WALEYS & WALEYS
[2020] FCCA 841
•27 April 2020
FEDERAL CIRCUIT COURT OF AUSTRALIA
| WALEYS & WALEYS | [2020] FCCA 841 |
| Catchwords: FAMILY LAW – Parenting – interim hearing – consent orders in place – risk asserted – whether time to be supervised. |
| Legislation: Family Law Act 1975 (Cth), ss.4AB, 60B, 60CA, 60CC, 61C, 61DA, 65D, 65DAA, 69ZT |
| Cases cited: Re K (1994) 117 FLR 63 |
| Applicant: | MS WALEYS |
| Respondent: | MR WALEYS |
| File Number: | SYC 5841 of 2017 |
| Judgment of: | Judge Morley |
| Hearing date: | 26 November 2019 |
| Date of Last Submission: | 26 November 2019 |
| Delivered at: | Sydney |
| Delivered on: | 27 April 2020 |
REPRESENTATION
| Counsel for the Applicant: | Mr Roberts |
| Solicitors for the Applicant: | Ms Reid |
| Counsel for the Respondent: | Gordon & Barry Lawyers Pty Ltd |
| Solicitors for the Respondent: | Bondi Beach Solicitors Pty Ltd |
ORDERS
THE COURT ORDERS THAT PENDING FURTHER ORDER:
The orders made on 25 September 2017 by Judge Henderson are suspended.
That the Mother have sole parental responsibility for the child X born in 2008 (‘X’).
That X live with his Mother.
That X spend time with his Father on each alternate weekend for such period of time between 9:00am and 5:00pm on Saturday and for such period of time between 9:00am and 5:00pm on Sunday as can be arranged, and that such time to be supervised by such of Mr A, Mr B, or a commercial supervision agency agreed upon between the parents in writing, and failing such agreement, by C Family Services.
That the costs of any commercial supervision in accordance with order (4) herein be paid for as follows:
(a)Where there are no arrears of child support owing by the Father for the child, by the parents equally; or
(b)Where there are arrears of child support owing by the Father for the child, at the Father’s sole expense.
That the Father be restrained from allowing Ms D from being present during the time that X spends with his Father.
That the Father be at liberty to contact X by telephone, Skype, or WhatsApp every Monday and Thursday at sometime between 6:00pm and 7:00pm, with the call to be initiated by the Father.
Each of MS WALEYS born in 1964 and MR WALEYS born in 1974 and their servants and agents be and are restrained from removing or attempting to remove or causing or permitting the removal of X, a male, born in 2008, from the Commonwealth of Australia.
X be and is hereby restrained from leaving the Commonwealth of Australia.
It is requested that the Australian Federal Police give effect to the preceding order by placing the name of the said child on the Watch List in force at all points of arrival and departure in the Commonwealth of Australia and maintain the child’s name on the Watch List for a period of two years.
Upon expiration of the period referred to in Order (10) and subject to any further order of a Court of competent jurisdiction, the Australian Federal Police will cause the removal of the child’s names from the Watch List.
Pursuant to section 68L of the Family Law Act 1975 (Cth), the interests of the child X are to be independently represented by an Independent Child’s Lawyer in these proceedings.
The Legal Aid Commission of NSW is requested to make arrangements as soon as practicable to facilitate the above order.
Each of the parties shall, within seven days of any request by the Independent Child’s Lawyer:
(a)Complete and provide to the Independent Child’s Lawyer a parenting questionnaire and/or such other information as may be requested.
(b)Provide to the Independent Child’s Lawyer copies of all any documents filed by them in these proceedings together with:
(i)Any medical reports they hold relating to the child;
(ii)Any psychological or school counsellor or pre-school intervention reports they hold relating to the child;
(iii)Any school reports they hold for the child;
(iv)Any other documents they hold and wish the Independent Child’s Lawyer to see and/or that they intend to seek to tender to the Court or rely upon in these proceedings.
Each of the parties shall present X to such places and at such times and dates as are requested and/or advised by the Independent Child’s Lawyer for the purpose of the Independent Child’s Lawyer meeting with the child.
Leave is granted to the Independent Children’s Lawyer to inspect the Court file and any material produced to the Court pursuant to section 69ZW and/or in response to subpoena.
Leave is granted to the Independent Child’s Lawyer to issue such further subpoena as they may consider relevant, appropriate, or useful, and such leave expressly authorises and allows the issue of more than five subpoenas by the Independent Child’s Lawyer.
The appointment of the Independent Child’s Lawyer is made on the following bases:
(a)As per the Child Dispute Conference Memorandum;
(b)There is manifest continuing hostility between the parties to the proceedings;
(c)There are issues of anti-social tendencies on the part of a parent or parents or other persons with whom X comes regularly into contact;
(d)There are allegations of significant mental illness or personality disorder in relation to either party or X, or to other persons having significant contact with the child, the symptomology of which condition is alleged to impact negatively upon that parent’s capacity to care or otherwise negatively affect X;
(e)There are issues of drug and/or alcohol abuse in relation to either party or other persons having significant contact with X which are alleged to impact negatively upon that parent’s capacity to care or otherwise negatively affect X;
(f)X is of an age and apparent maturity whereby the International Convention on the Rights of the Child would require that he have a voice in the proceedings and with respect to decisions that will affect his future; and
(g)There are allegations of Family Violence and/or abuse suggested to impact upon X’s best interests.
Within 28 days of the appointment of the Independent Child’s Lawyer, the Mother is to nominate in writing three psychiatrists for the purpose of the appointment of a Single Court Expert, to prepare a Single Court Expert’s Report addressing matters relevant to:
(a)The Mother and Father’s mental health, and other aspects of her/his character, personality, and presentation;
(b)The welfare of X; and
(c)The matters relevant under section 60CC of the Family Law Act 1975 (Cth).
Within 14 days of the Mother’s compliance with order (19) herein, the Father is to elect one of the nominated psychiatrists and pursuant to Division 15.2 of the Federal Circuit Court Rules 2004 (Cth), that nominated psychiatrist to be appointed as the Single Court Expert to prepare the Single Court Expert’s Report addressing the issues set out in orders (19)(a) to (19)(c) herein.
Within 56 days of the Independent Child’s Lawyer being appointed, the Independent Child’s Lawyer shall do all acts and things to prepare a letter of instruction to the Single Court Expert seeking the preparation of the Single Court Expert’s Report.
The letter of instruction to the Single Court Expert to be prepared pursuant to order (21) herein shall include:
(a)The affidavits filed by the Parties in these proceedings; and
(b)Such other material as the Independent Child’s Lawyer considers relevant including from any subpoenaed material.
The Mother and Father are directed to:
(a)Attend all appointments made with the Single Court Expert;
(b)Ensure the attendance of X upon the Single Court Expert at all times nominated by the Single Court Expert when X is in that parent's care;
(c)Comply with all reasonable directions and requests made by the Single Court Expert to assist her/him in the preparation of his/her Single Court Expert’s Report including arranging for the attendance of any other person as requested.
The Mother and the Father shall each pay one half of the cost of the Single Court Expert as and when the payment falls due.
Leave be granted to the Independent Child’s Lawyer to have photocopy access to all material produced under subpoena for the purpose of providing the same to the Single Court Expert and that the fees in respect of such photocopying be waived.
Leave be granted to the parties and the Independent Child’s Lawyer to provide copies of all Applications, Responses, and affidavits filed by the parties to the Single Court Expert as well as all orders made with respect to parenting matters and the Child Dispute Conference Memorandum.
The Father attend a Parenting Order Program course offered by Relationships Australia called ‘Taking Responsibility’, or such other parenting program offered by E Counsellors, in Sydney or Brisbane as soon possible and upon completion of the course provide to the Mother and the Independent Child’s Lawyer the certificate confirming his attendance.
That each of the parents is restrained from denigrating the other parent, any member of the other parent’s family, or any member of the other parent’s household in the presence or hearing of X.
That each of the parents is restrained from allowing X to remain in the presence of or within his hearing of any other person who is denigrating the other parent, any member of the other parent’s family, or any member of the other’s parent’s household.
That each of the parents are restrained from discussing these proceedings with X, from discussing these proceedings within his hearing, or allowing X to remain within the hearing of any other person who is discussing these proceedings.
That the Father is restrained from using marijuana in any of its forms for a period of seven days before he spends time with X, or at any time whilst X is in his care.
IT IS NOTED that publication of this judgment under the pseudonym Waleys & Waleys is approved pursuant to s.121(9)(g) of the Family Law Act 1975 (Cth).
| FEDERAL CIRCUIT COURT OF AUSTRALIA AT SYDNEY |
SYC 5841 of 2017
| MS WALEYS |
Applicant
And
| MR WALEYS |
Respondent
REASONS FOR JUDGMENT
Introduction
These interim proceedings concern parenting arrangements for the child X born in 2008, the child of the Applicant Mother, Ms Waleys (‘the Mother’) and the Respondent Father, Mr Waleys (‘the Father’).
The parties commenced cohabitation in 2009,[1] were married in 2011,[2] and separated on in January 2017[3] or March 2017,[4] though nothing much turns on that matter. The parties were divorced on 20 August 2018.
[1] Affidavit of Ms Waleys affirmed 3 October 2019, [4]; Initiating Application filed 3 October 2019, [25].
[2] Affidavit of Ms Waleys affirmed 3 October 2019, [4]; Initiating Application filed 3 October 2019, [26].
[3] Affidavit of Mr Waleys affirmed 20 November 2019, [3(iii)].
[4] Affidavit of Ms Waleys affirmed 3 October 2019, [5]; see also “Date of final separation – 31 March 2017”. Initiating Application filed 3 October 2019, [27].
The Father is a Country F citizen and has an Australian permanent residency visa.
On 25 September 2017, final parenting orders were made between the parties by consent providing that:
a)The parties have equal shared parental responsibility for X;
b)That X live with his Mother and spend time with his Father:
i)For one week in each of the school holidays at the end of terms 2 and 3; and
ii)For three weeks in the long school holiday at the end of term 4 at times agreed between the parties and failing agreement in the second half of the holidays, such time to occur between Father and child in Australia.
c)The orders provided for the Father to communicate with X by telephone or skype when the Father is living overseas on Monday and Thursday each week at 7:30pm Sydney time.
d)The orders provided for changeovers to occur by the Father collecting X from the Mother at the start of his time, and returning the child to the Mother at the end of his time.
e)The orders included an Airport Watchlist order, and an order restraining each of the parents from applying for or obtaining a passport for X or applying for X to travel on his passport without a prior order of the Court.
Various other parenting orders were made in the final consent orders that do not need to be detailed in these Reasons.
On 31 October 2018, the parties entered into final property settlement orders by consent. Those orders provided for a series of three payments by the Father to the Mother, running from 31 December 2018 to 31 December 2019 and for a transfer of property between the parties.
The final property settlement orders seem, on the evidence, to be a major source of tension between the parties, arising from the Father’s apparent dissatisfaction with the settlement set out in those orders.
The Mother resides in Suburb G in a property owned by her and has an ultimate aim of relocating to reside with X in the Region H area of New South Wales.
The Father resides variously in Queensland, New South Wales, and Country F, his native land.
These proceedings were commenced by an Initiating Application filed by the Mother on 8 October 2019, in relation to which she was granted leave to have the matter listed on an urgent basis on 5 November 2019.
The basis upon which the Mother asserts the fresh proceedings are necessary is her assertion of a risk to the welfare and safety of X if in the care of the Father pursuant to the final parenting orders.
On an interim basis, principally, the Mother seeks that X spend only supervised time with the Father between 9:00am and 5:00pm on Saturday and Sunday once a month.[5]
[5] Minute of Order sought by the Mother on interim Hearing, [7].
The Father filed a Response to Application for Final Orders on 20 November 2019, seeking to maintain the final parenting orders made 25 September 2017 on an interim basis. He seeks that alternate final parenting orders be made providing for more extensive time to be spent between himself and X on a final basis.
When the matter came before me for its first return on 5 November 2019, I made an order pursuant to section 11F of the Family Law Act 1975 (Cth) (‘the Act’) that the parties attend a Child Dispute Conference on that day. I further made directions for the filing and serving of a Response and supporting documents by the Father, and listed the matter for interim Hearing on 26 November 2019.
The parties attended the Child Dispute Conference and I have had the benefit of the Child Dispute Conference Memorandum to Court (‘CDC Memorandum’) dated that date.
The issues for determination in the interim Hearing were:
a)What time should the Father spend with X and on what, if any, conditions, such as supervision;
b)Whether an Independent Child’s Lawyer be appointed in the matter to represent the interests of X, pursuant to section 68L of the Act;
c)Whether the Father should communicate with X by telephone, Skype, or WhatsApp on Monday and Thursday evenings at about 7:00pm;
d)Whether the Father’s partner, Ms D, can be present on occasions when the Father spends time with X; and
e)Whether both parents should attend for a psychiatric assessment by Dr J of Suburb K, Brisbane in Queensland, or whether orders should be made for the identification and engagement of a Single Court Expert to prepare a Single Court Expert’s report for the assistance of the Court pursuant to rule 15.09 of the Federal Circuit Court Rules 2001 (Cth) (‘the Rules’).
The material relied upon by the parties
The Mother relied on the following documents:
a)Her Initiating Application filed 8 October 2019;
b)Her Notice of Risk filed 8 October 2019;
c)Her affidavit affirmed 3 October 2019 and filed 8 October 2019;
d)An affidavit by Mr A affirmed 22 November 2019 and filed that day;
e)An Outline of Case document prepared by her counsel, Mr Roberts; and
f)A Minute of Interim Orders proposed by the Mother.
In addition to the above materials, the Mother relied on the following documents marked as exhibits:
a)Exhibit A1 – A letter dated 29 October 2019 from the solicitors for the Mother to the solicitors for the Father;
b)Exhibit A2 – A letter dated 14 November 2019 from the solicitors for the Mother to the solicitors for the Father;
c)Exhibit A3 – From the documents produced on subpoena by Queensland Police Service, documents marked by tags as tendered on behalf of the Mother and admitted into evidence;
d)Exhibit A4 – Documents produced on subpoena by Dr J, psychiatrist;
e)Exhibit A5 – Documents produced on subpoena by L Medical Centre;
f)Exhibit A6 – Documents produced on subpoena by the Commonwealth Department of Human Services, being a Medicare Report for the Father with a run date of 12 November 2019, and a PBS Patient Summary for the Father with a run date 12 November 2019;
g)Exhibit A7 – A bundle of prints of communications consisting of SMS transcripts of communications as follows:
i)As between the Mother and the Father on 25 September 2017, 25 August 2019, 30 September 2019, 2 October 2019, 8 November 2019, 9 November 2019, and 11 November 2019;
ii)As between the Father and Ms M, emails dated 18 November 2014, 21 November 2014, and 22 November 2014; and
iii)As between the Father and Mr N (at the time the solicitor for the Father) an email dated 25 September 2017.
h)A8 – A print of an email dated 10 October 2019 from the Father to the Mother and her solicitor; and
i)A9 – A payment history statement, as at 21 November 2019, from the Child Support Agency relating to child support paid by the Father and arrears as at that date.
The Father relied on the following documents:
a)His Response to Application for Final Orders filed 20 November 2019;
b)His affidavit affirmed and filed 20 November 2019;
c)His affidavit affirmed and filed 25 November 2019;
d)An affidavit of Ms D sworn 18 November 2019 and filed 20 November 2019;
e)An affidavit of Ms D sworn 20 November 2019 and filed 25 November 2019; and
f)An Outline of Case document prepared by his Counsel Ms Reid.
In addition, the Father relied on one document tendered into evidence and marked as exhibit R1, being a letter dated 14 November 2019 from the Father’s solicitors to the Mother’s solicitors.
I had the assistance of the information contained in the CDC Memorandum prepared by a family consultant after interviewing each of the parties separately on 5 November 2019.
At interim Hearing, submissions were made for my assistance by Mr Roberts, Counsel for the Mother, and Ms Reid, Counsel for the Father.
The law
In any parenting proceedings under the Act, the Court is required to follow the legislative pathway. That applies to interim Hearings on parenting issues.[6]
[6] See especially Goode & Goode [2006] FamCA 1346 (Bryan CJ, Finn, and Boland JJ); Marvel & Marvel [2010] FamCAFC 101 (Faulks DCJ, Boland, and Stevenson JJ); MRR & GR (2010) 240 CLR 461 (French CJ, Gummow, Hayne, Kiefel, and Bell JJ).
The Court must give attention to section 60B that sets out the objects of Part VII of the Act relating to children, as those objects inform the making of parenting orders and that section contains the principles behind those objects.[7]
[7] Family Law Act 1975 (Cth) s.60B.
In this matter I have considered those objects and the principles behind those objects.
Section 60CA of the Act provides that, in deciding whether to make a particular parenting order in relation to a child, the Court must regard the best interests of the child as the paramount consideration.[8] The child’s interests are not the only consideration. Parents and other persons, especially partners and extended families, are almost always relevant in the matter. However, the child’s interests must always be the paramount consideration.
[8] Family Law Act 1975 (Cth) s.60CA.
In parenting proceedings, pursuant to section 65D of the Act, the Court may, subject to the presumption of equal shared parental responsibility in section 61DA and consideration of parenting plans under section 65DAB, make such parenting order as it thinks proper.[9] The Court may make a parenting order that discharges, varies, suspends, or revives some or all of an earlier parenting order.[10]
[9] Family Law Act 1975 (Cth) s.65D(1).
[10] Family Law Act 1975 (Cth) s.65D(2).
In determining what is in the child’s best interests, the Court must consider the matters set out as the primary considerations and additional considerations in section 60CC of the Act and make findings.[11]
[11] Family Law Act 1975 (Cth) s.60CC(1).
Section 61DA provides that when making a parenting order in relation to a child, 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 for the child.[12]
[12] Family Law Act 1975 (Cth) s.61DA(1).
The presumption does not apply in circumstances where a parent has perpetrated family violence or abuse.[13] The presumption, when applying, may be rebutted by evidence that satisfies the Court that it would not be in the best interest of the child for the child’s parents to have equal shared parental responsibility for the child.[14]
[13] Family Law Act 1975 (Cth) s.61DA(2).
[14] Family Law Act 1975 (Cth) s.61DA(4)
When the Court is considering parenting matters on the interim basis, the presumption applies unless the Court considers that it would not be appropriate in the circumstances for the presumption to be applied when making the order.[15]
[15] Family Law Act 1975 (Cth) s.61DA(3).
If a parenting order provides that a child’s parents are to have equal shared parental responsibility for the child, then pursuant to section 65DAA, the Court must consider:
a)Whether the child spending equal time with each parent would be in the best interest of the child;[16] and
b)Whether the child spending equal time with each of the parents is reasonably practicable.[17]
If both questions are answered ‘yes’, the Court must consider making an order to provide for the child to spend equal time with each of the parents.[18]
[16] Family Law Act 1975 (Cth) s.65DAA(1)(a).
[17] Family Law Act 1975 (Cth) s.65DAA(1)(b).
[18] Family Law Act 1975 (Cth) s.65DAA(1)(c).
If the Court makes an order for equal shared parental responsibility, but does not make an order for the child to spend equal time with each of the parents, then the Court must consider:
a)Whether the child spending substantial and significant time with each of the parents will be in the best interest of the child;[19] and
b)Whether the child spending substantial and significant time with each of the parents is reasonably practicable.[20]
If the answer to both is ‘yes’, the Court is to consider making an order to provide for the child to spend substantial and significant time with each of the parents.[21]
[19] Family Law Act 1975 (Cth) s.65DAA(2)(c).
[20] Family Law Act 1975 (Cth) s.65DAA (2)(d).
[21] Family Law Act 1975 (Cth) s.65DAA(2)(e).
What is meant by “substantial and significant time”[22] is set out in section 65DAA(3) of the Act and includes:
a)Days that fall on weekends and holidays;[23]
b)Days that do not fall on weekends or holidays;[24]
c)The child being able to be involved in occasions and events special to the parents;[25]
d)The parents being able to be involved in occasions and events of particular significance to the child;[26] and
e)The parents participating in the child’s daily routine.[27]
[22] Family Law Act 1975 (Cth) s.65DAA(2)(e).
[23] Family Law Act 1975 (Cth) s.65DAA(3)(a)(i).
[24] Family Law Act 1975 (Cth) s.65DAA(3)(a)(ii).
[25] Family Law Act 1975 (Cth) s.65DAA(3)(c),
[26] Family Law Act 1975 (Cth) s.65DAA(3)(b)(ii).
[27] Family Law Act 1975 (Cth) s.65DAA(3)(b)(i).
If the Court does not make an order for the child to spend substantial and significant time with each of the child’s parents, the Court must then go on to determine what parenting orders are proper in the best interests of the child.[28]
[28] Family Law Act 1975 (Cth) s.65D.
As to what is ‘proper’ and how the Court’s discretion is to be exercised, I note the comments of the Full Court of the Family Court of Australia in Grella & Jamieson:[29]
A discretionary judgment concerning parenting orders necessarily involves, because of the focus upon the future, significant elements of value judgments; assumptions; necessarily uncertain predictions and intuition.[30]
[29] Grella & Jamieson [2017] FamCAFC 21 (Bryant CJ, May, & Kent JJ).
[30] Grella & Jamieson [2017] FamCAFC 21, [18].
There is no requirement that the Court consider the best interests of the child under section 60CC, the matters dealt with in section 61DA as to parental responsibility, and the time to be spent under section 65DAA, in any particular order. It is suggested by the Full Court in Starr & Duggan[31] that a useful approach is to:
a)First make findings in relation to the considerations set out in 60CC;
b)Then, to consider in the light of the findings made in relation to section 60CC how (or if and how) an order is to be made relating to parental responsibility; and
c)Then, to consider the matters under section 61DAA relating to equal time or substantial and significant time and, if neither is determined to be in the child’s best interest, to go on to determine what parenting orders are proper to be made in the child’s best interests.[32]
[31] Starr & Duggan [2009] FamCAFC 115 (Boland, Thackray, & Watts JJ).
[32] Starr & Duggan [2009] FamCAFC 115, [38]. See also Taylor & Barker [2007] FamCA 1246 (Bryant CJ, Faulks DCJ, & Finn J); Sealey & Archer [2008] FamCAFC 142 (Bryant CJ, Finn, & Thackray JJ).
As the High Court of Australia said in their joint judgment in Bondelmonte & Bondelmonte:[33]
A parenting order made under section 65D involves the exercise of a judicial discretion because it is made by reference to a paramount consideration of a general kind, the best interests of the child, which involves an overall assessment of a number of other considerations, either statutorily prescribed or considered by the Court to be relevant [Family Law Act 1975 (Cth) s 60CC(3)(m)]. The primary considerations in section 60CC(2) are matters to be borne in mind as consistent with the objects of Part VII. The additional considerations in section 60CC(3) require assessments of the matters there listed by reference to the circumstances of the case. They involve value judgments in respect of which there may be room for reasonable differences of opinion [Norbis & Norbis (1986) 161 CLR 513 at 518], as does the overall assessment of what is in the best interests of the child.[34]
[33] Bondelmonte & Bondelmonte (2017) 259 CLR 662 (Keifel, Bell, Keane, Nettle, and Gordon JJ).
[34] Bondelmonte & Bondelmonte (2017) 259 CLR 662, [32].
There is much jurisprudence on risk in parenting proceedings. The jurisprudence may be simplified by saying that the task of the Court, where risks are asserted, is not necessarily to make a finding as to whether the actions and events asserted have actually happened or have definitely not happened, such a finding rarely being open to the Court on the evidence, but rather to assess whether the evidence establishes that there is a risk to the best interests of the child.
If the evidence establishes that there is such a risk, briefly expressed, the Court must:
a)Assess whether that risk is an acceptable risk or an unacceptable risk;
b)If it is assessed that it is an unacceptable risk, assess whether or not the risk can be mitigated by appropriate orders; and
c)Decide what orders are proper in all the circumstances in the best interests of the child.
Detailed exposition of the treatment of risk in family law parenting matters can be found in the High Court’s decision in M & M,[35] and the decisions of the Full Court of the Family Court of Australia in A & A,[36] Napier & Hepburn,[37] and Johnson & Page.[38]
[35] M & M (1998) 166 CLR 69 (Mason CJ, Brennan, Dawson, Toohey, & Gaudron JJ).
[36] A & A & The Child Representative [1998] FamCA 25 (Fogarty, Kay, and Brown JJ).
[37] Napier & Hepburn [2006] FamCA 1316 (Bryant CJ, Kay, and Warnick JJ).
[38] Johnson & Page [2007] FamCA 1235 (May, Boland, and Stevenson JJ).
In Dieter & Dieter,[39] the Full Court found:
The assessment of risk is one of the many burdens placed on family law decision makers. 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.[40]
[39] Dieter & Dieter [2011] FamCAFC 82 (Finn, Thackray, and Strickland JJ).
[40] Dieter & Dieter [2011] FamCAFC 82, [61].
I further note the comments made by the Full Court of the Family Court of Australia in the case A & A:[41]
[3.23] The task which his Honour was required to perform was to determine whether the evidence was such as to establish that there would be an unacceptable risk to the children if they were to have contact or supervised contact with the husband. The basis of that is that if there were an apprehension that the husband was the perpetrator of this violent assault that, together with the profile of such an assailant referred to in Dr Waters' evidence, to which we will refer later, may cause the Court to conclude that future contact by the father to these young children, at least unless strictly supervised, will carry with it a risk that he may act in a similarly irrational and violent way towards them. This is aside altogether from the question of its effect upon the wife. The concentration here is upon the welfare and safety of the children. In reaching a conclusion on that issue, it is necessary for the Court to form some opinion about the connection between the assault and the husband. It would not be necessary in this exercise to reach a positive conclusion that he was the assailant. On the other hand, if the Court reached a comfortable conclusion that the husband was not the assailant, that would be likely to have a profound effect upon the approach to the question of contact.
[3.24] In cases of this sort often it is not possible for the Court to form a positive view at one end or the other end of this scale of persuasion and it is not necessary for it to do so: see the discussion in N and S (1996) FLC 92-655. The term identified by the High Court in M and M of "unacceptable risk" provides the touchstone for such an enquiry. Usually they are sexual abuse or similar cases, but this approach includes cases of the type identified here which involve the assessment of the risk of future physical and/or emotional harm: see M and M, supra, CLR at 77 referred to above.
[3.25] Here the primary question which his Honour should have addressed was, looking at the whole of the evidence, whether contact (or at least contact which was not strictly supervised) might expose the children to an unacceptable risk because, although it is almost impossible to quantify in any precise way, it may place those children in circumstances of potential jeopardy in the future in their father's care.[42]
[41] A & A & The Child Representative [1998] FamCA 25 (Fogarty, Kay, and Brown JJ).
[42] A & A & The Child Representative [1998] FamCA 25, [3.23]-[3.25] (emphasis added).
Where there is contested evidence in an interim Hearing, the Court is not always able to make a finding. In cases of contested evidence, the Court is mindful to consider whether the evidence is sufficiently corroborated, and whether this corroboration is existent on the balance of the evidence before the Court, or on the balance of one party’s evidence in support of their case. Either case may enable the Court to make a finding.
Irrespective of whether the Court is capable of making a finding, the Court must do what can be done on the basis of agreed facts and contested evidence to perform the function of the Court – to resolve any interim issues with the best interests of the child as the paramount consideration, and to make whatever orders are then considered proper.
In SS & AH,[43] in the context of discussing the obligations of the Court whilst conducting interim children’s proceedings where the evidence available was contradictory in nature but nonetheless raised significant welfare concerns for the children concerned, the Court observed:
… 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.[44]
[43] SS & AH [2010] FamCAFC 13 (Boland, Thackray, and O’Ryan JJ).
[44] SS & AH [2010] FamCAFC 13, [100].
As noted by the Full Court of the Family Court of Australia in Eaby & Speelman,[45] 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.”[46]
[45] Eaby & Speelman [2015] FamCAFC 104 (Thackray, Ryan, and Forrest JJ).
[46] Eaby & Speelman [2015] FamCAFC 104, [19]. See especially SS & AH [2010] FamCAFC 13, [100]; see also Marvel & Marvel [2010] FamCAFC 101 (Faulks CJ, Boland, and Stevenson JJ).
The Court should not ignore child protection issues merely because those issues are incapable of definite resolution at the interim stage. This is the position in the matter currently before the Court, as is so often the case with interim parenting matters.
The Full Court again discussed the conduct of interim proceedings in Keats & Keats,[47] noting that:
… the principles that emerge from cases such as SS & AH (2010) FamCAFC 13, [are] namely, that apart from relying upon the uncontroversial or agreed facts, a Judge may have little alternative than to weigh the probabilities of competing claims and the likely impact on a child in the event that a controversial assertion is acted upon or rejected (see also Salah & Salah [2016] FamCAFC 100).[48]
[47] Keats & Keats [2016] FamCAFC 156 (Ainslie-Wallace, Ryan, and Cronin JJ).
[48] Keats & Keats [2016] FamCAFC 156, [9].
In this judgment, I will do the following:
a)I will outline the evidence presented by the parties;
b)I will then consider the relevant section 60CC considerations;
c)I will then give attention to the requirements of section 61DA in relation to parental responsibility and what may flow from that on the legislative pathway; and
d)I will then consider and discuss the issues in this interim Hearing, all in the light of my consideration of section 60CC.
The evidence
X lives with his Mother in a two-bedroom apartment owned by the Mother in Suburb G.[49] X is in year four at O School at Suburb G.[50] On 3 May 2019, the parents each signed an enrolment form for X to commence attendance at P School in Town Q from the start of term 1 in 2020,[51] the Mother intending to relocate her place of residence with X to the Region H area of New South Wales.[52] That is now a move opposed by the Father,[53] and the relocation issue was not pressed by the Mother in the orders sought by her at the interim Hearing.
[49] Affidavit of Ms Waleys affirmed 3 October 2019, [11].
[50] Affidavit of Ms Waleys affirmed 3 October 2019, [11].
[51] Affidavit of Ms Waleys affirmed 3 October 2019, [11], annexure [W1].
[52] Affidavit of Ms Waleys affirmed 3 October 2019, [11].
[53] Affidavit of Mr Waleys affirmed 20 November 2019, [8].
Pursuant to the final parenting orders made in September 2017, the Father has been travelling from his usual home in Country F to Australia to spend time with X during school holiday periods.[54] However, following an incident that occurred on 4 August 2019 involving the Father, X, and the Father’s partner, Ms D, the Father’s time with X has been restricted by the Mother to occasions of a number of hours supervised by either one of two family friends or by the C Family Services commercial supervision agency.[55]
[54] See, eg, affidavit of Ms Waleys affirmed 3 October 2019, [6].
[55] See generally affidavit of Ms Waleys affirmed 3 October 2019, [10], [61]. See also Affidavit of Mr Waleys affirmed 20 November 2019, annexure [B].
The supervised contact visit reports provided by C Family Services for the occasions on 9 October 2019, 10 October 2019, and 11 October 2019 when the Father spent time with X from 11:00am to 2:00pm on each occasion, indicate that there is a close, loving and easy relationship between the Father and X, and that X is comfortable and happy in his Father’s company, albeit that on each occasion there was a third party adult present as a supervisor.[56]
Family violence
[56] Affidavit of Mr Waleys affirmed 20 November 2019, annexure [B].
Mother’s evidence
The Mother details occasions when the Father’s behaviour, by way of outbursts of anger and verbal abuse of the Mother, have caused both herself and X to be in fear.
The Mother became aware during the party’s cohabitative relationship that the Father was affected by certain mental health issues including depression and extreme mood swings.[57] The Father sought medical assistance for his mental health issues, both in Australia and in Country F, and was prescribed medication.[58] The Father’s reliance on medication continues to the present time.[59]
[57] Affidavit of Ms Waleys affirmed 3 October 2019, [18]
[58] Affidavit of Ms Waleys affirmed 3 October 2019, [19].
[59] Exhibit A6. See also Affidavit of Ms Waleys affirmed 3 October 2019, [30].
The Mother details incidents of the Father outbursts of anger and verbal and physical abuse during the period 2009 and 2017.[60] Those incidents occurred prior to the making of the consent orders for parenting arrangements on 25 September 2017 (though elements of the Father’s behaviour on that actual day cause some concern).[61] I must take it that those incidents did not inhibit the Mother from considering that the Father spending unsupervised time with X during school holiday periods for periods of up to three weeks was still in X’s best interests.
[60] Affidavit of Ms Waleys affirmed 3 October 2019, [20]-[21].
[61] Exhibit A7.
On 25 September 2017, the parties appeared before Her Honour Judge Henderson (as Her Honour then was) in Her Honour’s duty list. Both parties were legally represented.[62] The parties were able to settle the parenting matter on a final basis, and entered into final consent parenting orders which Her Honour made on that date.
[62] Orders made by Judge Henderson on 27 September 2017.
As part of exhibit A7, there is detail of text message exchanges between the Mother and the Father on that day that includes the following:
Father – call me ASAP before I’ll go and slap your lawyer in the face.
Father – I want to know today. I netter call him before he calls the police on me.
Father – I’m not angry at you, but your fucking prick lawyer. And if you don’t, I will find him in his office and beat him up.
Mother – Mr Waleys please do not do anything at all. If the Police get involved, it’s a BIG BIG deal.
Father – I’m looking up his office address now, and go to find him
Also a part of exhibit A7 is a print of an email from the Father addressed his then-solicitor, Mr N, who appeared for him at Court on that day. That email includes the following:
I just called Paltos [from the context, the solicitor who represented the Mother in the proceedings] and screamed at him in rage and left him another angry message. He might call the police ‘cause I threatened him, but I don’t give a fuck any more. I would rather be in prison than being called a child abuser! …
If I don’t get these answers today, I will go over to his office and punch his face. Please help me avoid that![63]
[63] Exhibit A7.
On an occasion in 2017, when, despite the parties being separated, the Mother invited the Father to join herself and X at a holiday location in Town R for two nights, the Father became angry, loud, and aggressive in his manner and began making statements to X in his anger that were inappropriate in any circumstances, such as “Your Mother is not the person you think she is.”[64]
[64] Affidavit of Ms Waleys affirmed 3 October 2019, [22].
This led to X crying and saying to his Mother “Daddy scared me, Mummy”,[65] and also resulted in the Father giving to the child a handwritten letter that included the following:
I want to apologise for my impatience and anger towards you and Mummy. I must and will have to learn not to get angry any more because anger doesn’t help the cause. When I stress out about the future and don’t know what the future will bring, I get scared of this insecurity, and then my fear turns into anger.
When I get angry with you, it’s not your fault – it’s Daddy’s fault. Please do remind me whenever I get angry that I shouldn’t, because you are an innocent kid.[66]
[65] Affidavit of Ms Waleys affirmed 3 October 2019, [23].
[66] Affidavit of Ms Waleys affirmed 3 October 2019, annexure [W2].
In about 2018, the Father commenced a relationship with Ms D, who lives in Brisbane and who is the Mother of four children, aged 20, 13, 10, and 7.[67]
[67] Affidavit of Ms D sworn 20 November 2019, [1]; Affidavit of Ms Waleys affirmed 3 October 2019, [8].
Commendably, there have been a number of occasions when the Mother and Ms D have had conversations that enabled them to have a cooperative relationship in relation to X spending time with his Father.[68]
[68] See, eg, Affidavit of Ms Waleys affirmed 3 October 2019, [8], [31], [35], [38], [41], [49], [60]; Affidavit of Ms D sworn 20 November 2019, [30] and [31].
In 2019, the Father travelled from Country F to Australia for the purposes of spending time with X during school holidays, pursuant to the final parenting orders, but, on arrival, advised the Mother:
I can’t have him for extended periods. I only feel well enough to have him during the day, and not every day.[69]
[69] Affidavit of Ms Waleys affirmed 3 October 2019, [24].
The Mother asserts that the Father said to X in her presence:
Sorry I can’t be with you for all the school holidays. I feel so depressed.[70]
[70] Affidavit of Ms Waleys affirmed 3 October 2019, [24].
On 13 May 2019, the Father returned X to the Mother after spending some time with him on that day.[71] He began a conversation with the Mother about their property settlement that had been formalised by final consent orders in October of 2018.[72] The Father became angry and began to yell at the Mother, whilst in X’s presence, comments such as “You are unethical” and “You are greedy”.[73]
[71] Affidavit of Ms Waleys affirmed 3 October 2019, [29].
[72] Affidavit of Ms Waleys affirmed 3 October 2019, [29].
[73] Affidavit of Ms Waleys affirmed 3 October 2019, [29].
The Father then said to X “It is your Mummy’s fault that I get so angry” and “she does things that you are not aware of”.[74]
[74] Affidavit of Ms Waleys affirmed 3 October 2019, [29].
After the Father left, X said to his Mother “Mummy, Daddy was very angry because he was stressed that he was running late to drop me off.”[75]
[75] Affidavit of Ms Waleys affirmed 3 October 2019, [29].
After the Father’s angry outburst on 13 May 2019, the Mother arranged for X and herself to attend upon a psychologist, Ms S of T Counselling, and an appointment was arranged on 20 May 2019, to be attended by both parents and X.[76] By arrangement with the Mother and Ms S, Ms D also attended the appointment.[77] The appointment did not go well, with the Father becoming angry and storming out of the appointment, despite Ms D’s presence.[78]
[76] Affidavit of Ms Waleys affirmed 3 October 2019, [30].
[77] Affidavit of Ms Waleys affirmed 3 October 2019, [30].
[78] Affidavit of Ms Waleys affirmed 3 October 2019, [31].
On Friday, 31 May 2019, the Father was attending the Mother’s home to collect X to spend time with him. The Mother deposes that the Father brought up a proposal for the Mother, the Father, and X to all relocate to Northern New South Wales in the presence of X.[79] The Mother deposes that she “opened the door of the apartment in an attempt to diffuse the situation and placed my hand on Mr Waleys’ chest/shoulder guiding him toward the door”.[80] I infer that it is the Mother’s evidence that she attempted to end the conversation, which she deemed inappropriate to occur in the presence of X, by opening the door and guiding the Father to leave the apartment and to commence spending time with X. The Mother then deposes:
Mr Waleys then grabbed me forcefully by my left arm and pushed me violently backwards into the apartment, and he grabbed X by the wrist and pulled him out of the apartment and into the corridor. X looked very scared. I was frightened. I screamed in fear. This stopped Mr Waleys momentarily. X came back into the apartment. I locked the door. I said to Mr Waleys “please stop, calm down, go home and we can talk in the morning”. Whilst Mr Waleys was on the other side of the door, X was crying and saying “Please stop, daddy, this does not make me happy, daddy, daddy please stop, you are scaring me.[81]
[79] Affidavit of Ms Waleys affirmed 3 October 2019, [33].
[80] Affidavit of Ms Waleys affirmed 3 October 2019, [33].
[81] Affidavit of Ms Waleys affirmed 3 October 2019, [33].
With the Father outside the closed door of the apartment and the Mother and X inside the apartment, X sent some text messages to his Father that included “Daddy, just stop. This isn’t going to make me happy”, and “Stop it”.[82]
[82] Affidavit of Ms Waleys affirmed 3 October 2019, [33].
The Father sent a text message to the child about 30 minutes after the incident, saying “I’m sorry, X, to have upset you.”[83]
[83] Affidavit of Ms Waleys affirmed 3 October 2019, [33].
On 6 June 2019, the Father wrote an email addressed to Ms S, of T Counselling, copying in the Mother and Ms U (a psychologist who has seen X in the past and who the Mother consulted prior to X being born).[84]
[84] Affidavit of Ms Waleys affirmed 3 October 2019, [51], [NW3].
It is evident from this email that the Father, at least as at the time of the email, regards Ms S as having ‘aligned’ herself with the Mother,[85] and that he perceives the current parenting arrangements as fundamentally unfair.[86]
[85] See, eg:
I am under the impression that Ms Waleys, you and Ms U (the other family therapist) are working together, but not in the childs [sic] best interest, but ostensible in Ms Waleys [sic] best interest. …
… I am aware that you are a court appointed childrens [sic] psychologist and I would assume that you will, if asked by the court or the mother, not hesitate to write reports about me and my anger and how this is affecting X. Therefore, I can not [sic] trust you and I am no longer willing to come to such family meetings as the other week.
Affidavit of Ms Waleys affirmed 3 October 2019, annexure [W3].
[86] See, eg:
Never have we addressed the unfairness of the current Custody Order, which I was forced to sign under duress and which only grants me half of the school holidays – which leads to situations like described above, where Ms Waleys can treat me however she wants because I have no rights here as a father. …
I was being dragged to this meeting without knowing whats [sic] the purpose of it, as Ms Waleys never finds time or the motivation to brief me properly – which is not in her interest as she intends to control me and my influence over our son.
Affidavit of Ms Waleys affirmed 3 October 2019, annexure [W3].
It is also evident that the Father views the Mother as the cause of all of the parties’ difficulties and of X’s own behavioural difficulties. I note here extracts as follows:
I find it a waste of time and (my) money, to talk softly to X, the way you do, about being bullied at school, when it is so obvious now that Ms Waleys [sic] inability to discipline him properly and the way she supports the notion of him being the victim of bullies are the real problem. …
… Ms Waleys withholding [X] from me constantly doesn’t help here either. …
I would even suggest that most of Mr Waleys’ problems [sic] with being bullied and bullying himself and underperforming at school, and how rude and aggressive he behaves towards his mother, are caused by Ms Waleys’ [sic] attempt to humiliate me, control me and manipulate me. …
[X] is old enough soon to really stand up against her, and I dont [sic] wish this to happen to her – but the way she behaves, she will get herself in a situation soon where X will reject her. …
I fear for my life here in Australia, and I am under the impression that Ms Waleys just hates me (because she thinks she didnt [sic] get what she was entitled to in our marriage – financially and sexually) and wants to destroy me and will use every possible way to do so.[87]
[87] Affidavit of Ms Waleys affirmed 3 October 2019, annexure [W3].
Furthermore, the Father regards the Mother as the main source of his stress:
We talked about my current stresses in life (which are mainly caused by Ms Waleys and how she forced me to sign a property settlement which bankrupts me), …
X spent time with his Father during the mid-year school holidays from 14 to 21 July 2019 and then again on 3 and 4 August 2019.[88] There was an incident on 4 August 2019 in relation to which more detail is given below.
[88] Affidavit of Ms Waleys affirmed 3 October 2019, [37], [38].
Father’s evidence
The Father specifically denies the allegations of family violence on his part as made by the Mother in her evidence.[89] Furthermore, the Father generally denies “much of what the applicant [sic] has alleged in her affidavit”,[90] though he appears to have intentionally elected not to reply to the allegations made in the interests of focussing on “X’ safety & [sic] well-being”.[91] This creates a lacuna in the evidence as to any specific reply that the Father may have to some of the allegations made by the Mother detailed above.
[89] “I deny the allegations of abuse deposed to by the Applicant in her affidavit sworn [sic] 3 October 2019”, affidavit of Mr Waleys affirmed 20 November 2019, [3(vii)].
[90] Affidavit of Mr Waleys affirmed 20 November 2019, [9].
[91] “I could go through the Applicant’s affidavit paragraph by paragraph, but I believe the most important interim issue before the Court is that of X’ safety & [sic] well-being.”, affidavit of Mr Waleys affirmed 20 November 2019, [9].
The Father begins his affidavit evidence by establishing what I consider to be a log of complaints against the Mother,[92] relating either to personality traits of hers as described by him,[93] or unfair financial pressures he perceives the Mother to have imposed upon him.[94]
[92] See especially affidavit of Mr Waleys affirmed 20 November 2019, [3]
[93] Affidavit of Mr Waleys affirmed 20 November 2019, [3(i)]-[3(ii)], [3(vi)]-[3(viii)].
[94] Affidavit of Mr Waleys affirmed 20 November 2019, [3(iii)]-[3(v)].
In a generally responsive[95] manner to the Mother’s evidence, the Father deposes:
I freely admit that I have become an increasingly “angry man” over the period of the last five-seven years, as I have had to deal with the Applicant’s controlling behaviour, financial greed (at my expense) and the fact that she regards X as being her sole property. I have suffered from bouts of depression, as it has become clear that, unless I “tow the line” and do things the way the Applicant thinks they should be done, I am punished by being denied contact with my son … this is not to say that the Applicant is to blame for my anger….I know it is my responsibility to utilise the professional help I need to turn this behaviour around ...[96]
[95] To be distinguished from being specifically responsive.
[96] Affidavit of Mr Waleys affirmed 20 November 2019, [3(vi)].
The financial pressures the Father deposes to experiencing appear to relate to the property settlement to which he consented in October 2018,[97] payment of child support pursuant to a Binding Child Support Agreement,[98] and to actions by the Mother that the Father asserts have restricted the time that he has been able to spend with X, in circumstances of financial cost.[99]
[97] Affidavit of Mr Waleys affirmed 20 November 2019, [3(iii)].
[98] Affidavit of Mr Waleys affirmed 20 November 2019, [3(iv)]. See also Affidavit of Ms Waleys affirmed 3 October 2019, [17].
[99]Affidavit of Mr Waleys affirmed 20 November 2019, [3(viii)]; affidavit of Mr Waleys affirmed 25 November 2019, [3].
In relation to the financial costs incurred by the Father in order to spend time with X, the Father deposes to the following:
There have been many occasions over the last 3-4 years when I have been denied contact with my son, even when I have flown to Sydney from Country F for the sole purpose of spending time with him.[100]
The Father does not give any more specificity to those “many occasions”.[101] While the Father also does not deny that instances of him spending time with X as deposed to by the Mother did in fact occur, he Father also appears to reserve his position.[102]
[100] Affidavit of Mr Waleys affirmed 20 November 2019, [3(viii)].
[101] Affidavit of Mr Waleys affirmed 20 November 2019, [3(viii)].
[102] “I could go through the Applicant’s affidavit paragraph by paragraph, but I believe the most important interim issue before the Court is that of X’s safety & [sic] well-being.”, affidavit of Mr Waleys affirmed 20 November 2019, [9].
In his affidavit affirmed 25 November 2019, the Father further deposes:
… I am trying to see my son X as I am suffering from a financial burden since the Applicant moved our son to Australia. The costs of travelling to and from Australia, and leaving my work in Country F in order to spend time with my son has caused me financial hardship and this hardship has been made much more difficult by the Applicant controlling how much time and when and where I will be allowed to see my son X.[103]
[103] Affidavit of Mr Waleys affirmed 25 November 2019, [3].
It is appropriate here to note in short the evidence of the Father’s intention to return to Country F in 2019.[104] The Father deposes that he decided to return to Country F in an “effort to make more money” to address financial difficulties he was having in relation to paying child support.[105] His evidence is that he was prevented from doing so by what he describes as the Mother “[instructing] her solicitor to have a “Departure Prohibition Order” taken out against me”.[106]
[104] Affidavit of Mr Waleys affirmed 20 November 2019, [3(iv)].
[105] Affidavit of Mr Waleys affirmed 20 November 2019, [3(iv)].
[106] Affidavit of Mr Waleys affirmed 20 November 2019, [3(iv)] (emphasis added).
The Father deposes that “The [Mother] herself perpetrated acts of domestic violence upon me throughout the time we were married”.[107] There is no more specificity given to this allegation in the rest of the material. On the face of that evidence, the Father deposes that the Mother has not perpetrated acts of family violence since separation in January 2017[108] or March 2017.[109]
[107] Affidavit of Mr Waleys affirmed 20 November 2019, [3(vi)].
[108] Affidavit of Mr Waleys affirmed 20 November 2019, [3(iii)].
[109] Affidavit of Ms Waleys affirmed 3 October 2019, [5].
Events of 4 August 2019
On 4 August 2019, X was in the Father’s care, and Father, son, and Ms D spent time during the day in the Region V area of Sydney. At the end of the trip, when they were returning to where they were staying in Sydney, an incident occurred that involved the Father driving in a dangerous manner. This also led to a temporary breach in his relationship with Ms D.[110]
[110] See especially affidavit of Ms D sworn 20 November 2019, [67]-[77].
The Mother gives a version of the event by detailing a conversation between herself and Ms D that occurred on 5 August 2019 in paragraph 38 of her affidavit.[111]
[111] Affidavit of Ms Waleys affirmed 3 October 2019, [38].
The version that I will detail is from a statement given by Ms D to Queensland Police on 8 August 2019 and contained in exhibit A3:
On 04.08.2019 the aggrieved [Ms D] and the respondent [the Father] were in NSW with the respondent’s 11 year old son [X]. They were driving from the Region V to the respondent’s address in Sydney when the aggrieved confronted the respondent about messages on his phone organising a meeting with another woman. The respondent became aggressive towards the aggrieved and began shouting at her. He then started driving dangerously with the aggrieved and the child in the vehicle. He stopped the vehicle and demanded the aggrieved get out. She refused as she had no money.
The respondent continued driving while shouting at the aggrieved and stopped the vehicle again. He threw her bag out of the window and said, “Get your fucking bag”. When the aggrieved refused the respondent increased the recklessness of his driving, sharply accelerating and breaking behind vehicles. He was also driving around corners at excessive speed. The respondent then drove back to his Sydney address with the aggrieved and child in the vehicle. After exiting the vehicle, the respondent ran toward the aggrieved and swung an open hand at her, stopping short of striking her face in an attempt to intimidate her.
The aggrieved and respondent then entered the flat. The respondent pushed the aggrieved into a bedroom and held the door, so she couldn’t get out. The respondent then entered the bedroom and placed both his hands around the neck of the aggrieved however did not apply any force or restrict breathing. The aggrieved left the bedroom, the Respondent began barging her into walls with his shoulder. The aggrieved had to push the respondent way from her. The aggrieved then went outside to have a cigarette and the respondent locked her outside and did not allow her back into the flat.
The respondent refused to give the aggrieved her phone so she could call someone. The aggrieved used the respondent’s phone, which she found in the vehicle, to call her son [redacted] in Brisbane. She was explaining what happened and the Respondent grabbed the phone from her hand and shouted, “Fuck off”, into the phone before hanging up. The respondent then tried to get the aggrieved to call her son back stating everything was okay. The aggrieved left Sydney for Brisbane that next morning.[112]
[112] Exhibit A3.
Further in the police record, it reports:
…
The Respondent was spoken to in relation to the relationship. The respondent corroborates certain aspects of the verbal arguments and shouting however denies any physical contact with the aggrieved. He denies placing his hands around the neck of the aggrieved. The respondent did state that at times he was not of good behaviour toward the aggrieved and his actions may have intimidated or harassed her ...[113]
[113] Exhibit A3.
As a result of the incident and Ms D’s report to Queensland Police, a Police Protection Notice was issued by police and served on the Father on 8 August 2019.[114] On that same day, the Father sent a text to Ms D’s son that led to a charge of Contravention of Police Protection Notice being laid against the Father by Queensland Police.[115]
[114] Exhibit A3.
[115] Exhibit A3.
On 13 August 2019, the Father attended at the Brisbane Magistrates Court in relation to the Application by police that a Personal Protection Order be issued for the protection of Ms D. At that time, he was found to be in possession of two knives leading to a charge of possessing a knife in a public place being laid against him by Queensland Police.[116]
[116] Exhibit A3.
The Father refers to the incident on 4 August 2019 at paragraph 4 of his affidavit of 20 November 2019 and says:
… During the incident in question, both Ms D and I exhibited inappropriate behaviour, but it was me who started it and my behaviour was certainly worse, and I am extremely regretful for what happened. Sadly, X witnessed the whole event and for that I am even more regretful. There is currently an interim AVO against me. A full Hearing is scheduled to take place on 17 December 2019 in Brisbane ...[117]
[117] Affidavit of Mr Waleys affirmed 20 November 2019, [4].
He refers to the matter again in paragraph 7, as follows:
I say to the Court that my time with X does not need to be supervised. We have a great relationship and I certainly do not feel any anger when I am with him. My bouts of anger have been brought about by other circumstances involving my relationship with the Applicant and the unfortunate event of 4 August, which involved my current partner, Ms D. On this occasion my anger may have caused me to slightly exceed the speed limit, but I deny that I was driving dangerously or well in excess of said speed limit…[118]
[118] Affidavit of Mr Waleys affirmed 20 November 2019, [7].
On 13 August 2019 at the Brisbane Magistrates Court, a Personal Protection Order was made for the protection of Ms D from the Father.[119] The order was continued with some amendments at a further mention before the Court on 29 October 2019.[120]
[119] Exhibit A3.
[120] Exhibit A3.
The Mother deposes in her affidavit that when she asked X about what had happened on 4 August 2019 he stated:
Daddy was very angry with Ms D and drove dangerously, braking and driving up close to cars in front very fast. I was very scared and begged daddy to stop …
At the flat they were yelling so I said, “it’s all my fault”, to them so as they would pay attention to me and stop fighting …
I was scared. I wanted to come home.[121]
[121] Affidavit of Ms Waleys affirmed 3 October 2019, [39].
Following the incident of 4 August 2019 and details of the incident being conveyed to the Mother on 5 August 2019 by Ms D, the Mother has since restricted the Father’s time with X to occasions of several hours supervised by her family friend MrA, her family friend Mr B, or by the commercial supervision agency C Family Services. Supervision reports from the latter were available at the interim Hearing for the occasions occurring on 9 October 2019, 10 October 2019, and 11 October 2019.[122]
[122] Affidavit of Ms Waleys affirmed 3 October 2019, [10]; Affidavit of Mr Waleys affirmed 20 November 2019, [6].
The Father’s mental health
In the material produced on subpoena by Dr J, a psychiatrist consulted by the Father following the incident on 4 August 2019, the doctor notes in the course of his initial assessment of the Father on 6 November 2019:
TRIGGERS: Anger
In August he became angry when Ms D went through his phone and accused him of being unfaithful. He yelled at her and he was speeding. His son was scared. Then had
yellingepisode of he and Ms D yelling at each other. Ms D spoke to Ms Waleys [the Mother] and after that Ms D called the police. … He was put on an AVO.[123][123] Exhibit A4.
Also of concern in the initial assessment form completed by Dr J, under the heading, “Alcohol and other drugs”[124] is the note, “Admitted to using 2 joints per day (after child is in bed).”[125]
[124] Exhibit A4.
[125] Exhibit A4.
Subsequent to the events of 4 August 2019, the Father has also consulted Mr W, a clinical psychologist practising in Town Y in Queensland.[126] The Father provides in his evidence a copy of a single page report prepared by Mr W dated 4 November 2019.[127]
[126] Affidavit of Mr Waleys affirmed 20 November 2019, [5].
[127] Affidavit of Mr Waleys affirmed 20 November 2019, annexure [A].
I do not find that the report is at all helpful. The contents of the report are based solely on the anecdotal material provided by the Father to Mr W, and he does not refer to any other sources of information other than, possibly, some anecdotal information from Ms D.
Concernedly, I note the following paragraph from the report:
Furthermore, according to Mr Waleys’ but also Ms D’s description of their domestic argument of 4 August 2019, it is obvious that Mr Waleys unfortunately lost his temper with Ms D as a direct result of the stresses he has been exposed to by his ex- Ms Waleys. Both Mr Waleys and Ms D confirmed that on this event of 4 August, there was no physical violence, and after the argument they all went to sleep, the Father slept with his son in the same bed and he confirmed that X witnessing the argument has upset him, however the Father has not exposed his son to any direct form of violence. I consider Mr Waleys as a very committed Father and do not see any necessity to bring this unrelated DVO matter into play with the residence/contact agreement between the parents.[128]
[128] Affidavit of Mr Waleys affirmed 20 November 2019, annexure [A].
There is direct conflict between the statement reported by Queensland Police as having been made to them by Ms D (that the incident did involve actual physical violence between herself and the Father on 4 August 2019), and the statement reported by Mr W to have been made to him by Ms D (referred to in the report as ‘Ms D’).
The view expressed by Mr W, that the incident on 4 August 2019 between the Father and Ms D, witnessed throughout by X, was “as a direct result of the stresses he has been exposed to by his ex-Mother Ms Waleys”,[129] depreciates the weight that I am able to give the report, to the extent that I cannot give the report any weight at all. Mr W seems to be validating the Father’s behaviour without acknowledging any ramifications for X being exposed to the family violence that occurred on 4 August 2019.
[129] Affidavit of Mr Waleys affirmed 20 November 2019, annexure [A].
The material produced on subpoena by L Medical Centre and entered as exhibit A5 indicate that, as at 12 November 2019, the Father was taking medication being 20mg of Lexapro once per day and 30mg of oxazepam, being half a tablet, twice per day.[130] The notes indicate that the Father commenced on Lexapro about three years ago.[131] In the notes from a surgery consultation with Dr Z on 19 August 2019, Dr Z notes “Issues around wief [sic] [the Mother], girlfriend anger management”[132] and “Diagnosis: adjustment disorder with depression and anxiety”.[133]
[130] Exhibit A5.
[131] Exhibit A5.
[132] Exhibit A5.
[133] Exhibit A5.
It was on this occasion that a letter was provided to the Father addressed to Dr J, psychiatrist, by way of a referral for consultation.[134] That letter makes plain that Dr Z is also the general practitioner for Ms D.[135]
[134] Exhibit A5.
[135] Exhibit A5.
Child support
The Mother deposes that, as at June 2019, the Father was in default of his statutory obligation to pay child support pursuant to a Binding Child Support Agreement between the parties in the sum of about $30,000.00. The Father became aware that, at about this time, he was the subject of a departure prohibition order preventing him from leaving Australia and returning to Country F.[136]
[136] Affidavit of Ms Waleys affirmed 3 October 2019, [17].
As mentioned briefly before in these Reasons, the Father gives evidence of his intentions regarding returning to Country F, as follows:
… In 2019, I had been in Australia for some time. I decided that I should return to Country F in an effort to make more money as I was getting behind with my child support payments. The Applicant instructed her solicitor to have a “departure prohibition order” taken out against me because she was owed back money for child support. I was therefore estopped from leaving Australia. I have been here ever since.[137]
This view, that the Mother orchestrated the departure prohibition order, is also expressed in Ms D’s affidavit sworn 20 November 2019.[138]
[137] Affidavit of Mr Waleys affirmed 20 November 2019, [3(iv)].
[138] Affidavit of Ms D sworn 20 November 2019, [30].
In submissions on interim Hearing, it was put by Mr Roberts on behalf of the Mother that the departure prohibition order was taken out by the Child Support Registrar, and not by the solicitor for the Mother.
Exhibit A9 is a print of a payment history statement relating to the Father from the Child Support Agency indicating that on 31 July 2019, a sum of $32,011.42 was paid by the Father to the Mother through the Agency, but that as at 21 November 2019 a sum of $8,800.00 was owing as arrears of child support payable by the Father to the Mother for X.[139]
[139] Exhibit A9.
In the Outline of Case document prepared for the Father on the interim Hearing and containing written submissions on his behalf it is asserted that: “The Father has always maintained the child.”
Affidavit of Ms D sworn 20 November 2019
Finally, I will address the affidavit of 20 November 2019 sworn by Ms D and relied upon by the Father at the interim Hearing.
That affidavit contains 28 pages of what I consider it fair to call closely typed text. It also contains 18 annexures. It is the second affidavit by Ms D filed for and relied upon by the Father at the interim Hearing. It is an affidavit that is far from complying with Practice Direction No. 2 of 2017 in relation to the length of text in affidavits relied upon at interim Hearing and the number of annexures to such affidavits.[140] Much of the affidavit is in inadmissible form even in parenting proceedings under section 69ZT of the Act.[141]
[140] Federal Circuit Court, Practice Direction No. 2 of 2017: Interim Family Law Proceedings, 1 January 2018, [6].
[141] The title of section 69ZT is “Rules of evidence not to apply unless court decides”, Family Law Act 1975 (Cth) s. 69ZT.
Nevertheless, as the affidavit was relied upon by the Father on interim Hearing, not objected to by the Mother, and in fact referred to on several occasions in submissions by the Mother’s Counsel, I have read the whole of that affidavit and its annexures.
In paragraph 30, detailing events on 14 May 2019, Ms D provides a characterisation of her perspective of the Father’s mental health:
Whilst I was at Ms Waleys’s flat I told her that I was trying to get Mr Waleys to see a psychiatrist for a medication review of his antidepressant medication, and I also queried to Ms Waleys whether there may be the possibility that Mr Waleys had bipolar disorder as he was literally collapsing under pressure the same way I did when stressed. I said that Mr Waleys was unable to let go of things and was both enormously depressed and despondent, but also alternating with periods of huge anger, which I felt to be a manifestation of both clinical and circumstantial depression coupled with legitimate grievances Mr Waleys had with issues like the airport watch list and AA Contact Services. I noted that Ms Waleys seemed reasonable to me and obviously provided X with a very secure home life.[142]
[142] Affidavit of Ms D sworn 20 November 2019, [30].
In paragraph 37, Ms D relays a series of events leading up to the family therapy session that the Mother organised to occur with Ms S:
Concurrently occurring on 20 May [2019] in Sydney was an arrangement that Mr Waleys attend a family counselling session with Ms S later in the day. At this stage Mr Waleys was trying to be as conciliatory with Ms Waleys as possible and I was encouraging this. Mr Waleys agreed to attend the session although he was in a state of high anxiety. I informed Ms Waleys of this and Ms Waleys indicated that Ms S has specifically made time and it would be best they attended that day. Mr Waleys was so anxious that day that I felt he was in need of some sedatives. I contacted my home doctor’s clinic in Brisbane and asked that my medical records and approved prescription list be released to a doctor’s office in Sydney. My official medications include Valium, however it is not something I regularly use or keep on me, as a drug of dependence it is not prescribed to new patients and I had to go to a lot of trouble that day, and pay $100, to attend a doctor in Suburb G [sic], for the purpose of obtaining a Valium script as Mr Waleys was in an acute state of anxiety.[143]
[143] Affidavit of Ms D sworn 20 November 2019, [37].
I find that the material in this paragraphs raises an inference that Ms D was attempting to obtain Valium on a prescription for her to supply same to the Father for his use to assist with his “acute state of anxiety”.[144] It is not clear on the face of the evidence whether the Father in fact took Valium on the prescription obtained by Ms D prior to attending the family therapy session on 20 May 2019.
[144] Affidavit of Ms D sworn 20 November 2019, [37].
I reiterate that the evidence before the Court, in the case put by both parties,[145] is that the appointment did not go well, with the Father becoming angry and storming out of the appointment. I further note the observations made earlier in these Reasons in relation to the Father’s email subsequent to the family therapy session.
[145] Affidavit of Ms Waleys affirmed 3 October 2019, [31]; Affidavit of Ms D sworn 20 November 2019, [38].
The primary considerations under section 60CC
In determining what is in X’s best interests, I must consider the matters set out in subsections (2) and (3) of section 60CC of the Act.[146] Section 60CC(2) of the Act sets out the primary considerations, which are:
a)The benefit to X of having a meaningful relationship with both of his parents;[147] and
b)The need to protect X from physical or psychological harm from being subjected to, or exposed to, abuse, neglect or family violence.[148]
[146] Family Law Act 1975 (Cth) s.60CC.
[147] Family Law Act 1975 (Cth) s.60CC(2)(a).
[148] Family Law Act 1975 (Cth) s.60CC(2)(b).
I am required by section 60CC(2A) of the Act to give greater weight to the need to protect X over the benefit to X of having a meaningful relationship with both of his parents.[149]
[149] Family Law Act 1975 (Cth) s.60CC(2A).
There is no contest that X has a meaningful relationship with his Mother. On the evidence, it is easily found that the relationship between Mother and child is a close and loving relationship. The Mother provides for all of X’s day to day needs and she has been his principle carer for most of the time since separation in either January or March 2017.
The full nature and extent of the relationship between X and his Father is harder to assess than that between X and his Mother, though there is material indicating that the relationship is a meaningful relationship, and even that it is also a close and loving relationship. In this regard, I note the CDC Memorandum of 5 November 2019, in which the family consultant notes that the Mother said that:
X and [his Father] love each other but believes this is a problematic relationship. She indicated that X seeks [his Father’s] approval for things and indicated that [the Father] is allegedly not available for X.[150]
[150] Child Dispute Memorandum to Court by Ms BB, 5 November 2019.
In the CDC Memorandum, the family consultant notes that the Father asserted “that he has a strong bond with X and a close relationship.”[151]
[151] Child Dispute Memorandum to Court by Ms BB, 5 November 2019.
Mr A, in his affidavit affirmed 22 November 2019, indicates that he is a friend of the Mother, and that he has known the Father for about 10 years. In paragraph 15, he states “X and [the Father] have a mutually loving relationship.”[152]
[152] Affidavit of Mr A affirmed 22 November 2019, [15].
The contents of each of the supervised contact visit reports from C Family Services from 9 October 2019, 10 October 2019, and 11 October 2019 indicate a meaningful relationship between X and his Father that is close and loving. Comments include:
X appeared happy and excited about the visit. X talked easily with his Father and showed signs of comfort in his Father’s physical contact.
X seemed to enjoy his Father’s company.
X seemed to enjoy the activity and his Father’s company and affection.
X jumped into his Father’s arms and put his arms around his Father’s neck and showed his necklace to his Father saying, ‘Hey daddy.’
X and his Father hugged and [the Father] kissed X’s forehead and told him, “I love you”. X told his Father, “love you”.[153]
[153] Affidavit of Mr Waleys affirmed 20 November 2019, annexure [B].
X knows his Father, has an established meaningful relationship with him, is comfortable with his Father, enjoys their time together, and, most importantly, loves his Father and his Father loves him. There is obvious benefit to X in having the meaningful relationship with his Father as there is also obvious benefit to X in having the meaningful relationship with his Mother.
As his parents are separated, X will have far greater opportunity to develop his meaningful relationship with his Mother than with his Father, by simple reason of being in her care for the greatest part of the time. The main issue in these interim proceedings is what time X should spend with his Father and on what, if any, conditions.
To enable X to continue his meaningful relationship with his Father and to take the benefit to which he is entitled from that relationship, there should be a maximising, in all the circumstances, of what is in the best interest of X, of his time with his Father. That brings us to consideration of the second of the primary considerations, the need to protect X from physical or psychological harm from being subjected to, or exposed to, abuse, neglect, or family violence.[154]
[154] Family Law Act 1975 (Cth) s 60CC(2)(b).
There is evidence presented by the Mother in her affidavit of an occasion in 2012 when she asserts that the Father “grabbed and kicked X with such force that X was knocked to the ground”,[155] and an occasion in 2016 when she asserts that “Mr Waleys was in a complete rage and through a filled water bottle across our living room at X. It struck X leaving a sizeable bruise on his arm.”[156]
[155] Affidavit of Ms Waleys affirmed 3 October 2019, [21].
[156] Affidavit of Ms Waleys affirmed 3 October 2019, [21].
As stated earlier, both of those events occurred prior to the parties entering into final consent parenting orders on 25 September 2017. It must have been the view of both the Mother and the Court that orders providing for X to spend up to three weeks in his Father’s care were in his best interest.
The matter is presented by the Mother as a case where the Father presents an unacceptable risk to Mr Waleys by reason of the Father’s propensity to outbursts of anger, as a consequence of the Father’s unstable mental health.
There are several incidents described in the Mother’s evidence of occasions where the Father has displayed inappropriate anger and inappropriate conduct in the presence of X since the final parenting orders were made. As noted earlier in these Reasons, the Father responds in his affidavit to the Mother’s detailed evidence by saying:
I deny much of what the Applicant has alleged in her affidavit. I could go through the Applicant’s affidavit paragraph by paragraph, but I believe the most important interim issue before the Court is that of X’s safety and wellbeing.[157]
[157] Affidavit of Mr Waleys affirmed 20 November 2019, [9].
What the Father does not do is give evidence contradicting the Mother’s evidence about such occasions as:
a)The events occurring in October 2017 at Town R;[158]
b)Early April 2019, when the Father expressed to the Mother that he was not well enough to have X for extended periods other than “during the day and not every day”;[159] or
c)The incident of the Father’s outburst of anger on 13 May 2019,[160] and again on 31 May 2019.[161]
I note that this is despite the Father having the Mother’s affidavit affirmed 3 October 2019 when he prepared his affidavit affirmed 20 November 2019.
[158] Affidavit of Ms Waleys affirmed 3 October 2019, [22]-[23].
[159] Affidavit of Ms Waleys affirmed 3 October 2019, [28].
[160] Affidavit of Ms Waleys affirmed 3 October 2019, [29].
[161] Affidavit of Ms Waleys affirmed 3 October 2019, [33].
Further, the Father’s evidence of the incident occurring on 4 August 2019 (and discussed earlier in these Reasons) does not provide the Court with any detailed evidence. This is of concern, in circumstances where the incident occurred between himself and Ms D, to which X was a witness, and which involved X being a passenger in the car being driven by the Father in what was described by Ms D in terms that indicate a dangerous manner.[162]
[162] Affidavit of Mr Waleys affirmed 20 November 2019, [4], [7].
On that basis, I find that I can accept the evidence of the Mother where she describes the conversation she had with Ms D on 5 August 2018 during which Ms D described the incident to her, and including the words “I thought X and I were going to be killed”.[163]
[163] Affidavit of Ms Waleys affirmed 3 October 2019, [38].
I accept the description contained in the records of Queensland Police asserted to be the statement made to Queensland Police by Ms D about that (and other) incidents of the Father’s anger and behaviours of family violence. As indicated when detailing the evidence, the Father admits to his problem with anger and to becoming “an increasingly ‘angry man’ over the period of the last five to seven years”.[164]
[164] Affidavit of Mr Waleys affirmed 20 November 2019, [3(vi)].
I find, on the basis of uncontested evidence at the interim Hearing, that the Father has a propensity to anger.
I find that during periods of anger, he will act in a manner not only inappropriate to be witnessed by X, but in a manner that presents a danger to X through the Father’s reckless disregard of what the consequences of his actions during his anger may lead to for X.
I find that this is an unacceptable risk which must be addressed by appropriate orders that can mitigate that risk sufficient to enable X to continue to benefit from having a meaningful relationship with both of his parents.
Since the incident on 4 August 2019, the Father has sought professional help in relation to his anger and his mental health issues by consulting his general practitioner, Dr Z, and on referral from Dr Z by consulting Dr J, a psychiatrist. However, there is nothing in evidence from either Dr Z or Dr J to indicate what treatments, other than prescription of medication, have been undertaken by the Father so as to address his anger issues.
Accordingly, there is nothing there to mitigate against the finding I have made, that, in consequence of his anger issues, the Father presents an unacceptable risk to X at the present time.
Since 4 August 2019, the Father has also consulted Mr W, clinical psychotherapist, but the report provided by Mr W and put into evidence by the Father only goes to reinforce the impression, found throughout the Father’s evidence, that his anger is everyone else’s fault, and particularly the Mother’s fault.[165]
[165] Affidavit of Mr Waleys affirmed 20 November 2019, annexure [A].
In consequence of that attitude, I find that the unacceptable risk presented to X by his Father’s anger is heightened by person-to-person contact between the Father and the Mother. Accordingly, appropriate orders are required to mitigate against that element of the unacceptable risk, so that X can continue to have the benefit of a meaningful relationship with both of his parents.
I find it is not necessary to examine the element of risk, or amelioration of risk, presented by Ms D if she were present with the Father during his time with X. That is because the Father, through his Counsel Ms Reid, made a concession that he agrees to an order that Ms D not be present during any time the Father spends with X.
In relation to any risk presented by the Father to X in consequence of the Father’s use at any time of marijuana (noting the evidence referred to above contained in the clinical notes from Dr J wherein the Father admits to using “2 joints per day (after child is in bed)”),[166] I refer to the concession made in submissions by Ms Reid on behalf of the Father, that the Father agrees not to have marijuana on days that he sees the child.
[166] Exhibit A4.
As I commented to Ms Reid when that concession was made, the Father not using marijuana when he sees his son is not enough as long-term marijuana use is in itself harmful. I find that it is necessary to make an order that mitigates this risk by restraining the Father from using marijuana for a period of seven days before X is to spend time with him, and at all while he is spending time with X.
In summary, in relation to the primary considerations under section 60CC, I find there is a benefit to X in having a meaningful relationship with both of his parents, but that there is at present a need to protect X from the unacceptable risk posed to him by his Father’s propensity to anger, his Father’s mental health issues, and his Father’s use of marijuana, by making appropriate orders that address the unacceptable risk, including that time between X and his Father be supervised at the present time.
The additional considerations under section 60CC
Any views expressed by X
I do not have any evidence of specific views expressed by X on the issue of the time he would spend with his Father. I can infer from the evidence contained in the supervised contact visit reports from C Family Services for 9 October 2019, 10 October 2019, and 11 October 2019 that X wants to spend time with his Father.[167]
[167] Affidavit of Mr Waleys affirmed 20 November 2019, annexure [B].
I can further infer from the evidence contained in the Mother’s affidavit, which is either not contradicted by the Father or is not capable of contradiction by the Father (by reason of the matters occurring outside the Father’s knowledge), that X wants to feel safe when spending time with his Father.
The nature of the relationship of X with each of his parents and with other persons
I have already gone into some detail in relation to the nature of the relationship between X and each of his parents when considering the primary consideration relating to the benefit to X of having a meaningful relationship with both of his parents.[168] The nature of the relationship between X and his Father is such that it is very much in X’s best interests that the relationship continue and that he be given every opportunity, with appropriate safeguards addressing the unacceptable risks that I have found, to spend time with his Father so as to continue and develop, within the constraints of those safeguards, his relationship.
[168] Family Law Act 1975 (Cth) s 60CC(2)(a).
I need not examine or make any findings at this stage in relation to the relationship between X and any other person other than to find on the evidence that X is familiar with the Mother’s friend, Mr A, such that Mr A would be an appropriate supervisor from X’s point of view. I also note that there is no indication that X had any problem with being in the company of persons until then unknown to him being supervisors of his time with his Father through C Family Services.
The extent to which each of X’s parents have taken or failed to take the opportunity to participate in making decisions about major long-term issues in relation to X and to spend time with X and to communicate with X
To date, it would seem that the parents have cooperated in relation to the major long-term decisions for X, as evidenced by the school enrolment form completed by both parents on 3 May 2019 for X’s future possible attendance at P School at Town Q.[169]
[169] Affidavit of Ms Waleys affirmed 3 October 2019, annexure [W1].
Despite the obvious difficulties between the parents over time, culminating in the unfortunate circumstance of most recent times of an almost complete breakdown in that relationship and in communication between the parents, the parents showed an ability to cooperate and communicate to the extent that the Mother felt it appropriate to invite the Father on a holiday with herself and X at Town R, some six months after separation.
The parents also felt comfortable enough to, in effect, cooperate in a joint holiday in Country F with X in 2018.[170] During the time leading up to the breakdown of the co-parenting relationship in 2019, the parents have obviously cooperated, consulted, and reached appropriate agreement in relation to matters relating to X’s long-term welfare. Their ability to do so now is very much in question.
[170] Affidavit of Ms Waleys affirmed 3 October 2019, [25].
On the whole of the evidence, I find that the Father has an attitude of blaming the Mother for all of his difficulties of whatever nature. In this regard, I observe that the Father has taken an attitude of blaming the Mother for his own inappropriate, reckless, and dangerous actions on 4 August 2019,[171] though the incident would seem to have had nothing to do with her.
[171] See especially:
… I will say that the catalyst for what happened was that I found Ms D checking text messages on my mobile phone. This was “like a red rag to a bull” [sic] for me as this is exactly what the Applicant did throughout our relationship. I had no privacy …..[sic] she (the Applicant) encroached on every aspect of my life. I felt controlled & trapped !! [sic]
Affidavit of Mr Waleys affirmed 20 November 2019, [7].
The Father also has an attitude of rejecting any recent overtures by the Mother toward better communication and consultation. In particular, the Father, by his outburst of anger, rejected the opportunity presented by the Mother’s engagement with Ms S to engage in some family therapy that may have had a beneficial effect on the parental cooperative relationship, amongst other things. This consideration will be an important matter in relation to the issue of parental responsibility.
It is difficult on the current evidence to make findings in relation to the extent to which the Father has taken or failed to take opportunities to spend time with and to communicate with X, although it would seem that, within the constraints of the Father residing principally in Country F up until at least late 2018, the Father has taken advantage of the opportunities available to him to spend time with X.
The extent to which each of X’s parents have fulfilled, or failed to fulfil, the obligation to maintain X
Axiomatically on the evidence before the Court at interim Hearing, the Mother has been the principle financial support for X. The Father’s fulfilment of his obligation to maintain X comes into some question in light of the evidence before the Court of the accumulation of an arrears of child support in the sum of a bit over $30,000.00 by mid-2019. This is especially so where once that arrears was cleared on 31 July 2019, the further accumulation of arrears by November 2019 was $8,800.00.
It would seem on the evidence that the Father has, since about the time the final property settlement where orders were made between the parties by consent on 31 October 2018, failed to regularly and properly contribute to the financial support of X. The Father has ultimately provided that support only by way of a lump sum payment of arrears of child support once it came to his attention that a departure prohibition notice had been issued against him by the Registrar of the Child Support Agency.
Though this is a serious consideration going to the general welfare of X, I find that it is not a consideration that will have any significant impact on the orders to be made in resolution of the issues before the Court on the interim Hearing.
The likely effect of any changes in X’s circumstances including the likely effect on X of any separation from either of his parents or any other child or other person with whom he has been living
X has not been living with any person other than his Mother since August 2019. Prior to that time, he was living principally with his Mother and only spending some occasions of living with his Father for periods of between one and three weeks at a maximum during school holidays, pursuant to the final parenting orders made in September 2017.[172]
[172] Orders made by Judge Henderson on 27 September 2017, [3].
The change in X’s immediate circumstances that will be consequent upon making orders as sought by the Father, reinstating the parenting orders made on 25 September 2017, would be for it to increase the duration of the opportunities for X to spend time with his Father, including overnight time, and for that time to be without any supervision.
The change in X’s circumstances prior to August 2019 that would be caused by making orders as sought by the Mother would be to restrict the time X spends with his Father to occasions of daytime only, supervised by either a family friend or a commercial supervision agency.
When I refer to ‘reinstating’ the orders made in September, I must note that such orders have not been formally suspended at any time before now, but have not been performed since August 2019 in consequence of the events of 4 August 2019 coming to the Mother’s attention.
I find that, on the interim basis, the effect on X of changing the circumstances as they subsisted up until August 2019 by restricting the time he spends with his Father to daytime only, with such time to be supervised, is to give X comfort during the time he spends with his Father – that is, he will not be subjected to behaviour by his Father that puts X at risk consequent upon outbursts of anger by his Father. This change will allow X to spend that time with his Father in circumstances where his Father is likely to be on his best behaviour due to evidence of any inappropriate behaviour being able to be observed by a supervisor.
The practical difficulty and expense of X spending time with and communicating with his Father and whether that difficulty or expense will substantially affect X’s right to maintain personal relations and direct contact with parents on a regular basis
There will be a practical difficulty and expense of X spending time with his Father if orders are made for X’s time with his Father to be limited to daytime only and to be supervised. This is particularly so when such supervision is by a commercial supervision agency, which will involve X’s Father incurring an expense.
However, I am able to infer from the whole of the evidence that such expense is within the Father’s means, and that it has already been demonstrated that the practical difficulties of arranging such supervision have been addressed and met by the parties leading up to the interim Hearing.
The capacity of each of X’s parents to provide for his needs including emotional and intellectual needs
The evidence contains matters that put in some small question the Mother’s parenting capacity given that she is having some difficulties with X’s behaviour, but that is not a matter that need be or indeed can be addressed as a consequence of the interim Hearing.
The Father’s capacity to provide for X’s needs – in other words, the Father’s parenting capacity – is brought into serious question by his conduct in the presence of and, on occasions, towards X. That conduct is set out in the uncontested evidence before the Court on the interim Hearing.
It is on the basis of this consideration, when combined with the second of the primary considerations (the need to protect X from physical or psychological harm from being subjected to or exposed to abuse, neglect, or family violence)[173] that I find that there is an unacceptable risk to X presented by his Father’s propensity to anger and the current state of the Father’s mental health. That the Father is in the very early days of addressing both his propensity to anger and his mental health are also issues to consider.
[173] Family Law Act 1975 (Cth) s.60CC(2)(b).
Consequently, there is a need to mitigate that unacceptable risk by appropriate orders, including that the time the Father spends with X be supervised, and that in consequence of the need for supervision, such time be of limited daytime duration.
The maturity, sex, lifestyle and background (including lifestyle, culture and traditions) of X and of either of X’s parents and any other characteristics of X that the Court thinks are relevant
On the evidence of both parents, X is a very intelligent child, indeed a child who is likely to enter into the gifted student programs available at school. X is 11 years of age and has a cultural background both of what I might call, without any disrespect to anyone and particularly to the Mother, European-Australian origin on his Mother’s side, and of Country F origin on his Father’s side.
X has had a couple of opportunities already to experience his Country F cultural background, and it is to be hoped that in the future he will have more such opportunities.
However, at the present time, in view of the unacceptable risk to X that I have found currently exists, those opportunities can only occur if undertaken with his Mother and by agreement of both parties.
The attitude to X and to the responsibilities of parenthood demonstrate by each of X’s parents
The Mother has demonstrated an appropriate attitude to X and to the responsibilities of parenthood, in particular by seeking to keep X safe when matters that I have now found present an unacceptable risk to X are brought to her attention. Prior to that time, the Mother was taking positive steps to foster the relationship between X and his Father such as through orchestrating joint holiday occasions with the Father after their separation, amongst other things.
The evidence from both parties of X thriving as a well-developed boy of above average intelligence goes largely to the credit of the Mother and her attitude to the responsibilities of parenthood. That is because X has been principally, almost solely, in her care for large periods of his life. In relation to the evidence that X is exhibiting some behaviour problems and had some oppositional defiance to his Mother on occasions, I am unable to make any findings at the present time, and therefore am not able to make any findings as to how these impact, if at all, on the Mother’s attitude to X and to the responsibilities of parenthood.
The Father has shown to be lacking in his attitude to the responsibilities of parenthood by reason of his behaviour in the presence of, and, on occasions, to X, particularly when he is experiencing outbursts of anger that he ought to control, but has, on the evidence, been unable to control.
Any family violence involving the child or a member of the child’s family
There is evidence in the Mother’s material as outlined in these Reasons that is sufficient for me to make a finding that the Father has perpetrated family violence toward the Mother and in the presence of X within the meaning of ‘family violence’ in section 4AB of the Act.[174]
[174]Family Law Act 1975 (Cth) s.4AB.
There is also evidence of the Father perpetrating family violence toward his current partner, Ms D. These actions culminated in a Personal Protection Order, and thereafter an interim Personal Protection Order being issued by the Magistrates Court in Queensland for the protection of Ms D from the Father. I note that an instance of family violence referred to in support of that order being made was the incident occurring on 4 August 2019 between the Father and Ms D, all witnessed by X. The Personal Protection Order matter between the Father and Ms D was set down for final hearing in the Magistrates Court in Queensland on 19 December 2019.
A document was forwarded to the Court by the solicitors for the Mother after that time but no Application has been made to reopen the evidence presented at the interim Hearing and I therefore do not take note in any way of such document.
Parental responsibility
In the final parenting orders made by consent between the parties on 25 September 2017, an order was made that the parties have equal shared parental responsibility for X.[175]
[175] Orders made by Judge Henderson on 27 September 2017, [1].
It is the Application of the Mother on interim hearing that the final orders made on 25 September 2017 be suspended, and if that order is made, then the equal shared parental responsibility order would be suspended.
It is the Application of the Father on interim hearing that “Until final orders are made, the orders made on 25 September 2017 remain in place.”[176]
[176] Response filed 20 November 2019, annexure [B][10].
I have summarised above the requirements of section 61DA of the Act in relation to the presumption of equal shared parental responsibility when making parenting orders.[177] I have found that in this matter there has been family violence by a parent of X, being his Father.
[177] Family Law Act 1975 (Cth) s.61DA.
It is asserted by the Father that “the Applicant herself perpetrated acts of domestic violence upon me throughout the time we were married.”[178] The generality of this statement is such that I can only afford it little, if any, weight.
[178] Affidavit of Mr Waleys affirmed 20 November 2019, [3(vi)].
Accordingly, I find that the presumption of equal shared parental responsibility in section 61DA does not apply as there are reasonable grounds for the Court to believe that the Father has engaged in family violence.
On the basis of the findings I have made about the current state of the parental relationship between the Mother and the Father and their ability to communicate, consult, cooperate and attempt to reach any agreement, I find that it is appropriate to suspend, at the present time, the order for equal shared parental responsibility made on 25 September 2017, and to make an interim order that the Mother have sole parental responsibility for X.
In the minute of interim orders proposed by the Mother, she seeks, as aforementioned, that all of the final parenting orders made 25 September 2017 be suspended. The Mother then goes on to seek interim orders that X live with her and spend supervised time with the Father (as well as other ancillary orders) but she does not address parental responsibility.
It is inherent in the orders sought by the Father on an interim basis that the order for equal shared parental responsibility made on 25 September 2017 continue. I have found that that is not appropriate. If I do not make an order in relation to parental responsibility and suspend the order previously made, then it is a question as to whether the circumstance set out in section 61C of the Act, pursuant to which each of X’s parents has parental responsibility for him, ‘resurrects’ and applies again, or if there is a vacuum as to parental responsibility.
Section 61C provides for the following:
Section 61C – Each parent has parental responsibility (subject to court orders)
(1) Each of the parents of a child who is not 18 has parental responsibility for the child.
…
(3) Subsection (1) has effect subject to any order of a court for the time being in force (whether or not made under this Act and whether made before or after the commencement of this section).[179]
[179] Family Law Act 1975 (Cth) s.61C (emphasis added).
On my reading of section 61C(3), when an order of the Court that was in force for some time is no longer in force, then section 61C(1) applies.[180]
[180] Family Law Act 1975(Cth) s.61C(1).
In view of the findings I have made in this matter, I do not consider that it is appropriate for each of X’s parents to have parental responsibility for him, even though that circumstance is different to the meaning of equal shared parental responsibility. That circumstance does not bring with it a statutory requirement to consult and make their best efforts to reach agreement.
Accordingly, I will make an order on an interim basis that the mother has sole parental responsibility for X.
The balance of the legislative pathway
In consequence of my findings in relation to parental responsibility, I need not consider the matters set out in section 65DAA of the Act relating to X spending equal time with each of his parents or X spending substantial and significant time with each of his parents.[181] However, pursuant to section 65D of the Act, I have to consider what parenting order is proper with X’s best interests as the primary consideration.[182]
[181] Family Law Act 1975(Cth) s.65DAA.
[182] Family Law Act 1975 (Cth) s.65D.
Resolution of the issues
On the basis of my consideration of the primary and additional considerations under section 60CC of the Act and the findings I have made, I find that it is proper in the best interests of X that parenting orders made on 25 September 2017 be suspended.
In their place, I will make orders that, on an interim basis, the Mother have sole parental responsibility for X and that X live with her.
I find that, in consequence of the unacceptable risks presented to X’s welfare by his Father’s propensity to anger and to behave in a manner which presents a risk to X, it is proper in X’s best interests to make an order that falls between the proposal of the Father, and the proposal of the Mother.
I find that it is proper and in X’s best interests that an order be made that he spend time with his Father each alternate weekend for such period of time between 9:00am and 5:00pm on Saturday and for such period of time between 9:00am and 5:00pm on Sunday as can be arranged with supervision by such of Mr A, Mr B or a commercial supervision agency agreed upon between the parents and, failing such agreement, by C Family Services.
The issues of family violence I have referred to involving the Father, the Mother, Ms D, and X are a further consideration that leads me to find that it is appropriate to make orders confining the Father’s time with X to daytime only, and that such occasions be supervised at the present time.
The costs of such supervision by a commercial supervision agency are to be at the expense of the parties equally, in circumstance where there are no arrears of child support owing by the Father for X, and at the sole expense of the Father in circumstance where there are arrears of child support owing by the Father for X.
I find that it is appropriate to make an order as sought by the Mother and as conceded by the Father’s Counsel in submissions restraining the Father from allowing Ms D from being present on any occasion when the Father is spending time with X.
I find that it is proper and in X’s best interests to make an order, as sought by each of the parties in their Application for interim orders, that the Father communicate with X by his choice of telephone, Skype or WhatsApp every Monday and Thursday evening at some time between 6:00pm and 7:00pm, with those calls to be initiated by the Father.
Given several of the issues raised between the parties, including as to the almost total breakdown of the parental relationship between the Mother and the Father, instances of family violence, and issues relating to mental health, I find that it is appropriate to make an order appointing an Independent Child’s Lawyer to represent the interests of X in the proceedings, with such appointment to be facilitated by the Legal Aid Commission of New South Wales.[183]
[183] See especially Re K (1994) 117 FLR 63, 79.
I find that it is appropriate to make an order that X’s name be maintained on the Airport Watchlist. I make this finding on the following bases:
a)Such an order was made in the final parenting orders by consent made on 25 September 2017, and I note here that it is the Father’s Application on interim hearing is that all of those orders be maintained pending final orders being made in this round of proceedings;
b)While an Airport Watchlist order is not addressed by the Mother in her minute of interim orders sought, and though she seeks that all of the orders made on 25 September 2017 (logically inclusive of the Airport Watchlist order therein) be suspended, the possibility of the capacity (if any) of the Father to take X outside of the Commonwealth of Australia and back to his former principal place of residence in Country F, makes it in X’s best interests that such an order be maintained;
c)I have made findings in respect of the unacceptable risk present to the best interests of X, consequent upon the Father’s propensity to outbursts of anger. I observe that with this propensity to anger is the Father’s attitude that all of his difficulties are at the blame of others, especially the Mother. This is observable in many parts of the Father’s own evidence, as detailed in these Reasons.
On the issue of psychiatric assessment of one or both of the parties, the Father has sought orders that both parties undergo a psychiatric assessment by Dr J.[184] As Dr J is one of the Father’s treaters, it is neither appropriate that Dr J provide a psychiatric assessment of both of the parties in this matter, nor that he provide any Single Expert’s Report in these proceedings. Accordingly, I reject the Father’s Application for orders that both parties do what is necessary to undergo a psychiatric assessment by Dr J, and all of those associated orders sought by the Father.
[184] Response filed 20 November 2019, annexure [B][1].
Rather, I find that it is appropriate to make the orders sought by the Mother relating to identification for appointment of a psychiatrist as a Single Court Expert to prepare a Single Court Expert’s Report for the assistance of the Court in the matter. In that regard, I find that it is appropriate to make an order that the Mother and the Father each pay one half of the costs of the Single Court Expert as and when that payment falls due.
The Father seeks an order that both parties attend the parenting program offered by Relationships Australia named ‘Taking Responsibility’. The Mother seeks an order in the same terms, but confined to the Father attending that program.[185] I find that it is appropriate in this matter to make an order that the Father attend that program, in consequence of the findings I have made about family violence.
[185] Minute of Order sought by the Mother on interim Hearing, [22].
I find that it is appropriate to make an order as sought by the Mother and as was reflected in the final orders of September 2017 that restrains each of the parents from denigrating the other parent, any member of the other parent’s family, or any member of the other parent’s household in the presence or hearing of X. Additionally, I find it is appropriate to make an order restraining each of the parties from allowing X to remain in the presence of or within his hearing of any other person who is denigrating the other parent, any member of the other parent’s family, or any member of the other’s parent’s household.
I also find it is appropriate to make an order restraining each of the parents from discussing these proceedings with X, from discussing these proceedings within his hearing, or allowing X to remain within the hearing of any other person who is discussing these proceedings.
I find that it is appropriate to make an order restraining the Father from using marijuana in any of its forms for a period of seven days before he spends time with X, or at any time while he is spending time with X.
Accordingly, I make the orders as set out at the start of these Reasons.
I certify that the preceding two hundred and ten (210) paragraphs are a true copy of the reasons for judgment of Judge Morley
Date: 27 April 2020
Key Legal Topics
Areas of Law
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Family Law
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Evidence
Legal Concepts
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Consent
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Costs
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