Welsh and Riggs
[2017] FCCA 3315
•1 December 2017
FEDERAL CIRCUIT COURT OF AUSTRALIA
| WELSH & RIGGS | [2017] FCCA 3315 |
| Catchwords: FAMILY LAW – Parenting – four children aged 11, 10, 8 and 3 – child suffers from spastic dystonic quadriplegic cerebral palsy – child diagnosed with generalised anxiety disorder – family violence – mental health. |
| Legislation: Family Law Act 1975 (Cth), Pt VII |
| Cases cited: Eaby & Speelman (2015) FLC 93-654 Goode & Goode [2006] FamCA 1346 Marvel & Marvel (No.2) [2010] FamCAFC 101 |
| Applicant: | MR WELSH |
| Respondent: | MS RIGGS |
| File Number: | SYC 2696 of 2011 |
| Judgment of: | Judge Middleton |
| Hearing date: | 18 July 2017 |
| Date of Last Submission: | 18 July 2017 |
| Delivered at: | Newcastle |
| Delivered on: | 1 December 2017 |
REPRESENTATION
| Counsel for the Applicant: | N/A |
| Solicitors for the Applicant: | McNeilly Lawyers |
| Counsel for the Respondent: | N/A |
| Solicitors for the Respondent: | Burke & Mangan |
ORDERS
The Orders made 10 May 2011 relating to parenting are discharged.
The proceedings be transferred to the Parramatta Registry of the Federal Circuit Court of Australia.
The children W born (omitted) 2006, X born (omitted) 2014, Y born (omitted) 2007, and Z born (omitted) 2009 (“the children”) are to be separately represented, and the Legal Aid Commission New South Wales is requested to arrange such representation.
Both parties must provide to the Legal Aid Commission New South Wales copies of any relevant orders and reports forthwith.
Both parties must provide the Legal Aid Commission New South Wales with copies of any applications and affidavits on which the party relies forthwith.
The children live with the Mother in Sydney.
The children, except for W unless he wishes to do so, spend time with the Father supervised by the (omitted) Contact Service at such times and on such days as available and arranged between the Father and the (omitted) Contact Service and noting that if available and agreed to by the Father this can be each week for a minimum of two (2) hours.
The children communicate with the Father by telephone between the hours of 6.30pm and 7.30pm on Sundays, Wednesdays and Fridays:
8.1.To facilitate telephone time the Father is to initiate the call to the Mother’s nominated telephone number;
8.2.The Mother is to ensure that the telephone is available to the children, is switched on and charged.
8.3.The Mother is to provide privacy to the children at all times during the telephone calls.
8.4.Nothing in these Orders prevents the Father’s partner from being present and speaking with the children during the telephone calls.
The Mother have sole parental responsibility for the children.
The Mother is to serve a copy of these Orders on:
(a)The children’s school and day care;
(b)All health care providers for the children.
These Orders are sufficient authority for the Father to be permitted to speak with and receive information relating to the children from:
(a)All schools and day care that the children attend from time to time;
(b)All health care providers that the children attend upon from time to time.
The costs of both parties are reserved.
The matter is adjourned to 9.30am on 4 April 2018 at Parramatta before Judge Dunkley.
THE COURT NOTES THAT:
A.It is noted that the Solicitor for the Applicant indicated that the parties may have reached agreement in relation to the children spending time with the Father at Phoenix Rising, however the Order could not be made by consent today.
IT IS NOTED that publication of this judgment under the pseudonym Welsh & Riggs is approved pursuant to s.121(9)(g) of the Family Law Act 1975 (Cth).
| FEDERAL CIRCUIT COURT OF AUSTRALIA AT NEWCASTLE |
SYC 2696 of 2011
| MR WELSH |
Applicant
And
| MS RIGGS |
Respondent
REASONS FOR JUDGMENT
Introduction
This is an interim parenting application. The applicant is Mr Welsh, 42, a (occupation omitted) and the respondent is Ms Riggs, 38, of home duties.
The application involves four children: W, born (omitted) 2006 who suffers from depression and anxiety, Y, born (omitted) 2007; Z, born (omitted) 2009 who suffers from spastic dystonic quadriplegic cerebral palsy; and X, born (omitted) 2014.
The parties commenced cohabitation in 2005. They married on (omitted) 2008 and separated on 11 November 2008 on the wife’s case.
In 2010 an Apprehended Domestic Violence Order was granted.
On 14 September 2011, the parties divorced. In April of 2014 the parties resumed cohabitation and on 27 January 2015 they ceased cohabitation.
On 26 July 2016, Z was reviewed by Dr R at (omitted) Hospital. On 5 September 2016, Z was reviewed by Dr M of the (omitted) Hospital for suitability for insertion of an intrathecal baclofen pump. On 27 October 2016, Z trialled an intrathecal baclofen pump at the (omitted) Hospital.
On 16 November 2016 the parties attended a family dispute resolution conference and thereafter the father commenced spending supervised time with the children, except W, who has been diagnosed with generalised anxiety disorder on 30 April 2015. That time occurred at Interrelate (omitted).
On 22 December 2016, Z was reviewed by paediatric neurologist Dr M at the (omitted) Hospital. On 24 January 2017, Z underwent surgery for the insertion of an intrathecal baclofen pump.
The mother and all of the children lived at Ronald McDonald House for four weeks following the surgery and thereafter moved to government subsidised housing in Sydney.
Thereafter, Z continued to be reviewed and treated at the (omitted) Hospital on a regular basis.
On 4 May, the children commenced attending school at (omitted) Public School.
It is in that context that the father commenced proceedings on 17 February 2017.
The matter came before the Court as a first return on 8 May 2017. I adjourned the matter until 1 June 2017 and ordered the mother to file her response, affidavit and notice of risk by no later than 4.00pm on 26 May 2017. On 1 June 2017 I made an order pursuant to section 11F for the parties and the children to attend a child-inclusive conference.
The issues
The issues to be decided are:
(1) whether the children should live with the mother in Sydney;
(2) whether the children should live with the father in (omitted);
(3) whether the siblings should be separated during Z’s hospital attendances in Sydney;
(4) the frequency, duration and location of the children’s time with the non-live with parent;
(5) in the event supervision is required, whether that supervision is provided by a professional supervising service or some other person.
Documents relied upon
The father relied upon:
a)His initiating application filed 27 February 2017;
b)His affidavit filed 27 February 2017,
c)The affidavit of Ms A filed 27 February 2017;
d)Notice of risk filed 1 March 2017;
e)A minute of proposed orders;
f)A case outline.
The mother relied upon:
a)Her response filed 26 May 2017;
b)Her affidavit filed 26 May 2017;
c)The affidavit of Ms C filed 17 July 2017;
d)Notice of risk filed 26 May 2017;
e)A case outline.
A child-inclusive conference memorandum dated 14 July 2017 was relied upon by the parties.
Orders sought
The father
The father set out the orders sought by way of a minute of proposed interim orders.
The orders proposed seek a return of the children to (omitted). The orders provide for the children to live with the mother if she chooses to live in (omitted) and to spend three nights with the father each week.
If the mother does not return to the (omitted) area, the father proposes splitting the children such that Y, Z and X live with the father, and W live with the mother.
The father proposed in those circumstances that the children would spend six hours with the mother each Saturday and that W spend supervised time with the father for two hours at Interrelate (omitted) on the Saturday.
Other ancillary orders were sought, as set out in the minute of orders sought.
The mother
The mother set out the orders she sought at Part B of her case outline filed on the day of hearing.
Those orders proposed a transfer of proceedings to Parramatta, that an Independent Children's Lawyer be appointed, the mother to have sole parental responsibility, the children to live with the mother in Sydney, and the children, excluding W, to spend time with the father supervised at the (omitted) Contact Centre.
Both parties sought a discharge of the orders made on 10 May 2011 to the extent that they involved parenting.
Both parents sought an order for telephone time with the father should the children live with the mother. The parties agreed on the time but each sought different days with regard to telephone time. The mother sought each Tuesday, Thursday and Saturday. The father sought each Wednesday, Friday and Sunday.
At interim hearing, neither party pressed for orders concerning W in real terms.
The law
Informed by the objects and principles set out in section 60B of the Family Law Act and acknowledging pursuant to section 60CA that the children’s best interests are my paramount concern, I must make orders that are in the children’s best interests.
Section 60CC sets out the matters I must consider in making those orders.
The mother seeks an order for sole parental responsibility. The father does not seek an order for parental responsibility. In those circumstances, I must consider section 61DA. If I were to make an order for equal shared parental responsibility, the provisions of section 65DAA would be triggered.
I must follow the legislative pathway.[1] At the time of hearing this case, the mother and children had been living in Sydney for at least six months. In those circumstances, this is not a relocation case.
[1] See Goode & Goode [2006] FamCA 1346
The mother raises the risk of the children being exposed to and involved in family violence in the father’s home. The mother makes allegations of serious family violence perpetrated by the father in the presence of the children. She also alleges that the child W, and A, the mother’s child from a previous relationship, had been physically assaulted by the father.
The mother alleges the child W suffers anxiety as a result of his exposure to family violence at the hands of the father. The father disputes the allegations.
This is an abridged hearing in circumstances where none of the evidence is tested. The Full Court in Salah & Salah[2] noted the challenges for trial judges in the treatment of disputed allegations at interim hearings and confirmed the approach in Goode & Goode[3], Treloar & Nepean[4], SS & AH[5] and Eaby & Speelman[6].
[2] [2016] FamCAFC 100.
[3] [2006] FamCA 1346.
[4] (2009) FLC 93-417.
[5] [2010] FamCAFC 13.
[6] (2015) FLC 93-654.
Nevertheless, the Full Court made it clear that when confronted with significant allegations of violence, the trial judge is:
“…required to do more than merely note the contention (or conjecture)”.[7]
[7] Salah & Salah [2016] FamCAFC 100 [41].
Rather, the judge must apply section 61DA(3) or 61DA(4) and give reasons for applying the presumption or indicate why it is not in the best interests of the children for the presumption to apply.
Of course, section 67ZBB of the Family Law Act applies and on 1 June 2017 I took prompt action by making an order for telephone time only.
The evidence
The father gives evidence that the children have always lived with their mother including during the separation of the parties in 2010.
The mother says that the separation occurred in 2008.
The father alleges that the mother influences the children against him. He says the children are reluctant to show him affection in her presence.
Since November 2016, the children have only spent supervised time with their father at Interrelate (omitted). This time stopped altogether on 18 February 2017 when the mother remained in Sydney after Z’s surgery.
The father complains that the mother has prevented him from attending the school to see the children. He alleges that the mother also prevented the paternal grandmother from attending the school.
The father says telephone time between he and the children is often difficult with the mother failing to provide privacy. The father alleges that the children tell him that the mother says she hates his partner and that they will never see the father again.
The father acknowledges that the mother has made numerous allegations of family violence over the years. He says he consented to an Apprehended Domestic Violence Order because he could not afford to defend the claims.
The father says the mother’s most recent allegations coincide with him partnering with Ms A. The father says the mother has changed the children’s name and has set up a GoFundMe page to assist her in her litigation.
The father says that when Z was hospitalised for his surgery earlier this year, the mother prevented him from visiting.
The father’s partner, Ms A, gave evidence that she supports the father.
Ms A says that she has spent some time with the children and she and her children get along with them well. Her evidence is that the children say the father’s children avoid them if the mother is at the school.
The mother raises serious allegations of family violence including physical assault, harassment, stalking and intimidation. The mother alleges the father suffers from PTSD. The mother says the father does not have the requisite training to properly provide care for Z. The mother says that both W and Y were conceived through artificial insemination using the father’s sperm at a time when the parties were not in a relationship.
The mother says both W and Y were originally identified as Riggs. However, the mother changed their name to Welsh when the parties married. Her evidence is she changed their names back at separation and that Z and Y were always known as Riggs.
Her evidence goes further that:
“When the paternal grandfather was dying in recent years I changed the children’s surname to Welsh as a mark of respect for the paternal grandfather…”
The mother now seeks to change the children’s surname back to Riggs. No order will be made on this issue at an interim stage.
The mother alleges that W is diagnosed with depression and anxiety and that this was caused by the father. She annexes a report from Dr K dated 30 April 2015. That letter confirms that W:
“…may have underlying anxiety disorder...”
The information providing the foundation for that opinion appears to have come from the mother only. The mother says that W has panic attacks whenever he sees a car similar to the father’s.
The mother has provided an affidavit from Ms C, a clinical psychologist. Ms C provides evidence that W reported that his father physically hurt him on many occasions. W stated specifically:
“He has dragged me on the ground until I vomited.”
“He hit me.”
“He yelled at me.”
Ms C also says that W reported witnessing his dad hurt and yell at his mum in the past. It is the doctor’s evidence that W presented with symptoms of anxiety and depression that fall within a clinical range of severity and are currently impacting his functioning.
It is Ms C’s opinion that his symptoms would most certainly be exacerbated by environmental stress, changes to his current living and school arrangements and any feelings of insecurity or lack of safety.
It is the mother’s evidence that despite numerous reports to the New South Wales Police about the father’s domestic violence, the New South Wales Police took no action because the father is a (occupation omitted). The mother has complained to the ombudsman.
The mother gives evidence of Z’s medical condition. His condition is not in dispute. Annexure “F” to the mother’s affidavit is a letter dated 15 February 2017. It is under the hand of Dr M. In that letter, Dr M, Z’s treating specialist, says:
“It would be in Z’s best interest if the family were able to transfer to the Sydney area as soon as possible to facilitate ongoing safe and effective care.”
It should be noted the father annexed a letter for Dr M dated in December 2016, and prior to the pump being installed, that said there was no minimum distance required in relation to distance from a hospital.
The mother says she has moved. She says the father agreed to this move in August of 2016. The mother says that Z is closer to medical care in case of emergency where they currently live.
The mother says the father pays child support by way of a garnishee order after he ceased paying child support. Her evidence is that the father is $3,400.00 in arrears.
A memorandum dated 14 July 2017 was available at the time of the hearing. Dr S is the Family Consultant and author of that memorandum.
Dr S was of the opinion that the father presented with no concerns raised regarding his mental health status at interview. Conversely, the mother’s presentation on the day of the interviews raised significant mental health concerns.
It was Dr S’s opinion that she appeared highly anxious during the interview. Dr S opined that the mother’s presentation:
“…may be consistent with a history of family violence or it may be an indicator of other ongoing mental health issues.”
In the circumstances, no determination can be made in relation to the reason or reasons why the mother presents as such an anxious person.
W was not interviewed, nor was there an observation between he and his father. Y reported information that, in the opinion of Dr S:
“Clearly indicated that she had been exposed to information about Court, the father and other adult issues by the mother.”
Z, Y and X were all observed with the father and, in the opinion of the Family Consultant, all had a warm and positive relationship with their father and did not display any signs of fear or apprehension.
The mother allegedly became quite angry with the Family Consultant, accusing her of manipulating the Court process and of not informing her that the children would see their father. The Family Consultant ultimately recommended that the mother and children remain in the Sydney area, that the matter be transferred to the Family Court, and that an Independent Children’s Lawyer be appointed.
Assessing the evidence in the context of section 60CC considerations
Section 60CC(2)(a)
The mother does not see the children benefitting from a relationship with the father, whether it be meaningful or otherwise.
Whether that is as a result of longstanding family violence or some other psychological or psychiatric issue I am not able to determine at this point.
The father sees a benefit of the children having a meaningful relationship with the mother. Indeed, should she be ordered to return to (omitted), he seeks orders for the children to live with the mother four nights a week and for three nights a week with him.
The father acknowledges that the distances between the parents currently and the work and commitments he has prevent the children from spending substantial and significant time with the non-resident parent.
In those circumstances, he seeks an order for the children to live with him and spend time with the mother one day a week because he raises the concern that the children will be adversely psychologically harmed in the mother’s home due to her views about him being raised with the children.
In my view, the harm to children of denigrating a parent in their presence and exposing the children to adult conflict is as damaging as exposure to family violence.
The alleged risks in both homes are significant and pose real dangers to these children. Until the evidence can be tested, however, I am unable to make a finding in relation to either risk. A cautious approach is warranted and other factors will determine this dispute at this stage.
Section 60CC(3)(a)
W has expressed a clear view to Ms C that he does not wish to speak to or hear from his father. Whether he has been influenced by the mother or not is hard to determine.
I do note, however, that the Family Consultant was of the view that Y had been exposed to the mother’s views of the father and the adult conflict and that Z may have also been so exposed. The Family Consultant’s evidence is untested.
There is no evidence to suggest that the children have anything other than a secure, loving primary attachment to the mother. There is no evidence to suggest that the children have interpersonal difficulties with each other.
W is estranged from the father. X has not spent much time with the father.
Y, Z and X all appeared very comfortable and happy in their father’s presence. Y was heard to say, “I miss you, dad”. The evidence of the Family Consultant satisfies me that these children have a positive relationship with their father.
It is concerning that mother cannot acknowledge this and, as I say, it is either due to her fears about exposure to family violence or some underlying mental health issue.
In any event, the mother needs to address this issue and seek help before her anxiety about the children spending time with the father affects her parenting capacity and the ultimate determination as to where these children live.
Section 60CC(3)(c)
I am satisfied that both parents are doing all that they can to be involved in decision-making and spending time and communicating with the children.
The evidence does establish that the mother is making unilateral decisions which has an impact on the father’s ability to be fully involved.
Section 60CC(3)(ca)
The mother says the father is in arrears of child support. No evidence in support of this allegation was provided. The father says nothing about child support. No determination can be made on this issue.
Section 60CC(3)(d)
All of the children have lived together all of their lives. They have all lived with the mother all of their lives.
The father proposes splitting the children. He does this because W will not spend time with him. There is nothing in the evidence that could satisfy me that it would be in the children’s best interest to be split.
In light of the evidence presented, it is reasonable to infer that the children would be adversely impacted if they were split.
The children presented as outgoing, intelligent children. There is no evidence to suggest the children are not thriving in their mother’s care despite missing a number of days off school as the father provided evidence of in his affidavit.
Removing them from their mother in circumstances where they have lived as one unit all of their lives with the mother is counterintuitive at this stage and not supported by the Family Consultant, who recommends that the children remain living with their mother.
Section 60CC(3)(e)
The mother lives in Sydney and the father in (omitted), a distance of approximately 400 kilometres.
That distance causes a practical difficulty and expense in the children spending time with the non-live with parent. They can, of course, communicate by phone regularly and both parents seek an order that they do so three times each week.
Section 60CC(3)(f)
The father alleges that the mother is unable to meet the emotional needs of the children because she is impacting on their right to have a meaningful relationship with their father. Children do have that right provided it is safe for them to do so.[8]
[8] Family Law Act 1975 (Cth) s 60B(2).
The mother says it is not safe and seeks final orders for ongoing supervision. She says the father cannot provide the requisite level of care for Z as he does not have the training for his intrathecal baclofen pump. The father is silent on this issue.
The father raises a concern that the mother is not properly providing for the educational needs of the children, evidencing many days off school for both Y and W.
There are concerning issues raised about both parents’ capacity to meet the needs of the children. However, until the evidence is tested at trial, a determination cannot be made.
Section 60CC(g) and (h)
Nothing turns on these sections.
Section 60CC(3)(i)
I am certain both parents believe they are doing the right thing for their children. If the allegations of family violence are subsequently proven, this would show a poor attitude to the children and to the responsibilities of parenthood on behalf of the father.
Similarly, if the allegation that the mother is poisoning the children’s view of the father is proven, she will be found to have a poor attitude to the children and to the responsibilities of parenthood.
However, a finding can only be made after all the evidence has been tested.
Section 60CC(3)(j)
I have already outlined the allegations of family violence in this matter.
Section 60CC(3)(k)
There was an Apprehended Domestic Violence Order in place for 12 months that expired on 28 September 2011. That order was made by consent and included W, Y, Z, and A from the mother’s previous relationship.
The father says in his affidavit that he could not afford representation and he told the Family Consultant if he defended the order, he could not perform operational duties.
The circumstances of the order and the allegations made in seeking the order are not known at this time. The local court file perhaps should be subpoenaed by a party before the final hearing.
Section 60CC(3)(m)
If I were to make the orders sought by the father, having regard to the findings I have made, it would involve a return of the children to the (omitted) area.
The evidence as it stands satisfies me that the mother would return to the (omitted) area if she were able to do so. The mother gives evidence that she does not have a home in (omitted). She gave it up to take up subsidised housing in Sydney. She provides evidence that she has no support in the (omitted) area. She says she is close to Z’s doctors where she now lives and that Z is closer to emergency care where she now lives.
Conversely, the mother has housing in Sydney. She says she has support, the children are settled in their school, and all of Z’s special educational assistance needs have been transferred to his new school.
Another important additional factor is Z’s health. On or about 5 September 2016, Z was reviewed by Dr M of the Cerebral Palsy Movement Disorder Clinic at the (omitted) Hospital, (omitted), for suitability of the intrathecal baclofen pump. In October, Z underwent a trial of the pump. The father agreed to it and was present at the surgery. The trial was successful.
On 24 January 2017, Z had surgery for the permanent implantation of the intrathecal baclofen pump. The father annexes an email from Dr M dated 16 December 2016. The email is a response to the father’s email where he asks:
“I am just wanting to clarify what was said about the distance from the hospital that Z needs to reside within should the pump go ahead. Is there a set distance away?”
The doctor’s reply was:
“There is no set distance however, if he is more than an hour from a hospital who can deal with emergencies then a clear line of referral and management needs to be arranged before implantation.”
The mother annexes at “E” a letter from Dr M dated 13 February 2017 after the pump had been installed. That letter says, amongst other things:
“The challenge being that Z lives in (omitted) and we have not implanted the child with a pump at such a remote site from (omitted) Hospital, (omitted), previously.”
Annexure “F” to the mother’s affidavit is a further letter from Dr M where she says, inter alia:
“It would be in Z’s best interests if the family were able to transfer to the Sydney area as soon as possible to facilitate ongoing safe and effective care.”
The evidence at this stage does not support a change of residence for the children. I am satisfied that they have a stable and secure base in Sydney at this stage. In those circumstances, the evidence does not support the making of an order for the children to live with the father.
The evidence does not support a change of living arrangements on an interim basis. I am satisfied that Sydney offers the safest outcome for Z, should the father’s time be supervised.
Having regard to the very serious allegations of family violence, a cautious approach is warranted.[9]
[9] See SS & AH [2010] FamCAFC 13 and Marvel & Marvel (No.2) [2010] FamCAFC 101.
The Family Consultant acknowledged the precarious nature of the children’s relationship with the father due to the mother’s actions; however, was of the view:
“If the court finds there is no risk of harm to the children in the care of the father, it is recommended that unsupervised time occur between the father and the three youngest children.”
As I have stated earlier, care must be had in recognising the difficulties of making findings on contested evidence in interim proceedings.[10]
[10] Marvel & Marvel (No.2) [2010] FamCAFC 101.
As the plurality of the Full Court observed in SS & AH[11]:
“In our view, findings made at an interim hearing should be couched with great circumspection, no matter how firmly a judge’s intuition may suggest that the finding will be borne out after a full testing of the evidence.”
[11] [2010] FamCAFC 13 [88].
In those circumstances, an order for supervision is supported by the evidence in this case and the authorities I have referred to.
The father says on a “without admission” basis that he will ensure that his mother or his partner are present to act as supervisors whilst the children are in his care. The paternal grandmother does not provide an affidavit. I am unaware if she is willing to supervise or whether she understands her obligations as a supervisor. The father’s partner does provide an affidavit. Again, I am unaware whether she is willing to supervise or understands an obligation to supervise.
I am of the view that there is much mistrust between the parents. I am concerned that should the father’s time be supervised by anyone other than a professional supervisor, there will be ongoing conflict and further allegations may be made. Professional supervision will protect the children from further conflict and the notes of the supervisor will be useful at the final hearing.
In those circumstances, I am satisfied that a professional supervisor should be utilised. (omitted) Supervision Service is the most local supervisor to the mother’s home and should be used.
Parental Responsibility
Section 61DA(3) provides that the presumption applies in interim proceedings unless the Court considers that it would not be appropriate in the circumstances for the presumption to be applied when making the order.
The evidence satisfies me that there is an extraordinarily high level of mistrust between the parents. The parents have not been able to communicate effectively for the benefit of the children for years. They both accuse the other of mental health issues and of posing a risk to the children. On the strength of the evidence, I am satisfied that it would not be appropriate in the circumstances for the presumption to be applied.
I am also satisfied that it is not in the children’s best interests at this time for an order for equal shared parental responsibility as this would lead to further conflict between the parents and greater disturbance to the lives of the children. However, I am satisfied that the father needs to be informed of the children’s medical appointments and all school achievements, and I will make an order providing for this.
Transfer of proceedings
As the children and mother now live in Sydney, the matter should be transferred to the nearest registry of the Federal Circuit Court. That registry is Parramatta.
Appointment of an independent children’s lawyer
In Re K[12], the Full Court articulated a number of non-exhaustive criteria that the Court should consider in determining whether or not an order for a separate representation should be made.
[12] (1994) FLC 92-461.
Those factors include allegations of child abuse, whether physical, sexual or psychological, intractable conflict between parties, whether children have been alienated from one or both parents, issues of culture or religious difference, whether sexual preferences of one or both parents impinge on the children’s welfare, issues of significant medical, psychiatric or psychological issues or personality disorder relating to the children or adults, and the proposed separation of siblings. This matter involves many of the aforementioned factors.
The Independent Children's Lawyer role is set out in section 68LA(5) of the Act. It is said to be that of an honest broker who acts impartially in dealings with parties to the proceedings.
I am of the view that the appointment of an Independent Children's Lawyer will serve this matter well and will provide the court with significant assistance at final hearing. I will appoint an Independent Children's Lawyer.
Time spend with the non-live with parent
The amount of time the children will spend with their father is impacted upon by the availability of the (omitted) Contact Centre. Subject to their availability and to the father’s capacity to travel to the contract centre, this should be for a minimum of two hours on at least a fortnightly basis. However, if the father is prepared to travel weekly and the contact centre has availability, this could be done weekly.
In those circumstances I am satisfied that the orders I have made are in the best interests of the children.
I certify that the preceding one hundred and thirty two (132) paragraphs are a true copy of the reasons for judgment of Middleton
Date: 30 January 2018
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