenting interaction with a child this age”.

2. The father further complains that the extended paternal family has had little or no contact with the child for the last three years.

3. The father expresses concern that the mother has a history of and continues to suffer from mental health issues including anxiety and/or depression.

4. He says that the child in the second Semester in 2017 was absent from his then school in Queensland for a total of 25 days.  He is unaware as to the reasons for such absences.

5. Subsequent to separation and in September 2017 the father became aware that the mother had made allegations that he was negligent in his care of the child and that the child was at risk in his care.  The father perceives that he and the mother have quite polarised views about parenting.

6. The father asserts that since late 2017 he has been endeavouring to reach agreement with the mother through the parties’ respective legal representatives as to his time with the child.  The mother’s solicitors in correspondence dated 18 December 2018 detailed the mother’s concerns in relation to the father’s care of the child including allegations of the father being careless about the child’s safety and well-being, the father inappropriately supervising the child near a backyard pool when the child was two years of age and then again when the child was four years of age, leaving the child in a locked car on one occasion in either 2014 or 2015, being forgetful as to the requirement to have the child’s Epipen at all times, making inappropriate sexual gestures and comments to the child, swimming and running around in the backyard naked with the child when the child was a toddler and “inappropriately touching” the child.

7. The father denies the mother’s allegations and explains the circumstances as to her assertions as to inappropriate supervision.

8. The father otherwise complains of difficulties in having telephone contact with the child, in particular, with the child being placed on speakerphone when he was able to talk to the child.

9. The father seeks to be able to spend time with the child on a regular basis “without restriction or obstruction”.  He proposes that he will travel to Sydney to spend time with the child on alternate weekends and for some block time during school holidays.  The father has accommodation available to him at the home of his uncle and aunt at Suburb D in the northern suburbs of Sydney.

10. The father says that his time with the child that resumed in late May 2018 pursuant to interim orders has gone well.  The child has been excited to see him and been comfortable in his care.  The child’s time with the father has been based around the father’s relatives’ home in Suburb D, with the father taking the child to his soccer matches and the child being able to interact with extended family members and friends.

11. The father seeks to spend unsupervised time with the child, asserting that supervision is unnecessary and restrictive.  The father expresses concern that the child may perceive that there has been some wrongdoing by the father by reason of the supervision and the conditions imposed on the supervision.  Ongoing supervision is costing the parties about $1,350.00 per fortnight.

12. The father in his affidavit relied upon responds to the litany of complaints raised by the mother in terms of the father’s engagement with the child, the father’s behaviour during cohabitation and the father’s conduct as a player during a sport game.

13. The significant issues of fact between the parties will await resolution at a final hearing.

The mother’s evidence

1. The mother presently resides with the child in a two-bedroom unit in Suburb E in the northern suburbs of Sydney.

2. The mother is currently employed as a cleaner and office assistant locally to her residence.  She is currently undertaking TAFE studies.

3. The mother asserts, and there appears to be little issue, that during cohabitation she was the primary carer for the child.  The nature and extent of the parties’ engagement with the child will be a matter for determination at final trial. 

4. The child has remained in the mother’s primary care since the parties’ separation in September 2017.

5. Prior to separation and during 2017 the mother says that the father returned to the family home in Brisbane from his place of employment about every second or third weekend and seldom spoke to the child on the phone.

6. In her affidavit the mother expresses concerns for the child should he spend unsupervised time with the father with those concerns being safety concerns for the child and the father’s anger issues, inappropriate behaviour, lack of parental responsibility and parental incapacity.

7. The mother thereafter in a lengthy interim affidavit delves into the minutiae of the parties’ relationship during cohabitation making sundry complaints about the father in relation to the child.  The mother’s complaints echo the father’s concerns that the mother’s approach to parenting of the child is very controlling, rigid and inflexible, rule-based and overprotective.

8. The mother complains that the father has “a problem with anger”.  She relies upon incidents and arguments between them post separation that particularly focused upon the father’s perception of the mother being unduly restrictive as to the father’s time with the child.  She complains that the father “encourages the child to keep secrets between them”.

9. Of more significant note is the mother’s complaint that on one occasion in 2017 the father took the child’s clothes off while he was playing with the child and on another occasion the child was sitting on the father’s knee with the father holding the child under his legs so that “he was touching [X’s] genitals”.

10. To the mother’s observation the child has settled well in Sydney and is attending Suburb E Public School.  She has observed that when the child is spending time with the father the child is “happy to see him and eager to play with him” but then immediately complains that the father on occasions has taken the opportunity to whisper to the child “in a secretive manner”.  Concerningly, she asserts that following visits with the father the child experiences abdominal pain, diarrhoea and disturbed sleep.

11. The mother complains that the father makes no provision for financial support of the child.

12. The mother takes issue in responding in concerning detail to the father’s allegations about their relationship and personal interaction and interaction with the child.  These matters cannot be resolved until final hearing.

13. The mother expresses concerns as to various observations in the supervised contact reports since the orders of 8 May 2018.  Those reports are referred to below. 

14. The maternal grandmother provided an affidavit in support of the mother.  The maternal grandmother is also critical of the father in his interaction with the child, complaining that when the child was about four months of age the father would throw the child into the air and catch him.  She asserts that the child “looked scared”.  She further complains of many occasions “over the years” when she has witnessed negligence on the part of the father when the child was in his care in or around swimming pools.  She otherwise asserts that she “observed [the father] to disregard [the child’s] safety when it comes to other activities, such as bike riding”.

15. Otherwise, the maternal grandmother complains that the child when aged about four referred to his penis as a “willy” asserting that the mother always refers to body parts by their correct anatomical name.  On another occasion, shortly after the parties’ separation, she asserts that she observed the father put his hands through the child legs from the back and then reach up and tickle the child’s “abdomen”.  She was shocked.  She repeats the mother’s assertions as to the father’s anger issues asserting that the father has been observed by her to be “volatile and unpredictable” including an incident two months after separation where the child was exposed to an argument between the parties and to the father’s lack of emotional control.   

The Independent Children’s Lawyer

1. The Independent Children’s Lawyer (“ICL”) provided to the Court a minute of orders proposed on behalf of the child.  The ICL’s proposal was, during submissions, substantially adopted by the father.

2. The ICL proposed, in summary, orders as follows:

   a)that the child live with the mother;

   b)that the child spend time with and communicate with the father as follows:

   i)by telephone as agreed between the parties but failing agreement each Wednesday and Saturday that the child is not otherwise in the father’s care with the father to telephone the child on the mother’s mobile number;

   ii)on two specified consecutive days from 9.00 am until 3.00 pm such time to occur in Sydney;

   iii)two weeks later from 9.00 am Saturday to 3.00 pm Sunday such time to occur in Sydney;  

   iv)two weeks later from after school Friday until 3.00 pm Sunday;

   v)two weeks later from 3.00 pm on Friday until 3.00 pm on Sunday;

   vi)thereafter during school terms each alternate weekend from after school Friday until 3.00 pm Sunday such time to occur in Sydney;

   vii)from 3.00 pm 24 December 2018 until 3.00 pm 25 December 2018 such time to occur in Sydney;

   viii)for two separate one week periods during the 2018 Term 4 school holiday period as agreed between the parties but failing agreement from 9.00 am 7 January 2019 until 5.00 pm 13 January 2019 and from 9.00 am 21 January until 5.00 pm 27 January 2019;

   ix)commencing in the 2019 Term 1 school holiday period and for each of the term one, two and three school holiday periods thereafter for one week as agreed between the parties in writing but failing agreement from 9.00 am on the first Saturday of such periods until 5.00 pm on the middle Saturday of such periods; and

   x)at such other times as may be agreed between the parties in writing. 

   c)various other specific orders including as to changeover, attendance by the parents at events for the child and restraints on the parties’ behaviour.

3. As can be seen, the ICL adopts a gradual approach to the restoration of the child’s time with the father with orders sought by the ICL not reflecting any concern for the child in the care of the father. 

The Child Responsive Program Memorandum 

1. Interviews between the Family Consultant and the parties and the child were conducted on 24 July 2018.

2. The child in interview is reported as follows:

   8.[X] spoke positively about both his parents. He said he sees Mr [Tennent] on his days off school, but that he did not know when he would see him next.

   9.[X] said that he would like to see his father more, and that if he had three wishes, he would have Mr [Tennent] live with him again.

   10.[X] also said that he wished his parents would stop fighting. He said they began fighting whilst living in Brisbane, and that he believed that his parents are fighting because Mr [Tennent] has put something in place saying Ms [Tennent] can’t find a new house.

3. As to parental conflict the Family Consultant said:

   14.Neither Mr [Tennent], nor Ms [Tennent] reported any Apprehended Violence Orders, or any physical violence between them.

   15.Both Mr [Tennent] and Ms [Tennent] reported that towards the end of their relationship, the level of conflict increased. Each reported that this was primarily in the context of parenting disagreements. Mr [Tennent] said that Ms [Tennent] had sworn at him on occasion. Ms [Tennent] reported that Mr [Tennent] had called her a “bitch” and said that she was “insane”. She said that towards the end of their relationship, the maternal grandparents came to stay with her, due to concerns regarding Mr [Tennent’s] aggression. She said that she has threatened to call the police on occasion, in order to get Mr [Tennent] to go away.

   16.Mr [Tennent] said that Ms [Tennent] was not controlling of his movements, but would severely restrict his activities with [X]. He said that she would not allow him to leave the house with [X] and would stand in the doorway and threaten to call the police if he tried to take [X] out. 

   17.Ms [Tennent] reported that Mr [Tennent] would become angry if she did not agree to him doing activities that she considered to be inappropriate with [X]. She gave the example that Mr [Tennent] wanted to take [X] to an adult mountain bike track, on a very hot day, and would not agree to any of the alternative activities she offered, which she believed were more appropriate. She said that Mr [Tennent] would yell that he is [X’s] father, and could take [X] where he wanted.

4. As to the mother’s alcohol abuse the Family Consultant reported:

   21. ... Ms [Tennent] agreed that she had drunk between two and four glasses of wine most days. Each parent reported that [X] had not been impacted by this, because it occurred after he went to bed.

   22.Ms [Tennent] reported that her drinking was exacerbated by her conflict with Mr [Tennent] and that she no longer feels the need to drink, since they separated. She reported that she now only drinks about once a month.

5. This being a somewhat modest assessment of her abuse of alcohol in light of her reports to her doctor.

6. As to mental health issues the Family Consultant said:

   Mental Health

   24.Ms [Tennent] reported that she has not received any formal mental health diagnosis, but that she saw her doctor due to low mood when living in Brisbane. She reported that she was prescribed anti-depressants, which she stopped taking shortly afterwards, as they “did not agree” with her, and she received counselling, which she found helpful.

   25.Mr [Tennent] reported that Ms [Tennent] has a history of depression, but he is not sure if this has been formerly diagnosed. He said that she saw the family doctor for this reason in 2015, but that she did not follow through with treatment.

   26.Mr [Tennent] expressed the opinion that Ms [Tennent’s] depression, and the current stress of Court proceedings, are causing her to “hold on tighter and tighter” to [X].

7. As to issues of risk the mother told the Family Consultant “that Mr [Tennent] behaves in an inappropriate manner with [X]. She said that she did not know what Mr [Tennent’s] intentions were in these interactions”.  

8. Clearly the mother’s conclusions are clouded by suspicion and the parental conflict.

9. The mother’s proposals for the child’s time with the father were outlined thus:

   37.Ms [Tennent] stated that she would be happy for [X] to spend unsupervised time with Mr [Tennent], once [X] was able to look after himself. She estimated that this might be when he was 13 years old, but said she would need to research this further.

   38.Ms [Tennent] said that she does not believe that having only supervised contact with his father effects [X], and that [X] does not mind having others around. She said that she had offered to be present, to eliminate the need for the use of a supervision service, but that Mr [Tennent] had refused. Ms [Tennent] said that [X] would like to see Mr [Tennent] more, and said that Mr [Tennent] often does not take full advantage of opportunities presented to him. For instance, she said that, when invited to spend Christmas with the maternal family, Mr [Tennent] only chose to stay for a short while to give [X] a present.

   39.Ms [Tennent] said that [X] gets upset that Mr [Tennent] does not want to spend more time with him, but when questioned further, clarified that he simply says he wishes he could see his father more.

10. The mother’s proposals as outlined are not child focused or appropriate.

11. Her enmeshment with the child and oversensitivity is reflected in the report:

    42. … She said that she follows the advice of “the experts” in regards to [X’s] care.

    43.Ms [Tennent] said that she is aware that it is “unusual” to worry so much about safety, but that she is concerned that if [X] spends time with Mr [Tennent] unsupervised, he will not come back, or will be “damaged”.

12. In evaluation the Family Consultant said:

    48. … if the Court finds that Mr [Tennent’s] behaviours are that of normal parent-child interactions, then serious concerns would be raised regarding the damage that unfounded allegations can cause to a child and to that child’s relationships with their parents.

    49.One of the main contributing factors to the conflict between parents appears to be the differing parenting styles of each parent, and whether either of these approaches presents a risk to [X]. Exposure to ongoing parental conflict is likely to have an adverse impact on [X’s] emotional development. The Circle of Security parenting program is widely available and may assist both parents to better understand [X’s] needs, and the importance of both appropriate safety measures and appropriate risk-taking to a child’s development.

    50.A suitable post-separation parenting program may assist Mr [Tennent] and Ms [Tennent] in improving communication between them and in prioritising [X’s] needs.

Other objective evidence

1. The mother’s earlier medical history was produced by the Suburb J Surgery (Exh “C”). The mother had a significant alcohol problem in 2014 that she concealed from the father. She was referred under a mental health plan to a psychologist Ms P in late 2014 and was prescribed Zoloft then Citalopram for depression. A further Mental Health plan was provided in August 2018.

2. Notes from Ms P psychologist (Exh “D”) reveal the mother’s alcohol problem, her concern over the child’s allergy, insomnia and “excessive worry”.  The parties saw Ms P together in late February 2015 expressing a desire to be stronger as a couple.   

3. The mother’s more recent medical records were produced by her local medical centre (Exh “E”). She initially consulted the practice for “anxiety”, she was prescribed Venflaxine for depression/anxiety. She repeated her concerns about the father and was keen for the child to have psychological intervention. The mother declined a mental health referral as it may come out negatively for her, but in late February 2018 she agreed to a mental health referral for herself (for stress) and the child. 

4. Documents from the child’s Queensland school for 2017 reveal 25 days absent in the second Semester and three and a half days absent in the first Semester, many asserting “illness”. The child is described as friendly and cooperative. In 2018 the child has been absent on 13 whole/partial days from school.

5. The supervised contact reports to date reveal a happy and engaged child with the father with the supervisors expressing no concerns in their reports.

Interim Applications

1. In Marvel v Marvel (No. 2)[2010] FamCAFC 101 the Full Court discussed the difficulties associated with making findings on contested evidence in the following terms:

   120.As has frequently been emphasised interim parenting proceedings, and orders made as a consequence, are a necessary but temporary measure until all the evidence can be tested, evaluated and weighed at a final hearing by the making of final parenting orders. Decisions judicial officers have to make in interim proceedings are difficult and, often for very good reason, a conservative approach, or one which is likely to avoid harm to a child is adopted. This is often to the understandable distress of a party who may not achieve the outcome he or she desires, or thinks to be in the best interests of their child or children. Interim parenting orders are frequently modified or changed after a final hearing, and any allocation of parental responsibility made at an interim hearing is disregarded at the final hearing (s 61DB).

1. In SS & AH[2010] FamCAFC 13 the majority (Boland and Thackeray JJ) discussed at paragraph [88] of their reasons the care necessary to be exercised in making findings in interim parenting proceedings. Their Honours said:

   In our view, findings made at an interim hearing should be couched with great circumspection, no matter how firmly a judge’s intuition may suggest that the finding will be borne out after a full testing of the evidence.

2. 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.

3. In Deiter & Deiter [2011] FamCAFC 82 the Full Court was particularly concerned with the situation where the contested facts related to an assessment of risk and said at [61]:

   … Risk assessment comprises two elements - the first requires prediction of the likelihood of the occurrence of harmful events, and the second requires consideration of the severity of the impact caused by those events. In our view, the assessment of risk in cases involving the welfare of children cannot be postponed until the last piece of evidence is given and tested, and the last submission is made. We accept, however, that it is always a question of degree depending on the evidence that is before the Court.

4. In George & George [2013] FamCAFC 182 the Full Court cited Deiter & Deiter (supra) in confirming that the mere fact that matters are in dispute does not mean the Court can ignore concerns that are raised in the material before it.

5. In Eaby & Speelman (2015) FamCAFC 104 the Full Court on the same issue relevantly observed:

   18.…that does not mean that merely because the facts are in dispute the evidence on the topic must be disregarded, and the case determined solely by reference to the agreed facts.

6. In Banks & Banks [2015] FamCAFC 36 the Full Court said:

   47.As the Full Court pointed out in Goode, the fact there will often be little uncontested evidence in interim proceedings means that only limited consideration may be able to be given to the relevant s 60CC factors.

   48.It should also be said that in parenting proceedings, as in all civil litigation, it will be the issues that are joined that will dictate which s 60CC factors are relevant. By their nature, interim parenting proceedings should be confined to those issues which, in the best interests of the child, require determination prior to a proper determination at a trial. The fact such disputes are commonly dealt with in overcrowded court lists makes it even more desirable to identify with precision those issues which can, or should, be resolved on an interim basis.

   49.Although the primary judge discussed all the potentially relevant factors in her ex tempore reasons, that luxury will not always be available. Furthermore, there is a risk that in discussing every s 60CC factor, the judicial officer may lose sight of the forest for the trees. It is also important to stress here that the requirement to “consider” each factor does not mean each must be discussed, especially where the evidence leads inexorably to a particular conclusion: SCVG & KLD(2014) FamCAFC 42.

   50.When it is obvious that the findings made as to some of the s 60CC factors will be determinative of the child’s best interests on an interim basis, it is a sterile and unnecessary exercise to address other factors. Moreover, it will be a sterile exercise to determine whether or not particular facts are disputed if they are relevant only to one of the non-determinative s 60CC considerations. Properly understood, we do not interpret what was said in Goode as meaning that in an interim case, each and every fact must be characterised as disputed or not; and that each s 60CCfactor must be traversed where it is obvious on the facts and issues joined that there are only one or two decisive factors.

The Law

1. 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.

2. 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).

3. 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.

4. 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.

5. Section 61DA(1) of the Act provides that when making a parenting order, the Court must apply a presumption that it is in the best interests of the child for the child’s parents to have equal shared parental responsibility. The presumption does not apply where:

   a)there are reasonable grounds to believe a parent (or a person who lives with the parent) has engaged in abuse of the child or family violence [s 61DA(2)]; or

   b)in interim proceedings where  the Court considers that it would not be appropriate in the circumstances for the presumption to be applied when making that order [s 61DA(3)].

6. In Smith & Smith [2017] FamCAFC 226 at [38] the Full Court in referring to s 61DA(3) said:

   [38]In Marvel v Marvel (2010) 43 Fam LR 348 the Full Court, while recognising the burden on judges in busy courts of negotiating legislation of “labyrinthine complexity”, nevertheless said this about the “exclusion” in s 61DA(3):

   107.… The exclusion may also be relevant where there are numerous and complex factual issues which are incapable of determination at an interim hearing.  The practical effect of the application of s 61DA(3) is that the task and complexity of decision-making on a narrow issue or issues is reduced.  However the task still requires some reference to s 61DA(1) and (2) and the giving of reasons, which may be very brief, why it is considered appropriate for the exception in s 61DA(3) to be applied …

7. The presumption may be rebutted if the Court is satisfied that an order for equal shared parental responsibility would not be in the child’s best interests [s 61DA (4)].

8. If the presumption in s 61DA is to apply and the Court makes an order for equal shared parental responsibility, this “triggers” the operation of s 65DAA which requires the Court to consider whether equal time or substantial and significant time with each parent is in the child’s best interests and reasonably practicable.

Best Interests

The Primary Considerations: s 60CC(2)

1. 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.

2. In applying the considerations set out in subsection (2), the Court is to give greater weight to the consideration set out in paragraph (b).

Section 60CC(2)(a) – “meaningful” relationship

1. 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.

2. In McCall & Clark [2009] FamCAFC 92 at [121] the Full Court accepted as appropriate this interpretation by Brown J of “meaningful relationship”.

3. The child has established relationships with both parents. The mother presents as the child’s primary carer both historically and at present. The child clearly has a primary attachment to the mother. The child’s relationship with the father is in some respects limited by the father’s absence during 2017 from the family home for work and then post separation events as outlined above. Yet the family reporter observed “it appears tha tboth parents have a warm relationship with [X] and that [X] wishes to have significant involvement with each of them”.

4. Looking forward and subject to an assessment of risk it is appropriate that orders facilitate a continuing meaningful relationship with both parents who are able to engage in all aspects of the child’s life.

5. There is, otherwise, conflict between the parties exacerbated by the separation and issues over the father’s time with the child. A resolution of the time issue will do much to reduce such conflict.

6. This consideration is indicative of orders as sought by the ICL and the father being made.

Section 60CC(2)(b) – need to protect

1. This factor is of great significance to the mother in the context of this matter.  The mother expresses certain concerns as to the child’s wellbeing in the care of the father. Yet a closer examination of her concerns as expressed in relation to various incidents are supportive of the conclusion expressed by Dr Q above.

2. Whilst the mother’s assertions and suspicions no doubt will be ventilated at final hearing if she continues to subscribe to them, the child seeks more time with a father with whom he has a warm and robust relationship.

3. To address the mother’s emotional concerns the ICL proposes appropriate and gradual increase in the child’s time with the father.

The Additional Considerations

1. Section 60CC(3) sets out the additional considerations. The more relevant consideration are discussed below.

   a)any views expressed by the child and any factors (such as the child's maturity or level of understanding) that the court thinks are relevant to the weight it should give to the child's views;

   The child is of tender years but the child’s wishes are noted in the context of the Memorandum discussed above and are supported by the mother’s own evidence. He wants more time with his father.

   b)the nature of the relationship of the child with:

   (i)each of the child's parents; and

   (ii)other persons (including any grandparent or other relative of the child);

   This has been discussed above in detail and need not be repeated here.

   c)the extent to which each of the child's parents has taken, or failed to take, the opportunity:

   (i) to participate in making decisions about major long-term issues in relation to the child; and

   (ii) to spend time with the child; and

   to communicate with the child;…

   This has been discussed above in the context of the parties’ relationship before and after separation.

   ca)the extent to which each of the child's parents has fulfilled, or failed to fulfil, the parent's obligations to maintain the child;

   The mother is the primary carer for the child and asserts she receives no financial support from the father. The father will need to consider this issue at an early date. It is no credit to him.

   d)the likely effect of any changes in the child's circumstances, including the likely effect on the child of any separation from:

   (i)either of his or her parents; or

   (ii)any other child, or other person (including any grandparent or other relative of the child), with whom he or she has been living;

   Save for issues as to the child’s time with the father there is no significant change proposed. Indeed, the increase in the father’s time as proposed by the ICL accords with the wishes of the child who has readily separated from the mother for the father’s supervised time to date.

   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;

   The father proposes to mostly have time with the child in Sydney in the remainder of this year and for weekends during school term. It is he who will bear the burden of travel for his time with the child.

   f)the capacity of:

   (i)each of the child's parents; and

   (ii)any other person (including any grandparent or other relative of the child);

   to provide for the needs of the child, including emotional and intellectual needs;

   There are issues raised on both sides as to this consideration. The evidence, thus far as it is, is perhaps indicative of an unhealthy enmeshment in the mother/child relationship with the mother having overarching low level mental health issues that may impact on the child. This will be an issue to be addressed at final hearing where consideration can be given to a Single Expert report.

   The father’s capacity is as yet mostly untested in a real sense and of course subject to concerns held by the mother. He should be given the opportunity to properly engage with the child in the circumstances proposed by the ICL.

   g)…

   h)…

   i)the attitude to the child, and to the responsibilities of parenthood, demonstrated by each of the child's parents;

   This consideration will await more fulsome evidence at trial. There is conflict in the parties’ evidence as to their relationship before separation. Post separation it may be that the mother’s relationship with the child overshadowed by her anxiety/depression is a significant issue as will be the father’s conduct and relationship with the child from now to final hearing.

   j)…

   k)…

   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 the making of final orders will await trial and final determination.   

   m)…

2. A review of the primary and additional considerations above as to the child’s best interests are clearly indicative of the child remaining in the present circumstances with the mother and with the father having time much the same as provided for in the ICL’s proposal.

3. However, the mother should be restrained from further engaging the child in any counselling or psychological intervention without the consent of the ICL.

4. Otherwise, there should be an order providing for electronic communication between the father and the child to continue with the father also able to attend on occasions significant to the welfare of the child in Sydney where the attendance of either or both parents is to be reasonably expected. 

5. In the circumstances of this matter such orders are in the best interests of the child.

The Presumption: Parental Responsibility

1. The Court is satisfied that in all circumstances of this matter the presumption as to equal shared parental responsibility should apply. There is no issue asserted that would prevent the presumption applying.  

Equal or Substantial and Significant Time

1. Equal time is, in the context of this matter, physically and geographically impracticable, particularly where the child is now at school and where the parties live significant hours apart. 

2. The same considerations apply to the question of substantial and significant time. However, the father will be able, when he can, to attend on occasions significant to the child.

3. Orders will thus be made substantially as proposed by the ICL and supported by the father with both parties in agreement as to changeovers in Sydney if not from school.

I certify that the preceding one hundred and three (103) paragraphs are a true copy of the reasons for judgment of the Honourable Justice Foster delivered on 12 September 2018.

Associate: 

Date:  12 September 2018