Acker & Acker (No.2) [2020] FCCA 2222 (12 August 2020)

Last Updated: 2 September 2020

FEDERAL CIRCUIT COURT OF AUSTRALIA

ACKER & ACKER (No.2)

[2020] FCCA 2222

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

Legislation: Family Law Act 1975 (Cth), ss.60CC, 69ZL

Cases cited: Rice & Asplund [1978] FamCAFC 128; (1979) FLC 90-725

Applicant:

MR ACKER

Respondent:

MS ACKER

File Number:

PAC 2031 of 2019

Judgment of:

Judge Newbrun

Hearing date:

7 August 2020

Date of Last Submission:

7 August 2020

Delivered at:

Parramatta

Delivered on:

12 August 2020

REPRESENTATION

Solicitors for the Applicant:

Ms El Baba - El Baba Lawyers Pty Ltd

Solicitors for the Respondent:	Ms Shilson-Gosling - Legal Aid NSW Bankstown Family Law
Solicitors for the Independent Children’s Lawyer	Ms Bevan - Sarah Bevan Family Lawyers

ORDERS

(1) The Father’s Application in a Case filed 22 April 2020 is dismissed.

IT IS NOTED that publication of this judgment under the pseudonym Acker & Acker (No.2) is approved pursuant to s.121(9)(g) of the Family Law Act 1975 (Cth).

FEDERAL CIRCUIT COURT OF AUSTRALIA AT PARRAMATTA

PAC 2031 of 2019

MR ACKER

Applicant

And

MS ACKER

Respondent

REASONS FOR JUDGMENT

1. This is the determination of the Father’s Application in a Case filed 22 April 2020 in which he seeks orders, inter alia, that he now begin to spend unsupervised time with the children, or in the alternative, that he spend supervised time with the children supervised by the paternal aunt.
2. Interim parenting orders were made by the Court on 10 December 2019 effectively providing that the children continue to spend supervised time with the Father.
3. The subject children are X, aged 8 years, and Y aged almost 7 years.
4. The Mother opposes the Father’s above proposed orders.
5. The Court now provide short form reasons under s69ZL of the Family Law Act 1975 (Cth) (the Act) in relation its determination of the Father’s said Application in a Case.
6. The Court refers to its interim reasons for judgment on 10 December 2019 and related orders, again, effectively providing that the children continue to spend supervised time with the Father pursuant to the Court’s previous orders of 2 July 2019. The Orders of 2 July 2019 provided that the children spend supervised time with the Father through E Families professional supervisory service for no less than three hours each Sunday afternoon.
7. The Father relied upon his case outline of 18 pages prepared by his solicitor. He relies upon the documents set out on page one of that case outline.
8. The Mother relied upon her case outline filed 31 July 2020 and the documents referred to on pages one and two of that case outline.
9. There were some documentary Exhibits in evidence at this interim hearing: Exhibit A being the child inclusive conference memorandum dated 2 October 2019; Exhibit B being the family report dated 5 August 2020, and Exhibit C, being the Father’s tender bundle of documents.
10. As to relevant legal principle in respect to the conduct of interim hearings, the Court refers to the reference to legal principles set out in its previous judgment dated 10 December 2019. And the Court also refers to the decision in Rice & Asplund [1978] FamCAFC 128; (1979) FLC 90-725, relating to the important issue at this interim hearing as to whether there has been a significant change in circumstances since the Court’s decision of 10 December 2019.
11. The Court refers to the family report, whilst acknowledging it remains untested.
12. The child X was not interviewed by the family report writer, although she observed that his interaction with the Father indicated he had an established relationship with the Father, indeed with both parents.
13. The child Y told the family report writer that she wanted to spend time with each parent on a regular basis. The family report writer commented that given this child’s age and apparent stage of development it was recommended that her stated views be given little determinative weight on the outcome of the parenting proceedings.
14. It is not without relevance that the Mother reported to the family report writer that Y had displayed some challenging behaviours in the school environment, and the Father had identified concerns that this child may be bullied at school. This child identified that she had been given multiple warnings at school for misbehaviour. The family report writer commented that it may be possible that this child’s reported difficulties at school are indicative, inter alia, of exposure to parental and familial conflict and/or family violence.
15. The family report writer stated that the Mother’s allegations against the Father of a history of threatening behaviour, physical assault, and coercion of sexual activity by him during the relationship may be consistent with coercive controlling family violence. She stated that the Father’s account appears to be more consistent with poorly managed conflict between them.
16. The family report writer stated that if the Court determines that the Father has perpetrated coercive controlling violence, the Court could consider making orders for the children spending limited or no time with the Father depending on the severity and veracity of the family violence allegations. (Paragraph 118) The Court would interpolate at this point that the family report writer’s recommendations made at page 34 of her report, paragraph 133, states, “Unless the evidence before the Court suggests otherwise, particular in relation to family violence, it is recommended that orders be made to the children spend time with the Father from Friday to Monday alternative week.” (Court’s underlining)
17. The family report writer stated that if the Court accepts that the Mother meets the diagnostic criteria for PTSD that it is possible that the impact of the children spending time with the Father will lead to heightened stress and anxiety, and she may be re-traumatised each time the children spend time with the Father. She stated that if the Mother experiences an increase in PTSD symptoms, then this may negatively impact her parenting capacity.
18. The family report writer stated at paragraph 122 that there were some concerning features in the Father’s interviews and information provided from the children’s contact service, including the Father’s Affidavit filed 20 July 2020. She noted that while this information was yet to be tested in Court, it would appear that the Father has been engaging in leading questions with the children about Mr A Acker. The family report writer stated that it would appear that the Father had difficulties in responding to the children in a way that provided the children with a non-blaming narrative that manages their expectations about why they spend limited time with him and if, or when, they may be able to spend more time with him. She stated that this may cause difficulties in the children’s relationships with one or both parents.
19. The Court would interpolate at this point, in relation to the above paragraph 122 in the family report, by reference to those parts of the E Families reports drawn to the Court’s attention by the solicitor for the Mother, that there is a significant suggestion that the Father, on occasion, during supervised time with the children, continues to inappropriately engage the children in the parental dispute. For example, there is a suggestion arising from the contact reports that the Father has on occasion had discussions with one or both of the children relating to the prospect of spending unsupervised time with him. Accordingly, that issue remains a cause of concern to the Court, again noting that that issue was a cause of concern to the Court in its earlier interim judgment of 10 December 2019.
20. The family report writer stated that if orders were made for the children to continue to spend supervised time with the Father that this would facilitate the children having ongoing relationship with him and provide for them the opportunity to spend time with the Father and the paternal brother each week. She stated however that ongoing and limited supervised time limits the opportunity for the children to spend increased periods of time with and it limits the possibility of the children having their Father meaningfully engage in their day-to-day life. She stated that supervised time was also generally only suitable on an interim basis.
21. The family report writer stated that the current co-parenting relationship between the parties is poor, there is limited communication between them, and there seems to be high levels of mistrust. The parties each assert that the uncooperative co-parenting relationship is the fault of the other, and it appears that this poor parenting dynamic has been long-standing.
22. In the view of the Court, having considered the material before the Court at this interim hearing, there has not been a significant change in circumstances justifying the Court, acting in the best interests of the children, making fresh parenting orders as sought by the Father. The Court remains of the view that there continues to exist an unacceptable risk of harm (both physical and/or psychological) posed to the children in spending unsupervised time with the Father.
23. A submission was made by the solicitor for the Mother that the Father had failed to attend a relevant parenting after separation course in compliance with order 3 of the Court’s orders of 10 December 2019. In oral submissions at this interim hearing, the solicitor for the Father had submitted that the Father had only completed the Triple P parenting course because of the Covid 19 pandemic restrictions, and the Court is willing to accept this submission accordingly.
24. Nevertheless, it is not without relevance, in the context of the Court remaining of the view that there exists an unacceptable risk of harm posed to the children in spending unsupervised time with the Father, that the solicitor for the Father informed the Court that the Father had not participated in a men’s behaviour change program because he denied the Mother’s allegations of family violence.
25. The solicitor for the Father, in support of the Father’s application to now spend unsupervised time with the children, made submissions to the effect that the children, during their supervised visits with the Father, were expressing their love for the Father and their wish to spend increased time with him. The Court recognises that there is a significant suggestion, on the material presently before the Court at this interim hearing, that that is the case. However, that does not remove the Court’s concern that there remains an unacceptable risk of harm posed to the children in spending unsupervised time with the Father. In this context, the Court observes that the need to protect primary consideration under s60CC of the Act is to be given greater weight than the meaningful relationship primary consideration under s60CC of the Act.
26. Further, the solicitor for the Father submitted that the existing three hours per week supervised time spent by the children with the Father is insufficient for the children to maintain their meaningful relationship with the Father. The Court does not agree with this submission. On the material before the Court, albeit that the children wish to spend increased time with the Father, there is a significant suggestion that they are enjoying spending their supervised time with the Father and that their meaningful relationship with the Father is being maintained through such supervised time. The family report writer’s comments in this context are consistent with that view.
27. The solicitor for the Father submitted that when one considers the content of the E Families contact reports, relating to the children’s supervised time with the Father to date, there is no indication that the children have been exposed to any risk of harm during such supervised time with the Father. In this context, the Court refers to its discussion above, that on occasion during supervised visits the Father has sought to engage the children in the parental dispute, and the Court refers to the submissions made by the solicitor for the Mother in this regard. Whilst there is no suggestion in the contact reports that the Father has posed a risk of physical harm to the children, one must have regard to the fact that these are supervised visits, with the Father’s conduct being observed by the supervising officer and reports being made accordingly.
28. The solicitor for the Father submitted that when one considered the supervision contact reports in relation to the children’s interaction with the Father, those interactions are inconsistent with the children having been previously exposed to alleged coercive and controlling family violence perpetrated by the Father towards the Mother. With respect, those interactions between the children the Father are not necessarily inconsistent with the children allegedly having been exposed to alleged coercive and controlling family violence perpetrated by the Father against the Mother. For example, the family report writer stated that it is possible that Y’s reported behavioural difficulties at school are indicative of emotional responses to a variety of issues, including possible exposure to family violence. The family report writer also stated at paragraph 131 of the family report that some of the child X’s reported difficulties may be the result of, inter alia, exposure to (alleged) family violence.
29. The Father, in the alternative, seeks an order that the paternal aunt supervise the children’s time with him. Her Affidavit does not indicate that she has been made aware and understands the content of the Mother’s family violence allegations made against the Father. Nor does it acknowledge that she is aware of the Mother’s concerns that the Father has sought to involve the children in the parenting dispute. The Court has a significant concern that the Father’s sister may not be able to act protectively towards the children if supervision is afforded by her accordingly. Such concern would remain even if the Father’s sister was merely to supervise the children spending time with the Father during the daytime.
30. The Father, through his solicitor, drew attention to the Father’s material relating to his financial constraints arising out of paying for supervision fees on ongoing basis.
31. The Father refers to the E Families proposed charge of some $373 for a two-hour visit on Easter Sunday, 12 April 2020. There is a suggestion that this fee was increased by reason of the public holiday weekend at this time. The Father expresses his concern, in his Affidavit sworn 16 April 2020 and filed 22 April 2020, that it has been financially difficult for him to pay for each supervised contact visit on a weekly basis. He expresses his concern that he will not be able to pay for the supervised visits in the coming months. The Court observes that the Father spent supervised time with the children after 16 April 2020 and, by inference, was able to afford the cost of such supervised time, on 19 April 2020, 26 April 2020, 3 May 2020, 17 May 2020, 24 May 2020, 31 May 2020, 28 June 2020, 5 July 2020, 12 July 2020. The Father does not refer to whether or not he has sought or is obtaining government assistance by reason of his difficulties in finding employment since early 2020, and in relation to his asserted financial problems with his business. The Court is not satisfied that the Father is unable to continue paying the cost of supervised time with E Families.
32. The Father’s seeks an order that the Mother facilitate the children’s attendance at a children’s psychologist for the purpose of undertaking a psychological assessment of the children. In his Affidavit filed 22 April 2020, he states, inter alia, that he is of the view that a report from a psychologist is necessary to assess the impacts of the children’s limited time with him in a supervised environment.
33. The Court observes that the Mother informed the family consultant at the Child Inclusive Conference on 1 October 2019 (the Court observing that the children’s supervised time with the Father commenced in about mid July 2019) that the child X had received some psychological support from a psychologist Ms F at Psychology Practice C at Suburb G. The Mother told the family consultant that Ms F also helped her develop different strategies on managing the children’s behaviour. The Mother told the family consultant that X’s behaviour had settled over the last few months.
34. In this context, the Court takes into account that no recommendation was made by the family consultant in her Child Inclusive Conference memorandum to Court dated 2 October 2019 that the children be assessed by a psychologist, the children having been interviewed by the family consultant, whilst acknowledging that by this date the children had only been spending supervised time with the Father for about 2 ½ months.
35. Further in this context, turning to the content of the family report, with interviews for the family report having taken place in July 2020, the Court notes that the child Y was interviewed by the family report writer, but not the child X, and that the children were both observed interacting with each of the parents.
36. Further, the Court observes that the Father was interviewed by the family report writer in relation to the child X. Inter alia, the Father told the family report writer that this child has not presented to him with the described difficulties as reported by the Mother. The Mother told the family report writer that the child X had been diagnosed with ADHD in March 2020 and has been prescribed medication to assist in his management of this condition. She also reported that this child has weekly or fortnightly appointments with a psychologist, Ms F, to assist with this child’s reported emotional and behavioural difficulties. (The Court interpolates at this point that the Father has made no application to the Court that this child cease such psychological appointments) She stated that this child was due to be reviewed by his paediatrician in July 2020, as the Mother was concerned that the medication may not be assisting him. The Mother reported to the family consultant that over the last few months this child’s behavioural difficulties have settled. She reported that the feedback from school also suggested that this child’s behaviour in the school environment had improved.
37. The Court acknowledges that the Mother asserted in her Affidavit filed 23 June 2020 that X’s behavioural issues increased over the last year. She had also asserted in that Affidavit that following the consultation with X’s paediatrician in March 2020 and the Mother having the child ingest an ADHD medication, such medication has helped to regulate his hyperactivity and to calm him down. The Court also refers to the Mother’s comments in that Affidavit as to the children seeing the psychologist, Ms F. The Mother asserted in this context that she is aware that the Father wants the children to be assessed by a different psychologist. She asserts that the children have an established relationship with Ms F and have been supported by her for over 12 months. She asserts that the children have a therapeutic relationship with the psychologist and that psychologist has been providing the children with a great deal of support.
38. The family report writer stated, in paragraph 126, that it may be advantageous to the child X if the Father can access some support from this child’s treating psychologist on strategies to support X (the Court interpolating here that the Father sought no such order in this context).
39. The Father told the family report writer that he was aware that the child Y sees a psychologist and that he has been excluded from being involved with her treatment. The Mother told the family report writer that this child attends weekly or fortnightly appointments with Ms F. The family report writer stated that it may be beneficial for this child Y to continue to access such support. The Court interpolates at this point that the Father has sought no order that such attendance upon a psychologist by Y cease.
40. The Court takes into account that there is no recommendation by the family report writer that the children attend upon a children’s psychologist for a psychological assessment, in particular to assess the impacts of the children’s limited time with the Father in a supervised environment, apart from the family report writer’s comments as to the children continuing to attend upon their present treating psychologist. The family report writer specifically alluded to, on an interim basis, supervised time between the children and the Father facilitating the children having ongoing relationship with him. The family report writer expressed no concern and/or made no recommendation, as to the children possibly suffering emotional or psychological harm should they continue on an interim basis to spend supervised time with the Father.
41. The Court is not satisfied, having considered all the material presently before the Court, that it will be in the best interests of the children to make the Father’s proposed order that the children attend upon a children psychologist for the purpose of undertaking a psychological assessment of the children.

I certify that the preceding forty one (41) paragraphs are a true copy of the reasons for judgment of Judge Newbrun

Associate:

Date: 12 August 2020