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Langer & Franke [2020] FCCA 1852 (15 July 2020)
Last Updated: 18 August 2020
FEDERAL CIRCUIT COURT OF AUSTRALIA
Catchwords:
FAMILY LAW – Interim proceedings –
parenting – whether father is a an unacceptable risk to child –
whether
risk can be mitigated by orders – where presumption of equal
shared parental responsibility does not apply – where parties
have
consented for numerous orders to be made – where orders can mitigate risk
to child – overnight time with father
ordered.
|
Family Law Act 1975 (Cth), ss.10J, 11F,
60B, 60CA, 60CC, 61C, 61DA, 62G, 65D, 65DAA, 68L
|
Cases cited:
Goode & Goode (2006) FLC 93-286
|
Date of Last Submission:
|
12 August 2019
|
REPRESENTATION
Solicitors for the
Applicant:
|
Ms Siu of As Family Lawyers
|
Counsel for the Respondent:
|
Ms Clifford
|
Solicitors for the Respondent:
|
Blanchfield Nicholls
|
Solicitors for the Independent Children's
Lawyer:
|
Mr Samuel of Brian Samuel & Associates
|
ORDERS
THE
COURT ORDERS ON A FINAL BASIS:
(1) That the child X born in 2012 (“X”) live with her
mother.
PENDING FURTHER ORDERS, THE COURT ORDERS:
(2) That X spend time with her father as follows:
(a) For a period of 4 months from these orders, each alternate weekend from
9.00 AM on Saturday until 5.00 PM on Sunday, the first
occasion to commence on
the Saturday second after the making of these orders;
(b) Following the expiration of 4 months from these order, each alternate
weekend from 4.00 PM on Friday until 5.00 PM on Sunday;
(c) Each Thursday from 4.00 PM until 8.00 PM, the first such occasion to be
the Thursday immediately following the making of these
orders;
(d) For 3 consecutive nights in the school holidays at the end of Term 3 in
2020 separate from the time under (a) at times agreed
between the parents and
failing agreement from 9.00 AM on the first Tuesday of the holidays until 5.00
PM on the following Friday;
(e) For two occasions of 7 consecutive nights during January 2021 at times to
be agreed between the parents, with such occasions to
be separated by at least 7
consecutive nights;
(f) The father’s time with X under (b) and (c) is suspended for the
whole of January 2021;
(g) From the school holidays at the end of term 1 in 2021, for half of each
school holiday period, at times agreed between the parents
and failing agreement
for the first half of school holidays that commence in an even numbered year and
for the second half of school
holidays that commence in an odd numbered
year;
(h) The father’s time with X under (b) and (c) is suspended during all
school holidays from and including the school holidays
at the end of term 1 in
2021 and for (c) will recommence on the Thursday first after the end of all
school holidays and for (b) will
recommence on the first weekend after the end
of school holidays that commenced in an even numbered year and on the second
weekend
after the end of school holidays that commenced in an odd numbered
year;
(i) On Father’s Day from 8.45 AM until 5.00 PM should Father’s
Day occur on a day when X would not otherwise spend time
with her father
pursuant to these orders.
(3) That the father communicate with X by telephone each Monday and Wednesday
at some time between 6.45 PM and 7.15 PM, the father
to initiate the call.
(4) That all changeovers at the start and end of X’s time with her
father shall take place in front of Ms B’s shop at
Suburb C, and in the
event that the shop closes down, in front of those premises.
(5) That in the event that Mother’s Day occurs on a day when X will be
spending time with her father pursuant to these orders,
the father’s time
will end at 8.45 AM on Mother’s Day.
(6) That without admissions, each of the parents is restrained from
physically disciplining X and allowing any other person to physically
discipline
X.
(7) That without admissions, 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.
(8) That without admissions, each of the parents is restrained from allowing
X to remain in the presence of, or within X’s 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
parent’s household.
(9) That whilst X is in his care, the father shall provide X with nutritious
food at all regular mealtimes.
(10) That the mother and the father shall keep each other advised in a timely
manner with respect to all significant decisions in
respect of X’s life
and in particular relating to her health and medical needs and schooling.
(11) That in the event that the child suffers any injury, is hospitalised or
suffers any significant illness, the parent in whose
care X is at the time shall
notify the other parent immediately, except in the case of an emergency where
they shall do so as soon
as is reasonably practicable.
(12) That the mother and the father shall each be entitled to enrol X in and
take her to any extracurricular activities during any
periods whilst she is in
such parent’s care pursuant to these orders NOTING THAT X presently
attends sports whilst in the father’s
care on Saturday and swimming on
Saturdays whilst in the mother’s care as well as sports during the
week.
(13) That both parents shall be entitled to attend upon any school functions
of X that parents normally attend.
(14) That in the event that the mother has not already done so, she is to do
all things necessary and sign all documents required
to authorise X’s
school to forward to the father directly copies of X’s school reports.
(15) That the parties keep each other advised as to their respective
residential addresses and contact details.
(16) That the father is to forthwith enrol in and complete a ‘taking
responsibility’ course and an anger management course
and provide evidence
that he has enrolled in such courses to the mother’s legal representative
and to the Independent Child’s
Lawyer.
(17) That the father is to forthwith obtain a mental health assessment report
form a psychiatrist of his choosing and provide a copy
of such assessment to the
mother and to the Independent Child’s Lawyer, with such assessment to
address the following:
(a) Period of assessment of the father and details as to all appointments
attended;
(b) Whether the father suffers from any mental illness;
(c) The expert’s prognosis;
(d) Any treatment recommended;
(e) The father’s capacity to care for a child and in particular whether
there are any risk issues in respect to such capacity;
(f) Any other issues that the expert considers to be relevant.
(18) That the father provide to his psychiatrist referred to in the preceding
order a copy of any parenting orders made by the Court
as at the date of the
interim hearing along with these orders and the Child Inclusive Conference
memorandum dated 8 May 2019.
(19) That the parents each attend a post separation parenting course in order
to improve their communication with each other.
(20) That each of MR FRANKE born in 1978 and MS LANGER born in 1977 and their
servants or agents are restrained from removing or attempting
to remove or
causing or permitting the removal of the child X born in 2012 (a female) from
the Commonwealth of Australia AND it is
requested that the Australian Federal
Police give effect to this Order by placing the name of the child X born in 2012
(a female)
on the Family Law Watch List until further Order of the Court.
IT IS NOTED that publication of this judgment under the pseudonym
Langer & Franke is approved pursuant to s.121(9)(g) of the Family
Law Act 1975 (Cth).
FEDERAL CIRCUIT COURT
OF AUSTRALIA
AT SYDNEY
|
SYC 3648 of
2018
Applicant
And
Respondent
REASONS FOR JUDGMENT
- These
reasons relate to an interim hearing in parenting proceedings under the
Family Law Act 1975 (Cth) (‘the Act’) between the applicant
father, Mr Franke (‘the father’), and the respondent mother, Ms
Langer
(‘the mother’), concerning parenting arrangements for their
daughter, X, born in 2012. X was seven years and seven months
of age at the time
of the interim hearing and was represented by an Independent Child’s
Lawyer (‘the ICL’).
- The
parties commenced their relationship in 2005 whilst both lived in Country D. The
parties moved to Australia in 2007, married in
2010, separated on 3 June 2017,
and were divorced on 7 August 2018.
- These
proceedings were commenced by an Initiating Application filed by the father on
14 December 2018. The parties had entered into
final property settlement orders
by consent on 22 October 2018.
- X
was five years and five months of age when the parties separated. The father has
spent regular time with X since separation, at
first by agreement and after
commencement of these proceedings pursuant to interim orders, but has not spent
any overnight time with
X since the parties separated.
- At
the interim hearing, the father was represented by Mr Siu, solicitor advocate,
the mother was represented by Ms Clifford of counsel,
and Mr Samuel appeared on
his own behalf as the ICL for X.
- The
issue for determination in the interim hearing was what amount of time and upon
what, if any, conditions the father would spend
time with X pending the final
hearing.
- The
father sought an order that on the interim basis, the parties have equal shared
parental responsibility for X. No interim order
in relation to parental
responsibility was sought by the mother or the ICL. The mother sought a final
order that she have sole parental
responsibility for X
- As
will be detailed later in these reasons, a minute of order was presented to the
Court at the interim hearing by the ICL. Both parties
indicated substantial
agreement with most of the orders set out in that minute with the exception, on
the part of both parties, of
the orders relating to the father’s time with
X and the father’s telephone communication with X. That consent by both
parties to most of the orders sought by the ICL includes consent to orders
requiring the father to obtain a mental health assessment
from a psychiatrist of
his choosing and provide such assessment to the mother and the ICL. Despite the
parties’ consent to
those orders, I will address that issue later in these
reasons.
- The
father seeks that his time with X now progress to overnight time for two nights
each alternate weekend. The mother seeks that
the father’s time with X
remain as day time only and that it be supervised by a commercial supervision
agency for a period
of no less than two months from the date of orders, at the
father’s cost. The ICL proposes that the father’s time be
day time
only but without any supervision.
- The
mother asserts that if the father’s time with X is not supervised for a
period of at least two months after the making of
orders, there is a risk to X.
She also asserts that overnight time is inappropriate. Both those assertion are
based on her allegations
that the father:
- Abused
X by inappropriate physical discipline when she was a baby;
- Exposed
X to family violence perpetrated by the father against the mother;
- Has
anger problems that result in outbursts that are harmful for X to be exposed to,
or result in physical abuse to X; and
- Suffers
from mental health issues, specifically paranoia and suicidal
ideation.
- The
father asserts that neither he nor the mother present any risk to X.
- The
mother did not seek any specific interim order relating to changeover between
the parties, but indicated during the interim hearing
her acceptance of the
changeover order proposed by the ICL.
- The
ICL has sought the following orders in relation to the matters in
issue:
- That
X spends time with her father during school term each alternate weekend from
9.45AM to 6.30PM on Saturday and from 9.45AM until
5.00PM on Sunday and at such
other dates and times and for such other periods as are agreed by the parties in
writing;
- That
X spends time with her father during “the short school holiday
periods” for the second week of each school holiday period from 9.45AM
until 6.30PM each day, commencing on the second Saturday of
each such period and
ending on the following Friday, and at such other dates and times and for such
other periods as are agreed to
by the parties in writing;
- That
X spends time with her father during the “summer school
holidays” by agreement between the parties, and in the absence of such
agreement, the parties shall attend a mediation conference organised
by the ICL
through Legal Aid NSW, provided that the parents provide the ICL with reasonable
notice of any such disagreement;
- That
all changeovers take place at a public venue as agreed to by the parties in
writing and, in the absence of such agreement, in
the front of Ms B’s shop
in Suburb C.
- Both
the mother and the father sought an interim and a final order that X live with
her mother. I asked each of the parties and the
ICL if there was consent to an
order being made on a final basis that X live with her mother to which each of
the parties and the
ICL signified consent. I will make a final order for X to
live with her mother.
- The
ICL sought a number of orders to which each of the parties advised they would
consent:
- That
all changeovers take place at the public venue as agreed to by the parties in
writing and, in the absence of such agreement,
in the front of Ms B’s Shop
in Suburb C;
- That
X spend time with her father on Father’s Day from 8.45AM until 5.00PM in
the event that she is not otherwise spending time
with him on that
day;
- That
any time the father would spend with X on Mother’s Day be suspended on
Mother’s Day;
- That
without admissions, each of the parties be restrained from the
following:
- Exposing
X to violence, including physical or verbal threats or intimidation, whether
such threats or intimidation or violence be
directed to X, the mother, the
father, or any other member of either party’s household;
- Physically
disciplining X;
- Denigrating
the other parent or members of the other parent’s family in the presence
or hearing of X and requiring that each
parent do all acts and things reasonably
necessary to prevent any other person doing so;
- Discussing
the proceedings or any issue arising out of the proceedings with X or permitting
any third party to do so;
- Making
critical or derogatory remarks on social media, such as Facebook or Twitter, in
relation to the other parent or referring in
any way to the proceedings;
- Being
under the influence of alcohol in the presence of X or whilst X is in his or her
care;
- Using,
ingesting or administering to himself or herself any illicit or non-prescribed
drugs (other than over-the-counter medication);
and
- Bringing
X into contact with any person under the influence of illicit drugs or alcohol
in excess;
- That
the parents keep each other advised in a timely manner in respect of all
significant decisions in respect of X’s life and,
in particular, relating
to her health and medical needs and schooling;
- In
the event that X suffers any injury, is hospitalised or suffers any significant
illness, the parent in whose care X is at the time
shall notify the other parent
immediately except in the case of an emergency, where they shall do so as soon
as is reasonably practicable;
- That
the parents shall each be entitled to enrol X in and take X to any
extracurricular activities during any period whilst X is in
such parent’s
care pursuant to orders, noting that X presently attends sports whilst in the
father’s care on Saturday
and swimming on Saturdays whilst in the
mother’s care, as well as sports during the week;
- That
both parents be entitled to attend upon any school functions of X that parents
normally attend;
- In
the event that the mother has not already done so, she is to do all things
necessary and sign all documents required to authorise
X’s school to
forward to the father directly copies of X’s school reports;
- That
the parties keep each other advised as to their respective residential address
and contact details;
- That
X remain on the airport watchlist until further order of the
Court;
- That
the father forthwith enrol in and complete a ‘taking responsibility
course’ and an ‘anger management course’
and provide evidence
that he has enrolled in such courses to the mother’s legal representative
and to the ICL;
- That
the father forthwith obtain a mental health assessment report from a
psychiatrist of his choosing and provide a copy of such
assessment to the mother
and to the ICL, such assessment to address the following:
- The
period of assessment with the father and details as to all appointments
attended;
- Whether
the father suffers from any mental illness;
- The
expert’s prognosis;
- Any
treatment recommended;
- The
father’s capacity to care for X and in particular whether there are any
risk issues in respect of such capacity; and
- Any
other issues that the expert considers to be relevant;
- That
the father provide to his psychiatrist referred to in order 13 a copy of any
parenting orders made by the Court as at the date
of the interim hearing along
with the Child Inclusive Conference memorandum dated 8 May 2019; and
- That
the parents each attend a ‘post-separation parenting course’ in
order to improve their communication with each other.
The proceedings up to the interim hearing
- The
father filed his Initiating Application commencing these proceedings on 14
December 2018, and the mother filed her response on
19 February 2019.
- The
matter came before Judge Harper (as his Honour then was) for its first return
date on 27 February 2019. His Honour made the following
orders:
- That
pursuant to section 11F of the Act the parties attend a Child Inclusive
Conference;
- That
the father spend time with X each alternate weekend from 9.45AM until 6.30PM on
Saturday and from 9.45AM until 5.00PM on Sunday,
commencing on 9 and 10 March
2019;
- Restrained
the parties from discussing the proceedings with X except when it is necessary
for the purposes of the Child Inclusive
Conference; and
- The
matter was adjourned for further mention to 13 May 2019.
- The
parties attended the Child Inclusive Conference on 8 May 2019, were interviewed
separately, and X was interviewed by the Family
Consultant.
- The
matter was again mentioned before the Court on 13 May 2019, at which time I made
an order under section 68L of the Act for an ICL to represent the interests of X
in the proceedings, an order under section 62G of the Act for the preparation of
a Family Report, and adjourned the matter for an interim hearing on 12 August
2019.
- The
interim hearing proceeded on 12 August 2019.
The evidence
- The
father was born in Country E and was 41 years of age at interim hearing. The
mother was born in Country D and was 42 years of
age at interim hearing. The
mother became an Australian citizen in 2011.
- The
parties met in 2005 whilst the mother was living in her country of birth and the
father was working in Country D. During that
time they formed a cohabitive
relationship. They travelled to Australia in 2007 to enable the father to take
up an employment opportunity
in Perth. The mother says that the parties
separated for a period of time while they were living in Perth and that she
returned to
live in Country D for five weeks. The parties reconciled their
relationship, and the mother returned to Australia in 2007, but this
time to
Sydney, where the father had moved, and resumed their cohabitation.
- X
was born in 2012. Neither party has any other child.
- The
parties separated on 3 June 2017 and divorced on 7 August 2018. At the time of
their separation the father left the home the parties
had purchased, a unit in
Suburb C in inner-city Sydney. The mother and X remained occupying the property.
Pursuant to the property
settlement orders made by consent between the parties
in October 2018, the father transferred his interest in the Suburb C unit to
the
mother, and she is now the sole owner as between the parties. The mother and X
continue to live in the Suburb C unit.
- The
father lives in a two-bedroom leased flat in Suburb F. One bedroom is set up for
use by X if she is in the father’s care
overnight. He is employed as a
professional and works for a company based at Suburb G in Sydney. He is employed
full-time and works
Monday to Friday, 9:00AM until 5:00PM. He is in good
health.
- The
mother lives in the two-bedroom flat owned by her at Suburb C. X has her own
bedroom. The mother is employed on a casual basis
as a tradesperson for both
Employer H and Employer J, and she is also self-employed as a tradesperson. She
volunteers at X’s
school on Fridays. She is in good health.
- The
mother employs a nanny – currently Ms K, and formerly Ms L – to
assist her with the care of X while the mother is
at work.
- Neither
parent has re-partnered.
- The
father asserts in his evidence that from the time of X’s birth, he
provided care to her on a day-to-day basis equally with
the mother, the common
pattern during X’s infancy being for the mother to care for her during the
day while the father was
at work and for the father to care for her in the
afternoon and evening while the mother was at work. The mother was at that time
and continues to be a self-employed tradesperson who works for Employer H
(amongst other businesses), with her hours of work corresponding
with evenings
and her employer’s demands. The father asserts that prior to the
parties’ separation in June 2015, he did
“the greater share of
the parenting”[1] from the
time X started preschool in 2015 until early 2017.
- The
mother denies that the father provided equal care for X, but admits that they
did share her care on an unequal basis. The mother
asserts that from early on
she wanted to hire a nanny to assist with X’s care, but that the father
refused. They established
a regime of the mother taking X to work with her
during the day and the father collecting X from the mother around the middle of
the day and caring for X until the mother finished work. The mother says that
this was in consequence of the father’s employment
with Employer M, where
he was able to leave work early and work from home a lot of the time. Once X
started attending preschool in
2015, she was taken to preschool by her mother
and collected from preschool by her father, who, the mother says,
“supervised her until I returned home and gave her dinner that I had
prepared”.
- X
commenced her attendance at N Preschool around her third birthday in 2015, and
during her first year, she attended three days a
week from 9.30AM until 1.00PM.
During her second year, she increased her attendance to four days a week from
9.30AM until 3.00PM.
- Around
the time of the parties’ separation and for a couple of months following
separation, the father attended upon Ms O, a
psychologist, at the P Centre in
Suburb Q. The father was referred by his general practitioner, Dr R. The father
was provided by
his general practitioner with a ‘GP mental healthcare
plan’ in relation to the referral. The father was treated by Ms
O by
therapy sessions for low mood and anxiety. All of the medical records for the
father produced on subpoena by Ms O make it patently
obvious that the
father’s low mood and anxiety was related to the breakdown of his marital
relationship and that there was
a steady improvement in his presentation between
his first consultation on 1 June 2017 (two days prior to separation) and his
last
appointment on 7 August 2017. I will say more about this later in these
reasons in relation to the issue raised by the mother and
the ICL in relation to
the father’s mental health.
- It
seems on the evidence, though it is not entirely clear on the part of either
party, that from the parties’ separation on
3 June 2017 until about
October 2017, the father mainly spent time with X by coming to the former
matrimonial home at Suburb C. The
mother complains that the father
“frequently attended the former matrimonial home to check on
us”, asserting that such occurred up to three times per day, and that
the father admitted himself into the home without prior
notice to the mother,
having retained a key to the property. For his part, the father says in
paragraph 47 of his affidavit:
- After
separation, I continued to have a set of keys to the family home. This was known
to and agreed by [the mother]. I mostly coordinated
with [the mother] before
attending the home, contrary to [the mother’s]
allegation.
- The
mother’s evidence combined with the father’s use of the phrase
“I mostly coordinated with [the mother] before attending the
home” indicates that there were occasions when the father would attend
the matrimonial home after separation without any prior notice
to the mother and
admit himself to the home without the leave of, or necessarily the knowledge, of
the mother. This no doubt caused
the mother considerable stress and anxiety, and
if the mother’s assertions in relation to family violence perpetrated
against
her by the father are true, then her stress and anxiety on these
occasions would have been all the greater.
- From
about October 2017, the parties established a pattern of the father spending
time with X:
- Each
Thursday from 3.30PM until 5.30PM;
- Each
Saturday from 9.45AM until 6PM; and
- Each
Sunday from 9.45AM until 6PM (though the mother asserts that the Sunday times
concluded at 5.00PM).
- The
father asserts that he attended “appointments and activities that X
had”, but the mother asserts that his attendance at these appointments
was an upset to her as:
- He appeared
at appointments which I had taken X to, such as a dental appointment, without
informing me that he was intending to attend.
He just turned up at the place of
the appointment unexpectedly. I found his behaviour unsettling and
intimidating.
- The
parties attended a Family Dispute Resolution mediation on 8 November 2017 at the
S Family Relationship Centre. A document was
prepared as a result of that
mediation and entitled “Parenting Agreement”, a copy of which
is annexure ‘A’ to the father’s affidavit. However, the
document never became a parenting
agreement within the meaning of that term in
the Act as it was not signed by either
party.[2] As the document is not a
parenting agreement and is patently the product of Family Dispute Resolution
between the parties, having
been conducted by persons described on the document
as “family dispute resolution practitioners”, I cannot take
notice of anything in that document past the title page as they are not
admissible in evidence.[3]
- The
mother says that “in or around the beginning of 2018”, the
father started spending time with X every second Saturday from 9.45AM until
6.00PM and Sunday from 9.45AM to 5.00PM and
one afternoon a week after school on
the afternoon that she went with her father to sports. She further asserts that
on some occasions,
he would have other time with X at her home in the evening
while she was at work and that the nanny employed by the mother would
take over
from him. The mother says that these “at home” occasions
ceased in about July 2018.[4]
- The
mother changed the locks on the Suburb C home in August 2018, and the father was
not able to gain entry to the property after
that time.
- In
about October 2018, the mother arranged for X to have sessions with her school
counsellor to assist X to “cope with stress and her emotions”
because the mother perceived that X was becoming “angrier more
frequently, and her mood changed
rapidly”.[5] For his part,
the father complains that the mother did not tell him at any time about X having
sessions with her school counsellor
and that he only found out about that matter
when reading the mother’s affidavit.
- The
father has not had any overnight time with X since the parties separated.
- Both
parties make assertions that the other party has perpetrated family violence,
each denying the allegations made by the other.
- The
mother asserts the following family violence on the part of the
father:
- That
in early 2007 when the parties were residing in Perth, the father pushed the
mother and ripped a phone cord out of the wall.
The father denies that the
event ever occurred;
- That
sometime in 2012, the father said to the mother, “I’m going to
kill you and smash your face in.” The father denies that he ever made
any statement of that nature;
- That
on 3 December 2016, the father grabbed the mother by the arm near her elbow and
pushed her aside with force, causing the mother
to knock her elbow on the door
and sustain a large bruise. The father denies that the incident ever occurred as
described by the
mother;
- That
in early 2017 the father threatened to throw the mother out into the street on
several occasions. The father denies that he ever
made such
threats;
- That
on 29 May 2017 the mother became aware that the father had installed listening
devices or recording devices in their home, and
the mother asserts that the
father admitted same to her. The mother’s assertions in this regard find
some corroboration in
the evidence of Mr T who, in paragraph 9 of his affidavit,
asserts that in or around April or May 2017 the father said to him words
to the
effect of “I have installed sensors around the apartment to record the
times when people enter. I will not allow [the mother] to have people
in the
apartment unless I am there.”
- That
in August 2018 the father was violent to the mother in the child’s
presence in that he jammed his foot in the mother’s
Suburb C unit door
when she was trying to shut the door. The mother managed to close the door but
asserts that “the lock had been broken” and that X had run to
her room to hide. During a subsequent attendance by both parents and the child
at Suburb C Police Station
the mother asserts that the father made repeated
statements that he would not bring X back to the mother. The father did spend
time
with X and did return her to the mother. The father does not address this
incident specifically, but in paragraph 44 of his affidavit
he says that the
mother “...pushed me during the argument in or about March 2018, and
this is why I contacted the police.” The mother is speaking of August
2018 and the father of March 2018;
- That
in July 2018 the father was at the mother’s residence and tried to give
the mother a new health insurance card, which the
mother would not accept.
Thereafter the father pushed her aside and pushed the card into her letterbox.
The father denies all of
the incident;
- That
“when X was still a baby, [the father] pulled hard on X’s hair in
response to her grabbing hold of his hair whilst he was holding
her.”[6] and
“another occasion [the father] smacked X on the head in an attempt to
discipline her.”[7]
The mother asserts that after these events occurred both
parents attended a ‘positive parenting course’ and it was explained
to the father that his style of discipline was not appropriate and was probably
illegal. The father for his part says:
- I have never
used physical punishment on X... There was never an incident where I smacked X
on the head as discipline. As agreed
during our marriage, I continued to employ
a “positive discipline” model without physical discipline or yelling
at the
child.[8]
The
father does not specifically address the mother’s allegation about pulling
the child’s hair when she was a baby;
- That
when X was a small baby the father was giving her a bath and put her face into
the water. For his part the father says that he
was bathing X and her nose
touched the soapy foam floating on the water and that the mother then
“...overreacted and screamed at me saying words to the effect of,
“[You] almost killed X.”; and
- The
mother asserts that the father denigrated and belittled her throughout their
relationship and following their separation.
- The
father asserts that the mother would often shout at him in X’s presence.
He says that when the parties argued he would often
attempt to retreat to the
bedroom to avoid the conflict, but that the mother would follow him and keep
shouting at him.
- The
father admits that on an occasion he broke a coffee table in frustration at the
mother’s shouting when he was trying to
avoid an argument.
- It
is of note that in the Child Inclusive Conference memorandum to the Court the
Family Consultant records:
- [The father]
acknowledges that he has said things to [the mother] that he should not have,
has screamed at her and called her names.
He said that, during an argument, he
has broken a table and slammed doors. [The father] said that it is a
possibility that he threatened
to kill [the mother] during an argument but said
that he did not mean this.
- I
also note that in the Child Inclusive Conference memorandum the Family
Consultant records that the mother alleged that the father
perpetrated family
violence against her of a nature not referred to by the mother in her evidence
in any way, being:
- Pressured
her to engage in sexual activity ... went through her phone ... monitored her
browser listings and phone calls ... monitored
her whereabouts ... made her ask
permission before she made any purchases ... socially isolated
her.
- There
is no evidence that there are or have at any time been any apprehended violence
orders between the parties or affecting either
of them.
- Both
parties give evidence to the effect that neither party has any family in
Australia, the mother’s family being mainly in
Country D and the
father’s in Country E. The father seeks an order that X be placed on the
watchlist on an interim basis, and
an order is sought by the ICL, consented to
by both of the parties “That the child shall remain on the airport
watchlist until further order of the Court.”
- I
have no evidence that X has been placed on the airport watchlist, the inference
from the wording of the ICL’s order sought
being that she may have been
placed on the airport watchlist as a result of an application being forwarded to
the Federal Police
upon the filing of the father’s Initiating Application.
However, such listings often only last until the first return date
of such an
application. Both parties made it clear at the hearing that they consented to a
watchlist order being made and I will
make such an order on an interim
basis.
- The
mother raises the issue of the father’s parenting capacity and in her
evidence asserts that the father is not capable of
properly looking after X,
though inherently in her application she considers that after the period of
supervision sought in her order
he would be capable of looking after X through
the daytime.
- In
her evidence she asserts that while X is in the father’s
care:
- He
does not feed her properly;
- That
he gave X an electronic tablet device set up so that he could contact her;
- That
he insists that X attend sports classes when the mother asserts X does not like
the classes;
- That
he was on an occasion late collecting X from school; and
- That
as a consequence there is no arrangement for him to collect X from school
anymore.
- In
her affidavit the mother expresses fears (not objected to on hearing) that the
father will not care for X, that he will harm himself
or X, and that
“He may take X away without me knowing where he has
gone.”
- The
mother’s fear that the father will take X away and not return her to her
mother are not grounded in any of the evidence.
In that regard the mother relies
on the evidence summarised above, in relation to family violence, and below in
relation to her assertion
of the father’s mental health issues to ground
her fear that he may harm himself or X.
- For
his part the father denies that he would ever do anything outside X’s best
interests by retaining her from her mother or
from failing to provide her with
proper and appropriate care. He deposes that he feeds X appropriately when she
is in his care and
that she does not go home to her mother
hungry.[9]
- In
the Child Inclusive Conference memorandum the Family Consultant records that the
father alleged that the mother “Has undiagnosed mental health
problems.” There is no evidence to that effect whatsoever.
- The
mother asserts in her evidence that the father has mental health problems. She
bases those assertions on the family violence that
she asserts the father
perpetrated against her and on statements she asserts the father made to her at
various times, such as:
- In
late May 2017 words to the effect of, “Chinese spies are after
me.”
- In
July 2017 words to the effect of, “I went to Suburb U cliff,”
and “I am hearing voices.”
- The
mother also grounds her assertion that the father has mental health issues on
his engaging with the psychologist, Ms O, of P Centre,
psychology practice, at
about the time of and in the few months following their separation. Patently,
the ICL is concerned that the
father may have mental health issues that can
present a risk to X as he submitted that the Court should take a cautious
approach
in relation to orders for the time to be spent by the father of the
child “...as there is no expert evidence and so there should not be any
order for overnight time but the Court should keep the status quo
going.” However, the ICL does not consider there is a need for
supervision of the father’s time.
- In
her submissions on behalf of the mother at the hearing, Ms Clifford stressed the
evidence presented by the mother to ground her
assertion that the father suffers
from mental health problems and that there should be no order for the father to
spend overnight
time with X until his alleged mental health issues had been
thoroughly investigated. Ms Clifford referred to the documents in exhibit
R2,
being all of the material produced on subpoena by Ms O, psychologist.
- I
have read and very carefully considered every word contained in the documents
produced by Ms O. There is nothing therein to ground
an assertion that the
father suffers from a mental health condition. The whole of that material
indicates that at about the time
of the parties’ separation and the
complete breakdown of their relationship the father, through his general
practitioner, sought
some therapy assistance from a suitably qualified health
professional to assist him with feelings of distress, agitation, low mood
and
anxiety that were consequent upon those difficulties and work pressures. He
attended for that therapy on a frequent basis including:
- 5,
15, 19 and 26 June 2017;
- 3,
17, and 24 July 2017; and
- A
final session on 7 August 2017.
- The
psychologist noted on several occasions “Nil suicidal ideation.
Missing daughter.” By 26 June 2017 the psychologise was consistently
noting “Mood improved. Less anxious. Appears calmer. Reports mood
improving. Mood continues to improve.” In the final session notes for
7 August 2017, the psychologist writes that the father “Appeared more
settled and happier. Less anxious.”
- I
point out that in those notes Ms O on occasions misnames the mother as
“X”. The context makes that plain, particularly on 3 July
2017.
- The
exhibits relating to the correspondence between the parties’ solicitors,
being exhibits A1 through to A4 inclusive, do not
assist me in this interim
matter.
- The
affidavit of Mr T, relied on by the mother, is of assistance only in relation to
his corroboration of statements made by the mother
in her evidence to the effect
that the father had installed some sort of surveillance devices in the former
matrimonial home in April
or May 2017, shortly before the parties’
separation.
- I
have carefully read and considered the Child Inclusive Conference memorandum
prepared by Family Consultant, Ms V. I note that in
the memorandum the Family
Consultant notes an agreement between the parties that the father may contact X
by telephone twice per
week. I also note that under the heading Drug and
Alcohol Problems the Family Consultant notes “Not identified as a risk
issue.”
- There
is no evidence in either party’s affidavit in relation to drugs or alcohol
use being an issue in the matter and, accordingly,
both parties indicate their
acceptance of orders sought by the ICL restraining the parties in relation to
matters of alcohol use
and use of “illicit or non-prescribed
drugs”. The parties also accepted orders preventing their bringing X
into contact with persons under the influence of illicit drugs
or alcohol,
however, there is no evidence to support the making of such injunctive orders. I
note statements made by the Full Court
on several occasions to the effect that
the Court should not interfere in the parenting of a child by the child’s
parents except
to an extent necessary, with the best interests of the child as
the paramount consideration.[10]
- The
Family Consultant notes “There is a considerable amount of parental
conflict between the parents” and that “The parents do not
communicate during changeovers.” Helpfully, the Family Consultant
indicates that she was advised that changeovers prior to the interim hearing
“...occur in front of a shop near the mother’s home”
which I will infer is the “Ms B’s Shop in Suburb C”
referred to in the changeover order sought by the ICL, and agreed to by both the
parties. The respective interim orders sought
by the parties are silent in
relation to changeover.
- The
Family Consultant interviewed X and found her to be “A friendly,
talkative and smart child.”
- I
highlight, from the Family Consultant’s notes of her interview with X, the
following:
- X
referred to her father as a “kind and playful” person and
said that she likes the hugs he gives her;
- X
referred to her mother as “nice, giving and
caring”;
- X
told the consultant that:
- Her
parents were not friends;
- That
they argue a lot; and
- That
she would like her parents to be friends.
As an
aside, I hope that each of the parents has read the note of that, which is
expressed by X in the memorandum 3 or 4 times, and
are cognisant that though
circumstance dictate that they may well not be able to be ‘friends’
in any way, they could
appear to X to be at least friendly when interacting, for
her benefit.
- X is
noted as expressing to the Family Consultant that she would like to extend the
time she spends with her father to include overnight
time. X said that if she
does not feel comfortable she could speak to her mother and get a hug from her
father in order to feel more
comfortable and settled.
- “X
said she loves both her parents.”
- I
have read very carefully and considered the seven points made by the Family
Consultant under the heading “Future Directions” in the
memorandum.
- As
already stated, I have reviewed and have considered very carefully the
submissions made at the interim hearing by the ICL, by Ms
Clifford of counsel on
behalf of the mother, and by Mr Siu on behalf of the father. I was referred by
Ms Clifford in particular to
the Full Court’s decision Deiter &
Deiter,[11] and in particular to
[61], [79], [83] and [87] of that important decision in relation to the
treatment of allegations of family violence
in interim parenting matters where
the evidence in relation thereto is conflicting.
- The
father pays child support of $1,748 per month pursuant to an assessment under
the child support legislation. He pays half the
cost of X’s
extracurricular activities pursuant to a voluntary agreement between the
parties. The mother indicates that she
did not receive any child support from
the father until March 2018 (nine months after separation). There is inference
in the father’s
evidence that he provided some voluntary financial
assistance prior to March 2018.
- In
addition to the regular time spent by the father with X pursuant to the orders
made on 27 February 2019, the father has spent additional
time with X during
some school holidays by arrangement with the mother – each day of the
second week of the April 2019 school
holidays from 9.45 am until 6 pm each day,
and for each day of the second week of the July 2019 school holidays from 9.45
am until
6.30 pm each day, and from 3.30 pm until 6 pm on X’s birthday in
2019.
The law
- In
parenting proceedings under the Act, the Court is required to follow the
legislative pathway set down in the Act. That applies to interim hearings on
parenting issues.[12]
- The
Court must give attention to section 60B of the Act that sets out the objects of
Part IV of the Act relating to children. Those objects inform the making of
parenting orders.[13] That section
also contains the principles behind those objects. 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. 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, but the child’s
interests
must always be the paramount consideration.
- 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.[14] The Court may make a
parenting order that discharges, varies, suspends, or revives some or all of an
earlier parenting order.[15]
- In
determining what is in a child’s best interest, the Court must consider
the matters set out as the primary considerations
and additional considerations
in section 60CC and make findings.
[16]
- 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.[17]
- The
presumption does not apply in circumstances where a parent has perpetrated
family violence or abuse. The presumption, when applying,
may be rebutted by
evidence that satisfies the Court that it would not be in the best interests of
the child for the child’s
parents to have equal shared parental
responsibility for the
child.[18]
- When
the Court is considering parenting matters on the interim basis the presumption
applies unless the Court considers it would not
be appropriate in the
circumstances for the presumption to be applied when making interim orders.
- 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:
- Whether
the child spending equal time with each parent would be in the best interest of
the child;[19] and
- Whether
the child spending equal time with each of the parents is reasonably
practicable.[20]
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.[21]
- If
the Court does not make an order for the child to spend equal time with each of
the parents, then the Court must consider whether
the child spending substantial
and significant time with each of the parents would be in the best interests of
the child and consider
whether the child spending substantial and significant
time with each of the parents is reasonably practicable and, 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.
- What
is meant by substantial and significant time is set out in section 65DAA(3) of the Act and includes days that fall on
weekends and holidays, days that do not fall on weekends or holidays, the child
being able to be involved
in occasions and events special to the parents, the
parents being able to be involved in occasions and events of particular
significance
to the child, and the parents being able to be included in the
child’s daily routine.
- 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, per section 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 the recent decision of Grella &
Jamieson:[22]
- A
discretionary judgment concerning the parenting orders necessarily involves,
because of the focus upon the future, significant
elements of value judgments;
assumptions; necessarily uncertain predictions and
intuition.[23]
- There
is much jurisprudence on the issue of 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, as such
a finding is rarely open to the Court on the evidence and most particularly
in
interim parenting proceedings replete with contested evidence.
- Rather,
the task of the Court is 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:
- Assess
whether that risk is an acceptable risk or an unacceptable risk;
- If it
is assessed that it is an unacceptable risk, assess whether or not the risk can
be mitigated by appropriate orders; and
- Decide
what orders are proper in all the circumstances in the best interests of the
child.
- Detailed
exposition of the treatment of risk in parenting matters can be found in the
decision of the High Court in M &
M[24] and the decisions of the
Full Court of the Family Court of Australia in A & A & The Child
Representative,[25] Napier
& Hepburn,[26] Johnson
& Page,[27] Deiter &
Deiter,[28] and Eaby &
Speelman.[29]
- Where
there is contested evidence in an interim hearing the Court is not always able
to make a finding, but must do what can be done
on the basis of agreed facts and
any contested evidence where there is sufficient corroboration on one side to
enable a finding.
This is to enable the Court to perform its function, and
resolve any interim issues with the best interests of the child as the paramount
consideration, and make whatever orders are then considered proper.
- In
SS & AH,[30] 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.[31]
- As
noted by the Full Court of the Family Court of Australia in Eaby &
Speelman,[32] 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.”[33]
Section 60CC – The Primary Considerations
- The
primary considerations are the benefit to X of having a meaningful relationship
with both of her parents and any need to protect
X from physical or
psychological harm from being subjected to, or exposed to, abuse, neglect or
family violence.[34] Subsection 2A
mandates that the Court must give greater weight to the consideration of any
need to protect X over the benefit to
X of having a meaningful relationship with
both of her parents.
- The
mother has been X’s primary carer since the parties separated on 3 June
2015. Prior to that time there is some conflicting
evidence between the parties
as to the care provided by the father for X, but it is inherent in the evidence,
including in the evidence
of the mother, that X was in the father’s sole
care for regular periods of time while the mother was engaged in her employment.
I can also infer that when they were both home they both contributed to her
care.
- X
was five years and five months of age when her parents separated and she has not
been cared for overnight by her father since that
time. The mother refused to
agree to the father spending overnight time with X and the father properly
refrained from any precipitate
action on his behalf to force the issue prior to
the making of the interim orders on 27 February 2019.
- Of
particular note here is the note from the Family Consultant’s interview
with X in the Child Inclusive Conference memorandum
to Court “X said
that she loves both of her parents.”
- Patently
it is to X’s benefit to have a meaningful relationship with both of her
parents.[35] At the present time it
is inherent in all the evidence that she has a close and loving and meaningful
relationship with her mother.
X’s comments to the Family Consultant in her
interview, that her father is “kind and playful”, that she
likes the hugs he gives her, and that she would like to extend the time she
spends with her father to include overnight
time, indicate that there is a
meaningful relationship between X and her father. It does indicate a close and
loving relationship,
though the evidence before the Court on the interim hearing
does not allow an evaluation of that relationship beyond that point or,
and it
is not necessary in any case, a comparison of X’s meaningful relationship
with each of her parents.
- Is
there a risk to X in her father’s care such that it is unacceptable and
needs to be mitigated by her time with her father
being “...supervised
for a period of no less than two months from the date of orders”, as
sought by the mother, and to not include any overnight time, as sought by both
the mother and the ICL?
- The
mother asserts in her evidence and her submissions that the father is affected
by mental health issues that require him to undergo
psychiatric assessment and
that, in the current circumstances, presents an unacceptable risk to X that can
only be mitigated by the
orders for supervision and daytime only time between
father and daughter. The evidence does not support that assertion. There is
certainly no diagnosis of any mental health issue affecting the father. The
evidence relied upon by the mother and the ICL’s
in order to ground a need
for psychiatric assessment of the father, and the making of orders addressing an
unacceptable risk, is
not enough.
- The
evidence presented by the mother of statements made to her by the father
following separation, that caused her concern in relation
to his mental health,
are not such as to cause me to find that there is a risk to X in the
father’s care without supervision
and/or overnight in consequence of any
mental health issues. The father denies having said, “Chinese spies are
after me.” The father does not address in his evidence the assertion
by the mother that shortly after separation he said to her words
to the effect
of “I went to Suburb U cliff,” and, “I am hearing
voices.”
- In
effect, that evidence is part contested and part not contested. In any event I
find that the evidence presented by the mother is
not such as to ground a
finding of risk. To the contrary, the evidence contained in the documents
produced on subpoena by Ms O, psychologist,
tend very much to the contrary. I
note that there is no suggestion therein of concern in relation to the
father’s mental health
and certainly no suggestion of a diagnosis.
- The
mother asserts a risk to X in the father’s unsupervised care and at all
overnight consequent upon what she asserts is a
lack of parenting capacity on
the part of the father, including:
- His
inability, failure or refusal to provide appropriate food for X; and
- His
failure on an occasion to collect X from school on time.
I find that the evidence does not ground any risk,
certainly not unacceptable risk, to X in her father’s care, unsupervised
or overnight, in relation to his parenting capacity.
- The
mother asserts a risk to X in the father’s unsupervised care and at all
overnight in consequence of the family violence
perpetrated by the father to
both X and the mother during cohabitation and following separation. The mother
asserts that the father
dealt in a dangerous manner with X when she was a baby
by pulling her hair hard and by smacking her on the head. Those assertions
are
denied by the father. The evidence is conflicting. The assertion in relation to
pulling hair is not specifically dealt with by
the father, but the
father’s evidence is to the effect that he denies that he has ever been
violent towards the child.[36] I
cannot make a finding in relation to that matter on the interim basis, but I
must not disregard it. No pulling of a child’s
hair is lawful. No striking
of a child on the head, or anywhere above the neck and shoulders, is lawful.
However, the mother does
not make any assertions of violence by the father to X
at any time past the asserted incident.
- X
is now eight years and five months of age (she was seven years and seven months
of age at the interim hearing) and is assessed by
the Family Consultant to be a
“...talkative and smart child...”. X would certainly be able
to report any inappropriate dealing with her by her father in the nature of
inappropriate physical
discipline, and has been able to do so since the parties
separated. However, there is no evidence from the mother of any such incidents
coming to light between separation and the interim hearing. X patently has no
fear of her father, but rather has a wish to spend
more time with him, including
overnight time.
- I
find that there is no risk to X in spending unsupervised time and overnight time
with her father consequent upon any risk of physical
violence perpetrated by the
father on X. That is not to discount or ignore the conflicting evidence between
the parties in relation
to family violence asserted to have been perpetrated on
the mother by the father, but with the evidence thereon being conflicting
I
cannot make a finding at the present time.
- In
taking all of the evidence in relation to family violence into account, and in
considering what parenting orders are properly to
be made with the interests of
X as the paramount consideration, I find that it would be appropriate to make an
order restraining
both parties from physically disciplining X in any way, noting
that such an order is proposed by the ICL and agreed to by both parents.
- I
find that there is no unacceptable risk to X when in her father’s
unsupervised care, including overnight. What that time should
be in X’s
best interests I will consider later in these reasons.
Section 60CC – the additional considerations
- I
have referred to X’s views as expressed to the Family Consultant and noted
in the Child Inclusive Conference memorandum to
Court earlier in these reasons.
[37]That evidence included that X
would like to extend the time she spends with her father to include overnight
time and that she indicated
that if she does not feel comfortable during that
time she will speak to her mother, get a hug from her father and feel more
comfortable
and settled.
- At
the time of her interview in the Child Inclusive Conference, X was seven years
and four months of age and not of an age where her
wishes are a particularly
weighty or determinative factor in considering what parenting orders are
properly being made with her best
interests as the paramount consideration.
However, I do take her wishes as expressed in the Child Inclusive Conference
memorandum
to Court into account and give them some weight.
- I
have already made findings above in relation to the nature of the relationship
of X with each of her parents.[38]
It is in X’s interest to be able to maintain and develop her relationship
with her father. The nature of her relationship would
have been inhibited
between June 2017 and the interim hearing (and up to the present time) by reason
of her only being in her father’s
care during the daytime and not
overnight. I find that the nature of the relationship between X and her father
supports the making
of interim orders for her to spend some overnight time with
her father and that such orders would allow that relationship to be placed
on a
more normal parent/child footing. That is in X’s best interests.
- There
is no evidence to indicate that the father has failed to take every opportunity
afforded to him by his arrangements with the
mother and then by interim orders,
to spend time with and communicate with
X.[39] I have no evidence in
relation to participation by the father in decisions relating to long-term
issues for X other than in relation
to her attendance for counselling with her
school counsellor, in relation to which the father asserts that he was not
consulted by
the mother.
- The
father pays child support as assessed for X and, on his evidence, sought to keep
X covered by his private health insurance until
that responsibility was taken
over voluntarily by the mother.[40]
He asserts that he voluntarily pays other money for X’s benefit, being
half the cost of her extracurricular activities. Other
than the support provided
by the father as outlined, all of X’s financial support and maintenance is
met by her mother.
- If
orders are made for X to spend overnight time with her father, then there will
be a change in her circumstances in that she will
have more time with her father
and less time with her mother, and in particular
overnight.[41] I find that there is
nothing in the evidence to ground a finding that such a change would be to
X’s detriment, but rather I
find that such a change will be to X’s
benefit in enabling her to pursue her relationship with her father on a more
normal
parent/child basis by including the night time and morning routines that
come with overnight time.
- There
is no evidence to indicate that there is any practical difficulty or expense
involved in X spending time with or communicating
with her
father.[42] The mother living at
Suburb C and the father at Suburb F means that the parents live in fair
proximity to each other and the proposal
of the ICL, and referred to by the
mother in paragraph 78 of her affidavit, that changeovers occur in front of Ms
B’s Shop
in Suburb C is accepted by both parties.
- I
find that it is appropriate to maintain that changeover arrangement and not to
make an order that provides for the father to commence
his time with X by
collecting her from school in consequence of the asserted, but untested,
evidence that the father was on an occasion
late to collect X from school,
leading to the school needing to contact the mother to collect X.
- The
capacity of each of X’s parents to provide for her needs, including her
emotional and intellectual needs, has been considered
earlier in these reasons
when I considered the mother’s assertion that the father lacks parenting
capacity.[43]
- The
mother patently has capacity to provide for X’s needs and there is no
evidence that she has failed to provide for all of
her needs whilst being her
full-time carer on all overnight occasions since the parties separated and for
most of X’s days
in that time.
- There
is conflicting evidence in relation to the father’s attitude to providing
appropriate food for X during her time with
him, but no complaint was made by X
to the Family Consultant.[44]
However, as the evidence in this regard is conflicting, and I must take serious
notice of the evidence presented by the mother in
this regard, I find that it
would be appropriate on the interim basis to make an order requiring the father
to provide appropriate
nutritious food for X at all regular mealtimes while X is
in his care.
- X
has a mixed Country E and Country D cultural background, with X and each of her
parents being of the religion omitted
faith.[45] The mother asserts that
there is conflict between the parties as to the degree of involvement by each of
X in her religion omitted
faith, but she does not give particular evidence in
that regard. The father gives evidence that he has and would support X’s
religious upbringing in her faith.
- I
have traversed earlier in these reasons the largely conflicting evidence between
the parties relating to family violence and have
examined the issue of family
violence as an asserted unacceptable risk for X in her father’s
unsupervised or overnight care.[46]
It does not require reconsideration here. There are no family violence orders
between the parties or involving either of the parties.
Parental responsibility
- Neither
the mother nor the ICL seek an interim order relating to parental responsibility
for X. The father seeks an interim order
that the parties have equal shared
parental responsibility for X.
- Section
61DA of the Act mandates that when making a parenting order 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. That presumption does not apply if
there are reasonable grounds to
believe that a parent of the child has engaged in abuse of the child or family
violence. The presumption
may be rebutted by evidence that satisfies the Court
that it would not be in the best interests of the child for the child’s
parents to have equal shared parental responsibility for the child. The section
further provides that when the Court is making an
interim order the presumption
applies unless the Court considers it would not be appropriate in the
circumstances for the presumption
to be applied when making that order.
- If
the Court considers on the interim basis that it is not appropriate in the
circumstances for the presumption to be applied when
making the order, and there
is no existing interim or final order that the parents have equal shared
parental responsibility for
the child, then section 61C of the Act continues to
apply and the parents each have parental responsibility for X.
- The
evidence between the parties in relation to assertions of family violence is
largely conflicting, but there is sufficient concession
by the father for me to
making a finding that there are reasonable grounds to believe that the father
has engaged in family violence.
Such concessions include his admission that he
broke a coffee table in frustration at the mother’s shouting during the
relationship
and his admission to the Family Consultant, as reported in the
memorandum, that he has said things to the mother that he should not
have and
has screamed at her and called her names and “That it is a possibility
that he threatened to kill [the mother]”.
- Accordingly,
I find that the presumption does not apply.
- I
find on the current state of the evidence that it is appropriate to leave the
situation in relation to parental responsibility as
provided for in section 61C
of the Act pending the final hearing of these proceedings or final orders by
consent.
- As
I am not making an order that parents have equal shared responsibility for X,
and as there is no order current that provides that,
I am not required to
consider the matters set out in section 65DAA of the Act relating to equal time
and substantial and significant time.
What orders are proper?
- Based
upon my consideration of the primary and additional considerations in section
60CC of the Act and my consideration of the whole of the evidence relied upon in
the interim hearing, including the submissions made on
behalf of each of the
parties and the ICL both in written submissions in the case outlines and oral
submissions at the interim hearing,
I find that it is appropriate to make orders
for the father to spend time with X without a condition of supervision being
imposed.
- I
find that it is appropriate that such time between the father and X include
overnight time, and so more than that proposed by the
mother and the ICL, but
that initially it not be to the extent of double overnight each alternate
weekend as proposed by the father.
I find that it would be in the best interests
of X for the time to be for one overnight each fortnight for a period of four
months
and then two consecutive overnights per fortnight pending final hearing.
I find that it is appropriate for the time between X and
the father to include
Thursday afternoons from 4.00PM until 8.00PM, with changeovers to be outside Ms
B’s shop at Suburb C
and not by collection from school as proposed by the
father.
- I
find that it is not appropriate to make orders as sought by the father in
relation to school holidays that would provide for him
to have half of the term
1, 2 and 3 school holidays and half of the long school holiday at the end of
term 4. Rather, I find that
it is appropriate that he have three consecutive
nights with X during the school holidays at the end of term 3 in 2020 and two
individual
weeks during the Christmas school holidays at the end of term 4 2020,
and thereafter half of the school holidays pending final hearing.
- I
find it is appropriate for the father to have telephone communication with X on
two occasions each week, to occur between 6.45PM
and 7.15PM, with the father to
initiate the call. In consequence of the state of the relationship between the
parents I find that
it is appropriate to define the times each week for such
calls to be on Monday and Wednesday evening each week.
- I
find that it is appropriate to make all of the orders proposed by the ICL that
were agreed to by both of the parties, being orders
3.4 to 3.6 inclusive, 5 (but
not 5.6 or 5.7 or 5.8 relating to drugs and alcohol, for the reasons stated
earlier in these reasons),
and 6 to 16 inclusive.
- Included
in the orders proposed by the ICL, that I have indicated I will make, is the
order requiring the father to obtain a mental
health assessment report from a
psychiatrist of his choosing and to provide the assessment to the mother and the
ICL. The assessment
must address stated topics. The order will authorise the
father to provide for that psychiatrist a copy of any parenting orders made
by
the Court and also provide the Child Inclusive Conference memorandum dated 8 May
2019. This would seem to be in conflict with
the findings I have made in
relation to the father’s mental health, but as the matter has all the
appearance of going to final
hearing and the father clearly signified, through
his solicitor advocate, his consent to those orders, I will make the orders so
that there will be further expert evidence available to the Court on that
topic.
- As
indicated earlier in these reasons I will make a final order, by consent, that X
live with her mother. I will also make an interim
watchlist order by
consent.
- I
will not make an order in relation to parental responsibility.
- I
consider that it is appropriate to indicate that it was brought to my attention
that the Family Report ordered by me on 13 May 2019
has been prepared and sent
to Chambers for release prior to preparation of these reasons. I have not read
the contents of that Family
Report in order to confirm that it is appropriate to
release it, and I have not included it in formulating these reasons or the
orders
to be made on the interim basis. The Family Report was not part of the
evidence on interim hearing and no application has been made
to the Court to
reopen the interim hearing to move the Court to consider the Family Report in
relation to the interim hearing.
- Accordingly,
I make the orders as set out at the start of these reasons.
I
certify that the preceding one hundred and thirty-seven (137) paragraphs are a
true copy of the reasons for judgment of Judge
Morley
Associate:
Date: 15 July
2020
[1] Affidavit of the father sworn 7
August 2019, [12].
[2] Family
Law Act 1975 (Cth) s
63(1)(ba).
[3] Family Law Act
1975 (Cth) s 10J.
[4] Affidavit
of the mother sworn 22 July 2019,
[63].
[5] Affidavit of the mother
sworn 22 July 2019, [64].
[6]
Affidavit of the mother sworn 22 July 2019, [30].
[7] Affidavit of the mother sworn
22 July 2019, [31].
[8] Affidavit
of the mother sworn 22 July 2019,
[43].
[9] Affidavit of the father
sworn 7 August 2019, [40(b)] and [53].
[10] VR & RR [2002] FamCA 320; [2002]
FLC 93-099, Marvel & Marvel [2010] FamCAFC 101; [2010] 43 Fam LR
348.
[11] Deiter &
Deiter [2011] FamCAFC
82.
[12] MRR & GR
[2010] HCA 240; Goode & Goode (2006) FLC 93-286; Marvel &
Marvel [2010] FamCAFC 101; (2010) 240 FLR
367.
[13] Family Law Act
1975 (Cth) s 60B.
[14]
Family Law Act 1975 (Cth) s 65D(1).
[15] Family Law Act 1975
(Cth) s 65D(2).
[16]
Family Law Act 1975 (Cth) s
60CC.
[17] Family Law Act
1975 (Cth) s 61DA.
[18]
Family Law Act 1975 (Cth) s
60B.
[19] Family Law Act 1975
(Cth) s 65DAA(1)(a).
[20]
Family Law Act 1975 (Cth) s
65DAA(1)(b).
[21] Family Law
Act 1975 (Cth) s
65DAA(1)(c).
[22] Grella &
Jamieson [2017] FamCAFC 21.
[23] Grella &
Jamieson [2017] FamCAFC 21,
[18].
[24] M & M
[1988] FamCA 11; (1988) FLC 91-973.
[25] A
& A & The Child Representative [1998] FamCA 25; (1998) 22 FamLR 756, [3.23] to
[3.25].
[26] Napier &
Hepburn [2006] FamCA 1316; (2006) FLC
93-303.
[27] Johnson &
Page [2007] FamCA 1235; (2007) FLC 93-344.
[28]
Deiter & Deiter [2011] FamCAFC 82,
[61].
[29] Eaby &
Speelman [2015] FamCAFC
104.
[30] SS & AH
[2010] FamCAFC 13 (Boland, Thackray, and O’Ryan
JJ).
[31] SS & AH
[2010] FamCAFC 13,
[100].
[32] Eaby &
Speelman [2015] FamCAFC 104 (Thackray, Ryan, and Forrest
JJ).
[33] Eaby & Speelman
[2015] FamCAFC 104,
[19].
[34] Family Law Act
1975 (Cth) s 60CC(2).
[35]
Family Law Act 1975 (Cth) s
60CC(2)(a).
[36] Affidavit of the
father sworn 7 August 2019,
[41].
[37] Family Law Act
1975 (Cth) s 60CC(3)(a).
[38]
Family Law Act 1975 (Cth) s
60CC(3)(b).
[39] Family Law
Act 1975 (Cth) s
60CC(3)(c).
[40] Family Law
Act 1975 (Cth) s
60CC(3)(ca).
[41] Family Law
Act 1975 (Cth) s
60CC(3)(d).
[42] Family Law
Act 1975 (Cth) s
60CC(3)(e).
[43] Family Law
Act 1975 (Cth) s
60CC(3)(f).
[44] Family Law
Act 1975 (Cth) s
60CC(3)(i).
[45] Family Law
Act 1975 (Cth) s
60CC(3)(g).
[46] Family Law
Act 1975 (Cth) s 60CC(3)(j),(k).
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