Varma & Yardav
[2021] FedCFamC2F 572
FEDERAL CIRCUIT AND FAMILY COURT OF AUSTRALIA
(DIVISION 2)
Varma & Yardav [2021] FedCFamC2F 572
File number(s): PAC 3022 of 2020 Judgment of: JUDGE NEWBRUN Date of judgment: 15 December 2021 Catchwords: FAMILY LAW – interim parenting - best interests of children - Orders made Legislation: Family Law Act 1975 (Cth) ss 69ZL, 62G(2), 60B, 60CA, 60CC Cases cited: Banks & Banks [2015] FamCAFC 36
Eaby & Speelman [2015] FamCAFC 104
Goode & Goode [2006] FamCA 1346; (2006) FLC 93-286Marvel & Marvel (No 2) [2010] FamCAFC 101
Division: Division 2 Family Law Number of paragraphs: 56 Date of last submission/s: 28 October 2021 Date of hearing: 28 October 2021 Place: Parramatta Counsel for the Applicant: Ms De Vere of Counsel Solicitor for the Respondent: Mr Niles Solicitor for the Independent Children's Lawyer: Ms Merrett ORDERS
PAC3022 of 2020 FEDERAL CIRCUIT AND FAMILY COURT OF AUSTRALIA (DIVISION 2)
BETWEEN: MR VARMA
Applicant
AND: MS YARDAV
Respondent
AND: INDEPENDENT CHILDREN’S LAWYER
ORDER MADE BY:
JUDGE NEWBRUN
DATE OF ORDER:
15 DECEMBER 2021
THE COURT ORDERS PENDING FURTHER ORDER THAT:
1.That Orders made 9 March 2021 be discharged.
2.That X born in 2010 ("X") and Y born in 2012 ("Y") (“the children”) live with the Mother.
3.That the children spend supervised time with the Father at such times as may be nominated by the agreed supervision service and between the parties, for at least 2 hours per week.
4.That each party shall:
(a)contact the supervision service – E Contact Centre within 7 days and arrange an appointment for an intake assessment.
(b)attend the assessment;
(c)comply with all reasonable rules of the service; and
(d)comply with all reasonable requests or directions of the staff of the service.
5.That the Father pay all fees associated with the services of the supervision service.
6.That the children communicate with the Father by telephone or video call each Tuesday and Thursday between 5pm and 6pm with the Mother to make/facilitate the children making such call to the Father’s mobile number provided in writing.
7.That in the event the children are not available to receive such telephone call from the Father then the Father shall leave a message advising the time of his call and the Mother shall facilitate the children making a return telephone call to the Father on his mobile number advised pursuant to these orders within 12 hours.
8.Each party is restrained by injunction from discussing with the children any aspect of these proceedings, and in particular discussing with the children their views.
9.Pursuant to section 13C(1)(b) of the Family Law Act 1975, the parties and their legal representatives (if any) shall attend a confidential Family Dispute Resolution (“FDR”) Conference, convened by New South Wales Legal Aid on the earliest available date in about late February 2022.
10.No later than 7 days prior to the FDR Conference, the parties shall exchange and provide to the Independent Children’s Lawyer (if appointed) a draft minute of order setting out the proposed final orders upon which they intend to commence their negotiations at the FDR Conference.
11.That the parties do all acts and things to continue family therapy with Dr B.
12.That the respondent Mother be and is hereby restrained from taking or causing any other person to take the subject children to counselling or any form of treatment with Ms C also known as Ms C.
13.That the Mother and Father attend the next available Parenting after Separation course conducted by D Counselling or a similar organisation and upon completion of the program, provide written evidence of competition from the organisation conducting the program to the Father’s solicitor and Independent Children’s Lawyer.
14.Pursuant to section 62G(2) of the Family Law Act 1975 the parties and the children of the relationship shall attend upon a Family Consultant nominated by the Dispute Resolution Coordinator of the Federal Circuit Court of Australia on a date and at time/s to be advised for the purposes of the preparation of a family report, such report to be released by September 2022.
15.The Family Report shall deal with the following matters:
(a)Any views expressed by the child(ren) the subject of parenting Orders sought in this case, provided that the child/ren shall not be required to express a view in relation to any matter;
(b)The nature of the relationships of the child(ren) with each of the child(ren)’s parents and with significant other persons;
(c)The willingness and ability of each of the child(ren)’s parents to facilitate and encourage a close and continuing relationship between the child(ren) and the other parent;
(d)The likely effect of any changes in the child(ren)’s circumstances, including the likely effect on the child(ren) of any separation from:
(e)either of the parents: or
(f)any other child, or significant person, with whom the child(ren) has/have been living.
(g)The practical difficulty and expense of the child(ren) spending time with and communicating with a parent and whether that difficulty or expense will substantially affect the child(ren)’s right to maintain personal relations and direct contact with both parents on a regular basis;
(h)The capacity of each parent, or another person, to provide for the needs of the child(ren), including emotional and intellectual needs;
(i)The maturity, sex, lifestyle and background (including lifestyle, culture and traditions) other child(ren) and of either of the child(ren)’s parents and any other characteristics of the child(ren) that the reporter thinks are relevant;
(j)Each parent’s attitude to the child(ren) and to the responsibilities of parenthood;
(k)Any family violence involving the child(ren) or a member of the child(ren)’s family.
(l)The parties shall attend all appointments with the Family Consultant and shall ensure the subject child/ren attend all appointments with the Family Consultant, as requested by the Family Consultant.
16.Vacate the Compliance Check fixture on 15 February 2022 at 9 AM.
17.The proceedings are listed for Mention on 4 March 2022, 9.30am.
NOTATIONS:
A.On 12 August 2021 the parties were ordered to attend Family Dispute Resolution conference on a before 31 January 2022.
B.There is a Family Dispute Resolution Conference grant available from Legal Aid.
C.By agreement the parties attended upon Dr B for Family Therapy. Both parties attended an initial intake interview with Dr B on 14 October 2021.
D.Dr B met with the children on 23 October 2021.
Note: The form of the order is subject to the entry in the Court’s records.
Note: This copy of the Court’s Reasons for judgment may be subject to review to remedy minor typographical or grammatical errors (r 10.14(b) Federal Circuit and Family Court of Australia (Family Law) Rules 2021 (Cth)), or to record a variation to the order pursuant to r 10.13 Federal Circuit and Family Court of Australia (Family Law) Rules 2021 (Cth).
Section 121 of the Family Law Act 1975 (Cth) makes it an offence, except in very limited circumstances, to publish proceedings that identify persons, associated persons, or witnesses involved in family law proceedings.
IT IS NOTED that publication of this judgment by this Court under a pseudonym Varma & Yardav has been approved pursuant to s 121(9)(g) of the Family Law Act 1975 (Cth).
REASONS FOR JUDGMENT
JUDGE NEWBRUN
These are short form reasons pursuant to section 69ZL of the Family Law Act 1975 (Cth) (“the Act”).
This Interim Hearing relates to the children, X born in 2010, aged 11 years, and Y born in 2012, aged 9 years.
MATERIAL RELIED UPON
The Mother relied upon her Case Outline filed 25 October 2021 and the documents referred to and relied upon in that Case Outline, except that she did not rely upon her Affidavit filed 15 October 2020.
The Father relied upon his Case Outline filed 25 October 2021, the documents referred to and relied upon in that Case Outline, together with a tender bundle of documents sent to the Court on 25 October 2021 (35 pages), and a tender bundle of documents sent to the Court on 27 October 2021 (5 pages). He relied upon a proposed Minute of Order (19 Orders proposed) as well as a proposed Order regarding the Mother being restrained from taking the child to a particular psychologist.
The ICL relied upon her Case Outline filed 13 August 2021, her tender bundle of documents, the Child Impact Report dated 26 October 2021, and a proposed Minute of Order.
PROPOSALS
The ICL relied upon her proposed Minute of Order; inter alia, she sought Orders that the children live with the Mother; the children spend supervised time with the Father (through a supervision service) for at least 2 hours per week; that the children communicate with the Father by telephone or video call each Tuesday and Thursday between 5 PM and 6 PM; and that the parties do all acts and things to continue family therapy with Dr B.
The Mother agreed with the proposed Minute of Order of the ICL except the ICL’s proposed Order that the parties pay on an equal basis the fees associated with the services of the supervision service.
The Father relied upon his proposed Minute of Order; inter alia, he sought Orders that the children live with the Mother; that the children spend supervised time with the Father for 6 occasions through E Contact Centre for a minimum of three hours per week on a Saturday or Sunday; that after the Father has spent this supervised time with the children (or after supervised time with his sister if the Mother fails to do the intake procedure with E Contact Centre), that the Father spent time with the children on 6 occasions being each Saturday from 10 AM to 4 PM with his sister being generally present; and then the Father shall spend time with the children on a graduating basis, beginning with day-time time, and then graduating to overnight time.
LEGAL PRINCIPLES
The relevant principles in relation to parenting proceedings, including interim proceedings, are well settled: see Goode & Goode [2006] FamCA 1346; (2006) FLC 93-286.
In Marvel & Marvel (No 2) [2010] FamCAFC 101, the Full Court of the Family Court of Australia discussed the problems associated with making findings on disputed evidence as follows:
[120] As has frequently been emphasised interim parenting proceedings, and Orders made as a consequence, are a necessary but temporary measure until all the evidence can be tested, evaluated and weighed at a final hearing by the making of final parenting Orders. Decisions judicial officers have to make in interim proceedings are difficult and, often for very good reason, a conservative approach, or one which is likely to avoid harm to a child is adopted. This is often to the understandable distress of a party who may not achieve the outcome he or she desires, or thinks to be in the best interests of their child or children. Interim parenting Orders are frequently modified or changed after a final hearing, and any allocation of parental responsibility made at an interim hearing is disregarded at the final hearing (s 61DB).
…
[122] 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.
[123] 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.
Of this, the Full Court in Eaby & Speelman [2015] FamCAFC 104 said at [19]:
As would be immediately apparent, this approach enables the Court to appropriately and carefully deal with contentious issues relevant to the welfare of the child, and for those issues to not be ignored.
The Court also refers to the decision of the Full Court of the Family Court of Australia in Banks & Banks [2015] FamCAFC 36, especially at paragraphs 46 to 52. In that decision, the Full Court stated, inter alia, that (at paragraph 49), “It is also important to stress here that the requirement to “consider” each factor (under s60CC of the Act) does not mean each must be discussed, especially where the evidence leads inexorably to a particular conclusion: SCVG & KLD (2014) FLC 93-582”. Further, it stated, at paragraph 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”.
Section 60B of the Act sets out the objects of Part VII of the Act relating to children that inform the making of parenting Orders.
In deciding whether to make a particular parenting Order in relation to a child, a Court must regard the best interests of the child as the paramount consideration: section 60CA of the Act.
Section 60CC of the Act provides that in determining what is in the child’s best interests, the Court must consider the matters set out in subsections (2) and (3). In this context the Court refers to its discussion above in relation to Banks & Banks.
Under section 60CC(2A) of the Act, when the Court is applying the considerations under subsection (2) of section 60CC (being the meaningful relationship primary consideration and the need to protect primary consideration), the Court is to give greater weight to the need to protect primary consideration.
DISCUSSION
The Father is aged 43 years. The Mother is aged 45 years. They hail from Country F.
The Father described his occupation as a professional. He states he currently is able to work from home. He pays $440 in rent per week. He pays $972 per month by way of child support. He states that he stopped working as a driver in August 2019. He refers to previous employment with Company G. The Father refers to the Court, on 9 March 2021, making final orders by consent as to property issues. He refers to having lost his left foot in Country F as a child.
The Father has not spent time with the children since April 2020, being the approximate final separation date.
As to the meaningful relationship primary consideration, it would appear the children have a meaningful relationship with the Mother and will benefit from a continuance of those relationships. It would appear the Mother has been the children’s primary carer from birth to date and that their primary attachment is to her.
There is a suggestion that the children have previously had a meaningful relationship with the Father, however, in circumstances where the children have not spent face-to-face time with the Father since April 2020, it may well be that those prior meaningful relationships have dissipated to a significant extent. The children may well benefit from the restoration of their previous meaningful relationships with the Father if it is physically and emotionally safe for them to do so.
Should the children begin to spend supervised time with the Father, as proposed by the ICL, there is a real prospect that the children’s former meaningful relationship with the Father can begin to be re-established.
The Court is quite conscious of the Father’s contention that unless his proposed interim orders are made, the re-establishment of his former meaningful relationship with the children will not occur in a timely fashion. However, importantly for this interim hearing, having regard to the Court’s below discussion relating to the need to protect primary consideration, when applying the primary considerations under section 60CC of the Act, the Court is to give greater weight to the need to protect primary consideration and the Court does so.
As to the need to protect primary consideration, the Mother alleged to the family consultant that the Father was verbally abusive during their relationship. She alleged that following herself and the children moving to Australia, the Father became increasingly aggressive towards her and assaulted her every 2 to 3 months. She alleged that the Father would punch and slap her face and head, she said on one occasion he grabbed her by the throat, and that on another occasion he threatened to kill her with a knife. She reported that the children have witnessed the Father assaulting her. The Mother make significant allegations of family violence having been perpetrated against her and the children by the Father during the relationship.
The Father denies perpetrating family violence against the Mother and the children.
The Court has taken into account the clinical notes of the parties’ GP, including a consultation on 23 January 2018, attended by both parties, where it is noted that the Father has a short temper and verbally abuses the Mother, “shows in action as well e.g. reckless driving”. Under the heading “Reason for visit”, it is stated “anger control problem”. A consultation on 14 August 2018 for the Father records, inter alia, “verbally sometimes abusive at home with anger”. Under the heading “Reason for visit”, it is stated, inter alia, “anger management discussed”.
The Mother alleges that in August 2018 the Father hit her on the head with his fist and she collapsed to the ground and could not move, and attended upon the H Medical Centre to see a doctor. She alleges she informed her doctor about the incident. In this context, the Court has taken into account the clinical notes of the Mother’s GP for the consultation on 9 August 2018 where it is noted, inter alia, “assaulted by husband on right side of the head this morning, having family problem for last 1 month, pain and swelling on the head, tearfully worries about future”. The Court takes into account the clinical notes of the GP, in relation to the alleged incident, on 10 August 2018.
The Court has taken into account the report dated 27 August 2020 of psychologist Ms C, whilst acknowledging that this report remains untested. The Court has also taken into account the short tender bundle of the Father relating to the restrictions upon the psychologist’s practice by the Australian Health Practitioner Regulation Agency. The Court observes that the psychologist was apparently first registered in the profession on 1 July 2008 with the registration expiry date of 30 November 2022. There is no material before the Court that suggests that the restrictions upon this psychologist’s practice have not been complied with prior to the preparation of the above report. In the above report, the psychologist states that she had a consultation with the eldest child who had spoken of (allegedly) witnessing physical abuse, emotional and psychological abuse, perpetrated by the Father towards the Mother, prior to the Father moving out of the family home. The psychologist states that this child exhibits, inter alia, anxiety symptoms (allegedly) precipitated and sustained by witnessing domestic violence perpetrated by the Father towards the Mother.
The Court has had regard to the Mother’s typed statement of 27 July 2015 and to the typed statement of her elder sister of the same date (pages 33 and 34 of the Father’s main tender bundle), with the Court observing that they appear to be statements in support of the Mother’s immigration to Australia which occurred in 2016. The second last sentence of the Mother’s statement refers to the parties “still living as loving couple and waiting for live together.” These statements are arguably inconsistent with at least the Mother’s above allegations to the family consultant of verbal abuse by the Father, with the Court observing nevertheless that the Mother had alleged, above, to the family consultant, that the Father became increasingly aggressive following her move with the children to Australia.
A police report of 3 November 2018 refers to the police noting allegations made by the Mother that in the evening of 2 November 2018, in the family home, the Father and another person were with the Mother. An argument occurred in relation to an alleged recording. It is alleged the Mother became agitated and upset. It is alleged that as a result of this, the Father has attempted to calm the Mother down by waving his open hands in front of her, indicating to the Mother to settle down. It is alleged that during this action, the Father’s right hand has made contact with the Mother’s chin. The police arrived. The Mother alleged that the Father had assaulted her. She stated the Father’s hand was open when it made contact with her chin. The police could not see any markings or injuries upon her chin. The Father denied the assault allegation to the police. He stated he was trying to calm the Mother down because she was becoming agitated and upset. The police contacted witnesses. The witness who was present in the family home denied any assault occurring upon the Mother. The police decided no AVOs or charges could be laid. The Mother did not express any fears to the police. She stated her separation was imminent.
A police report of 23 April 2019 referred to an alleged domestic violence event on 22 April 2019 between the parties. The Father had told the police, having given an electronic interview, that an argument had taken place between the parties and that he had been angry due to issues the Mother had regarding his sister and family. The Father denied the Mother’s allegations. The police stated they had no reliable third-party witnesses to confirm the truth of the Mother’s allegations. An ADVO was successfully served on the Father. The police recorded that according to the Mother, she shouted “Please don’t kill me” and the argument was loud enough for the children to leave and go next door.
The police stated that given the nature and seriousness of the (alleged) offences, police believe it prudent to apply for an ADVO with standard conditions as well as place restriction conditions for the protection of the Mother. A later entry in relation to this alleged incident, notes the police, a short time after the alleged offence, had spoken to a neighbour who reported hearing no noises or argument the night before. The police note that they had attempted to reach the residence to ask other neighbours questions but had been unable due to lack of resources. The police assessed that a further canvass of neighbours was unlikely to provide results. The police stated that both parties said the argument was loud. No assault charges appear to have been laid by the police in relation to this alleged event.
In relation to the above ADVO, a final ADVO was made, by consent of the Father, on a without admissions basis, on 22 August 2019, with the terms being limited to not assaulting, threatening or harassing the Mother or destroying her property. The Father alleges that he then returned to reside in the family home until April 2020.
The police report of 20 March 2020 relating to an event on 18 March 2020 alleges that the Mother told the police that it was just a verbal argument between herself and the Father. Police read through the WhatsApp conversation between the parties and no threats were seen. The Mother told the police that she did not have any fears and just wanted a record made on the system. Police stated they were satisfied that no offences had occurred.
THE CHILD IMPACT REPORT
The Court has taken this Report into account whilst acknowledging that its contents remain untested.
The family consultant interviewed the children.
The eldest child, aged 11 years, described to the family consultant witnessing the Father assaulting the Mother and she also described hearing the Father yell at the Mother on a regular basis. She stated that the Father’s behaviour towards her had been confusing in the past; she said that at times the Father may be friendly or encourage the children to buy toys, only to become angry with, or ignore them.
The youngest child age 9 years, told the family consultant that she was a little concerned about the Father finding out about the content of her interview. She described the Father as angry and aggressive. She stated that if the children had little accidents the Father would respond in a very angry manner, threatened to hit them or break things that belong to the children. She stated that when the parents lived together, the Father punched the Mother and would tell her to go back to Country F. She said she would feel scared to spend time with the Father. She said she would be afraid of the Father becoming angry as he had done in the past.
The family consultant stated that the children witnessing the Father assault the Mother would likely have caused high levels of distress and they would have likely also felt fearful for their safety and/or the Mother safety. She stated that the children would be less willing to spend time with the Father if they have experienced him as violent and unpredictable.
The family consultant stated that reports by the Mother that the Father used inappropriate language and excessive discipline with the children may indicate that the Father does not have an understanding of the children safety needs and emotional well-being.
The family consultant stated that each parent reported a belief that the other hates them and that this is impacting the capacity of that parent to remain child focused. The family consultant stated that it would seem likely that there was, at best, increasing levels of conflict between the parents, and at worst, increasing family violence from around 2018. She stated that the children would experience this as unsettling, stressful and at times frightening.
The family consultant stated that given the children’s reported relationships with the Mother and in the context of her having been their primary parent, it would seem likely that the children are highly attuned to her needs. The family consultant stated that the children’s views will need to be weighted carefully as although they have made clear statements about their experiences, there is a possibility that this is the result of exposure to parental conflict, and, them aligning with the Mother may be an adaptive strategy to avoid future exposure to parental conflict. The family consultant stated that regardless of the accuracy of the information provided by the Mother to the children relating to the Father, it was likely that the children’s stated views are reflective of their current thoughts and feelings.
The family consultant stated that the Mother presented as deeply concerned about the children safety and well-being and she was highly emotive during her interview. The family consultant stated that her responses may be normative if her account of family violence is accurate and despite her distress, it seemed the Mother’s emphasis remained on providing information related to the children’s experiences of the Father. The family consultant stated that it may be that the Mother’s reported experiences of the Father was contributing to her fearfulness and reluctance for the children to spend time with him. The family consultant stated that given the Mother’s increased levels of stress and anxiety, it may be of assistance for her to seek some therapeutic support as if her distress persists, it may have a more significant impact on her parenting of the children.
The family consultant stated that it would appear that one of the key issues in the matter was regarding allegations of family violence and the impact that this has had on the children’s emotional well-being and safety. The family consultant stated that protecting the children from family violence and the adverse impacts of the (alleged) perpetration of family violence on the Mother’s parenting of the children should be prioritised.
Taking all the above discussed matters into account, at this interim stage, including the Mother and children’s allegations that the Father has perpetrated physical family violence against the Mother, and related material, the Court has a concern that there is an unacceptable risk that the children may be exposed to family violence if spending unsupervised time with the Father. The Court is also concerned that there is a significant risk that the children may be exposed to emotional harm if spending unsupervised time with the Father and in this regard, the Court has taken into account, again, all the above discussed matters, including the Mother and children’s allegations of verbal abuse at the instance of the Father, as well as references in the GP’s clinical notes to a possible anger management problem in the Father. The Court also has a concern in relation to the significant suggestion, in relation to the Child Impact Report, that the Mother is experiencing increased levels of stress and anxiety in relation to the prospect of the children spending time with the Father.
At this interim stage, the above risks and concerns can be addressed by the children spending supervised time with the Father, as proposed by the ICL. And further, the ICL’s proposal for supervised time can facilitate the children being reintroduced to the Father in a safe setting so as to minimise the risk the children experiencing emotional harm.
The Court has a real concern that making interim Orders, as proposed by the Father, providing for a staged progression to unsupervised time, may be premature and pose a risk of harm to the children, taking into account the Court’s above discussed risk analysis, without the Court at least being able to first assess the results of the children’s supervised time with the Father. In this regard, the Court would propose that the children spend supervised time with the Father, as proposed by the ICL, for a period of at least 2 months (noting that the ICL is proposing weekly supervised time, and taking into account the parties and ICL’s contended costs of professional supervised time), following which the matter can return to Court to enable an assessment, inter alia, of the results of the supervised time in the context of considering a possible progression of the children’s supervised time with the Father to unsupervised time.
The Court has a real concern that making interim Orders, as proposed by the Mother, effectively providing for the commencement of supervised time on the recommendation for reintroduction from the family therapist, may detrimentally affect the timely reintroduction of the children to the Father in a supervised setting and thereby the timely re-establishment of their former meaningful relationship with the Father.
The Court gives significant weight to the need to protect primary consideration at this interim hearing.
As to payment of the cost of supervised time, the ICL proposes that the parties pay on an equal basis all fees associated with the services of the supervision service. The Mother proposes that the Father pay such cost, and the Father proposes that the parties pay on an equal basis the cost of his proposed 6 visits of supervised time. Again, the Court refers to the above brief account of the Father’s work history. The Father describes himself as a professional. It is unclear as to whether the Mother is currently working in paid employment. The Mother has the care of both children. Both parties contended that they will have financial difficulties in meeting ongoing supervision costs. Having regard to the Court’s above discussion under the need to protect primary consideration, particularly relating to the Father, his present employment, and the Mother’s contention that she is unable to contribute to supervision costs, the Court is of the view that he should pay the supervision costs on an interim basis.
The Father seeks an interim order that the Mother be restrained from taking the children to counselling or any form of treatment with Ms C. He submits, inter alia, that this psychologist is providing a form of trauma counselling to the eldest child in circumstances where the Mother, solely, is instigating such counselling without reference to the Father, and the Court has a concern in this regard. It is unclear as to whether this psychologist is continuing to provide psychological assistance to the eldest child. The Court observes that the family therapy process has commenced and such family therapy, as proposed by the ICL, will be in the best interests of the children and potentially assist in re-establishing the children’s former meaningful relationship with the Father. It will be the best interests of the children that such restraining order is made on an interim basis.
The Court cannot resolve the parties’ dispute as to the Mother allegedly not facilitating telephone calls between the children and the Father. As to the Father’s allegations otherwise that the Mother has failed to facilitate the children spending time with him, there is a significant suggestion, on the material before the Court, that the Mother has sought to act protectively towards the children, post separation, in relation to spending time with the Father.
The parties should attend confidential FDR, as proposed by the ICL, on the earliest available date in about late February 2022, by which time the Father will likely have spent at least two months of supervised time with the children.
In circumstances where the Father denies family violence, there will be no utility, at this interim stage, in ordering that he attend the next available Men’s Behavioural Change Program. Of course, it would always be open to the Father to participate in such a program, if he chooses to do so.
It will be in the best interests of the children that both parties attend the next available Parenting After Separation course, as proposed by the Father, so as to assist in the limitation of conflict between the parties to the detriment of the children in respect to prospective co-parenting, and provide them with skills in co-parenting after separation.
The above matters discussed by the Court are the relevant section 60CC considerations in this Interim Hearing. Evaluating the above discussed matters under section 60CC, it will be in the best interests of the children that the following orders are made:
1.That Orders made 9 March 2021 be discharged.
2.That X born in 2010 ("X") and Y born in 2012 ("Y") (“the children”) live with the Mother.
3.That the children spend supervised time with the Father at such times as may be nominated by the agreed supervision service and between the parties, for at least 2 hours per week.
4.That each party shall:
(a)contact the supervision service – E Contact Centre within 7 days and arrange an appointment for an intake assessment.
(b)attend the assessment;
(c)comply with all reasonable rules of the service; and
(d)comply with all reasonable requests or directions of the staff of the service.
5.That the Father pay all fees associated with the services of the supervision service.
6.That the children communicate with the Father by telephone or video call each Tuesday and Thursday between 5pm and 6pm with the Mother to make/facilitate the children making such call to the Father’s mobile number provided in writing.
7.That in the event the children are not available to receive such telephone call from the Father then the Father shall leave a message advising the time of his call and the Mother shall facilitate the children making a return telephone call to the Father on his mobile number advised pursuant to these orders within 12 hours.
8.Each party is restrained by injunction from discussing with the children any aspect of these proceedings, and in particular discussing with the children their views.
9.Pursuant to section 13C(1)(b) of the Family Law Act 1975, the parties and their legal representatives (if any) shall attend a confidential Family Dispute Resolution (“FDR”) Conference, convened by New South Wales Legal Aid on the earliest available date in about late February 2022.
10.No later than 7 days prior to the FDR Conference, the parties shall exchange and provide to the Independent Children’s Lawyer (if appointed) a draft minute of order setting out the proposed final orders upon which they intend to commence their negotiations at the FDR Conference.
11.That the parties do all acts and things to continue family therapy with Dr B.
12.That the respondent Mother be and is hereby restrained from taking or causing any other person to take the subject children to counselling or any form of treatment with Ms C also known as Ms C.
13.That the Mother and Father attend the next available Parenting after Separation course conducted by D Counselling or a similar organisation and upon completion of the program, provide written evidence of competition from the organisation conducting the program to the Father’s solicitor and Independent Children’s Lawyer.
14.Pursuant to section 62G(2) of the Family Law Act 1975 the parties and the children of the relationship shall attend upon a Family Consultant nominated by the Dispute Resolution Coordinator of the Federal Circuit Court of Australia on a date and at time/s to be advised for the purposes of the preparation of a family report, such report to be released by September 2022.
15.The Family Report shall deal with the following matters:
(a)Any views expressed by the child(ren) the subject of parenting Orders sought in this case, provided that the child/ren shall not be required to express a view in relation to any matter;
(b)The nature of the relationships of the child(ren) with each of the child(ren)’s parents and with significant other persons;
(c)The willingness and ability of each of the child(ren)’s parents to facilitate and encourage a close and continuing relationship between the child(ren) and the other parent;
(d)The likely effect of any changes in the child(ren)’s circumstances, including the likely effect on the child(ren) of any separation from:
(e)either of the parents: or
(f)any other child, or significant person, with whom the child(ren) has/have been living.
(g)The practical difficulty and expense of the child(ren) spending time with and communicating with a parent and whether that difficulty or expense will substantially affect the child(ren)’s right to maintain personal relations and direct contact with both parents on a regular basis;
(h)The capacity of each parent, or another person, to provide for the needs of the child(ren), including emotional and intellectual needs;
(i)The maturity, sex, lifestyle and background (including lifestyle, culture and traditions) other child(ren) and of either of the child(ren)’s parents and any other characteristics of the child(ren) that the reporter thinks are relevant;
(j)Each parent’s attitude to the child(ren) and to the responsibilities of parenthood;
(k)Any family violence involving the child(ren) or a member of the child(ren)’s family.
(l)The parties shall attend all appointments with the Family Consultant and shall ensure the subject child/ren attend all appointments with the Family Consultant, as requested by the Family Consultant.
16.Vacate the Compliance Check fixture on 15 February 2022 at 9 AM.
17.The proceedings are listed for Mention on 4 March 2022, 9.30am.
NOTATIONS:
A.On 12 August 2021 the parties were ordered to attend Family Dispute Resolution conference on a before 31 January 2022.
B.There is a Family Dispute Resolution Conference grant available from Legal Aid.
C.By agreement the parties attended upon Dr B for Family Therapy. Both parties attended an initial intake interview with Dr B on 14 October 2021.
D.Dr B met with the children on 23 October 2021.
I certify that the preceding fifty-six (56) numbered paragraphs are a true copy of the Reasons for Judgment of Judge Newbrun. Associate:
Dated: 15 December 2021
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