WAHEED & SHAHID

[2021] FCCA 469

FEDERAL CIRCUIT COURT OF AUSTRALIA

WAHEED & SHAHID [2021] FCCA 469

Catchwords:
FAMILY LAW – Interim parenting - best interests of child - Orders made.

Legislation:

Family Law Act 1975 (Cth), ss.60B, 60CA, 60CC

Cases cited:

Goode & Goode (2006) FLC 93-286

Marvel & Marvel [2010] FamCAFC 101

Eaby & Speelman [2015] FamCAFC 104

Banks & Banks [2015] FamCAFC 36

Applicant: MS WAHEED

Respondent: MR SHAHID

File Number: PAC 2058 of 2019

Judgment of: Judge Newbrun

Hearing date: 5 March 2021

Date of Last Submission: 5 March 2021

Delivered at: Parramatta

Delivered on: 15 March 2021

REPRESENTATION

Solicitors for the Applicant: Mr Russo, Dean Lawyers

Counsel for the Respondent: Ms Druitt of Counsel

Solicitors for the Respondent:	Ms Mokhtar, AMG Law Firm
Solicitors for the Independent Children's Lawyer:	Mr Naidovski, Sydney West Family Lawyers

ORDERS PENDING FURTHER ORDER

1. The Application in a Case of the Father filed 1 September 2020 is dismissed.

2. The proceedings are adjourned to 10 September 2021 at 9:30am for mention.

3. Leave to the ICL to relist the proceedings on 7 days’ notice.

IT IS NOTED that publication of this judgment under the pseudonym Waheed & Shahid is approved pursuant to s.121(9)(g) of the Family Law Act 1975 (Cth).

FEDERAL CIRCUIT COURT
OF AUSTRALIA
AT PARRAMATTA

PAC 2058 of 2019

MS WAHEED

Applicant

And

MR SHAHID

Respondent

REASONS FOR JUDGMENT

Introduction

1. This Interim Hearing relates to the child X born in 2016.

2. On 9 November 2020, an Interim Hearing was appointed with the issue being supervised time between the child and the Father.

Proposals

1. The Father, pursuant to his Application in a Case filed 1 September 2020, seeks to spend supervised time with the child for two hours each week such contact to be supervised by B Contact Centre, or such other agency as agreed between the parties in writing. The Father also seeks an Order that the Mother facilitate FaceTime/Zoom/Skype calls between the child and the Father twice per week between 6 PM and 6:30 PM.

2. The Mother seeks an Order in her Response to Application in a Case that the above Application in a Case be dismissed.

Material relied upon

1. The Mother relied upon the following documents:

   a)Amended Initiating Application filed 16 September 2019;

   b)Affidavit of Ms Waheed filed 16 September 2019;

   c)Affidavit of Dr C filed 7 March 2020;

   d)Response to an Application in a Case filed 2 March 2020;

   e)Tender Bundle.

2. The Father relied upon the following documents:

   a)Application in a Case filed 1 September 2020;

   b)Affidavit of Mr D filed 31 August 2020;

   c)Affidavit of Mr E filed 1 September 2020.

3. The following exhibits were relied upon:

   a)Exhibit A: Order of Judge Street of the Federal Circuit Court of Australia dated 5 February 2021;

   b)Exhibit B: Family Report of Ms F dated 1 March 2021;

   c)Exhibit C: Child Inclusive Conference Memorandum by Ms F dated 3 September 2019;

   d)Exhibit D: Tender Bundle of Mother;

   e)Exhibit E: Urine Drug Analysis Results of the Father.

Agreed facts unless otherwise stated

1. The Mother was born in 1988 in Country G. The Father was born, as alleged by the Mother, in 1985. The Father came to Australia from Country G in about 2009.  He spent time in immigration detention and was granted a protection Visa in about 2011. That Visa was later cancelled by the Minister’s delegate on 30 August 2017, and the Father sought review of that decision in the AAT. 

2. The AAT in June 2020 affirmed the decision of the delegate to cancel that Visa. On 5 February 2021, Street J of this Court quashed the decision of the AAT and directed the AAT to re-determine according to law the Father’s application for review of the decision of the Minister’s delegate dated 30 August 2017.

3. The parties were married in about early 2015.

4. The parties separated on about 20 December 2018.  The Father asserts he has not seen the child since that time.

5. The child lived with the parties until separation and he has been living with the Mother since separation.

Relevant legal principles

1. The relevant principles in relation to parenting proceedings, including interim proceedings, are well settled: see Goode & Goode (2006) FLC 93-286.

2. In Marvel & Marvel [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.

3. 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.

4. Section 60B of the Family Law Act 1975 (Cth) (“the Act”) sets out the objects and principles of Part VII of the Act relating to children that inform the making of parenting Orders.

5. 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.

6. 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 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”.

The Best Interests of the Children

Section 60CC Considerations

Subsection (2a): the benefit to the child of having a meaningful relationship with both of the child’s parents: a primary consideration

1. The child has a meaningful relationship with the Mother and will benefit from a continuance of that relationship.  The Mother has been the child’s primary carer from birth to date.

2. The child has not spent time with the Father since separation on 20 December 2018. The child was born in 2016. Accordingly, at separation, the child was aged about two years, five months. Presently, the child has no meaningful relationship with the Father.

3. The child may possibly benefit from developing a meaningful relationship with the Father if it is safe for him to do so.

4. However, as discussed below under the need to protect primary consideration, the Court has concerns in relation to the Father’s mental health, and related concerns in relation to the Mother’s allegations of family violence having been perpetrated against her by the Father during the relationship.  It also has concerns in relation to making Orders for supervised time between the child and the Father, in circumstances where it is unclear as to whether the Father may be deported from Australia, there being outstanding judicial review proceedings instituted by the Father.

5. The Court recognises that should it decline to Order supervised time between the child and the Father at this interim stage, and the Father ultimately is successful in obtaining an Order for time between the child and himself, the child will not have spent time with the Father for a considerable period of time and thereby the possible re-establishment of his relationship with the Father will have been delayed. Nevertheless, as set out in s60CC(2A) of the Act, the Court, in applying the primary considerations (the meaningful relationship and need to protect primary considerations) the Court is to give greater weight to the need to protect primary consideration.

Subsection (2b): the need to protect the child from physical or psychological harm from being subjected to, or exposed to, abuse, neglect or family violence.

1. The Mother contends that the Father may have illicit drug use issues.  The Court takes into account her allegations against the Father in relation to illicit drug use by the Father.

2. The Father alleges that he does not use illicit drugs and that he did drug testing to prove this.  He alleges that he is willing to do regular drug testing to show that he is not using illicit drugs.  The Court has taken into account Exhibit E being his urine drug analysis dated 13 September 2019 being a negative urine drug analysis report, whilst observing that that analysis was non-random. Nevertheless, the Court does have some concern in relation to the Mother’s above allegations, particularly having regard to the Court’s discussion below in relation to the Father’s mental health issues and family violence allegations made by the Mother.

3. The Mother contends that the Father has severe mental health issues which are not adequately treated.

4. The Father alleges that having suffered a near death situation when he was assaulted in a detention Centre, he experienced depression and he has been treated for depression by a psychologist for nine years.

5. The report of psychiatrist Dr H in relation to the Father dated 4 March 2015, inter alia, refers to the Father’s complaints of various mood and anxiety symptoms, including paranoia (when seeing Afghani people in the street it creates prolonged psychological distress such as extreme fear), low mood, severe anxiety, anger and frustration, irritability and angry outburst towards people with minor provocation, occasional suicidal thoughts with no active plan, poor concentration, poor memory. The Father referred to his chronic back pain following being assaulted in immigration detention in 2011. He stated that the persistent pain made him angry and frustrated as he was unable to work, study or socialise. The psychiatrist made a provisional diagnosis of PTSD, anxiety and depression. He recommended regular weekly psychotherapy. He referred to the Father’s medication needing further adjustment.  He stated that the prognosis of the case depended on the motivation of the Father for improvement in the level of support and therapy that he receives.

6. The clinical notes relating to the Father from May 2015 to June 2015, during which period the Father appears to have been receiving treatment at J Centre, inter alia, refer to the wife’s concerns that the Father was hitting his head on the wall. They refer to the Father’s continued fear of Afghani people since his stay at the detention centre following an attack upon him.  They refer to the wife’s statement that the Father has expressed the thoughts of self-harm more than actually acting on them.  They refer to the Father being preoccupied and isolative on 1 June 2015.  The discharge summary dated 2 June 2015, inter alia, refers to the Father presenting with the Mother after an argument at home with the patient threatening to bash his head against the wall.  It refers to the Father being ambivalent when asked about suicidal ideation.  It refers to a history of depression over the last three years.  It refers to the Father seeing the psychiatrist Dr H every two months and last review by that psychiatrist one month ago.  It refers to the Father being non-adherent to prescribed medication. It refers to the Father being increasingly irritable with the Mother over the last month.  It refers to the Father being guarded during interviews, often giving one-word answers and sometimes refusing to answer questions.  It refers to the Father having booked an appointment to see a psychologist next week with an appointment to see the psychiatrist Dr H. The psychiatric diagnosis is stated to be PTSD and depression.

7. The Father’s report from his treating psychologist dated 21 June 2016 states, inter alia, that the Father was first referred to the psychologist in August 2011 for counselling, psychotherapy, and stress and anxiety management.  The Father attended five sessions in 2011, and four sessions in 2012. There was a further referral by the Father’s GP for psychotherapy and counselling, for health management with depression and anxiety, in April 2016, and the Father was seen for six sessions.

8. The report referred to most sessions with the Father being based on digesting his anger problems and mood swings “which have been a factor in his communication and socialising with others.” Under the heading Observation, the psychologist states that throughout the majority of the consultations the Father showed episodes of mood swings and severe anger management “due to previous assault and abuse”.

9. The report refers to the Father arriving in Australia in 2010 and being sent as an asylum seeker to Christmas Island Detention Centre.  It refers to the Father’s extreme anxiety and depression, and deciding to go on a hunger strike by sewing his mouth which lasted for one week.  He was one year in Christmas Island Detention Centre and later transferred to Darwin Detention Centre.

10. The report refers to the Father being the subject of a serious physical assault whilst in the Darwin detention centre. The report refers to the Father being given permanent residency and released from the detention centre after two weeks.

11. The report refers to “recently” the Father being an isolated person namely his self-esteem has decreased, he is short tempered with increased irritability.  The report refers to the Father’s belief that his short temper and irritability is due to the lack of sleep at night, regular nightmares and flashbacks of the incident (an attack by Afghani immigration detainees).  The report refers to the Father stating that after the attack in the detention centre, he has developed severe depression and stress.  He stated that he was on a disability support pension from Centrelink due to his condition. Currently he was reported to be on antidepressant medications.

12. The report refers to the diagnoses of PTSD and panic attacks.  The report referred to there being regular interval sessions provided to the Father to address his depression and anxiety.  In this context the report referred to the therapy concentrating on empowering the Father to deal with his stress and severe mood swing.  It refers to the Father being seen by a psychiatrist, Dr K, for further support, with the Court observing there is no material adduced from Dr K.

13. The report from the psychologist recommends that the Father needs serious attention and support due to his long-term mental illness.  It stated that during the sessions the Father showed clear symptoms of swings mood.  It states the psychologist’s belief that the Father requires long-term psychotherapy, antidepressant medication and care.

14. The Father’s report from his treating psychologist dated 18 August 2020, addressed To Whom It May Concern, states, inter alia, that the psychologist has been treating the Father since 2011, the psychologist having provided counselling and therapy for the Father occasionally.  The psychologist states that since the Father’s relationship breakdown the Father ended up seeing the psychologist more frequently for advice and counselling.

15. The psychologist refers to his assessment of the Father’s current mental health on 16 June 2020.  The psychologist states that the Father’s distress and anxiety appears to arise out of the loss of family life in particular being away from the child.  He states, inter alia, that the Father’s stress and anxiety will be substantially diminished in the event that he is able to see the child again.  The psychologist stated that on assessment he found the Father to experience some level of anxiousness and distress.  He states that during his last assessment of the Father “all through these years” the Father has not ever expressed any thoughts of self-harm and did not display any suicidal tendencies. (The Court interpolates at this point by referring to the report from Dr H, the clinical notes of 1 June 2015, and discharge summary dated 2 June 2015, relating to suicidal ideation of the Father). The psychologist stated the Father was not a thought disordered person.

16. The psychologist stated that his assessment, conclusion and recommendation was that the Father was currently off stable but fragile mental health, he was currently anxious but not depressed, he was not suffering from any psychosis, and that the psychologist did not think that the Father posed a risk to himself or anyone in general.  The psychologist stated that the Father had benefited from the therapy provided to him over the years.  It was his view the Father did not require any medication currently and will benefit from ongoing counselling.  The psychologist stated his view that the prolonged legal process had caused the Father a great deal of stress and was in fact influencing his life in a negative aspect.

17. The Court observes that this last report of the psychologist dated 18 August 2020 does not refer to the content and background of the Father’s mental health issues that had arisen prior to the party’s separation in December 2018 (see, inter alia, the above material under this need to protect primary consideration, together with other material in the Mother’s Exhibit Tender Bundle, Exhibit D); rather the report of 18 August 2020 concentrated on the Father’s mental health issues arising post separation, including in relation to not seeing the child. The psychologist’s statement in paragraph 7 of his report dated 18 August 2020 that he had gotten to know the Father over the years and the Father had in his experience being genuine, sincere, and calm, appears inconsistent with the psychologist’s report of 21 June 2016 in which he stated, inter alia, that “throughout the majority of the consultations (the Father) showed episodes of mood swings and severe anger management due to previous assault and abuse”.

1. The Court further observes that the report of the Father’s psychologist dated 18 August 2020 does not clearly indicate the extent to which the Father received psychological and/or psychiatric treatment from June 2016 to June 2020, apart from the Father’s treating psychologist stating that since 2011 the Father has been receiving counselling and therapy from a psychologist occasionally, and following the breakdown of his relationship with the Mother, the Father ended up seeing the psychologist more frequently for advice and counselling. 

2. Accordingly, the mental health material relating to the Father at this interim hearing remains incomplete and it is unclear to the Court as to what is the nature and extent of the Father’s mental health issues presently, and, in particular, whether the Father’s mental health is presently being adequately managed. In these circumstances, in particular in circumstances where it is not apparent to the Court that the Father’s mental health issues are being adequately managed, and noting the Father’s mental health symptomatology including short temper, irritability, anger problems and swings in mood referred to in the psychologist’s report of 21 June 2016, the Court has a concern that it may be premature to Order the Father to spend supervised time with the child; that is, until the Court has appropriate mental health related material before it to remove these concerns, it may well be futile to Order even supervised time when the Father’s mental health position is significantly unclear.  And further, the Court has a concern that, in these circumstances, even supervised time (whether private supervision as proposed by the Father or supervision at a contact centre) may not minimise the risk of the child being exposed to adverse behaviour by the Father where his mental health was inadequately managed.

3. The above concerns as to the nature and extent of the Father’s present mental health, and whether the Father’s mental health is presently being adequately managed, are heightened to a not insignificant extent by the Mother’s allegations of family violence having been perpetrated against her by the Father during the relationship (for example, see the Mother’s allegations made to the family report writer under the heading “Family Violence” in the family report).  In this regard, and again, the Court refers to the Father’s treating psychologist report of 21 June 2016 which referred, under the heading “Observation” to the Father, throughout the majority of the consultations showing episodes of mood swings and severe anger management “due to previous assault and abuse”.  In this context, the Court has not overlooked the Father’s denials of having perpetrated physical violence against the Mother during the relationship.

4. Even if all the Court’s concerns, as discussed above under this need to protect primary consideration, are without foundation, the Court has a significant concern with Ordering supervised time between the child and the Father taking into account the real risk, based on the material before the Court, that the parties or one of them, will not be able to support and/or effectively manage the child’s reintroduction to the Father through even supervised time. In this regard the Court refers to paragraphs 100, 101 of the family report which the Court takes into account, whilst acknowledging that the family report is untested at this interim stage.  As alluded to by the family report writer, the Mother has been unwilling and/or unable to support a relationship between the child and the Father: in this context, the Court refers to the Mother’s statement to the family report writer (see paragraph 36 of the family report) that if Orders were made to the child spend time with the Father she would be very concerned; she stated that she does not feel satisfied that the child will be protected from possible exposure to the Father’s alleged drug use and poorly managed mental health; and the Mother expressed high levels of concern for the child’s emotional well-being if he was to develop a relationship with the Father and the Father had to leave the country if his Visa remained cancelled by the Australian government.

5. Even absent all the above concerns of the Court relating to the Father’s mental health, and the parties’ (or one of them) ability to support and/or effectively manage the child’s reintroduction to the Father, at this interim stage the Court has a significant concern that the child may suffer emotional harm and behavioural difficulties were he to be reintroduced to the Father through supervised time, and subsequently the Father was to be deported with the consequential loss of that re-established relationship. In this regard, the Court takes into account the recommendation of the family report writer, and her related reasoning (see paragraph 102 of the family report) that the child spend no time with the Father until a decision is made about whether the Father will remain in Australia or not.  Whilst acknowledging again that the family report is untested at this interim stage, the Court would regard this recommendation and related reasoning of the family report writer (paragraph 102 of the family report) as especially important at this interim hearing. In this context, the Court has not overlooked the evidence of the Father’s solicitor Mr E that the Father may well stay in Australia for at least another few years until his judicial review applications are determined.  And the Court, in this context, has also not overlooked the recent decision of Street J of this Court dated 5 February 2021 ordering the AAT to re-determine according to law the Father’s judicial review application.

6. The Court should state that it has considered the untested report of Dr C dated 24 February 2020, acknowledging that that report was prepared by Dr C solely from interviews with the Mother, Dr C did not interview the Father or the child, and also acknowledging the Father’s denials of the Mother’s allegations including allegations of family violence.  Nevertheless, the Court takes into account Dr C’s opinions as to the potential long-term negative impacts upon the child, were he to reconnect with the Father and the Father would be removed from Australia (see page 13 of Dr C’s report), and which are consistent with the opinion of the family report writer in this regard.

7. The report of the Family Report Writer is consistent with the Court’s above concerns, including in relation to the Father’s mental health, whether the parties can effectively manage the child’s reintroduction of a relationship with the Father, and the risk to the child if a reintroduction to the Father takes place and the Father is later deported.  The Court otherwise takes the report of the family report writer into account at this interim hearing.

8. The Court should state that it has considered whether, if the child began to spend supervised time with the Father (whether private supervision, or at a contact centre) and ultimately the Father was to be deported, whether the parties could effectively manage any resultant adverse emotional reactions in the child.  In this context, and at this interim stage, the Court has a significant concern that the parties would not be able to adequately manage such circumstance.

9. The Court gives significant weight to this need to protect primary consideration.

Section 60CC(3) - Additional Considerations

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

1. Not applicable.

(b) The nature of the relationship of the child with each of the child’s parents; and other persons (including any grandparent or other relative of the child)

1. The Court refers to its discussion above under the meaningful relationship primary consideration.

(c) The extent to which each of the child’s parents has taken or failed to take the opportunity; to participate in making decisions about major long-term issues in relation to the child; and to spend time with the child; and to communicate with the child

1. The parties are in dispute as to the extent to which the Father was involved in the child’s life prior to separation.  It would appear that the Father post-separation has sought to spend time with the child which has not been facilitated by the Mother.

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

1. The Mother has primarily maintained the child during the child’s life.

(d) The likely effect of any changes in the child’s circumstances, including the likely effect on the child of any separation from either of his or her parents; or any other child, or other person (including any grandparent or other relative of the child), with whom he or she has been living

1. The Court refers to its discussions above under the meaningful relationship and need to protect primary considerations in relation to the risks of emotional harm and behavioural difficulties posed to the child should supervised time between the child and the Father be Ordered.

2. The Court also refers to Dr C’s report, in particular pages 10, 11, 12 and 13 in relation to, inter alia, the likely effect of any changes in the child’s circumstances, including the likely effect on the child of any separation from the Mother, through the child spending time with the Father, whilst again acknowledging that that report is untested, and that Dr C did not interview the Father or child.

(e) The practical difficulty and expense of a child spending time with and communicating with the parent and whether that difficulty or expense will substantially affect the child’s right to maintain personal relations and direct contact with both parents on a regular basis

1. Not applicable.

(f) the capacity of:

i) each of the child’s parents; and

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

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

1. The Mother would appear to have such capacities.  The parties are in dispute as to the Father’s capacities to provide for such needs of the child, however the Court would refer to its discussions above under the primary considerations, including reference to its concern as to the Father’s mental health issues, and concerns as to the Mother’s allegations in respect to the Father’s perpetration of family violence and illicit drug use.

(g) The maturity, sex, lifestyle and background (including lifestyle, culture and traditions) of the child and of either of the child’s parents, and any other characteristics of the child that the Court thinks are relevant

1. The parties have previously spent considerable time in Country G. The child would appear to be developing satisfactory in the Mother’s primary care.

2. The Court refers to its discussions above under the primary considerations, in particular in relation to the Father’s mental health, including his previous immigration detention.

(h) If the child is an Aboriginal child or a Torres Strait Islander child: the child’s right to enjoy his or her Aboriginal or Torres Strait Islander culture (including the right to enjoy that culture with other people who share that culture); and the likely impact any proposed parenting Order under this Part will have on that right

1. Not applicable.

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

1. The Mother would appear to have demonstrated satisfactory attitudes towards the child and to her responsibilities of parenthood.  The parties are in dispute as to the Father’s attitudes towards the child and towards his responsibilities of parenthood, and in this regard the Court refers to its discussions under the need to protect primary consideration in relation to the Mother’s allegations of family violence against the Father.

(j) Any family violence involving the child or a member of the child's family

1. The Court refers to its discussions above under the need to protect primary consideration.

(k) If a family violence Order applies, or has applied, to the child or a member of the child’s family – any relevant inferences that can be drawn from the Order, taking into account the following: the nature of the Order; the circumstances in which the Order was made; any findings made by the Court in, or in proceedings for, the Order; any other relevant matter

1. Not applicable.

(l) Whether it would be preferable to make the Order that would be least likely to lead to the institution of further proceedings in relation to the child

1. These are interim proceedings.

m) Any other fact or circumstance that the Court thinks is relevant

1. The Father also seeks an interim Order (proposed Order 7 in his Application in a Case) that the Mother facilitate FaceTime/Zoom/Skype calls between the child and the Father twice per week between 6 PM and 6:30 PM.  The Court is of the view that such an Order would not be in the best interests of the child, and in this regard the Court refers to its discussions above under the need to protect primary consideration.  In particular, the child may be exposed to a risk of emotional harm and behavioural difficulties should he be sought to be reintroduced to the Father, his relationship with the Father develop, but then later the Father is deported, with the loss of that relationship.  Further, noting the Court is concerned that the Father’s mental health may presently be inadequately managed, in the view of the Court, there is a real risk that Ordering such FaceTime/Zoom/Skype calls between the child and the Father may expose the child to emotional harm if the Father were to experience an adverse mental health episode whilst communicating with the child through any of these mediums.

Summary

1. Evaluating the above discussed considerations under section 60CC of the Act, it will be in the best interests of the children to make the following Interim Orders:

   (1)The Application in a Case of the Father filed 1 September 2020 is dismissed.

   (2)The proceedings are adjourned to 10 September 2021 at 9:30am for mention.

(3)Leave to the ICL to relist the proceedings on 7 days’ notice.

I certify that the preceding sixty six (66) paragraphs are a true copy of the reasons for judgment of Judge Newbrun

Associate: 

Date: 17 March 2021