Theodore & Theodore
[2017] FamCA 588
•11 August 2017
FAMILY COURT OF AUSTRALIA
| THEODORE & THEODORE | [2017] FamCA 588 |
| FAMILY LAW – CHILDREN – Interim orders – Best Interests – Where final consent orders were made in 2014 – Where there are significant concerns as to the father’s mental health – Where there are historical issues of family violence – Where there is a current apprehended domestic violence order in place protecting the mother from the father – Where there are allegations the father has abused the children – Where the children have reported that they are fearful of the father – Where there is a lack of forensic evidence currently available – Where the need to protect the children is determinative – Orders made for the children to live with the mother and spend supervised time with the father. FAMILY LAW – PRACTICE AND PROCEDURE – Leave to Reopen – Where interim judgment as to parenting orders reserved – Where father seeks to reopen his case – Where father seeks to rely on affidavit of his treating mental health practitioner –Where consideration of applicable principles – father’s application for leave to reopen granted. |
| Family Law Act 1975 (Cth) ss 60B, 60CA, 60CC, 61DA, 65DAA |
| Australian Securities and Investments Commission v Rich [2006] NSWSC 826 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 Mallard & Mallard [2011] FamCA 876 Marvel v Marvel [2010] FamCAFC 101 Mazorski v Albright [2007] FamCA 520 McCall & Clark [2009] FamCAFC 92 MRR v GRR [2010] HCA 4 Suell & Suell (Re-Opening) [2009] FamCA 55 Urban Transport Authority of NSW v Nweiser (1982) 28 NSWLR 471 |
| APPLICANT: | Ms Theodore |
| RESPONDENT: | Mr Theodore |
| FILE NUMBER: | PAC | 5789 | of | 2014 |
| DATE DELIVERED: | 11 August 2017 |
| PLACE DELIVERED: | Parramatta |
| PLACE HEARD: | Parramatta |
| JUDGMENT OF: | Foster J |
| HEARING DATE: | 17 July 2017 and 4 August 2017 |
REPRESENTATION
| COUNSEL FOR THE APPLICANT: | Ms Eldershaw |
| SOLICITOR FOR THE APPLICANT: | Withstand Lawyers |
| COUNSEL FOR THE RESPONDENT: | Mr Rosic |
| SOLICITOR FOR THE RESPONDENT: | Rowlandson & Co Solicitors |
Orders, Pending further order
That all previous parenting orders are suspended.
That the mother have sole parental responsibility for the children B born … 2009 and D born … 2010.
That the children live with the mother.
That the children spend time with the father as agreed between the father and mother in writing such writing to include SMS or email communication and in default of agreement:
a)the children spend time with the father each Saturday for a period of not less than two hours between the hours of 10.00 am and 4.00 pm;
b)that such time to be supervised by W Group or Z Group or otherwise supervised by the paternal grandfather or a person or entity agreed to in writing by the mother and father such writing to include SMS and email communication.
That, otherwise, the father be restrained from approaching or, otherwise, contacting the children unless agreed to by the mother and father such writing to include SMS and email communication.
That the mother and father be restrained from administering physical chastisement or discipline to the children.
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 Theodore & Theodore 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 5789 of 2014
| Ms Theodore |
Applicant
And
| Mr Theodore |
Respondent
REASONS FOR JUDGMENT
Notwithstanding the short period that had expired since separation and a difficult history prior to separation, including the father’s significant mental health issues that is discussed below, the mother and father on 2 December 2014 made application to the Court by way of an Application for Consent Orders for orders finalising parenting arrangements in relation to their two children.
The mother and father commenced cohabitation for a period prior to marriage and were married in 2008. On 8 August 2014 the parties separated.
The mother and father are both presently aged 35.
There are two children of the parties’ marriage: B born in 2009 and D born in 2010.
On 2 December 2014 final orders as to parenting were made by consent that, in summary, provided for:
a)the mother and father to have equal shared parental responsibility for the children;
b)the children to live with the mother when they are not spending time with the father;
c)the children to spend time with the father each week from 5.00 pm Tuesday until 8.00 am Thursday, from 5.00 pm Friday until 5.00 pm Saturday in each alternate week and from 5.00 pm Saturday until 5.00 pm Sunday in each other week;
d)the parties were to share the mid-year school holidays on a week about basis;
e)otherwise, specific orders were made as to the children’s time with each parent at Christmas, children’s birthdays, the parent’s birthdays and Easter;
f)orders were made providing for arrangements for changeovers, each parent’s communication with the children, overseas travel, medical circumstances and mutual non-denigration orders.
The orders required a number of changeovers and no settled circumstance for the children during the school week.
Subsequently, on 21 June 2017, the mother made application to the Court seeking different orders as to the parenting arrangements for the children. Her application sought final orders that relevantly provided, in summary, for:
a)the mother to have sole parental responsibility for the children;
b)the children to live with the mother;
c)the children to spend time with the father on Friday each week between 4.00 pm and 7.00 pm in the supervision of a person agreed by the mother and father or otherwise appointed by the Court;
d)the children not to stay with the father overnight.
The mother in her Initiating Application also sought urgent interim orders as follows:
a)that the father be restrained from removing the children from the mother’s care other than as provided for by an order of the Court;
b)that the children live with the mother;
c)that the children spend time with the father Friday at the Central West Contact Centre at such times and dates as agreed;
d)that the father be restrained from making critical or derogatory remarks about the mother in the presence or within the hearing of the children and the father do all things reasonably necessary to ensure that no other person makes any critical or derogatory remarks about the mother or members of her family in the presence or within hearing of the children.
In support of her interim orders the mother relied upon her affidavits filed 21 June 2017 and 13 July 2017.
The father filed a Response on 13 July 2017 and an Application in a Case on the same day seeking orders that a recovery order issue for the children to be returned to his care.
In his Response the father sought orders that the mother’s application filed 21 June 2017 be dismissed and that she pay his costs.
The father relied upon his affidavits filed 13 July 2017 and 14 July 2017 and the affidavit of his partner Mayret Djamirze filed 14 July 2017.
Context
The mother’s evidence:
The mother asserts that almost immediately subsequent to their marriage the father was physically and emotionally abusive to her.
In about 2009 the mother was diagnosed with Post Traumatic Stress Disorder (PTSD), anxiety and depression and has been intermittently on medication to assist her with these conditions.
The mother asserts that whilst she was pregnant with the child, B in 2008 the father was diagnosed with bipolar disorder and his behaviour became increasingly erratic. The mother deposes to the following incidents in support of this assertion:
a)the father damaging a banister in their home;
b)the father on one occasion throwing a beer bottle at the mother’s feet causing it to break in the presence of the children;
c)the father breaking a champagne bottle on the bench top and throwing a plate of food at the mother in the kitchen in front of the children and then throwing an apple at the mother;
d)the father pulling a large clock off the wall and breaking it in front of the mother and the children, then punching holes in the doors of the home and making various threats to the mother including “I will put a bullet in your head if ever you leave” and “if you leave me, you will have nothing, I’ll take you for all you have. You’ll have to live in [Suburb C]”.
The father’s behaviour was such, says the mother, that he attended a domestic violence counsellor in 2013 but dismissed the counsellor’s assistance saying “she is a load of shit”. The mother sought assistance from the same counsellor between June 2013 and November 2014 during which the counsellor caused notifications to be made to the Department of Family and Community Services (the Department) out of concerns relating to the father’s abusive and violent behaviour.
The parties separated, says the mother, on at least three occasions for a few days at a time as a consequence of the father’s conduct.
The mother says that subsequent to the birth of both children she was the primary caregiver with the father working full time and rarely being at home to assist her with the children. She says that his engagement with the children was mostly on weekends when the family would visit his parents or go on outings.
In January 2014 the father broke his back and was hospitalised for two weeks. Subsequent to his discharge, the mother asserts that the father’s behaviour and aggression escalated significantly.
The father thereafter attended a mental health program as an inpatient at E Hospital for about five weeks.
On 26 February 2014 the father was to be discharged from the Hospital. The mother expressed her concern to the father about him returning home and his behaviour. The father agreed to stay at his parents’ home. Yet on returning home on the evening of 27 February 2014 she found the father was inside the home. He commenced shouting and arguing with her and his behaviour became increasingly aggressive causing the mother to fear for her safety and the children’s safety. The mother called the police who attended at the home. The mother provided a statement to the police. The police contacted the father who had left the premises and the police were subjected to a tirade of abuse by the father.
The police sought an Apprehended Violence Order (AVO) against the father and on 4 March 2014 a final AVO was made for a period of 12 months for the protection of the mother and the children.
Subsequently, the mother asserts the father had no contact with the children from 27 February 2014 until September 2014 save for a family holiday in July/August 2014 in an attempt to fix the marriage.
The father’s conduct did not abate and on 8 August 2014 the mother and children moved out of the matrimonial home to a rental property at Suburb F.
It was agreed that the father would spend time with the children each Friday from 5.00 pm until Saturday 5.00 pm with changeovers to occur at the McDonald’s family restaurant at Suburb G.
However, the father’s aggressive conduct continued and the father was charged with a breach of the AVO arising from an incident on 27 September 2014. In January 2015 he was convicted of this offence.
Notwithstanding this background, final parenting orders were made by consent on 12 December 2014 that provided for the children to spend six nights a fortnight with the father together with block school holiday periods.
Subsequently, the mother made application through the police to vary the AVO so that the father could have time with the children.
The AVO was amended on 12 February 2015 for a further period of 12 months with further conditions added as follows:
a)that the father not enter the premises at which the protected persons (the mother and the children) may from time to time reside or work or other specified premises H Street, Suburb F;
b)that the father must not destroy or deliberately damage or interfere with the property of the protected persons;
c)that the father must not approach or contact the protected persons by any means whatsoever except through the father’s legal representative except every Monday, Wednesday and Friday between 6.00 pm and 6.30 pm by phone and every Sunday 9.00 am to 5.00 pm with children to exchange at McDonald’s family restaurant at Suburb G.
The mother has had recent concerns in relation to the behaviour of the child D. In November 2015 the child exposed his private parts in the playground at his preschool. The preschool informed the mother that they had become increasingly concerned about the child’s behaviour. The child had become disrespectful of the mother, calling her foul names and being physically aggressive towards her.
In November 2015 the father was charged with further breaches of the AVO and other offences including common assault on the mother.
On 10 June 2016 a further final ADVO was issued for the protection of the mother for a period of two years.
On 17 January 2016 the children returned home after spending time with the father. The child, B, reported that the father had hit D with a wooden spoon. The child, D, was questioned by the mother and showed to her a welt and large red mark on his left buttock.
In April 2017 the mother was spoken to by the child D’s teacher who expressed concerns about the child’s emotional behaviour in that he began to try to choke himself saying “I wish I was dead”.
The mother expresses concern in relation to the fact that the father’s new partner’s 13 year old son on occasion shares a bedroom with the child, D. The mother has observed that D’s behaviour has become increasingly sexual and inappropriate since sharing a room with this child.
The child, B, has complained to the mother about the father swearing at her and using foul language.
The mother has concerns about the well-being of the children who she has observed are displaying signs of sadness, anger and anxiety after returning from the father’s home. She has also observed that the children appear agitated and aggressive when their time with the father is about to commence.
The child, D, on 30 May 2017 reported to his teacher that he had been hit by the father with a metal spoon and that his sister, B, who was present, was upset and screaming. The teacher informed the mother that she had notified the principal and reported the matter to the Department. The child, B, also reported the matter to the mother, complaining that she had to step in between the father and her brother.
The mother on 1 June 2017 met with D’s school principal and class teacher. They reported to the mother that the child had been agitated, upset and emotional, disruptive in class and avoidant of discipline.
The mother has observed that the children are exhibiting signs of being enmeshed in the parental conflict, repeating the father’s abusive criticism of the mother and expressing concerns for her safety.
On 13 June 2017 the child, D, took a knife and stabbed the yard fence saying “I don’t want to go to daddy’s”. Both children have expressed wishes to the mother not to go to the father’s home for time with him. On 15 June 2017 the mother reported her concerns to the Department.
On 18 June 2017 the child, D, returned from the time with the father with red marks on the left buttock and complained of being smacked by the father.
On 28 June 2017 the father unexpectedly collected the children from school at 10.30 am. The school notified the mother that the father proposed to take the children to a psychologist “Ms J”. The mother was informed that the children were upset when they left. The mother enquired of the psychologist’s practice and was informed the children were not there and the father had not been seen for six months. The mother notified the Police and the Department. The children were located at the father’s residence.
The children were collected from school the next day and informed the mother that they were upset that the father had taken them from school and that the father had said that they might “never see the mother again”. The children, especially B, were upset and fearful that the father would again remove the children from school. They did not attend school on 30 June 2017, the last day of school term.
The mother has not made the children available to the father since.
The mother says she has significant concerns as to the children’s welfare should they spend time with the father by reason of the father’s behaviour and anger issues.
The father’s evidence
The father makes a general denial of the mother’s allegations.
He was diagnosed with bipolar disorder in 2008/2009. He asserts that his admission to E Hospital was for issues as to depression, anxiety and his bipolar disorder.
He acknowledges the mother was the primary carer of the children during cohabitation but asserts that he assisted and also retained cleaners to assist in the household chores.
In the period 27 February 2014 to September 2014 he says he saw the children weekly but not overnight and that the family holidayed overseas in July/August 2014.
He surprisingly asserts that the separation was amicable and that he provided the mother with financial assistance.
He admits smacking the child, D, on 18 June 2017.
He says it was both parents’ practice to physically discipline the children by smacking. He has no recollection of hitting D with a wooden spoon in January 2017 as alleged, nor did he see any welt or bruise on the child.
The father acknowledges being in a new relationship but he does not cohabit with his new partner and her son. He denies that his partner’s child, K, has denigrated or abused his children.
He asserts that the children have a close and loving relationship with him. He has, he says, engaged in the children’s school activities and when in his care they attend extracurricular activities.
He concedes removing the children from school early on 27 June 2017 and that the child, B, was “a little upset”.
The father was interviewed by Department officers on 5 July 2017 as to allegations of inappropriate discipline. No documents are available from the Department.
The father’s application to reopen
On 28 July 2017 the father made application by way of Application in a Case to reopen his case. He sought to rely on the affidavit of his treating mental health practitioner Dr L, psychiatrist.
The mother opposed the application.
After oral submissions on 4 August 2017 an order was made granting the father leave to reopen with reasons to be published concurrently with reasons already reserved. Those reasons are set out below.
It is well settled that reopening of a case prior to delivery of judgment is an exception to rather than the usual course of a trial. Although in this matter the application is made in the context of an interim parenting application not a final trial.
In Urban Transport Authority of NSW v Nweiser (1982) 28 NSWLR 471 at 478, Clarke JA (with whom Mahoney and Meagher JJA agreed) pointed to the relevance, in an application to reopen, of the question whether the interests of justice are better served by allowing or rejecting the application. His Honour observed that:
The principle which would guide the Court in determining whether to grant an application for leave to reopen is whether the interests of justice are better served by allowing or rejecting the application as the case may be. No doubt it is relevant to take account of a number of matters such as likely prejudice to the party resisting the application and the reasons why the evidence is not led in the first place.
In Australian Securities and Investments Commission v Rich [2006] NSWSC 826 Austin J pointed to matters relevant to an application to reopen including:
a)The nature of the proceeding;
b)Whether the occasion for calling the further evidence ought reasonably to have been foreseen;
c)Considerations of fairness in respect of the defendant's notice of the case they have to meet;
d)The importance of the issues as to which the further evidence is sought to be adduced to the issues in the case;
e)The degree of relevance and probative value of the further evidence;
f)The prejudice to the defendant in terms of delay and the completion of the proceedings and consequential costs;
g)The public interest in the timely conclusion of the litigation; and
h)The explanation offered by the applicant for not having called the evidence in chief.
In this Court in Mallard & Mallard [2011] FamCA 876, Fowler J distilled the applicable principles thus at [91] –[92]:
The fundamental principle to be applied in determining whether to grant an application to reopen a hearing after judgment has been reserved is whether the interests of justice are better served by allowing the application or rejecting it: Urban Transport Authority of New South Wales v Nweiser (1992) 28 NSWLR 471 per Clarke JA at 476 with whom Mahoney JA and Meagher JA agreed; Gelly and Gelly (No 1) (1992) FLC 92-290 per Treyvaud J at 79, 146-148; Smith v New South Wales Bar Association (No 2) [1992] HCA 36; (1992) 176 CLR 256 per Brennan Dawson, Toohey and Gaudron JJ at 266-7 and Gaspaldi and Gaspaldi [2008] Fam CAFC 134 (unreported, Family Court of Australia, Bryant CJ, Thackray and Le Poer Trench JJ, 2 October 2007); Stephens & Stephens & Anor (Enforcement) [2009] FamCAFC 240.
The court has discretion to reopen a hearing and allow fresh evidence where:
- the fresh evidence was not easily available at the time of the trial and could not be discovered despite the exercise of due diligence and
- the fresh evidence is so material that the interests of justice require it and
- if believed, the fresh evidence would most probably affect the result of the trial and
- there would be no prejudice to the other party by reason of its introduction at a late point in time.
In Suell & Suell (Re-Opening) [2009] FamCA 55 Murphy J after examining the implications on the general principles applicable to leave to reopen in the context of a parenting matter conducted under Part 12A of the Act concluded:
27. By reference to those decisions (and, indeed, to other authorities including those specifically referred to earlier in these reasons and in the written submissions just referred to by Mr North SC), I consider that, when account is taken of Division 12A, the factors relevant to the exercise of my discretion in this application include the following:
◦ Is the further evidence relevant to issues directly affecting V’s best interests and the ultimate decision about that?;
◦ Is the further evidence likely to affect, in a substantial way, the ultimate finding or findings that would otherwise have been available on the evidence at the hearing?;
◦ Could the further evidence have, with due diligence and preparation, been discovered so as to be led at the trial and, associated therewith has there been undue delay on the part of the applicant in bringing the application, particularly in light of s.69ZN(7);
◦ The nature and extent of any prejudice which is likely to be caused to the respondent in responding to any such evidence within a reasonable time;
◦ Is V likely to suffer detriment if the evidence is admitted and the trial re-opened, and, if so, the nature and extent of any such detriment;
◦ Recognition of the principle that it is in V’s best interests (and his parents) that parenting litigation be finalised as soon as possible;
◦ Recognition of the fact that proceedings for parenting orders are not in the nature of ordinary inter-party proceedings; they may involve a broader inquiry into the best interests of children than that which is circumscribed by the issues identified by the parties;
◦ The fact that the discretion to admit further evidence “... needs to be exercised with much care in parenting cases”. (See CDJ v VAJ @ Para [117].
28. In addition, it needs to be borne in mind, in my view, that further parenting proceedings, by reason of their nature, and because they are now conducted within Division 12A, run the risk of requiring greater exploration of issues than might be the case in other litigation, (which such litigation is often confined by pleadings), and where parenting proceedings can be driven by values as well as facts. (As to the latter: CDJ v VAJ @ [152].
It is not in issue that the evidence of the father’s treating practitioner was available at interim hearing but for whatever reason no consideration appears to have been given to adducing such evidence that was clearly most relevant in the context of the issues discussed above and the objective evidence considered below.
The evidence sought to be adduced is clearly relevant to the Court’s consideration as to the best interests of the subject children. It is appropriate that leave be granted to the father to reopen. As rightly contended by counsel for the mother, the question is then what weight can be afforded to the evidence of Dr L in the context of the issues for determination.
The objective evidence
Colour photographs (Exh “B”) of the bruising on the child, D, show concerning bruises arising from both incidents (in January and June 2017) asserted by the mother.
E Hospital
The father was referred by his GP to the E Hospital for “mental health issues”. Documents produced by E Hospital (Exh “D”) show the father in March 2014 was admitted to its programs for a litany of issues: Bi Polar, Depression, Alcohol use, Relationship concerns, CSA, Anger and polysubstance abuse.
His admission notes are consistent with the history given by the mother and concerningly reveal some recent suicidal ideation, alcoholic binges, aggression, raging behaviour, belittling of the mother, punching walls at home, dangerous/reckless driving, driving whist under influence of alcohol, previous cocaine use and blackouts from alcohol.
The notes also reveal his five year engagement till 2013 with Dr M for “anger relationship (sic)” that included prescribing dexamphetamine and later other medications. Dr M attended on the father whist he was an inpatient. There is no evidence before the Court from Dr M.
On admission he was in possession of various medications: Endone, Lexapro, Lithium, Targan, Escitalopram, Oxycodone, Oxynorm and Dexamphetamine.
The father discharged himself from the E Hospital program against medical advice on 8 March 2014 but returned the next day. The father’s engagement with the hospital programs was not without incident.
On the basis of this subpoena material and in the absence of evidence from the father’s treating psychiatrist there is concern as to the father’s current mental health.
N School
The children’s school provided some documents (Exh “E”) to the mother on request. A meeting between the school principal and the mother after 20 June 2017 revealed the concerns held by the school for the child, D, who had complained to his class teacher of being hit by the father. The child’s behaviour had deteriorated with the child being at times aggressive, teary, scared and self-harming. The school reported the child’s disclosure to the Department of Family and Community Services.
The school material is of significant concern.
No documents were available from the Department.
Notwithstanding the consent orders it is clear that there has been a substantial change in the children’s circumstances, particularly the child, D’s recent deteriorating and concerning behaviour evidenced by the documents produced by the school and the fact that the children are not spending time with their father, necessitating the reopening of parenting issues.
Dr L
The father’s treating practitioner provides an undated report (Exh “F”) prepared after her last consultation with the father on 24 July 2017. She commenced seeing the father in February 2015 shortly after his admission to E Hospital.
She had seen the father on 13 occasions from 24 March 2015 to 28 July 2016, which is about monthly. Concerning, she did not see the father again until 24 July 2017, some 12 months later, presumably necessitated by the issues agitated at the interim hearing. She opines as to the reasons for his admission to E Hospital not withstanding he was not her patient at that time.
She reports that the father remains on a cocktail of medications but provides no diagnosis underlying the reasons for him being prescribed such medication save for a reference to ADHD symptoms.
She says she has never had concerns as to his ability to care for children.
She refers to the father’s “presentation”, which as best can be determined, is a conclusion simply based on what the father has told her on interview. No objective assessment or testing was undertaken.
In such circumstances little weight can be afforded to Dr L’s report.
Orders 17 July 2017
Interim orders were made pending judgment on 17 July 2017 as follows:
a)Pursuant to s 68L of the Family Law Act 1975 an Independent Children’s Lawyer be appointed for the children, B born in 2009 and D born in 2010 and the Legal Aid Commission of New South Wales is requested to provide such representation.
b)The parties are to provide to the Sydney Central Office of the Legal Aid Commission of NSW at … forthwith copies of all documents thus far filed by them in these proceedings together with all existing orders and copies of any relevant reports.
c)Leave is granted to the Independent Children’s Lawyer to have photocopy access to all documents produced on subpoena in these proceedings.
d)Leave is granted to the Independent Children’s Lawyer to re-list the matter on short notice by communication with the Court in Chambers in appropriate circumstances.
e)The proceedings are adjourned to 9.30 am on Wednesday, 30 August 2017 to facilitate the engagement of the Independent Children’s Lawyer in the proceedings.
f)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 25 August 2017.
g)Pending further order the children’s time with the father as provided for in orders made 2 December 2014 be suspended.
h)Pending further order the children spend time with the father as agreed between the father and mother in writing such writing to include SMS or email communication and in default of agreement as follows:
The children spend time with the father each Saturday for a period of not less than 2 hours between the hours of 10.00 am and 4.00 pm with such time to be supervised by W Group or Z Group or otherwise supervised by the paternal grandfather
i)The mother and father be restrained from administering physical chastisement or discipline to the children pending further order.
Parenting: The Law
In Marvel v Marvel [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).
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.”
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.
In George & George [2013] FamCAFC 182 the Full Court cited Deiter [2011] FamCAFC 82 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.
In Eaby & Speelman (2015) FamCAFC 104 the Full Court on the same issue relevantly said:
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) 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 60CC factor must be traversed where it is obvious on the facts and issues joined that there are only one or two decisive factors.
51. …
52. In the following discussion, we will detail the most significant s 60CC factors we have taken into account in reaching our decision. The absence of discussion of any particular s 60CC factor does not reflect any failure to consider it. Rather, it reflects our assessment that such factor has no sufficient relevance in the circumstances of this case to displace the determinative significance of those factors we specifically address.
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 (s 60CC(2)) and additional (s 60CC(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 (or a person who lives with the parent) has engaged in abuse of the child or family violence [s 61DA(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 [s 61DA(3)].
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)]
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)
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).
Section 60CC(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] FamCAFC 92 at [121] the Full Court accepted as appropriate this interpretation by Brown J of “meaningful relationship”.
There is no issue that the children have a strong relationship with the mother who has been their primary carer since birth. It is important that she remain significant in their lives.
The children’s relationship with the father is overshadowed by issues now resurfacing as to his mental health and emotional control. The children have both expressed concerns to their mother about their father and the child, D has, it appears, exhibited signs of the father’s abuse, made complaints at school and displayed adverse and concerning behavioural issues.
It is important for the children, if they are to have a relationship with the father, to be able to feel safe in his care. At present the evidence is indicative that they do not feel safe and are apprehensive about the father’s mood swings and his enmeshment of them in his conflict with the mother.
Section 60CC(2)(b) – need to protect
This factor is determinative of this interim application especially where evidence is incomplete at this early stage of proceedings.
As discussed above, where the children feel unsafe and apprehensive about spending time with the father, it is appropriate that orders be fashioned to address those concerns on an interim basis until more fulsome and appropriate evidence is available. In this regard, there needs to be updated evidence from Dr M or any other mental health professional engaged by the father and input from the Independent Children’s Lawyer (ICL) appointed for the children.
A close analysis of the E Hospital notes and his lack of engagement with his current treating practitioner in the context of an ongoing significant medication regime deepens the concern as to the father’s mental health issues.
It is appropriate that the children’s time with the father pending further order be supervised.
In this context interim orders were made on 17 July 2017 to this end.
The Additional Considerations
Section 60CC(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
(iii)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);
g)to provide for the needs of the child, including emotional and intellectual needs;
h)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;
i)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;
k)the attitude to the child, and to the responsibilities of parenthood, demonstrated by each of the child's parents;
l)any family violence involving the child or a member of the child's family;
m)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;
n)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;
o)any other fact or circumstance that the court thinks is relevant.
Whilst regard has been had to each of these additional considerations, the present application is resolved by the overarching need to protect the children.
The children have expressed concerns about time with the father to both their mother, as deposed to in her affidavit material, and to school teachers, in the case of the child, D, as evidenced by the school records tendered by the mother. Their views will be the subject of counselling intervention by way of interviews with a Family Consultant and contained in a subsequently provided Children’s and Parents Issues Assessment Report.
The nature of the children’s relationships with the parents is discussed above.
Family violence is defined by the Act to include violent, threatening or other behaviour by a person that coerces or controls a member of the person's family (the family member), or causes the family member to be fearful. There has been family violence as referred to above both historical and more recently in relation to the children, especially D.
There is an existing ADVO in place until June 2018 for the protection of the mother.
Many of the considerations will await determination at final hearing
The Presumption: Parental Responsibility
The Court is satisfied that in all circumstances of this matter the presumption as to equal shared parental responsibility should not apply by reason of family violence and the best interests of the children at this time.
Pending further order, the mother shall have parental responsibility for the children. Such order can be varied at final hearing.
Conclusion
Otherwise, the above discussion as to the best interest considerations, particularly the protective concerns, clearly are indicative of the children’s time with the father being closely monitored by way of supervision pending more fulsome evidence being available.
It is acknowledged that in the context of this interim hearing there are a number of forensic issues outstanding. It may be that further evidence at an appropriate time following counselling intervention with the children and the engagement of the ICL will indicate a further pathway for the children’s relationship with the father.
Orders in the best interests of the children at this time will be made as set out at the forefront of these reasons for judgment.
I certify that the preceding thirty-seven (37) paragraphs are a true copy of the reasons for judgment of the Honourable Justice Foster delivered on 11 August 2017
Associate:
Date: 9 August 2017
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