TURNBULL & TURNBULL

[2019] FamCA 54

FAMILY COURT OF AUSTRALIA

TURNBULL & TURNBULL [2019] FamCA 54

FAMILY LAW – CHILDREN – Interim parenting – Best interests of the child – Where concerns as to the child’s enmeshment in parental conflict – Where there are untested allegations as to abuse or family violence by the father – Where the child aged eight has objectively reported allegations – Where there are concerns as to the father’s mental health – Where a Single Expert Report is expected shortly – Where it is in the child’s best interests to retain present interim orders as to the child’s time with the father pending the Single Expert report and final hearing – Where orders made accordingly.

Family Law Act 1975 (Cth) ss 60B, 60CA, 60CC, 61DA, 61DAA, 69ZL

Deiter v Deiter [2011] FamCAFC 82
Goode & Goode [2006] FamCA 1346
Marvel v Marvel [2010] FamCAFC 101
MRR v GR [2010] HCA 4

APPLICANT: Ms Turnbull

RESPONDENT: Mr Turnbull

INDEPENDENT CHILDREN’S LAWYER: Ms Soliman

FILE NUMBER: PAC 4597 of 2014

DATE DELIVERED: 8 February 2019

PLACE DELIVERED: Parramatta

PLACE HEARD: Parramatta

JUDGMENT OF: Foster J

HEARING DATE: 9 November 2018

REPRESENTATION

COUNSEL FOR THE APPLICANT: Ms Kennedy

SOLICITOR FOR THE APPLICANT: Walter Elliot and Family

COUNSEL FOR THE RESPONDENT: Mr Wong

SOLICITOR FOR THE RESPONDENT: Adams & Partners Lawyers

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

Orders Made On 9 November 2018

1. The orders made for the child’s time with the father on 23 October 2018 continue pending further order save and except that the child’s time with the father be suspended on 18 November 2018, 2 December 2018, 6 January 2019 and 13 January 2019 provided always that the child spend time with the father on Monday, 14 January 2019 in lieu of the time on 6 January 2019 and provided always that the child spend time with the father from 2.00 pm to 8.00 pm on Christmas Day.

That pending further order

1. That the mother have sole parental responsibility for the child B born … 2010.

2. That the child live with the mother.

3. That the child spend time with the father as agreed between the mother and father in writing such writing may include SMS or email communication and in default of agreement each Sunday from 9.00 am to 5.00 pm provided always that in the event that the child has a dancing or other extracurricular commitment to which the father is unwilling to cause her attendance then the father’s time on such Sunday shall be suspended and for this purpose the mother shall give to the father not less than 21 days’ notice in writing such writing to include SMS or email communication of such dancing or extracurricular commitment and in the event of notice not being provided in time the child’s time with the father shall otherwise proceed on the Sunday with no obligation on him to cause the child’s attendance at such dancing or extracurricular commitment.

4. For the purposes of the previous order the father’s time on a Sunday shall not be suspended on any more than one occasion in each two month period.

5. That for the purposes of the child’s time with the father changeovers shall take place at a location agreed to in writing by the parties such writing may include SMS or email communication and in default of agreement the McDonald’s Family Restaurant at Suburb F.

6. That for the purposes of changeovers as provided the mother or a person known to the child shall cause the child to be delivered to the changeover location at the commencement of the father’s time with the child and the father or a person known to the child shall cause the child to be returned to the mother at the changeover location at the conclusion of the father’s time with the child.

7. That the father is restrained from using any form of physical discipline or chastisement on the child and shall take all reasonable steps to ensure that no other person uses any form of physical chastisement on the child.

8. That the mother and father are each restrained from discussing these proceedings with the child in her presence or permitting any other person to do so and are each restrained from discussing the other parent with the child or in the hearing or presence of the child or permitting any other person to do so.

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 Turnbull & Turnbull 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 4597 of 2014

Ms Turnbull

Applicant

And

Mr Turnbull

Respondent

REASONS FOR JUDGMENT

1. The present application is yet another parenting application relating to the subject child B born in 2010.

2. The applicant mother and respondent father commenced a relationship in about 2004 and commenced to live together in 2006.  The parties married in 2009.  The subject child is the only child of their relationship.

3. The parties separated on a final basis in September 2014 with proceedings for property and parenting orders being commenced by the then applicant father on 25 September 2014.

4. Following an interim hearing and on 14 November 2014 interim parenting orders were made that provided, in summary:

   a)that the parties have equal shared parental responsibility for the child;

   b)that the child live with the mother;

   c)that the child spend time with the father on a five nights a fortnight basis and at such other times as the parties may agree.

5. At the time of the interim hearing the child was four years of age.

6. The father commenced proceedings in the Federal Circuit Court of Australia where they remained for about 12 months until proceedings were transferred to this Court presumably on the basis that they were complex proceedings for determination by a specialist family court.

7. After the transfer of the proceedings to this Court, the parties were unable to reach an agreement as to the child’s schooling circumstances and the arrangements for the child’s time with the father once schooling commenced.  A further interim hearing took place on 30 November 2015 with orders and reasons for judgment being delivered on 10 December 2015.  Those orders provided:

   PENDING FURTHER ORDER, IT IS ORDERED THAT:

   (1)That Orders 3 and 4 made on 14 November 2014 be discharged.

   (2)That the child spend time with the father as agreed between the mother and father in writing with such writing to include but be not limited to SMS or email communication and in default of agreement as follows:

   (a)until the commencement of school term one in 2016 each alternate week from after day care on Friday to before day care on Monday commencing Friday, 11 December 2015 and in each other week from after day care on Monday to before day care on Tuesday commencing Monday, 21 December 2015;

   (b)that from the commencement of school term one in 2016 and thereafter during school term each alternate week commencing on the first weekend after the resumption of school term from after-school care on Friday to before school care on Monday and in each other week from after school care Monday to before school care on Tuesday;

   (c)during the Term 1, 2 and 3 mid-year public school holidays from after school care on the last day of school term until 5.00 pm on the midpoint Saturday of such holiday period;

   (d)from 4.00 pm Christmas Eve 2015 until 1.00 pm Christmas Day 2015 provided always that the father’s time with the child shall be suspended thereafter until 6.00 pm on 26 December 2015.

   (3)That both the mother and father be at liberty to attend on such occasions and at such events as are significant to the child’s welfare being occasions relating to education, religious education, health, sporting activities, extracurricular activities or other occasions significant to the welfare of the child where the attendance of either or both parents is to be reasonably expected.

   (4)That for the purposes of the father’s time with the child where changeovers cannot be facilitated at day care or before and after school care as the child is not attending either of those facilities on the relevant day then changeovers for the commencement of the father’s time shall be at the mother’s residence at 6.30 pm and at the mother’s residence at 6.30 am at the conclusion of such time and that for the purposes of other changeovers as provided for above such changeovers shall be at the mother’s home.

   (5)That the mother shall be permitted to do all things necessary and sign all necessary documents so as to procure the enrolment and attendance of the child at the Suburb A Public School and the before and after school program operated by the Suburb A Early Learning Centre pending further order and this order shall be sufficient authority for the mother to do so.

   (6)That for the purposes of the child’s collection from or delivery to day care or before and after school care the father is authorised to nominate members of his extended paternal family to assist in that regard together with such other person or persons as the mother and father shall agree in writing with such writing to include be not limited to SMS or email communication.

8. Ultimately, the parties were able in the context of those proceedings to resolve parenting and financial issues by consent and final orders were made on 25 August 2016.  Relevantly, final orders as to parenting were made in the following terms:

   Parental responsibility

   (1)That the mother and the father have equal shared parental responsibility for the major long-term decisions relating to the care, welfare and development of [B] born … 2010 (“the child”).

   Live and Spend Time Arrangements

   (2)That the child live with the mother.

   (3)That the child spend time with the father as agreed in writing between the mother and the father and in the absence of any such agreement as follows:

   3.1During school terms from after school on each alternate Friday commencing the second Friday following the commencement of each school term, and 3.00 pm if it is a non-school day, until before school on Monday or 10.00 am if it is not a school day.

   3.2Commencing in 2016, in respect of the April, June/July and September/October school holidays, from the conclusion of school on the last day of term until 6.30 pm on the Friday at the end of the first week of the school holiday period. 

   3.3In respect of the 2016/2017 Christmas school holiday period:

   3.3.1From the conclusion of school on the last day of the school year until 6.30 pm on 22 December;

   3.3.2From 9.00 am on the second Monday in January until 6.30 pm the following Sunday, being a period of six nights;

   3.3.3From midday on 20 January to midday on 25 January.

   3.4In respect of the 2017/2018 Christmas school holiday period and each alternate year thereafter:

   3.4.1From the conclusion of school on the last day of the school year for a period of seven nights and until 6.30 pm on the day following the seventh night; and

   3.4.2From 6.30 pm on the day which falls two weeks following the last day of the school year for a period of seven nights and until 6.30 pm on the day following the seventh night;

   3.4.3From 6.30 pm on the day which falls four weeks following the last day of the school year for a period of seven nights and until 6.30 pm on the day following the seventh night.

   3.5In respect of the 2018/2019 Christmas school holiday period and each alternate year thereafter:

   3.5.1From 6.30 pm on the day which falls one week following the last day of the school year for a period of seven nights and until 6.30 pm on the day following the seventh night; and

   3.5.2From 6.30 pm on the day which falls three weeks following the last day of the school year for a period of seven nights and until 6.30 pm of the day following the seventh night; and

   3.5.3From 6.30 pm on the day which falls five weeks following the last day of the school year for a period of seven nights and until 6.30 pm on the day following the seventh night.

   Christmas

   (4)That in even ending years, commencing in 2016, the mother spend time with the child from 4.00 pm on Christmas Eve until 4.00pm on Christmas Day.

   (5)That, in odd ending years, commencing in 2017, the mother spend time with the child from 4.00 pm on Christmas Day until 4.00pm on Boxing Day.

   (6)That in even ending years, commencing in 2016, the father spend time with the child from 4.00 pm on Christmas Day until 4.00 pm on Boxing Day.

   (7)That in odd ending years, commencing in 2017, the father spend time with the child from 4.00 pm on Christmas Eve until 4.00 pm on Christmas Day.

   Mother’s Day

   (8)That the father’s time with the child on Mother’s Day be suspended from 9.00 am on Mother’s Day until before school, the following day, Monday or 9.00 am if it is a non-school day.

   Father’s Day

   (9)That the mother’s time with the child on Father’s Day be suspended from 9:00 am on Father’s Day until before school the following day, Monday or 9.00 am if it is a non-school day.

   The child’s Birthday

   (10)That in the event the child’s birthday falls on a school day, the mother and the father spend time with the child on her birthday as agreed in writing and in the absence of any agreement the mother and the father spend time together with the child on her birthday from 3.00 pm until 8.00 pm at a location agreed between the parties. 

   (11)That in the event the child’s birthday falls on a day which is not a school day:

   11.1In odd ending years, commencing in 2017, the child to spend time with the mother from 9.00 am to 2.00 pm and with the father from 2.00 pm to 8.00 pm; and

   11.2In even ending years, commencing in 2018, the child to spend time with the father from 9.00 am to 2.00 pm and with the mother from 2.00 pm to 8.00 pm.

   Mother’s and Father’s Birthdays

   (12)That any time the father has with the child pursuant to these Orders be suspended from 4.00 pm on the day prior to the mother’s birthday, being …, until 9.00 am on the day following the mother’s birthday, being ….

   (13)That the child spend time with the father each year on the father’s birthday, being …, from after school (or 3.00 pm if it is a non-school day) on the day prior to the father's birthday (being …) until 9.00 am on the day following the father's birthday, being ...

   Mother and Father’s Attendance at School and Other Activities

   (14)That both the mother and father be at liberty to attend on such occasions and at such events as are significant to the child’s welfare being occasions relating to education, religious education, health, sporting activities, extracurricular activities or other occasions significant to the welfare of the child where the attendance of either or both parties is to be reasonably expected.

   [Ms N]

   (15)That the father be restrained from permitting the child to be left in the care of his former girlfriend [Ms N].

   Telephone Communication

   (16)That in the event that the child wishes to telephone the parent she is not spending time with, the parent who she is spending time with shall promptly facilitate that telephone call.

   (17)That each parent be permitted to telephone the child between the hours of 6.30 pm and 7.30 pm on two evenings per week while the child is in the other parent’s care during school holiday time and the other parent shall encourage and facilitate such telephone communication, such evenings to be agreed in writing between the mother and the father prior to each school holiday period.

   Changeover

   (18)That at the commencement of his time with the child the father, or his nominee, collect the child from school if it is a school day, or from the mother’s residence if it is a non-school day, and at the conclusion of the father’s time with the child the father or his nominee return the child to school, or the mother’s residence if it is a non-school day, unless the parties agree otherwise in writing.

   Change of telephone numbers, email addresses and addresses

   (19)That each parent shall notify the other, not more than twenty-four (24) hours after any change to their landline and/or mobile telephone numbers and/or their email addresses, of her or his new landline and/or mobile telephone number and/or email address.

   (20)That each parent shall notify the other, no less than 21 days prior to moving to a new residence, of their new address. 

   Schooling

   (21)That the mother and the father do all acts and things and sign all documents necessary to maintain the child’s enrolment  at [Suburb A] Public School, [Suburb] A for her primary school education, unless otherwise agreed in writing between the parties.

   Medical

   (22)That each of the mother and the father notify the other of any serious injury or hospitalisation in relation to the child as soon as possible and in any event not more than three (3) hours after the emergency occurred and provide full particulars of any medical practitioner, health service provider or institution attended by the child and provide any authority and direction necessary to enable the other parent to obtain all necessary information concerning the child.

   Interstate travel

   (23)That each of the mother and the father give the other seven (7) days’ notice of their intention to travel interstate with the child and their interstate destination.

   Passport

   (24)That the mother and the father do all things and sign all documents necessary to obtain an Australian passport for the child.

   (25)That the child’s passport be held by the mother.

   International travel

   (26)That the child be entitled to travel overseas with each parent during school holiday time that she is spending with that parent pursuant to these Orders upon condition that the parent intending to travel overseas with the child give the other parent twenty-eight (28) days’ notice of his or her intention to travel overseas with the child and that for the purpose of this Order the parent intending to travel overseas with the child:

   26.1Provide the other parent with a copy of a return travel ticket for the child’s travel no less than fourteen (14) days prior to the proposed travel;

   26.2Provide the other parent with an overview itinerary of the child’s travel no less than fourteen (14) days prior to the proposed travel;

   26.3Provide the other parent with telephone contact details upon which the child can be contacted during the child’s time with that parent during the overseas travel.

   (27)That upon the father’s compliance with Order 26 above, the mother provide the father with the child’s passport no less than three (3) days prior to the father’s departure overseas with the child.

   (28)That within three (3) days of the father’s return home with the child from their overseas travel the father return the child’s passport to the mother.

   Denigration

   (29)That neither parent denigrate the other parent in the presence of the child.

9. The parties descended into considerable minutiae in the final orders as to parenting made by consent, perhaps reflecting the level of ongoing conflict between them.

10. Perhaps not unexpectedly, further parenting proceedings between the parties erupted in May 2018 when the mother filed a further application initiating proceedings on 4 May 2018 in the Federal Circuit Court of Australia.  In that application, in summary, the mother sought orders that provided:

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

    b)that the father’s time with the child be suspended pending a Chapter 15 Single Expert Report and then the question of the child is time with the father be considered.

1. The father filed on 1 June 2018 a Response to the mother’s application seeking orders, in summary, that provided:

   a)that final orders previously made continue;

   b)that the mother’s initiating application be dismissed;

   c)that the mother be restrained from removing or allowing any other person to remove the child from the child’s school on any occasion that the child is to commence spending time with the father;

   d)that the mother be restrained from attending at the child’s school other than to deliver the child to school on any occasion that the child is to commence spending time with the father.

2. On 16 May 2018 proceedings were transferred to this Court.  On 14 August 2018 the parties sought an interim hearing relating to the issues raised by the further application and response as filed including whether there were circumstances justifying further parenting proceedings in relation to the child.

3. Proceedings were again before the Court on 24 August 2018 and various orders and directions were made by consent and pending determination of interim issues.  Those orders and directions provided as follows:

   (1)Leave is granted to the parties to inspect documents produced on subpoena save and except for documents produced by Medicare and the New South Wales Ambulance Service.

   (2)Leave is granted to the parties through their Legal representatives only to inspect documents produced by the Proper Officer Ambulance Service New South Wales pursuant to subpoena dated 14 August 2018.

   (3)Leave is granted to the parties through their Legal representatives only to inspect documents produced by Medicare Australia pursuant to subpoena dated 14 August 2018.

   (4)Leave is granted to the parties to inspect documents produced on subpoena by New South Wales Police Service being Sleeve 25.

   (5)Leave is granted to the parties through their Legal Representatives only to inspect the Federal Circuit Court file SYC3308/2016 upon the condition that the address of the mother in those proceedings is not communicated in any way to any other person.

   (6)Each of the parents are to attend and the mother make the child available to Child Dispute Services at 9am on 15 October 2018 for the purposes of a Child and Parents Issues Assessment.

   (7)Pursuant to s 68L of the Family Law Act 1975 an Independent Children’s Lawyer be appointed for the child B born … 2010 and the Legal Aid Commission of New South Wales is requested to provide such representation.

   (8)The parties are to provide to the Sydney Central Office of the Legal Aid Commission of NSW at 323 Castlereagh Street Sydney NSW 2000, PO Box K847 Sydney NSW 2000 or DX 5 Sydney forthwith copies of all documents thus far filed by them in these proceedings together with all existing orders and copies of any relevant reports.

   (9)Leave is granted to the Independent Children’s Lawyer to issue such subpoena as they consider relevant to the issues before the Court.

   (10)Leave is granted to the Independent Children’s Lawyer to inspect and have photocopy access to all documents produced on subpoena in these proceedings.

   (11)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.

   (12)Leave is granted to the parties to issue such further subpoena as they consider relevant to the issues for determination returnable no later than 12 October 2018.

   (13)Interim parenting issues are adjourned for hearing part heard to 2.15pm on 23 October 2018.

   (14)Each party file and serve an outline of case as to interim parenting by close of business on 22 October 2018.

   (15)Each party file and serve any further affidavit evidence to be relied upon by the close of business on 19 October 2018.

   (16)The father’s contravention applications filed 27 March 2018 and 18 April 2018 be adjourned to 23 October 2018.

   By consent and pending further order 

   (17)Orders made on 25 August 2015 insofar as they provide for the child’s time with the father be suspended pending further order.

   (18)The child spend time with the father as agreed between the father and mother in writing such writing to include SMS and email communication and in default of agreement each Sunday commencing Sunday 26 August 2018 with the child’s time on such Sundays to be between 10am to 2pm on the first two occasions of such contact and thereafter 9am to 5pm provided always that such time is supervised by an adult over the age of 21 years known to the child but shall not include the paternal grandmother or the father’s wife [Ms O Turnbull] and provided that the identity of that person is made known to the mother prior to the commencement of such time. 

   (19)Should the father be able to organise professional supervision for the times provided above he shall notify the mother of such supervision service before the child spends time with him under such supervision.

4. As can be seen from the above orders, circumstances, it seems, was such that all parties were in agreement that the father’s time pending determination of the interim applications should be supervised.

5. Subsequently, on 23 October 2018 further orders were made for the conduct of the matter and as to the child’s time with the father.  Those orders relevantly provided:

   6.That an Order pursuant to Division 15.5.2 of the Family Law Rules 2004 is made that [Dr P] be appointed as a Single Expert Witness to enquire into and report upon matters relating to the welfare of the child, [B] born … 2010.

   ...

   NOTATION

   A.It is noted that [Dr P] has an appointment to meet with the family on 4 February 2019.

   IT IS FURTHER ORDERED THAT

   13. The Independent Children’s Lawyer is to forward an electronic typescript of the document marked “A” as amended to the Court within two business days.

   14. Interim proceedings as to parenting are adjourned part-heard to 2.15pm on Friday, 9 November 2018.

   15. Previous orders as to the child’s time with father be discharged.

   16. Pending further order and until 4.00 pm on 9 November 2018, the child spend time with the father each Sunday from 9.00 am to 5.00 pm commencing Sunday, 28 October 2018.

   17.For the purposes of the child’s time with the father, changeovers shall be effected by the parties or other persons nominated by them known to the child at the [Suburb J] Chicken Shop.

6. Thus from 23 October 2018 the child’s time with the father, whilst on a more limited basis than it had been previously, was restored on an unsupervised basis.

7. Subsequently, the interim hearing proceeded to completion on 9 November 2018 with judgment reserved and with a further order affecting the father’s time with the child made in the following terms:

   3.The orders made for the child’s time with the father on 23 October 2018 continue pending further order save and except that the child’s time with the father be suspended on 18 November 2018, 2 December 2018, 6 January 2019 and 13 January 2019 provided always that the child spend time with the father on Monday, 14 January 2019 in lieu of the time on 6 January 2019 and provided always that the child spend time with the father from 2.00 pm to 8.00 pm on Christmas Day.

The mother’s evidence

1. The mother relied upon her affidavit filed 19 October 2018 and the affidavit of the maternal grandfather, Mr Q, filed 19 October 2018 in support of interim orders sought by her.

2. At about the time of the parties’ separation in September 2014 the father commenced a relationship with Ms N.  There is now one child of the father’s relationship with Ms N; H, born in 2015.

3. It is common ground that the relationship between the father and Ms N has broken down and parenting circumstances relating to the child of their relationship is presently the subject of other proceedings in the Federal Circuit Court of Australia.  As at October 2018, the father was spending two hours each alternate Saturday with the child at a children’s contact centre near I Town.

4. The mother says that she is supportive of the child’s relationship with her half sibling H and, indeed, that contact between the two children had been facilitated by the father.

5. The mother expresses concerns as to the father’s mental health and how that impacts upon his parenting capacity by reason of matters that appear to have been made known to her by Ms N.  Otherwise, the mother has observed that in the period from mid-2017 until the father’s time with the child ceased in April 2018 that the child had become increasingly agitated prior to her time with the father.  The child was having “meltdowns”, using bad language and her behaviour had, otherwise, deteriorated.

6. Subsequent to the end of his relationship with Ms N, the father commenced a relationship with Ms R and they were married in 2017.  The father’s new wife has two children from a previous relationship; S aged seven, and T aged five.  There is now one child of the father’s relationship with his new wife; U born in 2018.

7. The mother asserts that since late 2007 she has had “grave concerns” about the father’s physical and psychological abuse of the child, the child, and his ability to properly care for the child when the child is spending time with him.  The mother expresses concerns about the father’s mental health and anger management.

8. Subsequent to orders made on 23 August 2018 the father had time with the child substantially as provided in those orders.  The mother had some reservations as to changeover arrangements and proposed in October 2018 that changeovers for the purposes of the child’s time with the father be at the McDonald’s family restaurant at Suburb F.  There was no agreement.  The issue was resolved by interim orders made on 23 October 2018.

9. The mother says that, otherwise, she has observed that the child has appeared to enjoy her time with the father in circumstances where it is limited to day time only.  The mother reports that the child has enjoyed seeing her half siblings.

10. The mother reports that up until April 2018, the child the child had told her that the father had hit her and kicked her, that she had been placed in “the big scary toilet with the spider webs” until the father permitted her to come out.  On another occasion she complained to the mother that “daddy locked me in the rabbit cage all day”.  Otherwise, the child had complained that the father had locked her and her half siblings S and T out of the house for periods of time necessitating the children to “wee in the garden”.  The child further complained that she was required when toileting at night to use a bucket in her half siblings bedroom.  On another occasion in January 2018, the child complained that she and her half siblings S and T had been left in the house alone.  Otherwise, the child has complained to the mother that “daddy is always cranky”, “daddy yells at us all the time”, “even if we are not doing anything wrong Daddy is mad at us”.

11. The mother, otherwise, complains as to the father’s physical care especially as to feeding the child properly when the child is in his care.

12. On 19 January 2018 after returning from time in the father’s care on a hot day, the child, who suffers from asthma, complained “Mummy, I can’t breathe well.  I told Daddy and [Ms R] and they didn’t care”.  It was necessary for the mother to use Ventolin on the child.

13. The mother’s concerns continued such that on 2 April 2018 she took the child to the child’s general practitioner (“GP”) at the Suburb F Family Practice.  The child made concerning disclosures to her GP (Exh “H”) who informed the mother that he would be making a report to the Department of Family and Community Services (“The Department”).  Subsequently, on 10 April 2018 the mother emailed the father requesting that his time with the child be supervised.

14. On 11 April 2018 the child made a complaint to her after-school carer that on the preceding weekend she and her half siblings, S and T, had been camping on the father’s remote farm with the father and were sleeping together out of view of the father’s tent.

15. Subsequently, the mother on 13 April 2018 informed the father that she would not make the child available for time with him for the forthcoming school holiday period.  Subsequently, from 10 April 2018 until 26 August 2018, after interim orders referred to above, the child spent no time with the father, although the father attended several school events.  To the mother’s observation, the child was apprehensive in the father’s presence and, indeed, complained to the mother “dad took so many photos and videos of me.  He never does that.  It was weird.  Daddy tried to talk to me about going to his place.  He was being annoying so I just didn’t answer him”. The father’s attendance at the child’s sports carnival and his aberrant and aggressive behaviour was the subject of a written report by the school (Exh “L”).

16. The child complained that seeing the father again reminded her of his conduct towards her and expressed concerns that the father would come and get her.

17. In May 2018 the mother, through her solicitors, informed the father of her intention to seek a referral from the child’s GP for the child to have psychological intervention as a consequence of all of the issues identified above.  There has been no satisfactory response from the father to that request. The mother and child attended upon the child’s GP on 25 May 2018 (Exh “H”). It was reported that the child was bedwetting and was anxious. A referral was provided for the child to see a mental health specialist. On 6 June 2018 the child again reported to her GP her fears of the father (Exh “H”).

18. The child attended upon Ms V on 26 May 2018 (Exh “I”) and in interview alone the child repeated her fears and complaints of the father mostly as set out above. At times the child was agitated. The child reported conflict between the father and his wife: “screaming at each other”. The child was seen again on 5 July 2018 complaining that the father had showed up at her sports carnival as referred to above. He said to her “don’t go to the doctors and tell her bad things” threatening her that if she did she would not be able to see the new baby. Again the child was agitated in interview, screaming and yelling about her father.

19. The mother asserts that the father and his new wife relocated to the W Town area with the children, S and T, in January 2018.  With the mother’s understanding that the children’s father sought orders requiring the children to relocate back to Sydney and at the end of Term 1 2018, the father and his new wife returned to the Suburb J area.

20. The mother, otherwise, complains that the father has been unwilling to accommodate changes in his time with the child prior to such time being suspended in circumstances where the child had ballet or dance concerts.

21. In summary, the mother expresses concerns as to the father’s mental health including issues as to suicidal ideation, depression, mood swings, anger management issues and bullying.  During their relationship she asserts the father was unable to hold down employment for more than 12 months.

22. The father’s medical records comprised in Exhibit “H” reveals a report from his psychologist in June 2013 where the father reports a history “suggestive of mood disturbances and anxiety difficulties triggered by ongoing issues at work.  He also exhibits many of the neurovegitative symptoms of depression/adjustment difficulties”.  In September 2014 his psychiatrist Dr X notes “previous psychiatric history is positive for adjustment issues a year previously, secondary to another job loss.  He has been trialled on medication in the past… [Mr Turnbull] reports being a lawyer but has had short lived work due to difficulties in interpersonal relationships with workmates. …  My impression is that [Mr Turnbull] has a Chronic Adjustment Disorder with Depressed Mood and Anxiety”. 

23. It is not readily apparent as to whether the father has appropriately maintained engagement with his mental health professionals.

24. The mother further asserts that the father’s new wife suffers from some ongoing mental health issues and is medicated; such assertion is corroborated by her psychiatrist Dr X (Exh “J”)

The Child Responsive Memorandum

1. The parties and the child attended for the purposes of interviews with a family consultant to facilitate the preparation of a Child Responsive Program Memorandum on 15 October 2018.

2. That memorandum is Exhibit “D” in the present proceedings.

3. At the time of interviews the child was eight years and three months of age and in year two at school.  The child spoke positively about her school and her friends.

4. The Family Consultant observed that at times the child spoke in a somewhat dramatic tone, particularly when speaking about the father.  The child reported that “dad talks about mum very rudely” and “Right now, I feel sad and terrified because I’m not happy at all”.

5. The child reported that the father had physically struck her and had been violent towards the children, S and T.

6. The Family Consultant noted that the child claimed that there was nothing positive about her time with the father and that he had tried to influence her not to inform the Family Consultant about his abusive behaviour by promising to buy her gifts.

7. Perhaps positively when asked by the Family Consultant what the father could change so that she would spend more time with him, the child stated “not yelling and screaming” and “take off that rule list”.  The child expressed a wish not to spend overnight time with the father particularly in circumstances where his time was not supervised.

8. On interview the father denied abusing the child.  He then proceeded with a litany of complaints about the mother.

9. The Family Consultant reported that the mother complained of being frequently abused during their relationship and after separation.  She complained that the father’s conduct was controlling and coercive, accusing her of infidelity and isolating her from her friends and family.  The mother expressed a concern that the father might physically harm the child or that “he may organise someone to kill them”. 

10. The mother reported to the Family Consultant that the father had previously been diagnosed with depression and attended counselling.  The mother also expressed concerns as to the father’s new wife’s mental health asserting that she had been hospitalised by reason of her mental health difficulties.

11. The mother told the consultant that the father’s suicidal behaviour was in reality manipulative behaviour by him rather than genuine.  The mother was of the view that the father suffers from narcissistic personality disorder leading to him being unable to maintain employment.

12. The father, for his part, expressed the view that the mother suffered from narcissistic personality disorder and had been reprimanded or fired from employment as a consequence.  The father reported to the Family Consultant that his new wife had been diagnosed with anxiety and panic attacks and is medicated to assist her with this.

13. Otherwise, the Family Consultant reports a litany of complaints made by the parties against the other including the father’s assertion that the mother has coached the child to make false allegations and, indeed, on two occasions had placed a GPS tracking device on the child during the period when the child was to be in his care.

14. In evaluation the Family Consultant opines that “the presentation of the parents and the manner in which they gave their account may indicate that the parents are unable to proactively work on any relevant issues relating to the other parent’s care of the child and instead may be focused on amplifying these issues so that they appear to place the child at higher risk in the other parent’s care that is actually the case with the purpose of implying that the other parent is a wholly bad parent.”

1. The Family Consultant is of the opinion that if this is the case not only is it likely to expose the child to intolerable stress and loyalty conflicts but it detracts from problem-solving about any genuine difficulties faced when the child lives between two homes and the parents have different parenting styles as appears to be the case in this family.

2. The Family Consultant continues “it appears that the child has been and continues to be exposed to a toxic level of parental conflict that shows no sign of abating.  Children who are exposed to chronic parental conflict are at significant risk of developing long-term mental health difficulties and other detrimental impacts on their well-being.  The mother and father are strongly advised to focus on reducing the parental conflict so as to provide relief to the child.  The family may benefit from attending reportable family therapy with a therapist experienced in assisting high conflict, separated families.”

3. The Family Consultant was of the view that if the Court holds concerns that the child may be negatively impacted by one or both parents suffering with Narcissistic Personality Disorder, the Court may be assisted by an appropriate Chapter 15 Single Expert report.

The father’s evidence

1. The father relied upon his affidavit filed 1 June 2018, 23 August 2018, 19 October 2018 and an affidavit by Ms Y the former partner of the father’s deceased grandfather and Ms R Turnbull, the father’s new wife, filed 23 August 2018.

2. The father for his part (and his new wife) denies the allegations made by the mother and disputes occurrences allegedly reported to the mother by the child. 

3. Otherwise, both the father and his new wife make complaints about the mother and report various statements and complaints made by the child about the mother.  The inference from their evidence is sought to be raised that the mother has, indeed, coached the child into making complaints about the father.

4. The father’s new wife reports that she has a treating clinical psychologist and psychiatrist from whom she has sought assistance including assistance in relation to the fractured relationship that she has with her own mother and her concerns about her mother’s mental health.  Yet no report is provided to the Court such as to give to the Court an objective overview from either or both of her health practitioners as to her present circumstances, treatment and prognosis.  The father’s new wife provides a version of events as to the father’s attendance at the child’s sports carnival in June 2018.  Concerningly, her version is significantly at odds with the circumstances recorded by the school itself as to that day.

5. Thus clearly there are significant factual issues for ultimate determination as between the parties.

6. The father denies that he has been diagnosed with any mental health issues and asserts that he is currently seeing a clinical psychologist Mr L “in relation to the stress I have due to not spending time with [the child]”.  Such an assertion seems significantly at odds with the objective material relating to the father’s mental health.

7. Yet notwithstanding his assertion in his affidavit filed 1 June 2018 no reports been provided from his treating clinical psychologist.

Discussion: Interim Parenting

Short Reasons for judgment

1. In Goode & Goode [2006] FamCA 1346, the Full Court set out the pathway to be followed in saying that the procedure for making interim parenting orders will continue to be an abridged process where the scope of the enquiry is “significantly curtailed”. Where the Court cannot make findings of fact, it should not be drawn into issues of fact or matters relating to the merits of the substantive case where findings are not possible. The Court also looks to the less contentious matters, such as the agreed facts and issues not in dispute and must have regard to the care arrangements prior to separation, the current circumstances of the parties and their children, and the parties’ respective proposals for the future.

2. Since Goode (supra), s 69ZL of the Family Law Act 1975 (Cth) (“the Act”) has been enacted which provides that a court may give reasons in short form for a decision it makes in relation to an interim parenting order. In relation to the interim parenting orders, these are the Court’s short form reasons for decision.

3. In Marvel & 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.”

4. 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.

The Law

1. The relevant principles in relation to parenting and interim proceedings are well settled Goode (supra). The High Court in MRR v GR [2010] HCA 4 affirmed those principles.

2. Section 60B of the Act outlines the objects and principles underlying Part VII of the Act.

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 (s60CC(2)) and additional (s60CC(3)) considerations that the Court is to take into account in determining what is in the best interests of the child.

5. 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)).

6. 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)).

7. In this matter allegations by the mother has two matters reported by the child and assertions made by the child to her general medical practitioner and her psychologist as to the father’s conduct such that there are reasonable grounds to believe that the father has engaged in conduct that is abusive of the child or amounts to family violence. 

8. In such a circumstance the presumption as to equal shared parental responsibility shall not apply noting that such a determination is irrelevant for the purposes of final hearing. 

9. If the presumption in s 61DA were 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. Such is not the case here.

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. As to relationships there is no doubt that this child has an established relationship with the mother as her primary carer.  There are some suggestions that the child has become unnecessarily parentified in the care of the mother and, otherwise, inappropriately enmeshed in the ongoing parental conflict between the mother and father.  The child’s relationship with the father is problematic with the child objectively expressing concerns about her time with the father should be expanded beyond the current arrangements and include overnight time.  The true nature and extent and veracity of the child’s concerns in relation to the father’s conduct will be a matter for final hearing.  However, in the context of this interim hearing the Court should have appropriate regard to the child’s reported concerns, particularly, to the Family Consultant, her general practitioner and to her mental health practitioner.

3. Otherwise, the child appears to have an established relationship with her half siblings with that relationship being appropriately supported by the mother and the father when able.

4. It is appropriate that consideration be given to the child’s relationship with her primary carer, her mother in the circumstance that the father does not seek to disrupt that relationship.

5. A continuation of that significant relationship is meaningful and important to the child going forward.  The child at present appears to have a capacity to cope with time with the father on a daily basis as she has been doing.  She clearly expresses a wish not to be present for overnight time at least at this juncture.  Clearly, the ongoing circumstances of the child’s time with the father await the determination of many contested factual issues and, indeed, the receipt of the report from the Chapter 15 Single Expert that is expected to be available within the next month or two.  Importantly, the Court will be assisted by updated and appropriate evidence as to the mental health circumstances of not only the father but his partner.  In the circumstances of this matter, it is clearly appropriate for the child’s relationship with the father to be maintained on the present arrangements.

6. In applying the considerations set out in subsection (2), the Court is to give greater weight to the consideration set out in paragraph (b). In the circumstances of this matter, the protective concerns as to the child are of prime concern. The father’s mental health and aspects of his conduct as alleged give rise for some concerns that recommend protective circumstances for the child with a maintenance of the current arrangements that, it appears, reflects the present wishes of the child and her concerns as to the father’s behaviour and her safety. 

The Additional Considerations: s 60CC(3)

1. Section 60CC(3) sets out the additional considerations. Regard has been had to all. More relevantly:

   a)The child is now aged eight and expressed wishes as to her contact with her father at least in the short term.  It is appropriate to have due regard to those wishes particularly in circumstances where she is in settled circumstances with the mother and seeks to have significant time with the father not inclusive of overnight time.

   b)The nature of the children’s relationships with both parents is referred to above at least in the context of this interim hearing.  They will be explored to a much greater extent at the completion of the final hearing.  The father in the context of this interim hearing presents a complex circumstance as to his various relationships and the children born of those relationships or, otherwise, within his household. 

   c)The mother for her part substantially seeks no change in the present operative interim orders relating to the child that provide for the child to have time with the father each Sunday from 9.00 am to 5.00 pm.  She does so reflective her concern for the child’s well-being and the child expressed concerns as to the father and his household.  The father, otherwise, seeks to restore orders that were made on a final basis some time ago.  However, circumstances have significantly changed since those orders and a restoration of those orders would represent a significant change for this child as the child finds herself presently.  It is considered that an expansion of the child’s time with the father to include significant overnight time and school holiday time would have an adverse impact on the child and cause the child distress in the present circumstances.

   d)The mother has demonstrated an appropriate capacity to provide for the child in her care.  There are matters of concern relating to the mother’s relationship with the child as referred to above that will need to be explored at final hearing, but at present it appears that the child is progressing well in the mother’s primary care.  Otherwise, the father presents as problematic in terms of his capacity to appropriately provide for the well-being of the child who has made significant complaints and expressed significant concerns as to conduct towards her by the father and her circumstances within the father’s household.  Once again the circumstances will need to be explored at length at final hearing so as to enable the Court to make some determination as to the veracity and weight to be given to the child’s concerns. 

   e)At present the Court must have regard to the concerns expressed by the child objectively to her GP, her mental health practitioner and the Family Consultant.  This is clearly indicative of the present orders remaining in place pending final determination.

   f)Both parents present as extraordinarily conflictual in their relationship and the present affidavit evidence is clearly indicative of them both meshing the child in the conflict between them.   As such they present with a poor attitude to the child and their responsibilities of parenthood that will be explored further at final hearing.

   g)There are assertions by the mother and father one against the other as to circumstances of family violence and conflict whilst in a relationship.  Subsequently to separation, conflict has continued unabated.  Otherwise, there are assertions by the child, the subject of various reports by the child, as to abuse and or family violence perpetrated on her by the father.  There are no family violence orders in place nor have the assertions been the subject of any departmental intervention.  The circumstances as to family violence and/or abuse will need to await final determination but the fact that assertions have been made by the child is a matter for significance concern at present.

   h)It is inappropriate to consider making orders in the context of this interim hearing that would lead to further proceedings.  A final hearing as to parenting awaits resumption following the release of the anticipated Chapter 15 Expert Report.

2. The Independent Children’s Lawyer (“ICL”) provided to the Court a minute of orders sought by the ICL on behalf of the child.  In summary, the ICL proposes:

   a)That provided the child’s time with the father occurs at the same time as the father’s stepchildren are in the care of the father and the mother and that the father undertakes to ensure that the child attends any dance activities which may be scheduled to take place during the time the child is spending time with him then the child shall spend time with the father:

   i)as agreed between the mother and father in writing;

   ii)in the event of no agreement, then the child shall spend time with the father each Sunday from 9.00 am until 5.00 pm up to and including 30 December 2018 and thereafter each alternate weekend from 9.00 am Saturday (or the conclusion of the child’s dancing activities if the father is not prepared to take the child to those activities) until 5.00 pm  Sunday commencing on 12 January 2019 and continuing until 24 March 2019 and thereafter each alternate weekend from the conclusion of school Friday (or 3.30 pm  if not a school day) until 5.00 pm Sunday commencing 5 April 2019.

   b)That the father be restrained from using any form of physical chastisement on the child and shall take all reasonable steps to ensure that no other person uses any form of physical chastisement on the child.

   c)That the mother and father are restrained from discussing these proceedings with the child or in the child’s presence and discussing the other parent with the child or in the hearing or presence of the child or permitting any other person to do so.

3. The time periods provided in the ICL’s proposals have been overtaken by the effluxion of time but the general intent of those proposals are clear.

4. Whilst the ICL seeks to carefully promote the child’s relationship with the father and, indeed, his extended families, concerns remain particularly as to the father’s emotional dysregulation and his conduct.

5. Having regard to the circumstance that a Single Expert Chapter 15 report will be available to the Court within a month or two it is in the child’s best interests to await the receipt of that report to promote further discussions between the parties and the ICL as to either further or other interim orders or, in the event of no agreement, this matter progressing to final hearing.

6. In the circumstances of this matter, particularly in the context of the ongoing conflict between the parents and having regard to the expressed wishes and expressed concerns of the child, it is clearly in the child’s best interests that present interim arrangements remain in place pending final determination, or as otherwise agreed between the parties.

7. As discussed above in the circumstances outlined above, it is appropriate that the mother hold sole parental responsibility for the child pending further order as the presumption as to equal shared parental responsibility shall not apply.

8. Interim orders will be made accordingly.

I certify that the preceding ninety-two (92) paragraphs are a true copy of the reasons for judgment of the Honourable Justice Foster delivered on 8 February 2019.

Associate: 

Date:  8 February 2019