FEDERAL CIRCUIT COURT OF AUSTRALIA
| ALESCO & CLARKSON | [2018] FCCA 3867 |
| Catchwords: FAMILY LAW – Interim parenting – parental responsibility – spend time orders – supervision or unsupervised time. |
| Legislation: Family Law Act 1975 (Cth), ss.4, 60CA, 60CC, 61DA, 65DA |
| Cases cited: Goode & Goode [2006] FamCA 1346 |
| Applicant: | MR ALESCO |
| Respondent: | MS CLARKSON |
| File Number: | SYC 1199 of 2018 |
| Judgment of: | Judge Kemp |
| Hearing date: | 18 December 2018 |
| Date of Last Submission: | 18 December 2018 |
| Delivered at: | Sydney |
| Delivered on: | 24 December 2018 |
REPRESENTATION
| Solicitors for the Applicant: | Marsden Law Group |
| Counsel for the Respondent: | Mr Apostle |
| Solicitors for the Respondent: | Papantoniou Blake Lawyers |
Independent Children's Lawyer: | Morton Family Lawyers |
THE COURT ORDERS, PENDING FURTHER ORDER, THAT:
There be no order as to parental responsibility for the child, [X] born …2014 (“the child”).
By consent, the child live with the mother.
The child spend time with the father, as follows:
(a)From 10.00am Saturday 29 December 2018 until 5.00pm Saturday, 29 December 2018;
(b)From 5.00pm Tuesday, 1 January 2019, until 5.00pm Wednesday, 2 January 2019;
(c)From 5.00pm Saturday, 5 January 2019, until 5.00pm Sunday, 6 January 2019;
(d)From 5.00pm Saturday, 12 January 2019 until 5.00pm Sunday, 13 January 2019;
(e)Commencing 18 January 2019, each alternate weekend from 5.30pm on Friday until 8.30am the following Monday;
(f)Commencing 23 January 2019, each alternate week from 5.30pm on Wednesday until 8.30am the following day;
(g)During the NSW School Holiday periods (in terms 1, 2 and 3) from 9.00am on the first Saturday to 9.00am on the second Saturday with the time in orders 3(e) and (f), above, suspended.
(h)On Father’s Day weekend from 5.30pm Friday to 8.30am Monday.
(i)At any other times as may be agreed between the parties in writing.
Notwithstanding any other order herein, the child spend time with the mother as follows:
(a)On Mother’s Day weekend from 5.30pm Friday to 8.30am Monday.
All changeovers, not occurring at a day care centre, shall take place with the mother to deliver the child to the father at Suburb A McDonald's at the commencement of the child spending time with the father and with the father to deliver the child to the mother at Suburb B McDonald's at the conclusion of his time with the father.
By consent, the parties have reasonable and liberal telephone contact with the child at the set times from 7.00pm to 8.00pm on Monday and Wednesday.
By consent, the parties be restrained by injunction from using any physical discipline on the child.
By consent, the parties use their best endeavours to ensure that no other person uses any physical discipline on the child.
By consent, the parties be restrained by injunction from denigrating the other party or members of their family and friends to the child or in the presence of the child or at all.
By consent, the parties use their best endeavours to ensure that no other person denigrates the other party or members of their family and friends to the child or in the presence of the child.
The parties be restrained by injunction from allowing the child to call any person other than the father, “father” or an equivalent, and any person other than the mother, “mother” or equivalent.
By consent, the mother be restrained, by injunction, from relocating the child from outside the Greater Western Sydney area, without the written consent of the father.
By consent, the mother be restrained by injunction from taking the child to her partner, Mr D’s place of work, in circumstances that might expose the child to risk.
By consent, each party be restrained by injunction from discussing these proceedings with or in the presence of the child or show to the child any document connected with these proceedings.
By consent, for the purpose of communicating information about the child, the parties shall:
(a)communicate by text or email about matters of an urgent nature; and
(b)communicate by email or text message about day to day matters including arrangements of each party to spend time with the child.
By consent, each party advise the other party and keep the other party advised of their current contact telephone numbers, email address and advise the other party of any changes to these details within 24 hours of such change occurring.
By consent, each party shall ensure that the other is kept informed of:
(a)any medical problems or illnesses suffered by the child while in their care;
(b)any medication that has been prescribed for the child;
(c)any social, school or religious functions which the child is to attend; and
(d)any other matter relevant to the child’s welfare.
By consent, within 14 days of these orders and within 14 days of the child’s subsequent enrolment at any child care, family day care or school (“the facility”), the mother will do all acts and things and give the irrevocable authorities necessary to ensure that, whichever facility the child may attend from time to time, that the facility forward directly to the father copies of all of the child’s reports, extra-curricular activities and other achievements.
Both parents be entitled to attend all events involving the child, including but not limited to:
(a)extra-curricular activities that allow for parental attendance; and
(b)functions and events that allow for parental attendance, including but not limited to concerts and social functions and the parent who has the child in their care on the day of such an activity will be responsible for their day to day care at such an event and the child’s transportation to and from the event unless otherwise agreed to, in writing, between the parties.
In the event either parent wishes to take the child on a holiday interstate within Australia then the parent proposing such holiday shall notify the other parent no less than 14 days prior to the departure date of such proposed trip and shall provide to the other parent at that time particulars including the proposed itinerary, the address of where the child will be staying and the proposed period of such trip.
By consent, each of the parties by themselves, or their servants and agents, are restrained from removing or attempting to remove or causing or permitting the removal of the child from the Commonwealth of Australia.
By consent, the child is hereby restrained from leaving the Commonwealth of Australia.
By consent, it is requested that the Australian Federal Police give effect to the preceding orders by placing the name of the said child on the Airport Watch List in force at all points of arrival and departure in the Commonwealth of Australia and maintain the child’s name on the Watch List for a period of 2 years.
Upon expiration of the period referred to in order 23 and subject to any further order of a Court of competent jurisdiction, the Australian Federal Police will immediately cause the removal of the child’s name from the Watch List.
The father’s costs of and incidental to his interim application are reserved.
The matter be adjourned to 24 June 2019 at 9.30am for mention.
IT IS NOTED that publication of this judgment under the pseudonym Alesco & Clarkson is approved pursuant to s.121(9)(g) of the Family Law Act 1975 (Cth).
| FEDERAL CIRCUIT COURT OF AUSTRALIA AT SYDNEY |
SYC 1199 of 2018
| MR ALESCO |
Applicant
And
| MS CLARKSON |
Respondent
REASONS FOR JUDGMENT
Introduction
These are parenting proceedings commenced by the father in terms of his Initiating Application filed on 27 February 2018 seeking final and interim orders for the child of the parties' relationship, [X], born …2014, currently aged 4 years (“the child”) and as updated in terms of his proposed minute of order, being Exhibit “A”, as follows:
1)That pursuant to Section 67ZD of the Family Law Act, the mother surrender forthwith to the Registrar of this Court any passport that the mother holds for the child of the marriage or any other passport which would enable the child of the marriage to be removed from the Commonwealth of Australia.
2)That the parents shall have equal shared parental responsibility for the child.
3)That the child live with the mother.
4)That the child spend time with the father as agreed, however, failing agreement as follows:
a. Each alternate weekend from 5.30pm Friday to 8.30am Monday.
b. Each intervening Wednesday from 5.30pm until 8.30am Thursday.
c. During the NSW School Holiday periods, (a) and (b), above, be suspended and instead:
i.In each of the short Term 1, 2, and 3 school holiday periods from 9.00 am on the first Saturday to 9.00 am on the second Saturday; and
ii.In the long Term 4 school holiday periods from 9.00 am on the third Saturday to 9.00 am on the sixth Saturday.
d. On special occasions:
i.For Christmas 2018 and each alternate year thereafter from 10.00 am on 25 December to 10.00 am on 26 December;
ii.For Christmas 2019 and each alternate year thereafter from 5.30 pm on 24 December to 10.00 am on 25 December;
iii.On New Year’s Eve 2018 and each alternate year thereafter from 5.30 pm on 31 December to 10.00 am on 1 January;
iv.On the child’s birthday each year:
1. If it falls on a weekday and the child is otherwise living with the mother, from 3.00 pm or the conclusion of school until 6.30 pm, or as otherwise agreed between both parties in writing.
2. If it falls on a non-school day and the child is otherwise living with the mother, from 9.00 am until 4.30 pm, or otherwise agreed between both parties in writing.
v.On Father’s Day weekend from 5.30 pm Friday to 8.30 am Monday.
e. At any other times as may be agreed between the parties in writing.
5) Notwithstanding any other order herein, the child spend time with the mother as follows:
a. On the child’s birthday each year:
i.If it falls on a Friday that the child is scheduled to spend time with the father for weekend, from 3.00 pm or the conclusion of school until 6:30 pm, or as otherwise agreed between parties in writing.
ii.If it falls on a non-school day and the child is scheduled to spend time with the father, from 9:00 am until 4:30 pm, or as otherwise agreed between both parties in writing.
b. On Mother’s Day weekend from 5.30 pm Friday to 8.30 am Monday.
c. For Christmas 2018 and each alternate year thereafter from 5.30 pm on 24 December to 10.00 am on 25 December;
d. For Christmas 2019 and each alternate year thereafter from 10.00 am on 25 December to 10.00 am on 26 December;
e. On New Year’s Eve 2019 and each alternate year thereafter from 5.30 pm on 31 December to 10.00 am on 1 January;
6) The mother is to deliver the child to the father at Suburb A McDonald's, at the commencement of the child spending time with the father and the father is to deliver the child to the mother at Suburb B McDonald's, at the conclusion of his time with the father.
7) That the parties have reasonable and liberal telephone contact with the child.
8) That the parties be restrained by injunction from using any physical discipline on the child.
9) That the parties use their best endeavours to ensure that no other person uses any physical discipline on the child.
10) That the parties be restrained by injunction from denigrating the other party or members of their family and friends to the child or in the presence of the child or at all.
11) That the parties use their best endeavours to ensure that no other person denigrates the other party or members of their family and friends to the child or in the presence of the child.
12) That the parties be restrained by injunction from allowing the child to call any person other than the father “father” or an equivalent, and any person other than the mother “mother” or equivalent.
13) That the mother be restrained by injunction from relocating the child from where he resides or removing the child from his previous environment without the written consent of the father.
14) That the mother be restrained by injunction from taking the child to her partner Mr D’s place of work.
15) That each party be restrained by injunction from discussing these proceedings with or in the presence of the child or show to the child any document connected with these proceedings.
16) That for the purposes communicating information about the child the parties shall:
a. Communicate by telephone about matters of an urgent nature;
b. Communicate by email or text message about day to day matters including arrangements of each party to spend time with the child.
17) That each party advise the other party and keep the other party advised of their current contact telephone numbers, email address and residential address and advise the other party of any changes to these details within 24 hours of such change occurring.
18) That each party shall ensure that the other is kept informed of:
a. Any medical problems or illnesses suffered by the child while in their care;
b. Any medication that has been prescribed for the child;
c. Any social, school or religious functions which the child is to attend; and
d. Any other matter relevant to the child’s welfare.
19) That within 14 days of these Orders and within 14 days of the child’s subsequent enrolment at any child care, family day care or school the mother will do all acts and things and give the irrevocable authorities necessary to ensure that, whichever school the child may attend from time to time, that the school forward directly to the father copies of all of the child’s school reports, extra-curricular activities and other achievements.
20) That both parents be entitled to attend all events involving the child including but not limited to:
a. Sporting fixtures.
b. Extra-curricular activities that allow for parental attendance.
c. School functions and events that allow for parental attendance, including but not limited to concerts, school assemblies, sports days, parent/teacher interviews, canteen duty and social functions and the parent who has the child in their care on the day of such an activity will be responsible for their day to day care at such an event and the children’s transportation to and from the event unless otherwise agreed to between the parties.
21) That each party advise the other of all details of any sporting clubs, teams, events, games or other extra-curricular activities that the child is involved in.
22) That in the event of the child being hospitalised or receiving medical attention, the parent spending time with the child shall notify the other parent as soon as practicable after the contact with either the medical practitioner, medical centre or hospital.
23) That in the event either parent wishes to take the child on a holiday interstate with Australia then the parent proposing such holiday shall notify the other parent no less than 14 days prior to the departure date of such proposed trip, and shall provide to the other parent at that time particulars including the proposed itinerary, the address of where the child will be staying and proposed period of such trip.
24)That the mother meet the father’s costs of and incidental to the proceedings.
The Respondent mother sought her own final and interim parenting orders in terms of her Response filed 15 May 2018, as updated by her minute of proposed orders, being Exhibit “1”, which sought orders to the following effect:
(1)The child live with the mother.
(2)The child spend time with the father as follows:
(a)every week for not less than 3 hours at the Region 1 Contact Centre with each party to pay the fee indicated by the centre for the purpose of such time; or
(b)in the event that 3 hours is not available at the Region 1 Contact Centre in a given week, any time not provided by the Region 1 Contact Centre shall be at an alternative location and supervised by a person nominated by the mother. For the purpose of this order, the mother shall use her best endeavours to provide a location and supervisor that is acceptable to the father;
(c)by telephone every Monday and Wednesday on speaker supervised by the mother with the mother to telephone the father for the purpose of said telephone time between 7 pm and 9 pm;
(d)on Boxing Day in 2018 for a period of not less than 3 hours but up to 6 hours at the home of the maternal grandmother, supervised by the maternal grandmother; and
(e)at other times as agreed.
The Independent Children's Lawyer sought interim parenting orders, as set out in Exhibit “ICL1”, as follows:
(1)The child spend time with the father as follows:
(a)from 5 pm Friday, 21 December 2018 until 5 pm Saturday, 22 December 2018
(b)from 5 pm on 25 December 2018 until 5 pm on 26 December 2018
(c)from 5 pm Friday, 28 December 2018 until 5 pm Saturday, 29 December 2018
(d)from 5 pm Tuesday, 1 January 2019 until 5 pm Wednesday, 2 January 2019
(e)from 5 pm Saturday, 5 January 2019 until 5 pm Sunday, 6 January 2019
(f)commencing 11 January 2019 each alternate weekend from 5.30 pm on Friday until 8.30 am the following Monday
(g)commencing 16 January 2019 each alternate week from 5.30 pm on Wednesday until 8.30 am the following day.
(h)during 2019 for two block periods of one week to include any time pursuant to orders (f) and (g) above.
(2)That all changeovers not occurring at a day care centre, shall take place at a mutually agreed, public venue.
In terms of the father's proposed orders, the parties were able to reach substantial agreement, as set out in Exhibit “Court 2”. That exhibit records that the mother agreed to the father's proposed orders 3, 7 (with the amendment to stipulate set times from 7.00am to 8.00pm Monday and Wednesday), 8, 9, 10, 11, 13 (with the amendment that the mother be restrained by injunction from relocating the child outside the greater Western Sydney area without the written consent of the father), 14 (with the amendment by the addition of the words "in circumstances that might expose the child to risk), 15, 16 (with the amendment to delete telephone and substitute the words "text" or "email"), 17 (with the deletion of the words "and residential address"), 18 and 19, 21 and 22. The father did not pursue costs in 24 as they were not pressed on that day but the Court will reserve his costs position. Those identified orders can, therefore, be made by consent, noting that, under s.60CC(5) of the Family Law Act (“the Act”), the Court is not required to have regard to any or all of the matters set out in sub-section (2) or (3), when the Court is considering whether to make an order with the consent of all of the parties to the proceedings.
Accordingly, the father continued to pursue his proposed orders 1, 2, 4, 5, 6, 12, 20 and 23, as set out in paragraph 1 above. The Court was informed, however, that the parties would agree to the terms of order 6, as set out in paragraph 1 above, if the Court was minded to provide unsupervised time for the father.
On 19 December 2018, the Court made orders, by consent, that the father and his extended family could spend time with the child on 26 December 2018, from 9.00am to 1.00pm at Suburb A Park, with the father not to remove the child from that Park and with a changeover to be effected at the café at the Park. The mother and/or her current partner, Mr D were to deliver the child to the father but not to be present for the duration of the father’s time.
The Court indicated to the parties, given resourcing issues, that it would not entertain a number of proposed orders, particularly those which extended for a significant period of time into the future. In that regard, in terms of the father’s proposal, the Court did not deal with order 1, given that the mother conceded that she had never applied for a passport for the child, notwithstanding the father signing documents for her to obtain such a passport. This issue was then dealt with by way of a conceded injunction and Airport Watchlist order in terms of orders 21 to 24, as out in the commencement of these reasons. In regard to order 4(c)(ii), as set out in paragraph 1, above, the Court was of the view that as the matter would be adjourned before it, prior to the necessity to deal with the long term school holiday periods being for Christmas in 2019, those matters could be considered at a later date. A similar position was adopted in relation to orders 4(d)(ii) and (iii) and 5(c), (d) and (e) (relating to Christmas/New Year’s Eve in 2019), 4(d)(iv) and 5(a) (given that the child’s birthday next occurs in … 2019). The Court, however, will provide for Father’s Day and Mother’s day time periods.
Principles to be applied and procedure to be followed
The Full Court of the Family Court of Australia in Goode & Goode [2006] FamCA 1346 sets out a number of procedural steps to be followed on an interim application, namely:
(a) identifying the competing proposals of the parties;
(b) identifying the issues in dispute;
(c) identifying any agreed or uncontested relevant facts;
(d) considering the matters in s.60CC that are relevant and, if possible, making findings about them (in interim proceedings there may be little uncontested evidence to enable more than a limited consideration of these matters to take place);
(e) deciding whether the presumption in s.61DA that equal shared parental responsibility is in the best interests of the child applies or does not apply because there are reasonable grounds to believe there has been abuse of the child or family violence or, in an interim matter, the Court does not consider it appropriate to apply the presumption;
(f) if the presumption does apply, deciding whether it is rebutted because application of it would not be in the child’s best interests;
(g) if the presumption applies and is not rebutted, considering making an order that the child spend equal time with the parents unless it is contrary to the child’s best interests as a result of consideration of one or more of the matters in s.60CC, or impracticable;
(h) if equal time is found not to be in the child’s best interests, considering making an order that the child spend substantial and significant time as defined in s.65DAA(3) with the parents, unless contrary to the child’s best interests as a result of consideration of one or more of the matters in s.60CC, or impracticable;
(i) if neither equal time nor substantial and significant time is considered to be in the best interests of the child, then making such orders in the discretion of the Court that are in the best interests of the child, as a result of consideration of one or more of the matters in s.60CC;
(j) if the presumption is not applied or is rebutted, then making such order as is in the best interests of the child, as a result of consideration of one or more of the matters in s.60CC; and
(k) even then the Court may need to consider equal time or substantial and significant time, especially if one of the parties has sought it or, even if neither has sought it, if the Court considers after affording procedural fairness to the parties it to be in the best interests of the child.
To determine what time orders should be made under s.65DAA(1) & (2) of the Act, the Court must look to determine whether the actual spending of “equal time” or “substantial and significant time” is in the best interests of the child and, as a separate and distinct matter, whether the actual spending of such time is reasonably practicable. The Court must affirmatively answer both of these questions for it to have the power to make a time order of that nature. See the High Court of Australia’s decision in MRR v GR [2010] HCA 4. If it cannot do so, the Court must consider making such “other” time order as is, otherwise, in the best interests of the child.
The best interests of the child remain the paramount consideration; s.60CA of the Act.
The best interests of the child are to be determined by an examination of the factors as set out in s.60CC of the Act. These factors are to be examined, weighed and applied against the facts of each case within the ambit of the objects and their underlying principles as set out in s.60B of the Act, as follows:
(1) The “objects”…are to ensure that the best interests of children are met by:
(a) ensuring that children have the benefit of both of their parents having a meaningful involvement in their lives, to the maximum extent consistent with the best interests of the child; and
(b) protecting children from physical or psychological harm from being subjected to, or exposed to, abuse, neglect or family violence; and
(c) ensuring that children receive adequate and proper parenting to help them achieve their full potential; and
(d) ensuring that parents fulfil their duties, and meet their responsibilities, concerning the care, welfare and development of their children.
(2) The “principles” … are … :
(a) Children have the right to know and be cared for by both their parents, regardless of whether their parents are married, separated, have never been married or have never lived together; and
(b) Children have a right to spend time on a regular basis with, and communicate on a regular basis with, both their parents and other people significant to their care, welfare and development (such as grandparents and other relatives); and
(c) Parents jointly share duties and responsibilities concerning the care, welfare and development of their children; and
(d) Parents should agree about the future parenting of their children; and
(e) Children have a right to enjoy their culture (including a right to enjoy the culture with other people who share that culture).
(3) For the purposes of subparagraph (2)(e), an Aboriginal child's or Torres Strait Islander child's right to enjoy his or her Aboriginal or Torres Strait Islander culture includes the right:
(a) to maintain a connection with that culture; and
(b) to have the support, opportunity and encouragement necessary:
(i) to explore the full extent of that culture, consistent with the child's age and developmental level and the child's views; and
(ii) to develop a positive appreciation of that culture.
(4) In relation to proceedings commenced after 7 June 2012, an additional object of this Part is to give effect to the Convention on the Rights of the Child done at New York on 20 November 1989.
Note: The text of the Convention is set out in Australian Treaty Series 1991 No.4 ([1991] ATS 4). In 2011, the text of a Convention in the Australian Treaty Series was accessible through the Australian Treaties Library on the website ( type="1">
The father relied on:
(a)His Affidavit sworn on 7 December 2018 and filed on 10 December 2018; and
(b)Affidavit of Mr E (the mother’s step-father) (“Mr E” (also known as “Mr E”) sworn 5 October 2018 and filed on 9 October 2018;
The mother relied on:
(a)Her Affidavit sworn and filed on 10 December 2018.
On 30 April 2018, being the first return of the father’s Initiating Application, the Court made orders, by consent, for the father to spend, on a “without admissions basis” supervised time with the child each Saturday from 9.00am to 11.00am and each Monday from 12.00pm to 1.00pm. The supervisor was noted to be the mother’s step-father, Mr E. Orders were also made for the parties to attend a Child Dispute Conference on 23 May 2018 and for the proceedings to be then adjourned to 14 June 2018.
On 23 May 2018, the parties attended the Child Dispute Conference with Ms Barratt and her memorandum for that day was released to the parties. That memorandum became Exhibit “Court 1”.
On 14 June 2018, following a proposed direction from Ms Barratt, the Court appointed an Independent Children’s Lawyer for the child. The matter was then adjourned to 16 August 2018 for mention.
On 16 August 2018, the matter was adjourned to 28 November 2018 for mention with the Court noting that the adjournment was as a result of the parties’ late provision to the Independent Children’s Lawyer of their material and answers to her questionnaire. The Independent Children’s Lawyer wished to also issue subpoenas. Ms Creswell, who then appeared for the mother, indicated that she had drafted an affidavit for the mother’s step-father to be filed on the mother’s behalf but that she had been unable to obtain a signed copy of it.
On 28 November 2018, the Court made various directions in terms of the preparation of the matter for an interim hearing and an interim hearing date was set for 18 December 2018.
The following documents were placed into evidence as follows:
Exhibit No
Document
Tendered by
Court 1
Child Dispute Conference Memo of Ms Barratt
Court
Court 2
Minute of order signed by the parties in terms of their consent to the orders sought by the father
Court
A
The father’s proposed minute of order
Father
B
Documents from the mother to the child’s day care centre
Father
C
Documents from the Department of Family and Community Services (“FACS”) identified with blue tabs , and
Father
D
Documents from the Suburb C Hospital identified with blue tabs &
Father
E
Two paged document from NSW Police file dated 9 May 2015
Father
1
The mother’s proposed minute of order
Mother
2
Email to the mother’s solicitor from the Region 1 Contact Centre
Mother
3
Apprehended Domestic Violence Order (“ADVO”) final order dated 18 July 2013
Mother
4
Documents produced by the NSW Police in respect of the father recorded on the COPS system
Mother
5
The child’s enrolment form 25/28 February 2017
Mother
6
Documents produced by NSW Police identified with orange tabs 3A, B, C, D & E
Mother
ICL1
The Independent Children’s Lawyer’s proposed minute of order
ICL
ICL2
Supervised Contact Reports
ICL
ICL3
Documents produced from FACS and police report
ICL
ICL4
Police entry for 23 July 2004 from Police Records
ICL
ICL5
Child’s enrolment form for long day care dated 10 March 2016
ICL
In terms of the documents exhibited before the Court, the Court notes the following:
a)Exhibit “A”: being the father’s proposed minute of order, as set out in paragraph 1, above.
b)Exhibit “B”: contains emails between the mother and Day Care Centre being the child's day care provider. The email from the mother to that provider, dated 13 January 2017, stated that the father would be picking the child up to take him to the Doctor so that he could get a bump on his head checked out and that he would then be dropping him off to the mother at work. The response from the care provider to the mother was simply: "Thank you." A further email from the mother to the care provider on 27 February stated:
“I'm not sure if the father spoke to you this morning when [he] dropped off the child but I was just wondering, I need to keep the child in there for a little bit longer. Is it possible to withdraw the cancellation so that I could not put him in the other place due to my work being up in the air at the moment. Can you please let me know ASAP? Also, if you can lift the notice of the father not being able to pick the child up as he will be assisting me in picking him up as of this week.”
The mother says that those documents evidence her engagement with the father so as to encourage his time. The Court accepts that these documents also evidence that the father was involved with the child in terms of taking the child to the Doctor and in terms of assisting the mother in collections from the day care centre.
c)Exhibit “C”: contains documents from the file of FACS and, in particular, blue tabbed , 2 and 5. refers to the notification to the Department made on 28 January 2018. The reported information indicates that a person described as Mr D had asked the child to repeat what the child had said. Mr D then relayed, "Tell Ms Clarkson (being the mother) what you said." The child was reassured that he wasn't in trouble as he looked scared. The child then disclosed: "Daddy touched [by] … (penis in …Language)". An inquiry was made of the child whether the father was cleaning his penis or touching his penis. The child replied: "No, daddy touched my penis." The person identified as Mr Alesco was asked not to speak to the child about it.
The Department noted that there were no "Family Law Court" orders in place, however the father was in the process of applying for "access". This was, at a time, just short of one month prior to the father's Initiating Application filed on 27 February 2018. The Department file also records that the child had been in the father's care the last 3 weeks of the holidays and had just recently been returned to the mother's care over the last 4 days. The Department records that the child, prior to going to the father's, had been having disturbing and bad night terrors and wouldn't let anyone go near him. The Department records that the child would scream during his night terrors saying: "Daddy, I don't want to play anymore" and that the child wouldn't let anyone touch him. The file records that every time the father was mentioned during the conversation, the child would just say "nothing". The Department file records that the child was supposed to see the father the following weekend, however, the mother would not be allowing him to have access in the near future. The child had been talking about his penis since returning to the mother's care and had been playing with it more than usual.
While the child was in the father's care, the mother contacted the child to check on him and the child stated during the conversation: "Mummy, I want to come home with you and Mr D." It is recorded that the mother reassured the child that they would pick him up and the child said: "Mummy, I'm scared." The child would not disclose why he was scared. The file records that, on a previous access occasion on 8 December 2017, the child returned from the father's care with bruising on both his shins. The child disclosed that this had happened at the father's house but wouldn't elaborate as to how it happened. The bruising was said to be larger than a 50 cent piece and it was unknown as to how he got this bruising. There is a note recorded by the Department that the father had, previously, been “scheduled for suicide attempts” (as to this, see later).
The Departmental file records that the report made had been referred to the Joint Investigative Response Team (“JIRT”) but had been rejected as it did not meet the threshold. The report was then sent back to Suburb A SCC, however, it was closed due to competing priorities. The JIRT decision report (at ) stated that the checks completed by JIRT should not be considered a comprehensive review of community services, police and health holdings. The relevant decision of the Department recorded that there were no further details as to the context of the asserted touching. A recommendation was made that CSC speak with the child and, if there was a concerning context to this disclosure, a referral to JIRT would be suitable. The mother says the child was not seen nor interviewed. The sexual abuse issue was then the subject of a “reject” decision with no disclosure of sexual assault noted.
Ms Morton refers to the report in relation to the father having been, previously, “scheduled for suicide attempts”. Ms Morton submits that the only way that could have been known is as a result of a report by the father to the mother which appeared to relate to incidents some 13 years prior to the parties meeting. Ms Morton submitted that this reference in the Departmental file was, potentially, done by the mother in an environment to elevate the mother’s concerns in relation to the father, when the evidence did not support those concerns.
d)Exhibit “D”: is a clinical note prepared in April 2017 which records that the father had taken the child to the Suburb C Hospital due to a cough and diarrhoea. Also included within that exhibit is a further earlier presentation at that hospital on 22 October 2016 which records that the father had also taken the child to hospital and that the child had been interacting well with the father, noting that the child was suffering from a low-grade fever, on oral antibiotics with associated rash on the face and knees. The father submitted that this evidenced his engagement with the child's medical treatment and that the child had been interacting well with him on those occasions.
e)Exhibit “E”: is a Police record dated 9 May 2014, which records that the father – then the victim – had been in an “on-and-off” domestic relationship with the mother. In May 2013, the father chose to end his relationship with the mother, as he became tired of the constant accusations the mother was allegedly making, in relation to him “sleeping around”.
After ending their relationship, the mother applied for an ADVO based on a conversation that the mother and the father had had over the telephone. A provisional ADVO was served on the father. After attending Court in relation to the ADVO in July 2013, the mother had the “additional” orders dropped. The ADVO was granted and was then, currently, still enforceable.
In July 2013, the mother and the father decided to rekindle their relationship, the father believing that their relationship was improving. The father said the mother continued to accuse him of “sleeping around”, if he was unable to respond to her messages or phone calls straightaway.
In April 2014, the mother’s accusations became more frequent and intense. The father said he chose to end their relationship due to the influx of ongoing accusations and obsessive behaviour that the mother was displaying. Since that date, the mother had sent numerous emails and text messages to the father’s workplace and work email. The content of those text messages and emails varied from the mother telling the father that she loved him and wants to be with him, to her accusing him of sleeping with work colleagues and prostitutes.
The father told the mother that he did not want her to contact him anymore; however, she continued to text and call. The father chose to block the mother’s mobile phone number, stopping her messages and calls from reaching him. After blocking this number, the father started to receive emails to his work email address from the mother. The Police note records the details of the various text messages sent, one of which included the mother saying: “I’m just letting you know that I will be putting an application in to extend the AVO.”
On 9 May 2014, the father attended Suburb C Police station, where he supplied a statement in relation to the text messages and emails. The Police believed that the amount of text messages received from the mother could be considered an annoyance, however did not constitute harassment. The Police considered applying for an ADVO against the mother. On 21 May 2014, it was noted that Police had applied for a non-urgent ADVO, in this regard.
f)Exhibit “ICL1”: being the Independent Children’s Lawyer’s proposed minute of order, as set out in paragraph 3, above.
g)Exhibit “ICL2”: sets out the Contact Centre notes for the father's supervised time on 1 December 2018, 17 November 2018, 20 October 2018 and 6 October 2018. The notes record that the father was, consistently, affectionate and patiently allowed the child to direct play and, was, otherwise, appropriately engaged with the child. The child greeted the father with “smiles and hugs” and did not appear to want his time with the father cut short or not continued. The notes record that the child was excited to see the father and that there was an obvious strong bond between them. The child referred to the father as "daddy". The child is recorded as saying: "I want to go to your home." The father was noted as speaking in a gentle and calm voice to the child during visits and kneeling down to engage with the child at the child's level and playing with him, appropriately. This weighs in favour of the father’s and the Independent Children’s Lawyer’s proposals for unsupervised time. The Contact Centre notes also record that the live-with parent, being the mother, wanted to explain to the worker that the child calls her current partner "daddy" and sometimes calls the father "Mr Alesco" and "daddy", also. This weighs in favour of the injunctive relief sought by the father in his proposed order 12.
While Mr Apostle submitted that what was naturally occurring between the child and his stepfather should not be prevented, it is of concern that the mother has not taken on board the father's concerns as to the child's engagement with him as the child's father. The Court is of the view that there should be an injunctive order in terms of that sought by the father and the Independent Children's Lawyer that would prevent the mother from encouraging the child to refer to any other person as "daddy", to the effect that the child's relationship with the father is not limited by this and the father's concerns which, if unchecked, might adversely impact on the child.
h)Exhibit “ICL3”: is a similar report from the Departmental file recording the matters set out in Exhibit “C”, above.
i)Exhibit “ICL4”: is a record of a Police event on 23 July 2004 which relates to their attendance at an event where the Police saw and spoke with ambulance officers who stated that they had a male patient (being the father) being conveyed to Suburb D Hospital after having consumed an unknown amount of Valium tablets with a quantity of whiskey. The ambulance officers advised that the condition of the patient was stable. The father had been at the house of a woman at which time he appeared depressed and wanted to talk about the recent breakup with his fiancé. At that time, the father did not display any outward signs of having consumed any alcohol. The Police note records that, as a result of this relationship breakdown, the father had entered a state of depression and attempted to take his own life. The father was conveyed to the hospital and was expected to undergo treatment and a period of observation during which a psychiatric assessment would be carried out. He was expected to make a full recovery.
j)Exhibit “ICL5”: relates to the enrolment form at a long day care for the child dated 10 March 2016 for a proposed attendance on 2 May 2016. The Independent Children’s Lawyer submitted that it is of some relevance that the mother disclosed herself as the parent and put "N/A” (not applicable), in respect of the details of parent 2 (being those of the father).
k)Exhibit “1”: being the mother’s proposed minute of order, as set out in paragraph 2, above.
l)Exhibit “2”: is a note from the Region 1 Contact Service dated 15 October 2018 to the mother’s legal representative, advising the said representative that supervised contact would occur every Saturday, 9.30am to 11.30am, and that the centre would assist the mother in providing make-up time of 10.5 hours over the coming weeks in respect of time missed by the father. It was submitted by Mr Apostle that that indicated that the mother was seeking to promote the father’s time with the child, albeit, in the supervised environment.
m)Exhibit “3”: is the final ADVO order made against the father as defendant with the protected persons being the mother and also later extended to Mr G, born …1999, and [Y], born …2005. The final ADVO made on 18 July 2013 in the Local Court of New South Wales at Suburb D was to be enforced for 12 months until 18 July 2014. This ADVO was, subsequently, extended for a further period of 12 months to 18 July 2015.
n)Exhibit “4”: refers to the father being charged on 30 May 2013 in respect of 2 offences on 29 May 2013, of stalk, intimidate, intend fear and physical harm and the use of a carriage service to threaten to kill. The second charge was withdrawn and the father was placed on a section 10 bond for 12 months in respect of the first charge.
o)Exhibit “5”: is a further day care enrolment form dated 25/28 February 2017, tendered by the mother, which records the father's details. Mr Apostle submitted that the receipt of that form weighs against the Independent Children’s Lawyer's submission flowing from Exhibit “ICL5”, as referred to in (j), above. Further, given that the father, it would appear, had interrupted time with the child in 2016, that that proffered some explanation as to why the mother had put "NA" on his details on that form but had, subsequently, disclosed the father’s details in the later enrolment form.
p)Exhibit “6”: relates to material tendered from the New South Wales Police records and includes, in particular, the documents being tabs 3A, B, C, D and E. The father was described as a person of interest in a number of traffic offences and the victim of a number of offences. The documents also refer to the ADVOs made against the father, as referred to above.
The record of the event on 29 May 2013, which records that the father and the mother had then been in a de facto relationship for a period of some 11 months but prior in time to the birth of the child, states that the mother and the father have continually argued over the father’s ex-girlfriend, which had put a strain on their relationship. The note records that the mother had received a telephone call from the father, wherein the father stated that he had wanted the mother to go home and pack her “shit” and “get out”.
In a further call, the mother says that the father could be heard on a speakerphone saying: “I’m gonna kill you. I’m going to get some people to kill you.” The note records that, during this conversation, the mother was said to be fearful and scared of the father and had contacted the Police due to the threats she had received.
q)Exhibit “Court 1”: provided the following:
i)Under the heading of risk factors and family violence, Ms Barratt records that the father strongly denied the mother’s allegations of family violence and alleged that the mother was frequently verbally abusive toward him and was severely possessive of him. The father said that there had been 2 ADVOs against him, but that both were dismissed. He said that there has been one ADVO against the mother for harassing him. The Court notes, in this regard, that the mother disputes that the AVOs against the father were dismissed. The Court accepts that they were not.
ii)The mother alleged that, throughout the relationship, the father perpetrated physical, verbal and emotional abuse against her. The mother said that the reason the ADVOs against the father were “dismissed” was because he persuaded her to drop the charges against him. She said “he told me he was looking at 7 years, if I went ahead”. The mother said that she believed there have been other ADVOs in relation to the father that pre-date her relationship with him. In this regard, the Court notes that it is likely that the “dismissal” which the mother was referring to related to some form of charge, rather than the ADVO, itself.
iii)Under the heading of child protection, Ms Barratt noted:
1. The mother alleged that, in January 2018, the child made a disclosure that the father “touched his penis”.
2. The father said that he believed that the mother had fabricated the allegation that he touched the child’s penis, or that she has, deliberately, over-reacted to it. He said that the child’s alleged disclosure may have been related to having his nappy changed.
iv)Under the heading of parental mental health, Ms Barratt noted:
1. The father claimed that the mother accesses therapy.
2. The mother said that she experienced anxiety and depression since the death of her father, 13 years ago.
v)Under the heading of the co-parenting relationship, Ms Barratt noted:
1. The parents presented as highly critical of each other.
2. The father said he thinks the mother is a “good mum”.
3. The mother said that she supports the child to have a relationship with the father, but said that it is not emotionally safe for her to communicate with the father due to his alleged violence against her.
4. Both parents have reportedly re-partnered. The mother said that she was then expecting another child with her new partner.
vi)Under the heading of issues for the child, Ms Barratt noted:
1. The child’s parents separated before he was born. According to both parents, the child lived with the mother from birth onward and spent time with the father, regularly, in the maternal home until he was 2 years of age, after which, he began spending overnight time in the paternal home. The child, reportedly, spent each alternate weekend and some block time with the father until January 2018. This history weighs in favour of the father’s and the Independent Children’s Lawyer’s proposals for the father’s time.
2. The father said that the mother prevented the child from spending time with him after the child made the disclosure about being, inappropriately, touched by him.
3. The mother said that, after the child made the disclosure about the father allegedly touching his penis, she was advised by FACS to prevent the child from spending time with the father. She claimed that the child was experiencing night terrors and disrupted sleep after spending overnight time with the father and that, since the child stopped spending overnight time with the father, the night terrors have subsided. FACS, reportedly, did not pursue an investigation into the disclosure that the father touched his penis.
4. The child did not spend any time with the father between January and May 2018.
5. The child resumed spending time with the father, supervised by the mother’s step-father, Mr E, on 5 May 2018. The child, reportedly, spent time with the father each Saturday and each Monday until 19 May 2018. Mr E, reportedly, withdrew from the task of supervising the time the child spends with the father on 21 May 2018. According to the father, the mother’s step-father informed him that he was no longer able to supervise the time due to the strong emotions it induced in him. According to the mother, she “blew up” at her step-father for allowing the father to take the child to a Doctor for treatment for a mosquito bite and for delivering the child back to her several hours late. She said that her step-father should have informed her that the child was attending a medical centre and would be late home. The mother appeared to consider that to be the reason her step-father has declined to continue to supervise the time the child spends with the father.
6. The mother said there are no other appropriate family members who could supervise the time the child spends with the father and that she wants the time to be formally supervised in a children’s Contact Centre.
7. The father said that he is no risk to the child and that, despite the irregular nature of the time the child has spent with him, the two enjoy a very good relationship. The father said that there is, currently, a 1 year waiting period for supervised contact at the centre nominated by the mother.
8. According to both parents, the child is a happy, healthy child who is making sound developmental progress. Both parents said that they believe the child’s language skills are advanced for his age.
vii)Under the heading of future directions, Ms Barratt noted:
1. That her preliminary assessment raised some very serious risk allegations about family violence and child protection. If the father’s account is accurate, this would raise serious concerns about the parental capacity of the mother. If the mother’s account is accurate, this raises grave concerns about the safety of the child. Without a more comprehensive assessment, it is not possible to comment further on this.
2. Of concern is that the child’s relationship with the father has been disrupted. Given the child’s very young age, his relationship with the father is likely to be compromised because of this. It is noted that there is usually an extensive waiting list in most children’s Contact Centres.
3. The child may benefit from the appointment of an Independent Children’s Lawyer.
The Limitations of an Interim Hearing
The Court, as stated, hears this matter on an interim hearing basis, as the parties have confirmed there is urgency in obtaining relief.
The Court’s determination, therefore, is based only on a study of the documents before it, including affidavits read, documents tendered and the submissions of the parties’ legal representatives. There is no provision, at the interim hearing stage, for a more extensive hearing where evidence can be tested in cross-examination and where the Court can make findings of fact, after testing credibility and truthfulness.
The combined practical effect of sections 60B, 61DA and 60CC of the Act is that, on an interim basis, the Court may have little practical alternative other than weighing the probabilities of the parties’ respective claims and balancing the questions of risk.
In this regard, the Full Court of the Family Court of Australia in Redmond & Redmond [2014] FamCAFC 155 acknowledged the limitations of interim hearings when determining questions of disputed facts. In response to the father’s submission in that case that the trial judge should have ignored or disregarded any allegations or matters of disputed fact that were adverse to the father on an interim hearing, the Full Court noted that:
This approach overlooks two important things. First is the distinction between, on the one hand, the acknowledged limitations in an interim hearing to determine disputed issues of fact on untested evidence and, on the other, the need for the court to consider, particularly when the subject facts or allegations are centrally important to a child’s welfare, the risks to that welfare if those facts or allegations are ultimately established at a trial. Second, the fact that an issue or allegation of fact is disputed does not sit in isolation. Consideration of other evidence, including independent expert evidence, may weigh in the court’s consideration as to probabilities, one way or the other, of an allegation ultimately being established, or rejected, at a trial.
In relation to this “weighing up” or balancing of risk, the Full Court of the Family Court of Australia in SS & AH [2010] FamCAFC 13 (Boland and Thackray JJ), stated that:
The intuition involved in decision-making concerning children is arguably of even greater importance when a judge is obliged to make interim decisions following a hearing at which time constraints prevent the evidence being tested. Apart from relying upon the uncontroversial or agreed facts, a judge will sometimes have little alternative than to weigh the probabilities of competing claims and the likely impact on children in the event that a controversial assertion is acted upon or rejected. It is not always feasible when dealing with the immediate welfare of children simply to ignore an assertion because its accuracy has been put in issue.
Further, in the decision of Banks & Banks [2015] FamCAFC 36, the Full Court of the Family Court of Australia stated that:
By their nature, interim parenting proceedings should be confined to those issues which, in the best interests of the child, require determination prior to a proper determination at a trial. The fact such disputes are commonly dealt with in overcrowded court lists makes it even more desirable to identify with precision those issues which can, or should, be resolved on an interim basis.
…Furthermore, there is a risk that in discussing every s 60CC factor, the judicial officer may lose sight of the forest for the trees. It is also important to stress here that the requirement to “consider” each factor does not mean each must be discussed, especially where the evidence leads inexorably to a particular conclusion: SCVG & KLD (2014) FLC 93-582.
When it is obvious that the findings made as to some of the s 60CC factors will be determinative of the child’s best interests on an interim basis, it is a sterile and unnecessary exercise to address other factors. Moreover, it will be a sterile exercise to determine whether or not particular facts are disputed if they are relevant only to one of the non-determinative s 60CC considerations. Properly understood, we do not interpret what was said in Goode as meaning that in an interim case, each and every fact must be characterised as disputed or not; and that each s 60CC factor must be traversed where it is obvious on the facts and issues joined that there are only one or two decisive factors.
Issues
The essential issues in dispute the subject of determination are:
a)The time that the father is to spend with the child;
b)Whether such time should continue to be supervised;
c)The mother’s allegations that the father has sexually abused the child;
d)The father’s allegations that the mother has directed the child to call the father “Mr Alesco” and to call Mr D “Daddy”;
e)The father’s allegations that the mother’s partner, Mr D hits the child; and
f)Whether the father’s interrupted time with the child was caused or contributed by the father’s failure to pursue time with the child.
Factual Matters
There appear to be a number of relevant, largely, uncontested, facts, as follows:
a)The father was born on …1970 and is, currently, 48 years of age.
b)The mother was born on …1982 and is, currently, 36 years of age.
c)The parties commenced a relationship in around …2012 and commenced cohabitation in around …2012.
d)The father’s occupation is a professional.
e)The mother’s occupation is homemaker.
f)The father lives at Suburb E, NSW. He spends a part of each week at his fiancé’s home, being Ms H (who was born on …1971 and is, currently, 47 years of age). Ms H has a 19 year old daughter, Ms J, who lives with her.
g)The father has another child, being Mr K, from a previous relationship. Mr K was born on …2000 and is, currently, 18 years of age.
h)The mother’s address has not been disclosed.
i)The mother has 3 children from other relationships, being Mr G (currently 19 years of age), [Y] (currently 13 years of age) and [Z] (currently 3 months of age).
j)On 18 July 2013, a 12 month ADVO was taken out with the father as the defendant and the mother as the person in need of protection. At around about that time, the parties separated, on the father’s version.
k)In around April 2014, the parties separated on a final basis, on the mother’s version.
l)On 20 May 2014, the mother’s ADVO against the father was extended to include her children and to the date of 18 July 2015, following further alleged threats, as asserted by the mother.
m)In 2014, therefore, each party had an ADVO against the other.
n)The child was born on …2014 and is, currently, aged 4 years. The child is due to commence primary school in 2020.
o)In around December 2014, the father met the child for the first time.
p)On …2015, the child was hospitalised and the mother informed the father of this. The mother accused the father of not caring about the child and (temporarily) withdrew the father’s invitation to the child’s baptism. On the mother’s version, the father left the hospital and the mother suspended the father’s time with the child. The mother said that the father then stopped seeking such time. The father disputes that he stopped seeking time with the child and asserted that he made efforts to arrange for time.
q)On 18 February 2015, the mother notified the father of her intention to relocate to Perth with the child. The father objected to this.
r)From 18 February 2015 to April 2016, the mother suspended the father’s time with the child. The father invited the mother to mediation. The mother did not attend. The father sent the mother messages for the child.
s)On 22 April 2016, the mother invited the father to spend time with the child and the father attended with his son, Mr K. The mother reconnected with the father to restart his time with the child which then occurred on a fortnightly basis.
t)From April 2016 to October 2016, the father spent time with the child in the mother’s presence or in her home including overnights in her home.
u)From October 2016 to May 2017, the father spent time with the child on alternate weekends at his home from Friday to Sunday.
v)In around April 2017, the child started to have nightmares and, as the mother asserted, did not want to cuddle her upon returning from time with the father.
w)From late 2016 to early 2017, the father invited the mother to a second mediation. The mother did not attend
x)From May 2017 to December 2017, the father spent time with the child on alternate weekends at his home from Friday to Monday
y)In around June 2017, the father asked to formalise the time arrangements in Consent Orders. The mother declined. At this time, the mother started dating her current partner, Mr D.
z)In around July 2017, the mother required the father to sign an undertaking that he would return the child before agreeing to facilitate his time with the child.
aa)On 5 September 2017, the mother signed proposed Consent Orders but then declined to sign the Application for Consent Orders to be filed with the Court, so that those orders could be made.
bb)In around September 2017, the mother, formally, acknowledged her relationship with Mr D.
cc)Following September 2017, the mother asserted that, after spending time with the father, the child started to say negative things about her and Mr D.
dd)In around January 2018, the father spent 3 weeks with the child.
ee)On 25 January 2018, the mother said that the child returned from extended Christmas time with the father and started having severe nightmares and was observed to scream and recoil from being touched.
ff)On 28 January 2018, whilst being showered, the mother reported that the child became distressed and said that the father had touched his penis and asserted that he was not just washing it. The mother made a report to FACS of alleged sexual abuse, which, the mother said, then advised her to stop the child’s time with the father.
gg)On 9 February 2018, the mother did not make the child available to resume alternate weekend time after the block holiday time, with the father.
hh)On 27 February 2018, the father commenced these proceedings.
ii)From February 2018 to 24 June 2018, the father spent no time with the child.
jj)On 1 March 2018, the father’s Initiating Application was served on the mother, care of Mr D, at his place of work.
kk)On 22 March 2018, the mother said that she was advised by FACS/CCS that no investigation would take place due to a shortage of resources.
ll)Following 22 March 2018, the mother said that she observed that there were no further nightmares or distant behaviour from the child.
mm)On 30 April 2018, orders were made, by consent, for the father to spend supervised time with the child for 3 hours per week.
nn)On 23 May 2018, the parties attended a Child Dispute Conference.
oo)On 14 June 2018, orders were made, inter alia, for the father’s spend time orders to be varied and for the appointment of an Independent Children’s Lawyer.
pp)On 18 June 2018, the father completed intake at the Region 1 Contact Centre
qq)On 24 June 2018, the father's time with the child resumed, supervised, for 3 hours per week.
rr)On 4 July 2018, the father’s visit with the child was cancelled by the mother.
ss)In around August 2018, the father’s visit with the child was cancelled by the supervisor.
tt)On 16 August 2018, orders were made, inter alia, for the filing of an affidavit by Mr E, the mother’s step-father,
uu)On 22 August 2018, the child alleged, to the father, that he had been hit by the mother’s partner, Mr D.
vv)From September 2018, the father commenced supervised telephone time with the child, twice a week.
ww)On 2 September 2018, the child told the father that he was not his father and claimed that the mother directed him to call the father by his first name.
xx)On 5 September 2018, the mother did not arrange for the child to be available for the father’s visit.
yy)On 26 September 2018, the father’s visit with the child was cancelled by the mother due to her hospitalisation.
zz)On 30 September 2018, the father’s visit with the child was cancelled by the supervisor as the mother was then in hospital in labour.
aaa)In around late September 2018 to early October 2018, the mother completed her intake at the Region 1 Contact Centre.
bbb)In around September and October 2018, the father requested makeup time for the abovementioned visits which had been cancelled, including a request for time on the child’s birthday.
ccc)On …2018, the mother gave birth to [Z], who is now aged 2 months.
ddd)On 6 October 2018, the father had his first visit with the child at the …Contact Centre for 2 hours which was to then be fortnightly, thereafter.
eee)From 15 October 2018, the father commenced having 2 hours weekly supervised time with the child at the Contact Centre. The Contact Centre advised that it would arrange for a further hour and make up time.
fff)On 20 October 2018, the mother said the father used telephone time to tell the child that the mother needed to drop the Court case.
ggg)On 27 October 2018, the mother did not bring the child to the father’s Contact Centre visit.
hhh)In around November 2018, the father’s contact visit was cancelled due to the child being sick. Telephone time was suspended due, as the mother asserted, to an inappropriate conversation the father had had about the Court proceedings, referred to above.
iii)On 28 November 2018, the matter was set down for interim hearing.
jjj)On 3 December 2018, the child turned 4 years of age. The father spent no time with the child on that occasion.
kkk)In around December 2018, arrangements were made for the child to spend time with the father’s family on Boxing Day 2018. These arrangements are referred to in orders made, in Chambers, on 19 December 2018 (see paragraph 6 above).
lll)On 14 December 2018, telephone time was reinstated upon the proviso that neither the Court proceedings nor the mother was discussed. This time was for 1 hour per week in addition to the 2 hours provided by the Contact Centre.
mmm)On 18 December 2018, the matter was listed for interim hearing.
Evidence of the Parties
The father asserted that during time with the child in June 2018, the child had said to him: “Mummy is silly. Mummy said you are not Daddy. You are Mr Alesco.” The father says that he does not object to the child calling Mr D: “Daddy Mr D”. He, however, objects to the child calling Mr D simply “Daddy” or that the child is encouraged to call him “Mr Alesco”.
The father also asserted that when supervised time could not occur, notwithstanding his request for makeup time, this was not provided by the mother. The father, further, said that his ordered supervised time at the Contact Centre had never been for the full 3 hours, in accordance with orders made.
The father conceded that when the child was born he was not in a relationship with the mother and was not present for the child’s birth. The father said that, following the child’s birth, the mother made some attempts to contact him so that he could spend time with the child but that this, generally, occurred only in her presence.
The father said that the mother had accused him of having affairs with other women at the time the child was in hospital and that the parties had then argued with him walking out and the mother screaming at him: “You will never see my son again”. The father said that the mother then withdrew his invitation to attend the child’s baptism in …2014. However, the father confirmed that the mother later reissued the invitation and that he and his family had attended at the baptism.
The father confirmed that for a substantial period of time between February 2015 and April 2016, he did not see the child. The father said that after April 2016, there was then a resumption in his relationship with the child and that the mother would ask him, from time to time, to babysit the child.
The father annexes to his affidavit the proposed consent orders signed by the mother which were to the effect that the parties were to have equal shared parental responsibility for the child, the child was to live with the mother and spend defined time with the father, essentially, being each alternate weekend from Friday to Monday morning and each intervening Wednesday from 5.30pm until 8.30am Thursday. The proposed orders provided for a sharing of school holiday time. The father says that the mother’s refusal to have those orders made, coincided with the formalisation of her relationship with Mr D. The Court accepts that, in that regard, the mother’s explanation as to her change of position could have been more fully set out by her.
The father does not object to the child being left in the care of Mr D, notwithstanding his assertion that Mr D has hit the child on the head. The child has reported those matters to the father. The Court notes that Mr D has not sworn any affidavit to the contrary (see paragraph 115, below). The parties have now dealt with that issue, in terms of consent orders, being orders 8 and 13, as set out at the commencement of these reasons.
The father says that during the 3 week holiday period in January 2018, he, successfully, toilet trained the child. He deposes to engaging the child with sporting interests.
The father says that his cousin, Ms L and her 3 sons and his parents have a close relationship with the child. The father also says that his fiancée, Ms H, has engaged with the child during the course of Contact Centre visits. The father says that the child refers to his fiancée as “Ms H”, meaning “auntie” in …Nationality.
The father denies that he has sexually abused the child, that he has been violent towards the mother and that he has had a sexual relationship with Ms J, being the 19 year old daughter of Ms H. The father acknowledged touching the child’s genitals but said that he has only ever done so in the exercise of cleaning and toileting in a manner that is appropriate for parents to do.
While the mother, initially, indicated that she would obtain an affidavit from her step-father, Mr E, that affidavit was obtained by the father. The affidavit refers to Mr E supervising the father’s time on a number of occasions in May 2018. He deposes to the events on those occasions and indicates that time went well. In particular, he refers to the child being bitten by a mosquito and agreeing with the father that the child should be taken to a Doctor to have it looked at. Mr E refers to his conversation with the mother wherein he advised her of that and, according to him, she did not raise any issue of concern. Mr E says that a day or so later the mother telephoned him and criticised him for taking the child to the Doctor without first consulting her. At that point in time, Mr E said that he was not prepared to remain as a supervisor. The Court is concerned, given the mother’s concession that there are limited persons available to this family to supervise, that the mother would take such a stance as against her own step-father, in terms of dealing with an insect bite. That stance had the effect of causing the father’s time to be supervised at a Contact Centre and weighs against her.
The mother says that she has experienced domestic violence throughout her life, starting with her own father and that this abuse continued in her relationships after she left home. The mother says that she has seen a psychologist “on and off” to help her deal with violence issues. The mother deposes to being hit across her back and legs with a bamboo stick by the father, being pushed and punched. She also refers to being threatened with harm. The mother also refers to the father having, previously, forced her to have an abortion. The Court accepts that there was in place an ADVO for 12 months against the father obtained for the mother’s protection on 18 July 2013 which was then extended on 20 May 2014 until 18 July 2015.
Notwithstanding the mother’s allegations of violence against the father, her evidence was that following the child’s birth she sought to engage the father with the child, as she stated that she wanted the child to have a good relationship with the father and his family. The mother says that the father contacted her and was angry about the mother seeking child support from him. The mother said that she invited the father and his family to attend the child’s christening in … 2015. She acknowledged that the father’s time had been interrupted between February 2015 and April 2016 when, she said, that she started to feel that “it was silly for [the child] not to have a dad over one incident” [being at the hospital when the child had been admitted]. The mother confirmed that she had agreed for the father to spend time with the child every fortnight. The mother refers to the child having nightmares in April 2017 and to her enquiries with her General Practitioner about them. The mother agreed that after she began her relationship with her new partner, Mr D, the father started to seek more time with the child. She said that at that time, the child started to say “Daddy Mr D is yuck”. The reference to Daddy Mr D being to Mr D. The mother’s view was that this response had been encouraged by the father. The mother confirmed that, before Christmas 2017, she and the father had reached an agreement for the child to spend holidays with the father. The mother says that her concerns about the child’s disclosure to her of the father touching his penis and her raising of those issues with FACS was the basis for her denial of the father’s time and then, subsequently, her requirement for ongoing supervision. In this regard, the Court notes that the mother does not seem to have considered that the FACS investigation and the father’s denial should be given any weight.
The mother says, however, that the father’s supervised time has gone well although she says that, for explainable reasons, it has not occurred on each and every occasion that it should have occurred on.
The mother says that she believes that the father is putting pressure on the child to have her drop the Court case against him. The mother says that this has encouraged the child to become angry with her and to tell her that he hates her.
Presumption of equal shared parental responsibility
Section 61DA(1) of the Act creates a presumption, which the Court must apply before it makes any parenting order in respect of a child (and this is the case whether or not a party has sought a specific order for equal shared parental responsibility). By virtue of this section, it is presumed that it is in the best interests of the child concerned that his or her parents have “equal shared parental responsibility” for the child.
The presumption, however, does not apply if there are reasonable grounds for the Court to believe that the child concerned has been subject to abuse or family violence (s.61DA(2)) or in the case of an interim hearing the court considers it inappropriate (s.61DA(3)) or the presumption may be rebutted by evidence which satisfies the Court that it would not be in the interests of the child for the parents to have such equal shared parental responsibility (s.61DA(4)) [emphasis added].
The presumption, therefore, may not apply if the Court is making an interim order and considers that it would not be appropriate in the circumstances for the presumption to be applied, when making that interim order.
As the Full Court of the Family Court of Australia in Goode & Goode [2006] FamCA 1346 states, unless displaced by court order, the parties’ parental responsibility may be exercised either jointly or severally. See s.61C of the Act. The effect of an order for equal shared parental responsibility, is to require the parents not to reach a joint decision but to consult one another and make a genuine effort to reach agreement about major long-term issues in relation to the child (s.65DAC of the Act). This consultation is not required to be face to face and may still occur in circumstances where the parties are in high conflict provided there is a willingness and an ability to communicate.
The phrase “major long-term issues” is defined in s.4(1) of the Act, as follows:
major long-term issues, in relation to a child, means issues about the care, welfare and development of the child of a long-term nature and includes (but is not limited to) issues of that nature about:
(a) the child’s education (both current and future); and
(b) the child’s religious and cultural upbringing; and
(c) the child’s health; and
(d) the child’s name; and
(e) changes to the child’s living arrangements that make it significantly more difficult for the child to spend time with a parent.
To avoid doubt, a decision by a parent of a child to form a relationship with a new partner is not, of itself, a major long‑term issue in relation to the child. However, the decision will involve a major long‑term issue if, for example, the relationship with the new partner involves the parent moving to another area and the move will make it significantly more difficult for the child to spend time with the other parent. [Original emphasis]
The mother does not seek an order for parental responsibility on her interim application.
The father seeks an order providing for equal shared parental responsibility.
The Independent Children’s Lawyer submitted that, as these are interim proceedings, it is not necessary to make any order as to parental responsibility, at this time. The Court accepts that submission.
The memorandum of Ms Barratt refers to the parties being highly critical of each other with allegations of family violence and child protection issues, which impact on the parties’ co-parenting relationship. Further, there does not appear to be any long term decision of a current nature, save, potentially, for schooling (which the parties have not raised an issue about), which would require the parties to exercise such parental responsibility in relation to, at least at this stage. In light of those factors, the Court finds that the presumption will not apply in this case. Whilst the Court’s discretion is not to be exercised in a broad exclusionary manner, on an interim hearing, the limited and controversial evidence before it makes the application of the presumption or it’s rebuttal difficult and supports reliance on s.61DA(3) of the Act to negate the application of the presumption.
Live with
Both parties agree that the child should live with the mother.
Time to spend
To determine what time orders should be made, the Court must look to the best interests of the child.
Supervised time
In terms of supervised time, the Court notes that the basis for a supervision order was described by Carmody J at paragraph 58 in Murphy & Murphy [2007] FamCA 795 as follows:
“Time with a dangerous or deficient parent may have to be regulated by the court for the child’s own protection but only to the extent necessary to avert or manage perceived risks while at the same time supporting worthwhile parent-child relationships. This may involve reducing the amount or nominating the place of contact eg, limited day time only supervised at a contact centre or by a designated person.”
Primary considerations
In order to determine the child’s best interests, the Court must have regard to the “primary considerations” under s.60CC(2) of the Act which are:
a)the benefit to the child of having a meaningful relationship with both of the child's parents; and
b)the need to protect the child from physical or psychological harm from being subjected to, or exposed to, abuse, neglect or family violence.
In applying the considerations set out in the subsection (2), the Court is to give greater weight to the consideration in paragraph 2(b). See s.60CC(2A) of the Act.
The following terms “abuse” (see s.4 of the Act) and “family violence” (see s.4AB(1) of the Act) are defined in the Act as follows:
abuse, in relation to a child, means:
(a) an assault, including a sexual assault, of the child; or
(b) a person (the first person) involving the child in a sexual activity with the first person or another person in which the child is used, directly or indirectly, as a sexual object by the first person or the other person, and where there is unequal power in the relationship between the child and the first person; or
(c) causing the child to suffer serious psychological harm, including (but not limited to) when that harm is caused by the child being subjected to, or exposed to, family violence; or
(d) serious neglect of the child.
family violence means violent, threatening or other behaviour by a person that coerces or controls a member of the person’s family (the family member), or causes the family member to be fearful.
Section 4AB(2) of the Act provides examples of behaviour that may constitute family violence which include but are not limited to:
(a) an assault; or
(b) a sexual assault or other sexually abusive behaviour; or
(c) stalking; or
(d) repeated derogatory taunts; or
(e) intentionally damaging or destroying property; or
(f) intentionally causing death or injury to an animal; or
(g) unreasonably denying the family member the financial autonomy that he or she would otherwise have had; or
(h) unreasonably withholding financial support needed to meet the reasonable living expenses of the family member, or his or her child, at a time when the family member is entirely or predominantly dependent on the person for financial support; or
(i) preventing the family member from making or keeping connections with his or her family, friends or culture; or
(j) unlawfully depriving the family member, or any member of the family member’s family, of his or her liberty.
The Court notes the examples set out in s.4AB(2) of the Act provide a non-exhaustive list. The explanatory memorandum (at 17) referrable to the introduction of the relevant provision provided that: “Behaviour that fits within the general characterisation set out in the definition will be captured. …The definition encompasses patterns of family violence and single violent events”.
A child is exposed to family violence if the child sees or hears family violence or otherwise experiences the effects of family violence. (see s.4AB(3) of the Act). The Act provides in s.4AB(4) examples of situations that may constitute a child being exposed to family violence which include but are not limited to the child:
(a) overhearing threats of death or personal injury by a member of the child’s family towards another member of the child’s family; or
(b) seeing or hearing an assault of a member of the child’s family by another member of the child’s family; or
(c) comforting or providing assistance to a member of the child’s family who has been assaulted by another member of the child’s family; or
(d) cleaning up a site after a member of the child’s family has intentionally damaged property of another member of the child’s family; or
(e) being present when police or ambulance officers attend an incident involving the assault of a member of the child’s family by another member of the child’s family.
In Stott & Holgar & Anor [2017] FamCAFC 152, the Full Court of the Family Court of Australia (Thackray, Kent and Watts JJ) considered the application of the “unacceptable risk” test. That test applies, not only to allegations of sexual abuse (see M v M (1988) 166 CLR 69), but also to other forms of risk, including those associated with exposure to family violence (see A v A (1998) FLC 92-800). Where a Court makes a finding of unacceptable risk, it is a finding that the risk of harm to a child in having time with a parent outweighs the possible benefit of that time. One must determine, first, whether there is a risk and, secondly, whether that identified risk is unacceptable. This is, clearly, a balancing exercise and a risk may still exist, but when balanced against other matters, that risk could be viewed as acceptable. The Court is seeking to ensure that, at all times, children are safe. Relevantly, as the Full Court sets out, the Court must give real and substantial consideration to the facts of the case, in determining whether there is an unacceptable risk of harm. On an interim hearing, this assessment must, necessarily, be abridged.
Importantly, the concept of supervision can turn what might be regarded as an unacceptable risk into an acceptable one.
The father agreed that, as the child lives with the mother, the child has a meaningful relationship with her. However, he says, the child has had intermittent time with him throughout the child’s life. At times, the child has spent overnight time and block holiday time with the father but, at other times, there has been no contact. Time is presently supervised and orders provide for 3 hours per week. On occasions, this time has not been implemented. The father says that the child would benefit from the father spending increased, unsupervised time so as to restore a meaningful relationship between them. The mother says that the child enjoys spending time with the father and whilst the parties are highly critical of each other, they appear to both support the other having a relationship with the child. She, however, articulates her concerns in terms of the allegation as to sexual abuse.
The father, further, submitted that the child is at risk of psychological harm due to his disrupted contact with him. Ms Barratt noted in her memorandum that this disrupted contact likely compromises the child's relationship with the father. Weight is attached to that.
The father also says that the child is at risk of psychological harm by being directed to call his mother’s partner “Daddy” and to call the father “Mr Alesco”.
The father says that the child is at risk of physical and psychological harm by being hit by the mother’s partner, Mr D.
The mother alleges the father has sexually abused the child (by inappropriately touching his penis) and raises concerns with respect to her allegations of the father’s involvement with family violence. As noted, this allegation has been reported to FACS and referred to JIRT and rejected. The Court refers to paragraph 20(c) above. The Court gives weight to that position.
The mother, further, submitted that, with regard to the need to ensure that the child has a continuing and substantial relationship with the father, that supervised time as, currently, ordered should continue.
The mother says that with regard to the allegations that the father may have, inappropriately, touched the child, she was advised very soon after reporting the matter to FACS and the Police not to discuss the matter with the child as they did not want her to influence what the child might have to say to an investigator. The mother said that she took this advice to heart and instead of discussing it with the child, discussed it with her General Practitioner who confirmed that she should leave that conversation to the professionals.
The mother says that she was left in a difficult position after being told that FACS had closed their file as she was then dealing with a child, who had become, increasingly, distressed in terms of having disclosed something which, she believed, could have been a sexual assault. The mother admitted that she did not know what had actually happened. She acknowledged that she only saw the child’s behaviour change with increasingly bad nightmares, recoiling from being touched and showing signs of distress whilst being showered and saying: “No nothing, I don’t want, daddy touch my penis”. The mother said that all of these behaviours ceased soon after unsupervised time with the father ceased. Without another satisfactory explanation for this, increasingly, troubling behaviour, that ceased when unsupervised time ceased, the mother said that she was extremely reluctant to agree to the child then spending unsupervised time with the father. The father agreed that the child was having nightmares at or about that time but disputed that these were as a result of any conduct by him.
The Independent Children’s Lawyer submitted and the Court accepts that the mother is the child’s primary carer.
On both parties’ evidence, the child enjoyed a close relationship with the father for, approximately, 2 years prior to the commencement of these proceedings.
The Independent Children’s Lawyer submits that the child would benefit from being able to resume that close relationship with the father and that this was supported by the Contact Centre reports. Further, the position taken by the mother for the past 12 months has not been supportive of the child enjoying a meaningful relationship with the father. The Court accepts that submission. The relevant Contact Centre reports evidence no “fear or flight” issues from the child’s perspective with the father. The mother has made an allegation which, at its highest, is that the father touched the child’s penis. The allegation raised by the mother has been investigated by FACS. That investigation has not taken any further action against the father. The tendered evidence does not support the mother’s position other than her notification to FACS. That notification was rejected at the triage stage. The material in support of the allegation, as denied by the father, does not raise an unacceptable risk.
The Independent Children’s Lawyer, further, submitted that there were previously reciprocal ADVOs in place in respect of both parents. The last such ADVO expired approximately 3.5 years ago. Notably, the mother seeks to rely on this expired ADVO.
The Independent Children’s Lawyer has concerns in respect of documents produced by the NSW Police as they relate to the mother’s partner, Mr D. The Independent Children’s Lawyer says that Mr D’s driving record is appalling, consisting of him being disqualified and fined on numerous occasions, being declared a habitual offender and being sentenced to a term of imprisonment which was then suspended pursuant to section 12 and on conditions.
The Court finds that:
a)The primary consideration referred to in s.60CC(2)(a) of the Act is supportive of the father now having unsupervised time with the child, so as to ensure that a meaningful relationship is maintained with both parents.
b)The primary consideration referred to in s.60CC(2)(b) of the Act is relevant on the facts of this case. However, the Court is of the view that the father’s time should no longer be supervised.
Additional considerations
The Court refers to the decision of Banks & Banks [2015] FamCAFC 36 and in light of that decision will focus on the s.60CC factors that are plainly relevant to the determination that the parties ask the Court to make on this interim decision.
In this matter, the Court will focus on the following s.60CC factors.
(a) any views expressed by the child and any factors (such as the child's maturity or level of understanding) that the court thinks are relevant to the weight it should give to the child's views;
In R & R: Children’s Wishes (2000) FLC 93-000, the Full Court of the Family Court of Australia said:
“There are many factors that may go to the weight that should be given to the wishes of the children and these will vary from case to case and it is undesirable and indeed impossible to catalogue or confine them in the manner suggested. Ultimately it is a process of intuitive syntheses on the part of any trial judge weighing up all the evidence relevant to the wishes of the children and applying it in a common sense way as one of the factors in the overall assessment of the children’s best interests.”
The Independent Children’s Lawyer submitted that she did not meet with the child as he was only 4 years of age. However, Ms Morton submitted that the contents of the Contact Centre’s reports would suggest that the child has expressed a wish to spend more time with the father. The mother appeared to acknowledge this position.
The father agreed that, due to the child’s young age, his views should be given limited weight.
The Court accepts the mother’s submission that, in the past 12 months, the child appears to have enjoyed his time with the father. More recently, the mother asserts that the child has expressed anger towards her after the father told the child that the mother was stopping him from seeing the child and encouraged the child to tell the mother to stop the Court case against him.
Considering the age and maturity level of the child, the Court simply notes and accepts the child’s views were not sought nor expected.
However, the Court gives some weight to the observations of the Contact Centre that the child evidences no “fear or flight” behaviours in considering the risk of the father to the child, as raised by the mother.
(b) the nature of the relationship of the child with: (i) each of the child's parents; and (ii) other persons (including any grandparent or other relative of the child);
The mother says that the child has a very strong bond with her, as she has been the primary care giver since the child’s birth. The father states that the mother is a “good” mother, as noted by Ms Barratt in her memorandum.
The father agrees that the child has a close relationship with the mother.
The mother, further, says that the child lives with his 3 brothers, the older 2 who, reportedly, dote on him and the youngest, born in …2018, with whom, the mother says, the child spends hours playing with and caring for every day. The child also has frequent contact with his maternal grandparents and the mother’s extended family, who love and adore him.
The child has a close relationship with his maternal grandmother and maternal step-grandfather.
The father, further, submitted that the child has a close relationship with his older brothers with whom he resides and will now be developing a relationship with the mother’s new child.
The father says that the child has, previously, had a close relationship with him and the limited time that they presently spend together adversely impacts upon this. The Court gives this some weight.
The child’s maternal step-grandfather, Mr E, states that the child did not want to be separated from the father during the time he was supervising and that he saw the child run to the father and was excited to see him. Weight is attached to that observation.
The father says that his cousin, her 3 children and his parents have a good relationship with the child. The father has requested and the mother has agreed for his family to join him when he spends time with the child. To a large extent, that can occur when the father has unsupervised time, noting that time with extended family members is, potentially, more problematic in a Contact Centre environment.
The father says that the child currently has no contact with his older brother, Mr K, on the father’s side, or with his grandparents and other members of the paternal extended family. The child has no contact with the father’s fiancée’s daughter, with whom he, previously, spent time and had a close relationship. The child has a positive relationship with the father’s fiancée, who has attended some visits in the latter half of 2018 and has also spent time with the child, previously, including during the January 2018 school holidays. The Court accepts that these relationships would be fostered by the father having unsupervised time with the child and weight is attached to that.
The mother agrees that, since the commencement of supervised time (and when time was supervised prior to these proceedings), the child appears to have a good relationship with the father, he looks forward to spending time with him and has expressed the desire, during telephone time, to spend more time with the father. Weight is attached to that concession.
The Court accepts that the child appears to have a strong bond with the father despite the restricted time that they, currently, spend together and that the father in having unsupervised time, as proposed by the Independent Children’s Lawyer, has the potential to maintain and build upon that bond. The Court is of the view that the father’s proposed time periods, including, in particular, long school holiday time, should not be considered until after the child has had a consistent period of unsupervised time with the father, as promoted by the Independent Children’s Lawyer. Ms Knight, substantially, adopted that position in her submission and the father is to be given some credit in considering that a slower graduated approach to expanding his time with the child should occur. This graduated approach and expansion needs to take on board the mother’s concerns given that she is the primary care parent.
(c) the extent to which each of the child’s parents has taken, or failed to take, the opportunity:
(i) to participate in making decisions about major long-term issues in relation to the child; and
(ii) to spend time with the child; and
(iii) to communicate with the child;
The father says that the mother has not demonstrated a willingness or ability to facilitate the child’s relationship with him. The father maintained that the mother had, previously, suspended time on several occasions throughout the child’s life and was not fully complying with current orders for him to spend 3 hours of supervised time each week. The father says that the mother has directed the child to call her partner “Daddy” and to call him “Mr Alesco”. The father said that he was willing and able to facilitate the child’s relationship with the mother and confirmed that he sought orders that the child continue to reside with the mother.
The Independent Children’s Lawyer says that both parties have alleged that the other encourages the child to denigrate them. The memorandum of Ms Barratt confirms that the parents presented as highly critical of each other.
The father asserted that the mother has, when the child was sick in hospital and upon him leaving the hospital, said that she would not let him see the child again. The mother admits this and said that it was said in a moment of anger. The mother, further, states that she did not contact the father about time again for more than a year and that the father made little effort to seek time with the child, during that period. The father asserts that it was the mother who suspended time, well after the hospital incident and that he had made numerous attempts to contact her to reinstate time. This is a disputed fact, which cannot be resolved at this time.
The Court accepts, however, that both parties have demonstrated a willingness to ensure that the child has a relationship with the other making various agreements for the father to spend time with the child on a regular basis. Both parties are seeking arrangements that include the child spending regular and frequent time with the father.
While the Court accepts that the mother may remain concerned about the subject of the child’s asserted disclosure, which, she says, has never been adequately explained or investigated, the report by FACS does not disclose matters which would now warrant the father’s time being supervised, going forward.
The mother acknowledges that apart from a Contact Centre there are very few people that both parties will agree to supervise time. The mother’s step-father, Mr E, supervised for only a few weeks before withdrawing as he did not want to be involved in their disagreements. The mother says that her mother is prepared to supervise, however, she works casually and is, therefore, not always available at the same time each week and time would have to be somewhat flexible for this to happen. The mother says that she has some concerns about the paternal grandparents supervising because, she asserts, the father’s mother previously lied to her about the child and the father’s whereabouts. The Court accepts the child needs regular and consistent time with the father.
The Court, further, accepts that supervision, in itself, is not a long term solution and the hours that can be provided by way of supervision in a Contact Centre cannot, necessarily, extend to the time now required to provide the father and the child with the opportunity to build and maintain a meaningful relationship. The Court accepts the Independent Children’s Lawyer’s proposal for that time to now include overnight time after a period of further day time. That overnight time was to commence for the first weekend on 11 January 2019 and for a Wednesday overnight to commence on 16 January 2019, under the Independent Children’s Lawyer’s proposal.
The Court refers to the conflicted history of the matter, referred to above. That conflict, however, does not weigh relevantly against the father’s time now being unsupervised and expanded in terms of the Independent Children’s Lawyer’s proposal, as amended by the Court. See paragraph 146, below.
(ca) the extent to which each of the child’s parents has fulfilled, or failed to fulfil, the parent’s obligations to maintain the child;
Neither party submitted that this factor is relevant on the facts.
(d) the likely effect of any changes in the child's circumstances, including the likely effect on the child of any separation from: (i) either of his or her parents; or (ii) any other child, or other person (including any grandparent or other relative of the child), with whom he or she has been living;
The Court has to weigh carefully the father’s position in consenting to earlier interim orders which provided for supervision when considering whether time should now be spent unsupervised. Some weight would need to be given as a reflection of a concession by the father that supervision was in the child’s best interests and while not specifically excluded on a Rice & Asplund threshold given the interim nature of the orders made, an investigation as to what had changed may be considered important. Although such concession may have been noted as made to obtain spend time orders, in circumstances, where the Court had insufficient time to deal with an application for unsupervised time in its busy duty lists. (See Salah & Salah [2016] FamCAFC 100). The Court accepts that the father’s position has always been that his time should be unsupervised. His agreement to supervised time was, largely, prefaced on a “without admission” basis and to give sufficient time to the Independent Children’s Lawyer to investigate the matter. The Independent Children’s Lawyer now supports the father’s time going unsupervised. Weight is afforded to the Independent Children’s Lawyer’s position, in that regard, following the production of documents on subpoena, as tendered in terms of paragraph 20, above.
The father, further, submitted that it is not proposed to make changes that will separate the child from his primary carer or the maternal family for large amounts of time, with the exception of holiday time and the child has, previously, coped with and enjoyed holiday time with him and his family. The Court accepts that position but is of the view that the holiday time should be restricted in accordance with the Independent Children’s Lawyer’s proposal at a slower and more graduated approach. The Court, at this point in time, will not entertain half school holidays in the Christmas period of 2019, noting that it intends to bring the matter back for mention in the middle of 2019 (see order 26, above).
The child is, currently, separated from the father for the majority of the time and separated from the paternal family completely (given the constraints of supervision). The Court accepts that it is in the child’s best interests to ensure that his connection with the paternal family is encouraged by way of an expansion of the father’s time and for such time to now proceed unsupervised.
(e) the practical difficulty and expense of a child spending time with and communicating with a parent and whether that difficulty or expense will substantially affect the child's right to maintain personal relations and direct contact with both parents on a regular basis;
The father submitted that both parties reside in the Greater Western Sydney region and have previously effected changeovers, without significant practical difficulties. The Court accepts that submission.
Both parties accept that, if the father’s time is not to be supervised, then apart from changeovers at the day care centre, the father’s proposed order 6 could be implemented for future changeovers.
(f) the capacity of: (i) each of the child's parents; and (ii) any other person (including any grandparent or other relative of the child); to provide for the needs of the child, including emotional and intellectual needs;
The mother says that she has been the primary carer for the child since birth. The father acknowledges that she is a good mother. The Court accepts that there appear to be no real issues in relation to her parenting capacity, save for her views that the father’s time should continue to be supervised. The care provided by the mother has included cooking, cleaning, showering, teaching the child both Languages and English, arranging socialisation through enrolment in pre-school and medical care for the child’s allergies.
The mother reports that the child has very strong emotional ties to his maternal family. The Court accepts that the mother has access to family support by way of the maternal grandparents and the child’s older siblings.
The father says that each of the parents has the capacity to meet the child’s primary care needs.
The Court accepts that the mother has the relevant capacity. The mother, apart from her raising the issue of the father inappropriately touching the child’s penis and violence issues between her and the father, raises no other matters in terms of the father’s practical capacity to provide for the child’s needs.
The Court accepts, further, that the mother has shown limited insight in terms of her not agreeing to a restraint against encouraging the child to call any other person, including Mr D “father”. The evidence supports such a restraint. Further, it is a matter of some concern to the father and has the potential to negatively impact on his own parenting of the child, whilst the child is in his care. This weighs in favour of an order being made in terms of that sought by the father.
The Court accepts that both parties have agreed to a restraint against the use of excessive physical discipline in terms of protecting the child’s physical needs. In this regard, this deals with the father’s allegation against Mr D from using such excessive physical discipline. The Court notes that the father’s evidence outlines a denial by Mr D of him hitting the child on the head but an admission to hitting him on the hand. There is no affidavit filed on behalf of Mr D. The Court notes that this may be as a result of the late raising of this issue by the father.
The mother says that the father has given contradictory evidence regarding his attitude to parenting in that in the same affidavit he asserted that he did agree to co-sleeping but then asserted that he did not agree.
The Court accepts neither party raises any capacity issues in terms of both the maternal and the paternal grandparents’ capacities to provide for the child’s needs.
The mother raises no issue as against the father’s fiancée, Ms H, to the effect that she lacks any capacity to meet the child’s needs.
The Independent Children’s Lawyer submitted that it appeared on the mother’s own evidence that her only real concern was the matter the subject of the notification made to FACS. Insofar as the child is concerned, that appears to be the case.
The Court accepts that, from the documents tendered, the mother has called upon the father in the past to assist her with collecting the child from day care and that apart from her document which disclosed under the heading of “Parent 2” where the mother wrote “NA”, the mother has, subsequently, included the father in a later enrolment form. The mother’s explanation being that, at the time she completed the earlier form, the father had not been active in spending time with the child. The father disputes this. Notwithstanding that position, the Court would have still expected the mother to refer to the father’s details in that earlier enrolment form.
The Court find that both parents have the relevant capacity to provide for the child.
(g) the maturity, sex, lifestyle and background (including lifestyle, culture and traditions) of the child and of either of the child's parents, and any other characteristics of the child that the court thinks are relevant.
Both parents assert that the child has advanced language skills and expresses himself well for a child of his age.
The father expresses some concern that the child has lost the ability to count to 10 in …Language and English.
The Court accepts, however, that prior to these proceedings, the father was spending time with the child on a fortnightly basis, communicating with him in …Language and English with the full support of the Paternal Grandparents. The father’s family speak …Language and the father has been teaching the child to speak basic …Language.
The mother agrees that the parties are bilingual, speaking …Language and English The Court accepts that it is likely that both parties would seek to ensure that the child experiences and is connected with both his Australian and … Language speaking cultural heritages.
(h) if the child is an Aboriginal child or a Torres Strait Islander child: (i) the child's right to enjoy his or her Aboriginal or Torres Strait Islander culture (including the right to enjoy that culture with other people who share that culture); and (ii) the likely impact any proposed parenting order under this Part will have on that right;
These factors do not apply to the child.
(i) the attitude to the child, and to the responsibilities of parenthood, demonstrated by each of the child's parents;
The father agrees that each of the parties has endeavoured to meet the responsibilities of parenthood.
The Court accepts that the father has, previously, cared for the child overnight, taken him to and from day care, taken him to the hospital and to the Doctor when ill, taught him … Language and toilet trained him. However, the father has had interrupted time and now supervised time. The Court accepts that it is important for the father’s unsupervised to be built up and then to progress to overnight time. The Court gives weight, in this regard, to the Independent Children’s Lawyer’s proposal with dates as amended by the Court (see paragraph 146, below).
The Court accepts that the mother, as the primary carer for the child, has adopted a fiercely protective position for the child. However, that position has to be considered in light of the objective material. That material does not support the father’s time continuing to be supervised and weight is attached to that.
The Court accepts that both parents have demonstrated appropriate attitudes to the child and to the responsibilities of parenthood.
(j) any family violence involving the child or a member of the child's family;
The mother asserts that there was significant family violence, including physical and emotional abuse, perpetrated by the father against her, throughout the period of the relationship. While the mother also asserts that much of this violence occurred in the presence of her children from previous relationships, she does not assert that the father has been in any way violent towards the child. The mother says that this violence, ultimately, caused her to finally separate from the father at the time she learned she was pregnant with the child, as she feared the father might harm the child or force her to have an abortion as she asserted he had done on a previous occasion. Notwithstanding this, the mother agreed for the father to have regular weekend, mid-week time and holiday time until the alleged disclosure of the father, inappropriately, touching the child.
While the father has denied being violent towards the mother, it is of some concern that he asserted that various ADVOs against him were dismissed. The Police records, clearly, indicate that this assertion is factually inaccurate. The Police records indicate that the first ADVO against the father was sought by the Police after they heard him threatening the mother over the telephone. Further, the ADVO, itself, is evidence that the ADVO was not dismissed but was made final for a period of 12 months and then extended for a further 12 months following another incident in which the mother asserted that the father had threatened her.
The father asserted that both parties were verbally abusive towards one another and indicated that there was an ADVO for his protection due to harassment by the mother. The mother concedes that such an ADVO was issued but said that it concerned her sending numerous messages which were considered by the Police as annoying, rather than harassing.
The Court repeats the father’s assertion that the mother’s partner, Mr D, has hit the child, in the context of excessive physical discipline. The Court repeats the matters set out above in respect to appropriate injunctive relief agreed to by the parties, with respect to this.
(k) If a family violence order applies, or has applied, (be it final, interim, contested or consented to) 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:
(i) the nature of the order;
(ii) the circumstances in which the order was made;
(iii) any evidence admitted in proceedings for the order;
(iv) any findings made by the court in, or in proceedings for, the order;
(v) any other relevant matter;
The Court accepts that there are, currently, no ADVOs in place.
The Court accepts that both parties assert that each was verbally abusive towards the other.
The Court repeats the matters set out in paragraphs 20(e), (m) and (n) and 28(j), (l) and (m) above, in relation to the history concerning ADVOs taken out against each of the father and the mother.
Neither party raises any specific matter referrable to this factor in terms of the father’s time with the child continuing to be supervised or unsupervised. The mother’s concern as to supervision relates to the disclosure by the child of an inappropriate touching of his penis, as referred to above.
(l) whether it would be preferable to make the order that would be least likely to lead to the institution of further proceedings in relation to the child
The Court finds that, as this is an interim hearing, this factor must be assessed in this light.
The father says that as this matter is at the interim stage, he seeks the resumption of unsupervised time and an opportunity for judicial oversight to ensure the mother facilitates a relationship between the child and him. The Court accepts that some judicial oversight would need to occur prior to the father’s more expansive time regime being considered.
The Independent Children’s Lawyer submitted that there is an absolute paucity of evidence to support the position taken by the mother in unilaterally preventing the child from spending time with the father in circumstances where that time had been extended to overnight periods and holiday time, prior to her doing so. The Court accepts that submission.
(m) any other fact or circumstance that the court thinks is relevant
There are no other facts or circumstances raised by the parties.
Reasonably practicability of ‘spending time’
The Court does not need to consider the factors under s.65DAA(5) of the Act.
Conclusion
Finally, the Court must have regard to all the above matters set out in s.60CC of the Act, to consider how, together, they should give effect to either or both of the primary considerations in determining the child’s best interests.
Time
The Court accepts that the child should spend time in accordance with the Independent Children’s Lawyer’s proposal, as varied by the Court, which provides for a graduated period for day time and then an expansion into weekend and mid-week overnight time. The Court, further, accepts the Independent Children’s Lawyer’s proposal for short school holiday time. The Court adopts the father’s proposal for Father’s Day and Mother’s Day.
The Court is of the view that an amendment is required to the Independent Children’s Lawyer’s proposed orders given that they were to commence at a time prior to the publication of these reasons. The Court in those circumstances is of the view that there should be a graduated approach to 2 days of day time only on Wednesday 26 December 2018 (as agreed between the parties and ordered from 9.00am to 1.00pm) and Saturday 29 December 2018 (for an extended period from 10.00am to 5.00pm). Overnight time should then progress to 3 individual overnights on 1 January, 5 January and 12 January 2019. The 3 overnight periods starting from Friday to Monday should then commence on 18 January 2019 with the mid-week overnight time on a Wednesday commencing on 23 January 2019. That implements the Independent Children’s Lawyer’s proposal but with a graduated approach, given the time of the year.
Supervision of time
The Court finds that the risk factors identified simply do not warrant the imposition of supervision. Further, supervision is not an appropriate long-term measure given the age of the child and the strength of his present relationship with the father, as noted above.
Restraints & injunctions
The Court would not impose a restraint without clear evidence as to why the restraint should be imposed. The injunctive power is a discretionary one, “not to be exercised lightly”; see the Full Court in Sieling & Sieling (1979) FLC 90-627 (at page 78,264).
The Court is of the view that there is sufficient evidence to ground a restraint in terms of the parties not allowing the child to call any person, other than the father “father” or an equivalent. A similar restraint is agreed to by the father in terms of the mother.
The Court is, further, of the view that both parties should be permitted to attend all events involving the child as sought by the father but limited to those being relevant to the child, namely extra-curricular activities and functions and events which allow for parental attendance, as set out in order 19, at the commencement of these reasons.
The Court is, further, of the view that an order should be made, to the effect that either parent wishing to take the child on a holiday, interstate, within Australia should notify the other parent of the matters contained in the father’s proposed order (order 20), to that effect.
Both parties agree to the imposition of a restraint from removing the child from the Commonwealth of Australia and the imposition of an Airport Watchlist order for a period of 2 years.
Costs
While the father sought costs, this was not actively pursued by Ms Knight, given the constraints on interim hearing time. In the circumstances, the Court will reserve the father’s costs.
Court is satisfied on balance, having considered and weighed the primary and additional considerations referred to above, that the orders set out above, at the commencement of these reasons, are in the child’s best interests and, accordingly, will so order.
I certify that the preceding one hundred and fifty-four (154) paragraphs are a true copy of the reasons for judgment of Judge Kemp
Date: 24 December 2018
- AGLC
- ALESCO & CLARKSON [2018] FCCA 3867
- Case
- [2018] FCCA 3867
- Decision Date
CaseChat Overview and Summary
The primary legal issue before the court was to determine what interim orders were in the best interests of the child, specifically regarding the arrangements for the father's time with the child. This involved assessing the risks and benefits of supervised versus unsupervised time in the context of the existing family circumstances.
Kemp J applied the principles of the *Family Law Act 1975* (Cth), particularly those relating to the best interests of the child. The court considered evidence presented by both parties regarding the child's welfare and the capacity of each parent to meet the child's needs. After weighing the competing considerations, the court made orders for supervised time, finding that this was the most appropriate interim arrangement to ensure the child's safety and well-being.
Orders
Orders of the court
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Background
Background to the litigation
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Evidence
Evidence Before The Court
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Decision
Reasons for decision
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Ratio Decidendi
Legal Principle Established
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