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Bond & Dalton (No.2) [2020] FCCA 2978 (3 November 2020)

Last Updated: 19 November 2020

FEDERAL CIRCUIT COURT OF AUSTRALIA

BOND & DALTON (No.2)


Catchwords:
FAMILY LAW – Parenting – interim hearing – children aged 8 and 5 years – where the children were living with the father for six nights per fortnight – where the mother ceased the father’s time in September 2020 – where the mother alleges that the children are at risk of physical harm in the father’s care – where the mother seeks orders for the father’s time to be supervised and reduced to an alternate weekend arrangement – where the father seeks unsupervised time with the children on a week about arrangement – assessment of risk – previous arrangement reinstated without the requirement for supervision.


Legislation:

Cases cited:
Deiter & Deiter [2011] FamCAFC 82
Goode & Goode (2006) FLC 93-286
Marvel & Marvel [2010] FamCAFC 101


Applicant:
MS BOND

Respondent:
MR DALTON

File Number:
ADC 5490 of 2019

Judgment of:
Judge Kari

Hearing date:
23 September 2020, 23 October 2020

Date of Last Submission:
23 October 2020

Delivered at:
Adelaide

Delivered on:
3 November 2020

REPRESENTATION

Counsel for the Applicant:
Mr Anderson

Solicitors for the Applicant:
Mitcham Family Law

Counsel for the Respondent:
Mr Richards

Solicitors for the Respondent:
Diane Myers Family Lawyers

ORDERS

(1) That until further order the children X (born 2011) and Y (born 2015) do live with each of the parents as follows:

(a) With the father from the conclusion of school Monday until 3pm Sunday in each alternate week commencing 9 November 2020; and

(b) With the mother at all other times.

(2) That the children spend time with the parties on special occasions as follows:

(a) With the father from 4pm Christmas Eve until 4pm on Christmas Day;

(b) With the mother from 4pm Christmas Day and thereafter until the father’s time pursuant to paragraph 1(a) herein resumes on 4 January 2021;

(c) With the father on X’s birthday in the year 2020 from the conclusion of school until 6.30pm; and

(d) At such other times as agreed between the parties in writing.

(3) That by consent the parties be restrained and an injunction is granted restraining each of them from:

(a) Discussing these proceedings or the allegations made in these proceedings with the children or in the presence of the children or permitting any other person to do so;

(b) Criticising and/or denigrating the other parent or members of his/her household to or in the presence of the children or permitting any other person to do so; and

(c) Physically disciplining the children or permitting any other person to do so.

(4) That by consent the parties and each of them do provide the children with all medication which may be prescribed for each of them from time to time (including the administration of Ritalin to X) and follow all reasonable recommendations and advice of the children’s treating medical practitioners.

(5) That the father forthwith enrol, attend and complete:

(a) The Parenting Centre B J parenting programme, and upon completion of the same file and serve an affidavit annexing a certificate of completion; and

(b) “Anger management” counselling with either Mr C or Mr D of E treatment centre and thereafter file and serve a report with respect to such counselling upon the completion of the same.

(6) That for the purposes of the anger management counselling, the father shall provide a copy of the following to the counsellor:

(a) A copy of the affidavit material filed in these proceedings since 16 September 2020; and

(b) A copy of these reasons.

(7) The by consent the parties do all such things as may be reasonably required to enable a Family Assessment to be carried out with respect to the competing applications for parenting orders before the Court, with such Assessment and the Report arising thereafter:

(a) To include interviews with the children and, at the discretion of the expert, observed interaction of the children with any relevant adult person in addition to the parties as the expert considers appropriate;

(b) To be carried out by Ms F;

(c) To be at the joint and equal expense of the parties; and

(d) To be released to the parties no later than 30 April 2021.

(8) The Family Assessment Report to deal with the following matters:

(a) Any views expressed by the said children and any factors (such as the said children’s maturity or level of understanding) that would affect the weight that the Court should place on those wishes;

(b) The matters set out in ss.60CC, 61DA and 65DAA of the Family Law Act 1975; and

(c) Any other matters that the expert considers important to the welfare or best interests of the said children.

(9) The solicitors for the parties’ forward copies of all documents filed with the Court and all Orders made in these proceedings and these reasons to the nominated report writer in accordance with the directions of the expert.

(10) The parties do all things necessary to facilitate the completion of the report by the expert, including making themselves available for appointments by expert and executing any authorities for the release of information to the expert and/or the Independent Children’s Lawyer.

(11) The expert be at liberty to liaise with any person in relation to the welfare of the children.

(12) The parties be restrained from providing any documents (other than those filed with this Court or Orders made in these proceedings) to the expert without providing a copy to the other party and/or the Independent Children's Lawyer, such copy to be provided no less than seven (7) days prior to any appointments with the expert (NOTING the expert has the discretion to accept or reject the document so provided to them).

(13) That the Applicant file and serve a copy of the Report within 48 hours of receipt of the same.

(14) That following the release of the Report the parties and properly instructed counsel do participate in a mediation at their joint and equal expense, with the identity of the mediator to be agreed within 28 days.

(15) That the proceedings be listed for Mention on 3 May 2021 at 9:30am.

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

FEDERAL CIRCUIT COURT
OF AUSTRALIA
AT ADELAIDE

ADC 5490 of 2019

MS BOND

Applicant

And

MR DALTON

Respondent


REASONS FOR JUDGMENT

Introduction

  1. These proceedings relate to two young children, X who is almost nine years of age (born 2011) and Y who has just turned five years of age (born 2015).
  2. The parents are in dispute as to their children’s living arrangements in circumstances where until approximately 14 September 2020 the children were living in close to a shared care arrangement by agreement. The exact arrangements for the children until that time were that they would live with the mother for eight nights and with the father for six nights each fortnight; namely from the conclusion of school on Monday until 3pm Sunday of each alternate week.
  3. As and from 14 September 2020 the mother considered that the children were unsafe in the father’s care and she did not facilitate the parenting arrangements. The mother commenced these proceedings immediately thereafter on 16 September 2020.
  4. The mother’s position is that the children’s time with the father should be supervised and otherwise reduced to an alternate weekend time spending arrangement.
  5. The father’s position is that there is no need for his time to be supervised and that the children should immediately move to a week-about shared care arrangement; something that the parties are said to have agreed previously would commence in 2021.
Background
  1. While this is the first time that parenting proceedings have been before the Court, these parents are no strangers to litigation. Until very recently they were engaged in litigation in this Court regarding financial issues from December 2019 until a final order were made by consent on 2 September 2020; approximately a fortnight prior to the mother commencing these parenting proceedings.
  2. In those earlier proceedings I delivered a judgment on 7 August 2020 with respect to interim financial issues. At paragraphs 3 to 5 of that decision I set out the following by way of background:
3. The brief background of the parties and their relationship is as follows:
  1. The de facto husband was born 1976 and he is 43 years of age.
  2. The de facto wife was born 1982 and she is 38 years of age.
  1. The parties began living together in a de facto relationship on 10 December 2009.
  1. There are two children of the relationship namely X born 2011, who is 8 and a half years of age, and Y born 2015, who is 4 and a half years of age.
  2. There is some conjecture between the parties as to when they actually separated. The de facto wife asserts that separation took place on 16 December 2017, whereas the de facto husband asserts that separation took place on 11 May 2017, there having been a brief period of separation between 2 to 13 November 2016.
  3. There appears to be no dispute between the parties that from approximately December 2017 the children have lived and continue to live between the parties in a shared care arrangement, whereby they spend eight nights per fortnight with the de facto wife and six nights per fortnight with the de facto husband.
4. So far as the litigation is concerned, there are only financial issues before the Court. From that I would have to infer that the parties are content with the parenting arrangements and that they each anticipate that they will continue in the long term.
5. The de facto wife commenced proceedings when she filed an Initiating Application on 13 December 2019. She did so just prior to the expiration of the two year time limitation period provided for in s 44(5) of the Family Law Act 1975 (Cth) “in order to preserve the position in respect of the property settlement”[1] and hopeful that the parties would ultimately “be able to resolve matters without the involvement”[2] of the Court.
  1. Against that backdrop, the timing of the parenting issues coming before the Court is of some significance, particularly from the father’s perspective.
  2. When the final orders for property settlement were made, the Court had no awareness that there were any problems with respect to parenting issues. Indeed, it is the father’s position that he was taken completely by surprise when the parenting arrangements quickly unravelled after the making of the final orders on 2 September 2020.
  3. As a consequence of all of these factors, it is the father’s position that the mother’s motivation for now raising her concerns about the parenting arrangements and him requires some scrutiny.

The allegations
  1. While the parenting arrangements visibly unravelled on 14 September 2020, it is the mother’s position that troubles had long been present. In particular, when she commenced these proceedings she pointed to the following in her affidavit (filed 14 September 2020):
    1. That there had been an incident when the children had been in the care of the father that was disclosed to her by X on 6 September 2020 after spending time with the father.

While the mother did not in that affidavit disclose the detail of that disclosure (purportedly on the advice of South Australian Police), it is now known that the incident took place on 24 July 2020. I shall separately set out later in these reasons the details of that incident.

Suffice to say at this juncture that it was that incident which caused the mother to commence these proceedings.

  1. That in late November 2019 the child X had been “taken to the Hospital G for spinal scans while in the father’s care.”[3] The mother deposed that the father had texted her a photo of X on 3 December 2019 and that X had told her that he had fallen off the father’s bed while “having tickles”.[4] The mother deposed to the bedroom where the fall was said to have occurred as being carpeted.
  1. That on 17 May 2020 the child X had “circular burn marks to his chest”[5] that looked like “they could have been made by a lit cigarette.”[6] The mother also deposed that X had told her that the burns had occurred when hot embers had been flung at him during a bonfire by the child of the father’s new partner. In addition X is alleged to have disclosed that he and Y had been left unsupervised by the father and his new partner during the bonfire.
  1. That on the same weekend in May 2020 Y suffered a broken tooth in the care of the father. However Y had been unable to tell the mother how the tooth had been damaged.
  2. That on 31 May 2020 Y returned to the care of the mother with an egg-shaped injury to his forehead, and he is alleged to have disclosed to the mother that “he had trod on his father’s foot and his father became angry and kicked him into the air and he fell on his brain. He said he also hurt his hip.”[7] This incident lead to the mother taking Y to his General Practitioner and a mandatory report was made.
  1. While not specifically spelt out by the mother, the context in which the incidents to which I have just referred were raised (under the heading “Children returning from father’s care with injuries”), the clear tenor the mother wished to convey was that the Court should be concerned about the father’s conduct and physical harm of the children, and that accordingly the children were at risk of harm in the father’s care.
  2. In addition with respect to the incident in November 2019 it could also be inferred that the mother was making a complaint that the father had delayed in telling her and that he had not been forthcoming in explaining what had occurred.
  3. In her affidavit filed 14 September 2020, the mother also deposed to concerns about the father’s “anger management”, particularly during the relationship. To that end she deposed that the father “directed his anger physically towards X and verbally towards me.”[8] The most significant of the allegations that the mother detailed in that portion of her affidavit was said to be an incident which took place around the time of separation on 31 October 2016, which also resulted in a mandatory report being made by X’s General Practitioner. The allegation made by the mother is that the father had “slapped X to the top of his leg leaving a red welt mark... in the shape of his hand.”[9] The mother also alleges that she had to scream at the father to stop and get out of X’s room, and that when the father departed he had punched a hole in X’s bedroom wall.
  4. When read together, the picture cast by the mother’s affidavit of 14 September 2020 was undoubtedly that the children were at risk of harm in the father’s care and in particular physical harm.
  5. Indeed, the mother pointed to all of these incidents in support of her interim application being heard on an ex parte basis, together with among other things orders restraining the father from removing the children from her care and effectively approaching her or the children or being within 200 metres of them. In that application the mother did not seek any interim time spending orders between the children and the father.
  6. By the time that the interim hearing took place on 23 September 2020 and continued on 23 October 2020, the events of 24 July 2020 had been made clearer to the Court in circumstances where the mother had deposed to the details of X’s disclosure, the father had deposed his version of events, the paternal grandmother who was present during the incident had deposed her version of events, and I had the benefit of records produced pursuant to a subpoena to the South Australian Police, which included details of statements taken during the course of their investigation including from both parents, the child, the paternal grandmother and X’s school teacher.
  7. It is also important to note that the investigation opened by SAPOL appears to have arisen as a consequence of the September 2020 disclosure made by X, but included an investigation of the incidents which were said to have taken place on 24 July 2020, 31 May 2020 (forehead injury), 17 May 2020 (burn and tooth injuries) and 29 November 2019 (fall off the bed and spinal scans). The SAPOL investigation was ultimately closed with no charges being laid against the father due to concerns amongst other things of “coaching”.[10]
  8. Pulling the threads of all of the sources of evidence together at this interim stage as best as I can presently ascertain:
    1. There was an incident on 24 July 2020 involving the father and X during a family dinner at the home of the father’s partner at which the paternal grandmother and her partner were also present.
    2. The incident appears to have taken place as a consequence of X misbehaving and refusing to go to his room when the father admonished him.
    1. The father has admitted that he “held X firmly by the arm and walked him into his room and shut the door. X was screaming and kicking the door.”[11] Although I note that when interviewed by police on or about 14 September 2020 the father indicated that he did not know how X got from the dining room to the bedroom, but acknowledged that it was likely that he had “dragged him into his room by taking hold of his hand.”[12]
    1. The father admits to holding X down on the bed by the wrists in an attempt to stop him “screaming and thrashing around”[13]
    2. The paternal grandmother then entered the room and saw the father holding X on the bed by the wrists and asked the father to let go of him.[14]
    3. The father then left the room.
    4. X ultimately spent that evening and the next evening at the home of the paternal grandmother.
    5. The father was upset with the paternal grandmother during the events on 24 July 2020 as he considered the paternal grandmother was undermining his parenting.[15]
  9. The mother has alleged that the father “strangled “X during this incident and that the father was “very drunk”.[16] This is an allegation that was also made by X when he had is record of interview with SAPOL,[17] and in a discussion that he had with his school teacher as conveyed by her to SAPOL during her interview.[18] These however are allegations which are denied by the father, and the paternal grandmother and are not ones about which I am able to make any findings at this stage.
  10. When the father filed his affidavit on 18 September 2020 he specifically responded to the allegations regarding the incidents that had taken place commencing in November 2019 and through to May 2020 as previously identified.
  11. In relation to the November 2019 incident the father deposed that:
    1. X had fallen off the bed while the father was tickling both children.
    2. X had complained of not feeling his feet so the father immediately called triple zero at approximately 20.25pm, and then the paternal grandmother who was a “theatre sister” and was living next door at that time.
    1. The father also called his aunt who is a medical practitioner and she cared for Y while the father accompanied X to the hospital by ambulance; his aunt taking a photo of the father and both children at that time.
    1. The father called the mother at 21.24pm but she did not answer.
    2. At 21.26pm the mother sent the father a text which read “I am at an event. Are the boys ok?”.
    3. The father responded to that text “No, at Hospital G with X. Low level spine, Waiting for scans”. Followed by a further text “X-ray done waiting result.” Followed by a further text “No serious concern at this time.” Followed by a further text “I will need X’s private health info from the card please.”
    4. The mother responded at 22.35pm “X is #02 on the card.”
    5. The father then sent the mother three text messages between 23.17pm and 00.28am of the following day updating the mother about the injury and that it was “soft tissue only” and that they were “home and in bed”.
    6. It does not appear that the mother responded to those texts, but the parents ultimately spoke on the phone for almost ten minutes at approximately 10.41 am.
    7. That same day the father also sent the mother by text the photo that his aunt had taken of X and the father (holding Y) standing by the barouche the previous evening, and not on 3 December as the mother had alleged.
  12. In relation to the burn incident on 17 May 2020 the father deposed:
    1. That he did not know that X had burn marks until reading the mother’s affidavit.
    2. That the children were not ever left unattended during the bonfire and X did not ever complain to him of a burn.
  13. In relation to the tooth incident that same weekend the father deposed:
    1. The mother had sent him a text on 18 May 2020 enquiring when the children’s teeth had last been checked and commenting that Y’s tooth was chipped.
    2. The father responded identifying that the children’s last appointment was in November 2019.
    1. The father then took the children to see his step-father who is a dentist.
    1. Y’s dental notes record a “chip disced” which was smoothed out.
  14. In relation to the alleged kicking incident on 31 May 2020 the father deposed:
    1. That he had taken the children for a walk at location H.
    2. X was chasing Y, when Y ducked in front of the father and tripped, knocking his head on the concrete and bruising his hip.
    1. The father did not know that the mother subsequently took the children to the doctor or that a mandatory report made.
  15. In relation to the incident around the time of separation in 2017:
    1. The father deposed:
      1. That he had “spanked X on the leg” and that it was the only time that he has ever spanked X.
      2. That he was ashamed of having done so.
    2. The father was silent as to the allegation that he had punched a hole in X’s bedroom wall.
  16. The material produced by SAPOL detailing their interviews and investigations confirm that the father gave very similar versions of events to SAPOL with respect to the incidents between November 2019 and May 2020 as to that which he deposed in his affidavit filed in these proceedings.

The legal principles

  1. In parenting cases both at an interim or final hearing stage, the paramount consideration of the Court is the best interests of the subject children.[19]
  2. In order to determine what is in a child’s best interests, the Court is guided by those factors set out in s 60CC of the Family Law Act 1975 (Cth) (“the Act”), as follows:

(ii) the likely impact any proposed parenting order under this Part will have on that right;

(i) the attitude to the child, and to the responsibilities of parenthood, demonstrated by each of the child’s parents;

(k) if a family violence order applies, or has applied, to the child or a member of the child’s family—any relevant inferences that can be drawn from the order, taking into account the following:

  1. The Act also contains a presumption that it is in a child’s best interests for his or her parents to have equal shared parental responsibility,[20] however:
    1. The presumption is specifically rebutted and not to be applied in situations relating to abuse and/or family violence; and/or
    2. At an interim stage of proceedings, the Court has the discretion not to apply the presumption if the Court “considers that it would not be appropriate in the circumstances for the presumption to be applied...”[21]
  2. If the presumption of equal shared parental responsibility is to be applied, then the Court is required to consider whether the child should spend equal time with each of their parents provided that any such equal time arrangements are in the child’s best interest and are reasonably practicable.[22]
  3. In Goode & Goode (2006) FLC 93-286 (“Goode & Goode”) at 82, the Full Court set out the “legislative pathway” that is to be followed in interim parenting cases as follows:
  4. While the Full Court identified in Goode & Goode (at paragraph 68)
  5. This does not mean to say that the Court cannot and should not at an interim stage of the proceedings make findings, but rather that caution should be taken when doing so.
  6. The Full Court have considered the question of the making of findings at an interim stage of proceedings in a series of cases.
  7. The decision of the Full Court in SS & AH [2010] FamCAFC 13, was cited with approval by the Full Court in Marvel & Marvel [2010] FamCAFC 101 (“Marvel”) (and in turn Marvel has been cited with approval by the Full Court in Eaby & Speelman [2015] FamCAFC 104). In Marvel at paragraph 120, the Full Court commented:
  8. The Full Court went on to say (at 122-123):
  9. These comments from the Full Court should also be read in the context of the difficulty facing a decision maker at an interim stage where an assessment of risk needs to be undertaken. In Deiter & Deiter [2011] FamCAFC 82 (“Deiter & Dieter”), The Full Court set out (at paragraph 61):

Discussion

  1. During the interim hearing counsel for the mother directed the Court to the decision of Deiter & Deiter, and drew attention to the passage I have identified above. The mother’s counsel submitted that the father presented as an unacceptable risk of harm. The risk identified on behalf of the mother was said to be that the father has an “inability to control his emotions and an inability to control his anger.”[23] In addition, the mother’s counsel positively eschewed the proposition that the father was deliberately harming the children.
  2. Turning to the assessment of risk identified by the Full Court in Deiter & Deiter, and despite the interim nature of these proceedings, I am satisfied that the incidents that are said to have taken place on 19 November 2019, the weekend of 17 May 2020 and 31 May 2020 are not ones about which any concern can be raised with respect to the father.
  3. I am satisfied that this is the case for a range of reasons including:
    1. The admission by the mother’s counsel during the course of submissions, particularly on 23 October 2020, that these were not the events which were the focus of the mother’s current concerns, but rather that the incident at the time of separation and the incident of 24 July 2020 were the mother’s principal concern.
    2. The father’s explanations (supported by the information gathered during the SAPOL investigation) as to what had occurred on each of those occasions; and in particular the father’s detailed response as to the text messages sent on 19 November 2019 which significantly undermine the impression the mother sought to cast in relation to that incident.
    1. The SAPOL records, which among other things record concerns about the mother’s coaching and telling the children to “lie”, including a report from X’s school teacher that X had told her “that his mum was wanting him to tell lies about dad when Y tripped over the brick, by saying dad had kicked or pushed Y,”[24] and that X could not understand why the mother wanted him to tell police about the bonfire incident as he and Y were “fine”.[25]
  4. In relation to the incident on 24 July 2020, the mother’s counsel urged the Court to accept that there was a serious incident that day, and that on any view the father had behaved inappropriately aggressively towards X, requiring the intervention of the paternal grandmother to diffuse the situation.
  5. As identified earlier in these reasons, at this interim stage I am limited in the findings that I am able to make regarding this incident, and I accordingly limit my findings to those that I have earlier identified.
  6. In relation to the incident at the time of separation, there can be no question that the father has admitted to slapping X that day, and that he has not responded to the specific allegation made by the mother that he punched a hole in X’s bedroom wall.
  7. While these are two specific occasions which on their face might give the Court cause for concern, the significance of those incidences in the assessment of risk must be weighed in the context of the second step as identified in Deiter & Deiter, namely the “severity of the impact caused by those events”.
  8. At this stage, it would appear that the incident that took place around the time of separation, while serious, is not one which caused the mother ongoing concern for the children’s safety. I consider that I am able to form that preliminary view because had the mother feared for the children’s safety in the care of the father, then she very likely would have taken a different approach to the father’s time spending. In particular if the mother was concerned about the children’s safety in the care of the father, the mother would not have implemented the shared care arrangements and there would not have been a largely amicable co-parenting relationship that existed until the inception of these proceedings; as evidenced by the perfectly proper communications between the parents on 19 and 20 November 2019.
  9. Indeed, the father’s counsel submitted that up until the inception of the parenting proceedings the mother positively endorsed that there were no concerns with respect to the parenting arrangements, she having done so on several occasions as follows:[26]
    1. At paragraph 50(a) of her Initiating Application filed 16 December 2019 where she answered “no” to the question as to whether there were any “child welfare issues”.
    2. At paragraphs 43, 44, 50 and 51 of her affidavit filed in support of that application where the mother detailed the consensual shared care arrangements without raising any concerns.
    1. At paragraph 50(a) of her Amended Initiating Application filed 3 June 2020 where she again answered “no” to the question as to whether there were any “child welfare issues”, which was supported by an affidavit which again did not raise any concerns about the consensual parenting arrangements.
  10. These are submissions that have some merit in relation to the severity of the impact of the incident that took place at the time of separation.
  11. So far as the incident on 24 July is concerned the ultimate impact of that incident is hard to discern for a range of reasons, including the significant delay between the children raising the incident with the mother, the subsequent focus that has been placed on the incident by the mother and the matters raised in the SAPOL investigation.
  12. The father’s position is that any assessment of risk should be seen through a prism which includes:
    1. The mother’s innuendo that the father has behaved inappropriately regarding the incidents between November 2019 and May 2020, which he says is misleading; and
    2. The delays in the mother bringing any matters of concern to the attention of the father or the Court until immediately after the property settlement orders were made on 2 September 2020.
  13. Taken at its highest, one view might be that the severity of the impact of the incident on the mother is significant, because she has sought to immediately raise her concerns and done so both through making a report to SAPOL, suspending the father’s time with the children and bringing these proceedings.
  14. However the impact of this incident on the mother is not the only consideration. Of equal importance is the impact of the incident on the children.
  15. It is not clear to me at this stage, what if anything, I am to make by the fact that the children did not raise this incident with the mother until some several weeks later.
  16. I am mindful however that when interviewed by SAPOL, X’s teacher identified that she could not offer any information that “X is fearful of his father”, and that the July incident appeared to be a “one off”.[27]
  17. At this juncture, and in the absence of oral evidence from the parents and relevant witness’, I am unable to totally dismiss the mother’s concerns regarding this incident, however nor am I able to conclude that the father presents as an unacceptable risk of harm to the children.
  18. This would seem to be supported by the position advanced by the mother with respect to the children’s time with the father moving forward, from which I must infer is that the risk is one that can be managed and mitigated by:
    1. Limiting the father’s time to weekend time only;
    2. Imposing supervision requirements on the father’s time;
    1. Imposing a requirement that the father undertake anger management counselling and a “J” counselling programme; and
    1. Injunctions restraining both parties among other things from physically disciplining the children or permitting others to do so.
  19. Turning to the relevant additional considerations set out in s 60CC of the Act:
    1. It would appear to me that both of these parents have been involved in all areas of these children’s lives and that they have trusted each other to appropriately make decisions about the children; be that education, health and medical treatment and the like as evidenced by the information contained in the SAPOL record of interview with X’s teacher, together with the communications between the parents over the chipped tooth in May 2020 and the spinal scans.
    2. It would also appear that at least since separation, until recent times, both parents have considered that the other of them were able to appropriately meet the needs of the children, had that not been the case they would not have implemented a shared care arrangement.
    1. Until recent times both children have lived in a largely shared care arrangement, and I can only opine as to what impact has been occasioned to the children by the disruption to that settled arrangement by the recent events; particularly as I do not have the benefit of expert evidence in this regard.
    1. Having said that however, it is of some concern that X’s teacher has reported that since the SAPOL investigation became known to X in September 2020, X has been worried, and he had been observed by her to want to go home with his teacher rather than the mother and that he had been sticking close to his teacher’s “side” and told her that he felt “worried at night”.[28]
    2. It is of additional concern that X has also disclosed to his teacher his awareness that his mother does not want his father to have “50/50 custody.”[29]
  20. At this interim stage I decline to make any orders with respect to parental responsibility.
  21. In light of all of the matters that I have discussed, on balance it is my view that the children’s time with the father be reinstated without the requirement for supervision; bearing in mind that the father has been having supervised time since the hearing on 23 September 2020 without any reported concerns by 23 October 2020, as to how the children have managed the reintroduction of their time with the father.
  22. I do however consider it appropriate to make orders requiring the father to undertake some courses together with the mutual injunctions promoted by the mother (the latter of which I note I am able to make by consent).
  23. The parties have also promoted specific orders for special occasions, including Christmas. I am mindful that these arrangements were not the focus of detailed submissions, and accordingly I propose to deal with Christmas with reference to where the rotation of the children’s time with each parent presently falls.
  24. For all of these reasons I make those orders that appear at the commencement of these reasons.

I certify that the preceding sixty-two (62) paragraphs are a true copy of the reasons for judgment of Judge Kari

Associate:

Date: 3 November 2020

[1] Mother’s affidavit filed 13 December 2019, paragraph 2.
[2] Ibid paragraph 3.
[3] Mother’s affidavit filed 14 September 2020, paragraph 17.
[4] Ibid paragraph 21.
[5] Ibid paragraph 22.
[6] Ibid.
[7] Mother’s affidavit filed 14 September 2020, paragraph 26.
[8] Ibid paragraph 28.
[9] Ibid paragraph 34.
[10] Response to the Notice of Risk from the Department of Child Protection dated 17 September 2020
[11] Father’s affidavit filed 23 September 2020, paragraph 11.
[12] Exhibit F1, page 7.
[13] Father’s affidavit filed 23 September 2020, paragraph 12.
[14] Paternal grandmother’s affidavit filed 22 September 2020, paragraph 11.
[15] Exhibit F1, page 7.
[16] Mother’s affidavit filed 22 September 2020, paragraph 20.
[17] Exhibit F1, pages 5, 8.
[18] Exhibit F1, page 9.
[19] Family Law Act 1975 (Cth), s 60CA.
[20] Section 61DA.
[21] Section 61DA(3).
[22] Section 65DAA.
[23] Transcript 23 September 2020, page 6, lines 32-37.
[24] Exhibit F1, pages 4, 9.
[25] Exhibit F1, page 9.
[26] Written submission on behalf of the father dated 22 October 2020, pages 2-3.
[27] Exhibit F1, page 9.
[28] Exhibit F1, page 9.
[29] Ibid.

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