YARDBERRY & ALMQUIST
[2020] FCCA 2492
•4 September 2020
FEDERAL CIRCUIT COURT OF AUSTRALIA
| YARDBERRY & ALMQUIST | [2020] FCCA 2492 |
| Catchwords: FAMILY LAW – Interim parenting – best interests of child – orders made. |
| Legislation: Family Law Act 1975 (Cth), ss.60B, 60CA, 60CC |
| Cases cited: Goode & Goode (2006) FLC 93-286. Marvel & Marvel [2010] FamCAFC 101 Eaby & Speelman [2015] FamCAFC 104 Banks & Banks [2015] FamCAFC 36 |
| Applicant: | MR YARDBERRY |
| Respondent: | MS ALMQUIST |
| File Number: | PAC 6038 of 2019 |
| Judgment of: | Judge Newbrun |
| Hearing date: | 15 June 2020 |
| Date of Last Submission: | 15 June 2020 |
| Delivered at: | Parramatta |
| Delivered on: | 4 September 2020 |
REPRESENTATION
| Solicitors for the Applicant: | Ms Rodrigues - Pannu Lawyers |
| Solicitors for the Respondent: | Ms Dodson - Legal Aid NSW Penrith |
| Solicitors for the Independent Children’s Lawyer | Ms Renshall - Kathryn Renshall Lawyers |
ORDERS PENDING FURTHER ORDER
The child, X born in 2017 shall live with the Mother (the child).
That the child spend time with the Father from 10 AM to 12 noon each Saturday, or at such other time as agreed between the parties, with such time to be supervised by:
(a)A professional supervision service, as agreed between the parents, and failing agreement, such supervision shall be conducted by B Supervision Services, and the Father shall be responsible for meeting the costs of such supervision solely;
or, should the Father be unable, or unwilling, to meet the cost of such above supervision service, then,
(b)A contact centre, with the Father to meet the cost of such supervised time at the contact centre.
That within 48 hours of the date of these Orders, both parents shall contact B Supervision Services, or such other supervision service as is agreed, to facilitate an intake into such service, and time between the child and the Father shall commence the first week that time is able to be supervised by B Supervision Services.
That the Father shall be at liberty to communicate with the child each Monday, Thursday and Saturday between 5pm and 5.30pm or at such other times as agreed between the parents in writing, via telephone or such means as may be agreed by the parents in writing on a telephone number to be nominated by the Mother, and for the purposes of this order:
(a)The Father shall be and is hereby restrained from:
(i)Discussing these proceedings, the contents of these proceedings and/or outcome of proceedings with the child;
(ii)Making any derogatory remarks in respect of the Mother to the child or in the presence of the child;
That the parents and/or their agents are hereby restrained from removing or attempting to remove the child X born in 2017 from the Commonwealth of Australia AND IT IS REQUESTED that the Australian Federal Police give effect to this order by placing the name of X born in 2017 on the Family Law Watchlist in force at all points of arrival and departure by air or by sea in the Commonwealth of Australia and maintain X born in 2017 on the watchlist until the child turns 18 years of age, or the Court orders the child’s removal from the watchlist, or by written agreement of the Mother and Father.
And it is requested that the Australian Federal Police give effect to this order by placing the name of the said child on the Family Law Watchlist in force at all points of arrival and departure in the Commonwealth of Australia and maintain the child’s name on the watchlist for the said period or until the court orders its removal.
That neither parent shall themselves denigrate, nor allow any third party to denigrate, the other parent, members of the other parent’s family, in the presence or hearing of the child.
That neither parent shall physically discipline or chastise the child, or permit, cause or allow any third person to do so.
That within fourteen days of the date of these Orders, the Father shall do all things necessary to enrol in the course “123 Magic” and shall thereafter attend at each session of the course, until its completion and within seven days of such completion, shall provide to the Mother’s solicitor a copy of his certificate of completion.
That in the event of the child suffering a medical emergency requiring medical attention whilst in the Mother’s care:
(a)The Father is to be notified as soon as practicable.
(b)The Father is to be provided with the full details of the practitioner or medical facility upon which the child has attended as soon as practicable.
(c)The medical practitioner or facility is to be advised that both parents have access to the child’s medical records and that information relating to the child is to be shared with the other parent upon request.
The Father shall within 14 days of the date of these Orders take all reasonable steps to:
(a)obtain psychological treatment for impulse control when under stress, with the Father being permitted to provide a copy of the Court’s Reasons to the treating psychologist, or,
(b)engage in an anger management course.
Following the child having spent a minimum period of 3 months supervised time with the Father, and subject to the father having commenced:
(a)psychological treatment for impulse control when under stress, or an anger management course,
(b)the 1 2 3 Magic course,
the Father and/or the ICL shall have liberty to relist the proceedings before the Court on 7 days’ notice, with a view to the Court considering whether the child’s best interests can be met by proceeding to unsupervised time with the father or otherwise.
IT IS NOTED that publication of this judgment under the pseudonym Yardberry & Almquist is approved pursuant to s.121(9)(g) of the Family Law Act 1975 (Cth).
| FEDERAL CIRCUIT COURT OF AUSTRALIA AT PARRAMATTA |
PAC 6038 of 2019
| MR YARDBERRY |
Applicant
And
| MS ALMQUIST |
Respondent
REASONS FOR JUDGMENT
Introduction
This interim hearing relates to the child X born in 2017.
Proposals
The Father ’s proposals are set out in his Case Outline filed 15 June 2020; inter alia, he seeks interim parenting Orders that:
a)the parties have equal shared parental responsibility for the child;
b)that the child spend time with the Father as follows:
i)for the first four weeks, for a minimum of 6 hours for a minimum of two days per week as agreed between the parties, or failing agreement, on Saturday and Sunday from 9 AM to 3 PM
ii)for the following six weeks thereafter, every Friday from 4:30PM picking up the child from day care until Sunday 3 PM
iii)for the following six weeks thereafter, every Friday from 4:30 PM until Tuesday at 8:30 AM dropping the child to day-care.
The Mother’s proposals are set out in her Case Outline filed 12 June 2020; inter alia, she seeks interim parenting orders that:
a)the Mother have sole parental responsibility for the child;
b)the child live with the Mother;
c)the child spend time with the Father from 10 AM to 12 noon each Saturday, with such time to be supervised by a professional supervision service, with the Father to be responsible for meeting the costs of such supervision;
d)the Father be at liberty to communicate with the child each Monday, Thursday and Saturday between 5 PM and 5:30 PM, or at such other times as agreed, via telephone, or such means as may be agreed by the parents in writing. The Mother seeks certain restraining orders against the Father in relation to this proposed telephone time. She also seeks an order that she be permitted to record the telephone or FaceTime communication between the child and the Father, and shall be permitted to rely on such recordings in proceedings in the event it is alleged that there has been a contravention of the proposed telephone time restraints;
e)the Father enrol in the course “Taking Responsibility: A course for men” and thereafter complete the course;
f)the Father enrol in the course “1 2 3 Magic” and thereafter complete such course.
The ICL’s proposals are set out in her Case Outline dated 14 June 2020. She seeks interim parenting orders that:
a)The child spend supervised time with the Father no less than two hours per week, to be supervised by a contact service or contact centre, for a period of three months;
b)Thereafter, consideration be given to increasing the Father ’s time and the need for supervision;
c)That the matter be adjourned for a period of 12 weeks to allow the Father to recommence face-to-face time with the child.
Material relied upon
The Father relied upon the following documents:
a)Initiating Application filed 4 December 2019;
b)Notice of Risk filed the same date;
c)Affidavits of the Father filed 4 December 2019, 19 December 2019, 15 March 2020;
d)Affidavits of the Mother filed 2 March 2020, and 25 May 2020.
The Mother relied upon the following documents:
a)Response filed 18 March 2020;
b)Affidavit of Mother filed 25 May 2020
c)Affidavit of Ms C filed 17 April 2020;
d)Affidavit of Ms D filed 17 April 2020;
e)Notice of Risk filed 18 March 2020.
The following Exhibits were relied upon:
a)The Mother relied upon the tagged subpoenaed material referred to on pages 1 and 2 of her above Case Outline.
Agreed facts unless otherwise stated
The Mother is aged 41 years. The Father is aged 37 years.
The Mother alleges that the Father is a dual Australian/Country E citizen with two passports.
The parties commenced cohabitation in the second half of 2015.
The parties separated on about 2 September 2019.
The Father has not spent direct face-to-face time with the child since about September 2019.
On 2 September 2019, there was an incident between the parties and a provisional ADVO was put in place. The Father consented to this ADVO with no admissions. The Mother was the protected person. The ADVO contained restraining orders upon the Father that he not assault or threaten the Mother; he not stalk, harass or intimidate her, and he not intentionally or recklessly destroy or damage any property that belongs to the Mother. The Father was charged with assault occasioning actual bodily harm, and stalk/intimidate intend fear physical etc. harm; the Father has pleaded not guilty to both charges in the Local Court at Suburb F.
Since separation, the Mother alleges that the child and the Father have communicated through FaceTime regularly.
The Father alleges in his Affidavit filed 4 December 2019 that the Mother has denied him from spending time with the child in a meaningful way. In that Affidavit he alleges he is currently permitted to FaceTime with the child each day on two occasions.
The Father completed a parenting after Separation course on 17 November 2019. On 18 December 2019 he completed the “Talk less listen more” course, being an online parent training course.
The Father had 6 psychotherapy sessions with a psychologist between 24 November 2019 and 3 March 2020. In the report from the treating psychologist, the psychologist states that the Father was referred to him by a doctor who diagnosed the Father with acute stress. The psychologist records that the Father assured him that no one at work nor in his social circle has ever said that he has an anger problem. It is stated that the Father is in gainful employment and works as a manager and is very happy with his staff including management. The psychologist recorded that the Father presented with a pleasant demeanour and with good people skills. He never displayed any antagonism towards the Mother nor anyone. The psychologist states that based on his opinion the Father does not require psychotherapy anymore, he has attended six sessions and his mood has improved significantly. He states that the Father told him that the separation no longer creates anxiety and wishes to spend time with the child.
The Mother alleges that she is a self-employed contractor. She alleges that the child goes to family day-care Monday to Thursday ordinarily. She alleges that the child’s sleep issues have dramatically reduced since the child and the Mother left the family home.
Relevant legal principles
The relevant principles in relation to parenting proceedings, including interim proceedings, are well settled: see Goode & Goode (2006) FLC 93-286.
In Marvel & Marvel [2010] FamCAFC 101, the Full Court of the Family Court of Australia discussed the problems associated with making findings on disputed evidence as follows:
[120] As has frequently been emphasised interim parenting proceedings, and orders made as a consequence, are a necessary but temporary measure until all the evidence can be tested, evaluated and weighed at a final hearing by the making of final parenting orders. Decisions judicial officers have to make in interim proceedings are difficult and, often for very good reason, a conservative approach, or one which is likely to avoid harm to a child is adopted. This is often to the understandable distress of a party who may not achieve the outcome he or she desires, or thinks to be in the best interests of their child or children. Interim parenting orders are frequently modified or changed after a final hearing, and any allocation of parental responsibility made at an interim hearing is disregarded at the final hearing (s 61DB).
[122] In SS & AH [2010] FamCAFC 13 the majority (Boland and Thackray JJ) discussed at paragraph 88 of their reasons the care necessary to be exercised in making findings in interim parenting proceedings. Their Honours said:
In our view, findings made at an interim hearing should be couched with great circumspection, no matter how firmly a judge’s intuition may suggest that the finding will be borne out after a full testing of the evidence.
[123] Later, at paragraph 100 their Honours amplified their comments and said:
The intuition involved in decision-making concerning children is arguably of even greater importance when a judge is obliged to make interim decisions following a hearing at which time constraints prevent the evidence being tested. Apart from relying upon the uncontroversial or agreed facts, a judge will sometimes have little alternative than to weigh the probabilities of competing claims and the likely impact on children in the event that a controversial assertion is acted upon or rejected. It is not always feasible when dealing with the immediate welfare of children simply to ignore an assertion because its accuracy has been put in issue.
Of this, the Full Court in Eaby & Speelman [2015] FamCAFC 104 said at [19]:
As would be immediately apparent, this approach enables the court to appropriately and carefully deal with contentious issues relevant to the welfare of the child, and for those issues to not be ignored.
The Court also refers to the recent decision of the Full Court of the Family Court of Australia in Banks & Banks (2015) FamCAFC 36, especially at paragraphs 46 to 52.
Section 60B of the Family Law Act 1975 (Cth) (“the Act”) sets out the objects of Part VII of the Act relating to children that inform the making of parenting orders.
In deciding whether to make a particular parenting order in relation to a child, a Court must regard the best interests of the child as the paramount consideration: section 60CA of the Act.
Section 60CC of the Act provides that in determining what is in the child’s best interests, the Court must consider the matters set out in subsections (2) and (3). In this context the Court refers to Banks & Banks above.
The Best Interests of the Children
Section 60CC Considerations
Subsection (2a): the benefit to the child of having a meaningful relationship with both of the child’s parents: a primary consideration
The child has a meaningful relationship with the Mother and will benefit from a continuance of that relationship. It appears that the parties are in dispute as to the Mother’s contention that she was the child’s primary carer from birth until separation. The Father asserts that he was significantly involved in the day-to-day care of the child up until separation. In this context, the court would observe that the Mother took maternity leave for about five months, with the Father continuing his usual paid employment during this period, albeit himself taking five weeks off work to spend time with the newborn child. Since separation, the Mother has been the child’s primary carer.
At separation, about 2 September 2019, the child had a meaningful relationship with the Father. Unfortunately, the child has not spent direct face-to-face time with the Father since separation.
The child and the Father have had FaceTime communication since separation to date, however the Father submits that the child has not spend meaningful time with the Father since separation. Further in this context, the Father submits that the child’s contact with him has been restricted to minimal video call sessions which often involve the Mother’s interference. The Father submits that the child has not been provided with the ability to have or maintain a meaningful relationship with the Father that she has been used to since birth.
The Mother alleges that the Father is currently speaking to the child three times per week.
On the material before the court, there is a significant suggestion that the child’s former meaningful relationship with the Father may have dissipated to some extent.
The child would benefit from the re-establishment of his former meaningful relationship with the Father provided it is safe for him to do so.
Should the child begin to spend supervised time with the Father for no less than two hours per week, with such time to be supervised by a contact service or contact centre, there is a real prospect that the child’s former meaningful relationship with the Father can begin to be re-established in a positive manner.
As discussed below, under the need to protect primary consideration, the Court can further consider whether or not the child should begin to spend unsupervised time with the Father after he has spent at least 3 months of supervised time with the child, and has commenced psychological treatment for impulse control when under stress, or an anger management course, and has commenced the 1 2 3 Magic course.
Subsection (2b): the need to protect the child from physical or psychological harm from being subjected to, or exposed to, abuse, neglect or family violence.
During the parties’ relationship, there is a significant suggestion, on the material before the court, that the parties were often engaged in verbal arguments, particular after the birth of the child. In this context, the Mother alleges that, for example, on 8 July 2019, the parties both became angry and yelled at each other.
The Mother refers to an incident where the parties were arguing with each other in a car; the Mother concedes to losing her temper and digging her nails into the Father’s arm; this incident appears to have occurred in about early 2018.
The Mother concedes to pushing the Father in an incident in the parties’ bathroom on 6 April 2019, albeit that the Mother was very tired having cared for the child all day.
The Court observes that the Father alleges that the Mother produced a hand written document to the Father in about mid May 2019, annexed to his Affidavit filed 4 December 2019, in which the Mother allegedly writes that both parties have quick tempers and that, “The positive thing here is we calm down quickly too, unless we spark off each other and then it spirals out of control.”
Each party alleges that the other swore at the other party during the relationship, and on occasion in the presence of the child.
The Mother alleges throughout the parties’ relationship the Father exhibited anger towards her, for example through raising his voice, swearing and/or shouting at her. The Mother alleges that the Father has sworn at the Mother in the presence of the child during a FaceTime call between the child and the Father in October 2019. The Father significantly denies these allegations.
The Mother alleges that there were occasions during the parties’ relationship when the Father was physically violent towards her. For example, 8 July 2019, the Mother alleges that, the parties both having become angry towards each other, the Father caused the Mother to fall to the ground and then started kicking her. This is denied by the Father.
The Father alleges that on 24 August 2019 the Mother “kicked my family out of the house abruptly early in the night as she was tired and wanted to sleep.” He alleges that the Mother sent him a text message, following this event, stating, “I’m sorry. You deserve better. I’m just lost at the moment. I’m just so sad and worried all the time. I did my best today but that last hour or so I just snapped and couldn’t cope anymore. I’m sorry I embarrassed you.”
The Mother alleges that on 2 September 2019, the date of separation, during the course of verbal disputation between the parties, the Father backhanded the Mother across the face. The Mother alleges that she then followed the Father into the garage and challenged him about the alleged assault. Following the Mother observing that the child was watching the parties’ dispute, the Mother slammed the Father’s car boot closed, which then, the Mother alleges, led to the Father further assaulting her; the Mother alleges that the Father had grabbed her around the throat and kicked her.
The Father denies assaulting the Mother on the above occasion, and alleges that he kicked the Mother in self-defence. Further, the Father alleges that at the commencement of this incident, the Mother became angry because she was late for her physiotherapy appointment and started screaming at the child who was sitting in the driver’s seat of the car. He alleges that the Mother was yelling (the Court observing that the Mother herself concedes to yelling at the Father in relation to asking him where the telephone cord was situated) because she could not locate a telephone cord. He alleges that the Mother followed him into the garage and became increasingly more aggressive towards him. He alleges that the Mother assaulted the Father by hitting him on the back of his head with the Mother’s hands.
The police became involved. The police Grounds of the Application for the ADVO, records that the Father participated in an interview wherein he stated that he had thrown telephone cords in the direction of the Mother. It records that the Father stated to the police that the Mother had punched down the family car which made him furious and that he stated to the Mother, “You don’t slam my fucking car”. The Father is recorded as having admitted to the police that he kicked the Mother twice, albeit stating that he did so in self-defence because the Mother was attacking him. It is recorded that when the Father was questioned if the words and actions used would have intimidated the Mother, he “stated no, as it was normal words and behaviour he uses.” The police record that as a result of the incident the Mother suffered pain, red marks and some bruising to both her arms, and under her arms and her torso. It records that the Mother suffered a large welt mark in the shape and size of “the defendant’s hand” on the left-hand side of her back, adjusted under her left shoulder blade.
The subpoenaed documents from NSW police in relation to this incident on 2 September 2019, inter alia, records the Mother, prior to allegedly being assaulted by the Father, yelling and swearing at the Father who was swearing back at the Mother.
The Mother alleges that on 10 October 2019, the Father contacted her sister by Facebook and apologised in relation to the incident at separation. He is alleged to have stated that he should have just walked away and set the example for the child.
The Mother alleges that once the child became more autonomous, the Father struggled to set boundaries and maintain routines with him. The Mother alleges that during the parties’ relationship the Father had difficulty settling the child at night time before the child was due to go to sleep. She alleges that the Father would become angry and impatient in trying to settle the child. The Mother also alleges that the Father struggled to maintain good boundaries with the child during playtime; she alleges that the child and the Father would often become too fired up and then if an issue occurred and the child cried or had a tantrum, the Father would get angry with the child and the Mother would intervene. The Father alleges that he was a competent carer of the child during the parties’ relationship.
The Mother asserts her most significant concern in respect to the Father spending time with the child that really relates to the Father’s uncontrollable temper when angry. She alleges that she is genuinely concerned that given the Father’s difficulties dealing with the day-to-day challenges of parenting, that he may hurt the child out of frustration if the child’s behaviour is challenging.
The Mother alleges that in about July 2019, she observed the child hit the Father over the head with a plastic toy which led to the Father pushing at and slapping the child and also swearing at the child. The Mother alleges that when she remonstrated verbally with the Father, the Father told her that the child had hurt him. The Father denies these allegations.
On the material before the court, untested as it is, and as discussed above, there is a significant suggestion that there was significant verbal and physical disputation between the parties during the parties’ relationship, occasionally in the presence of the child, and in relation to which each party bore some responsibility.
In relation to the Mother’s allegations of significant physical family violence perpetrated against her by the Father (for example, the incidents alleged by the Mother on 8 July 2019 and 2 September 2019), there is a significant suggestion that the parties were, at the time, engaged in significant verbal disputation, including verbal abuse and yelling at each other.
The police Grounds of the Application document, in relation to the incident on 2 September 2019, record the Father as having told the police that he became “furious” when the Mother “punched down on the family car”. In this document, the Father admits to kicking the Mother albeit that he was allegedly acting in self-defence. And further, this document refers to certain injuries of the Mother. This material, in relation to the incident on 2 September 2019, suggests that there is a real possibility that the Father suffers from a lack of impulse control when under stress, and exhibits anger, including when in the near presence of the child.
The Mother’s allegations that the Father slapped the child and swore at him after the child allegedly struck the Father with a plastic toy, together with her allegations that the Father would become angry and impatient in trying to settle the child, are consistent with the above suggestion that the Father might suffer from a lack of impulse control when under stress, and exhibit anger, again including when in the presence of the child.
Accordingly, the Court has a concern as to the child presently spending unsupervised time with the Father.
The Court also has a concern as to the child’s time with the Father now being re-established on an unsupervised basis immediately, and as to the extent proposed by the Father, in circumstances where the child has not spent face-to-face time with the Father for about a year. A supervised reintroduction of the child to the Father would minimise the risk of the child experiencing emotional harm.
In the view of the court, in light of the Court’s above concerns, there is an unacceptable risk of harm posed to the child in proceeding immediately to unsupervised time with the Father.
Acting conservatively and cautiously, the Court’s above concerns can be addressed by ordering:
a)the child’s time with the Father being supervised for a minimum period of three months during which time the Father ’s time with the child can be observed and be the subject of contact centre supervision reports;
b)the Father obtain psychological treatment for impulse control when under stress (the Father could possibly obtain a mental health care plan from his GP referring him for such psychological treatment), with the Father being permitted to provide a copy of these Reasons to the treating psychologist, or, the father engaging in an anger management course;
(The Court has a concern that the Father’s psychological intervention through psychologist Mr G, between 24 November 2019 and 3 March 2020, did not address the significant suggestion, as discussed above, that the Father suffers from a lack of impulse control when under stress, and exhibits anger accordingly.)
c)The Father undertake the 1 2 3 Magic course.
Following the above minimum supervised time of three months, and subject to the father having commenced:
a)psychological treatment for impulse control when under stress, or an anger management course,
b)the 1 2 3 Magic course,
the proceedings can be returned to Court, with a view to the Court considering whether the child’s best interests can be met by proceeding to unsupervised time with the father or otherwise. The Court would anticipate that the parties and ICL would have considered, inter alia, the content of the contact centre supervision reports prior to the re-listing of the proceedings before the Court.
The Mother alleges her concerns about anyone in the Father’s family conducting such supervision, as during the relationship she allegedly observed the Father to be dismissive of concerns expressed by the Paternal Grandmother or his sister. The Mother alleges that she has no confidence that the Paternal Grandmother or the Father’s sister would be able to control the Father if he escalated.
The Father submitted, without admissions, and in the alternative, that the Paternal Grandmother or the paternal aunt could initially supervise the child’s time with the Father. In this context, the Court observes that the Mother alleges that she does not trust these extended family members of the Father and moreover they have not filed Affidavits in relation to prospective supervision. The Court is not satisfied at this interim stage that the Paternal Grandmother or Paternal Aunt could appropriately supervise the child’s time with the Father.
The Court gives significant weight to this need to protect primary consideration.
Section (3)- Additional Considerations
(a) Any views expressed by the child and any factors (such as the child maturity or level of understanding) that the court thinks are relevant to the weight it should give to the child’s views
The child is too young to express a relevant view.
(b) The nature of the relationship of the child with each of the child’s parents; and other persons (including any grandparent or other relative of the child)
The Father alleges that between 2018 and the date of separation, the parties will take the child spend time with the Paternal Grandmother, on an overnight basis about once a month. The Father alleges that the child had a close relationship with the Paternal Grandmother. He also alleges that the child is very close with his cousins.
(c) The extent to which each of the child’s parents has taken or failed to take the opportunity; to participate in making decisions about major long-term issues in relation to the child; and to spend time with the child; and to communicate with the child
The Father commenced parenting proceedings in this Court on 4 December 2019 seeking to spend time with the child in an equal time arrangement, on at least an interim basis. The Father declined to spend supervised time with the child offered by the Mother, through her solicitors, on 30 October 2019, and on 30 January 2020, albeit in circumstances where the Father paid for such supervision. The Mother herself refers to the Father telling her that he could not afford the cost of supervision.
(ca) The extent to which each of the child’s parents has fulfilled, or failed to fulfil, the parent’s obligations to maintain the child
The Mother alleges that the Father has made no payment of child support to assist her in the care of the child.
(d) The likely effect of any changes in the child’s circumstances, including the likely effect on the child of any separation from either of his or her parents; or any other child, or other person (including any grandparent or other relative of the child), with whom he or she has been living
There is a significant suggestion, on the material before the court, bearing in mind the child having been in the Mother’s primary care for about the last 12 months, that the child may experience emotional unwellness should he immediately proceed to spend unsupervised time with the Father, particularly to the extent proposed by the Father.
(e) The practical difficulty and expense of a child spending time with and communicating with the parent and whether that difficulty or expense will substantially affect the child’s right to maintain personal relations and direct contact with both parents on a regular basis
Not applicable.
(g) The maturity, sex, lifestyle and background (including lifestyle, culture and traditions) of the child and of either of the child’s parents, and any other characteristics of the child that the court thinks are relevant
The Mother’s extended family reside in Country H. The Father hails from Country E. The Father alleges that most of the disagreements the parties had were about raising the child “as we both come from different cultures and would tend to not agree about minor issues.”
(h) If the child is an Aboriginal child or a Torres Strait Islander child: the child’s right to enjoy his or her Aboriginal or Torres Strait Islander culture (including the right to enjoy that culture with other people who share that culture); and the likely impact any proposed parenting order under this Part will have on that right
Not applicable.
(i) The attitude to the child, and to the responsibilities of parenthood, demonstrated by each of the child's parents
Each party would appear to have demonstrated appropriate attitudes towards the responsibilities of parenthood, subject to the courts discussion above under the need to protect primary consideration.
(j) Any family violence involving the child or a member of the child's family
The Court refers to its discussion above under the need to protect primary consideration.
(k) If a family violence order applies, or has applied, to the child or a member of the child’s family – any relevant inferences that can be drawn from the order, taking into account the following: the nature of the order; the circumstances in which the order was made; any findings made by the court in, or in proceedings for, the order; any other relevant matter
The Court refers to its discussions above under the need to protect primary consideration, and under the heading “Agreed facts unless otherwise stated”.
(l) Whether it would be preferable to make the order that would be least likely to lead to the institution of further proceedings in relation to the child
These are interim parenting proceedings.
m) Any other fact or circumstance that the Court thinks is relevant
Not applicable.
Parental responsibility
It will not be in the best interests of the child to make an express order for parental responsibility at this stage. There is no looming major decision for the child.
Summary
Evaluating the above discussed considerations under section 60 CC of the Act, it will be in the best interests of the children to make the following interim Orders:
(1) The child, X born in 2017 shall live with the Mother (the child).
(2) That the child spend time with the Father from 10 AM to 12 noon each Saturday, or at such other time as agreed between the parties, with such time to be supervised by:
(a) A professional supervision service, as agreed between the parents, and failing agreement, such supervision shall be conducted by B Supervision Services, and the Father shall be responsible for meeting the costs of such supervision solely;
or, should the Father be unable, or unwilling, to meet the cost of such above supervision service, then,
(b) A contact centre, with the Father to meet the cost of such supervised time at the contact centre.
(3) That within 48 hours of the date of these Orders, both parents shall contact B Supervision Services, or such other supervision service as is agreed, to facilitate an intake into such service, and time between the child and the Father shall commence the first week that time is able to be supervised by B Supervision Services.
(4) That the Father shall be at liberty to communicate with the child each Monday, Thursday and Saturday between 5pm and 5.30pm or at such other times as agreed between the parents in writing, via telephone or such means as may be agreed by the parents in writing on a telephone number to be nominated by the Mother, and for the purposes of this order:
(a) The Father shall be and is hereby restrained from:
(i) Discussing these proceedings, the contents of these proceedings and/or outcome of proceedings with the child;
(ii) Making any derogatory remarks in respect of the Mother to the child or in the presence of the child;
(5) That the parents and/or their agents are hereby restrained from removing or attempting to remove the child X born in 2017 from the Commonwealth of Australia AND IT IS REQUESTED that the Australian Federal Police give effect to this order by placing the name of X born in 2017 on the Family Law Watchlist in force at all points of arrival and departure by air or by sea in the Commonwealth of Australia and maintain X born in 2017 on the watchlist until the child turns 18 years of age, or the Court orders the child’s removal from the watchlist, or by written agreement of the Mother and Father.
(6) And it is requested that the Australian Federal Police give effect to this order by placing the name of the said child on the Family Law Watchlist in force at all points of arrival and departure in the Commonwealth of Australia and maintain the child’s name on the watchlist for the said period or until the court orders its removal.
(7) That neither parent shall themselves denigrate, nor allow any third party to denigrate, the other parent, members of the other parent’s family, in the presence or hearing of the child.
(8) That neither parent shall physically discipline or chastise the child, or permit, cause or allow any third person to do so.
(9) That within fourteen days of the date of these Orders, the Father shall do all things necessary to enrol in the course “123 Magic” and shall thereafter attend at each session of the course, until its completion and within seven days of such completion, shall provide to the Mother’s solicitor a copy of his certificate of completion.
(10) That in the event of the child suffering a medical emergency requiring medical attention whilst in the Mother’s care:
(a) The Father is to be notified as soon as practicable.
(b) The Father is to be provided with the full details of the practitioner or medical facility upon which the child has attended as soon as practicable.
(c) The medical practitioner or facility is to be advised that both parents have access to the child’s medical records and that information relating to the child is to be shared with the other parent upon request.
(11) The Father shall within 14 days of the date of these Orders take all reasonable steps to:
(a) obtain psychological treatment for impulse control when under stress, with the Father being permitted to provide a copy of the Court’s Reasons to the treating psychologist, or,
(b) engage in an anger management course.
(12) Following the child having spent a minimum period of 3 months supervised time with the Father, and subject to the father having commenced:
(a) psychological treatment for impulse control when under stress, or an anger management course,
(b) the 1 2 3 Magic course,
the Father and/or the ICL shall have liberty to relist the proceedings before the Court on 7 days notice, with a view to the Court considering whether the child’s best interests can be met by proceeding to unsupervised time with the father or otherwise.
I certify that the preceding seventy six (76) paragraphs are a true copy of the reasons for judgment of Judge Newbrun
Associate:
Date: 4 September 2020
Key Legal Topics
Areas of Law
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Family Law
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