Interim

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Herbert & Herbert (No. 2) [2019] FamCA 79 (22 February 2019)

We posted a case summary in February that involved a 15-year-old boy who was ordered to live with his father. The boy does not want to reside with the father, gets on his pushbike, rides home to his mother repeatedly, and refuses to leave. 

The mother tries to take the child back to the fathers house multiple times, only to have the 15 year old jump on his bike and return back to her. It was established the mother contravened orders and visitations between her and the children were ceased

Here is the link to refresh your memory

FLAST CASE SUMMARY: Herbert & Herbert [2019] FamCA 5 (10 January 2019)

This is now the follow up case to that where the mother who is self representing now seeks a number of orders on an interim basis. This includes but is not limited to, variation of interim parenting orders for the children to return to her care on the lead up to trial, for the ICL to be discharged and the Psychologist the father and children are attending to be restrained due to ‘conflict of interest.”

FACTS SUMMARY

  • The mother is presently restrained from seeing or contacting her two sons.
  • The mother seeks interim parenting orders varying the current routine to return the boys to her care in the lead up to the trial.
  • The mother seeks that the ICL be discharged.
  • The father and the two boys are attending a psychologist for family therapy.
  • The mother seeks to terminate the psychologist from providing family therapy to them, she claims there is a “conflict of interest,” - the father and psychologist work in the same building and share the lunchroom- claims the psychologist is lying to the court about it.

ISSUE

  • Has there been a significant change to warrant the boys living arrangements to be varied in the interim to the Mothers care?
  • Has the ICL not been discharging her duties independently and professionallyto warrant dismissal?
  • Is there a conflict of interest to permit the dismissal of the Family Psychologist?

HELD

It was determined during the previous orders the 15 year old boy had missed a significant amount of school whilst in the mothers care, the court is presently satisfied the boys have been attending school whilst they are in the fathers care, the ICL asserts that there should be no change to the existing orders for the present time.The mother did not provide acceptable evidence to change the boys living arrangements to return to her care. The application was dismissed.

Furthermore, in relation to the matter of terminating the current ICL in favour of a new one, the mother did not sufficiently demonstrate that the ICL is not discharging her responsibilities independently and professionally. It was stated that it’s not an adequate reason to discharge a ICL just because they are not acting in a way that agrees with the parents’ expectations.The application was dismissed.

Moreover, the evidence specified by the mother does not warrant restraining the psychologist from seeing the father and the children. However, the Judge informed the mother that she has an opportunity to challenge the psychologist in cross-examination at the trial if she wanted to try to discredit her. The application was dismissed.

In conclusion, the judge informed the mother that this matter may be resolved without the need to go to trial if she had a family lawyer advising and representing her; she was directed to the QLD Law society to seek assistance in locating a possible family lawyer who may represent for her trial on a deferred payment basis.

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Conlan & Tomlinson [2019] FamCA 93 (27 February 2019)

The child is 8 years old and is subject to final parenting orders that provided for both parents to have equal shared responsibility. The child resides with the mother and spends time with the father. The child has a good relationship with both parents.

However, the father subsequently applied to restrain the mother, and Interlocutory orders were made, the father alleged the mother had threatened to relocate the child to the United Kingdom for a period of time and enrol the child there for school; provisions were made regarding international travel.

It’s important to note at this point, the mother had previously removed the child from school, enrolled and removed her from another school and then commenced home schooling without the fathers consent. The orders also state for a psychologist to support the child’s anxiety and the return of the child back to mainstream school.

The mother- pending final orders, notified the father of her proposal to relocate with the child to the ACT, the father considered it but did not consent. The mother then relocated with the child, notifying the father of the location and the mainstream school the child was enrolled in.

The father has now filed an application in a case seeking the return of the child to live within a 40 km radius of him with the mother, or for a recovery order for the child to live with him if the mother does not return. He sought orders related to schooling arrangements for the child and for costs. The relocation by the mother is in conflict with the orders made in relation to equal shared parental responsibility.

The mother now seeks orders allowing the child to remain in the ACT and to ultimately relocate to the UK with the child.

FACTS SUMMARY:

  • Interim Parenting Orders.
  • The mother made a unilateral change in the face of final parenting orders.
  • The mother and child relocated to the ACT without the fathers consent.
  • The mother further proposes relocation to the UK with the child.
  • The father has applied for orders seeking the child be returned to the area with the mother, if the mother does not return, for the child to reside with him.
  • The mother seeks to remain with the child in the act with intentions to ultimately relocate to the UK.

ISSUE:

Is it in the child’s best interest to remain in the ACT with the mother?

HELD:

It was ordered for the child to be promptly returned to the town to the fathers care, the exception is if the mother returns as well, then the child will live with her and have access to the father. The mother may also select the school for the child, however she is prohibited to change the school without the consent from the Father.

If the Mother does not return with the child, she will remain with the father and time spent with the mother will have to be considered. Furthermore, it was established the mother’s conduct was in contravention of the final orders, however, punishment for breach was not a concern in these proceedings.

The court considered the child to remain in the ACT with the mother, nonetheless there was significant concern regarding the accumulative instability in the child’s life over a period of time from the choices and conduct by the Mother

It was stated at [35] the child had changed schools once and then been removed from school completely to be home-schooled. She has then changed home, changed city, and enrolled in a new school and now there is a proposal that she may relocate to a new country.

It was therefore determined in the best interest of the child that there is a significant need for her to be provided stability, at the very least during the circumstances of the current proceedings, even if it means abrupt interruption for the child and possible amendment of primary carer.

 

Legislation and Principle Cases

Family Law Act 1975 (Cth) s 65DAA  s 60CC  

Goode v Goode  [2006] FamCA 1346

Morgan v Miles [2007] FamCA 1230;  (2007) FLC 93-343

Rice & Asplund [1978] FamCA 84;  (1979) FLC 90-725

U & U [2002] HCA 36;  (2002) 211 CLR 238

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Kader & Winchester [2019] FCCA 244 (5 February 2019)

The father seeks orders that both parents have equal shared parental responsibility for the child as well as orders for shared time. There has been no contact between father and child for 2 years and 8 months.

The mother and father have made serious allegations against each other. The mother applied for a domestic violence order, the father subsequently was charged with a breach of those orders, for he attended the mother’s residence to collect his belongings.

The mother opposes any interim order, which considered the father having any contact with his daughter, and submits any contact between the father and child whether supervised or not would put the child at risk.

The mother claims the father had verbally and physically abused her and the child. The father denies the allegations, however does concede that he failed to buckle the child in the car seat once, resulting in the child falling out of her seat, he also admitted to having punched holes in the walls of the home on two occasions and acknowledged this was unacceptable behaviour.

The father has attended all required sessions with a family therapist, as well as having attended all other court ordered programs, despite having no assurance he will see the child again and knowing the mother is adamant he will never spend time with their daughter.

FACTS SUMMARY:

  • Interim parenting orders.
  • Father has had no contact with child over a period of two years and eight months.
  • Father seeks orders that both parents have equal shared parental responsibility for the child as well as orders for shared time.
  • The mother opposes any interim order for contact supervised or not.
  • The father has admitted to an instance of family violence.
  • The father has complied with all previous court ordered programs, therapists and courses.

ISSUE:

Does a self-confessed instance of family violence in the past from the father deprive his daughter from having contact with him?

HELD:

Pending a final determination of the orders, the mother has sole parental responsibility for the child; the child is to reside with the mother.

It was ordered for the Mother to attend a Psychologist to deal with concerns developing from the child spending time with the Father, additionally, both parents are ordered to complete the Post-Separation Parenting Orders Program. Furthermore, the father was granted supervised visitations initially at a contact centre, after no less than 10 visits at the centre with the child, both parents must attend the family report writer for the arrangement of an updated Family Report.

 The courts position in this instance pending the final orders, were that contact should be returned between the father and the child in the best interests of the child. The judge concluded that a previous history of a parent behaving unreasonably does not always mean the child will be devoid of a meaningful relationship with the parent later on, this of course relies on the parent to behave reasonably in such a way to demonstrate the best interest of the child will be satisfied.

There has been some time between contact with the father and the child (2 years and eight months) therefore, supervised visitations at the contact centre will provide the opportunity to determine if the father is capable of behaving reasonably with the child, it was established the probability of the father causing harm to the child at the contact centre is minute.

Legislation:

Family Law Act 1975 (Cth), ss.11F60CG60CC60CA

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Department of Child Safety, Youth and Women & Brightman [2019] FamCA 80 (22 February 2019)

The Department of Child Safety and the father applies for interim and final orders regarding the child who is nearly nine months old, she was born in New Zealand and has only ever resided in that country.

The mother is Australian, towards the end of the relationship she expressed to the father that she wanted to relocate back to Australia to be with her family, the father who was born in New Zealand expressed he did not want to relocate to Australia.

After separation the mother blocked the father on Facebook, and he was unable to contact her any other way. The mother relocated with the child (5 months old at the time) without his consent and now resides in QLD.

Furthermore, the child was born with a disability from a birth injury, both parents and the child attended the first of a series of appointments in New Zealand, to begin the process for surgery in early 2019 to reattach nerves in her arm. The child has no movement in one arm from the shoulder to the fingers since birth.

The father is concerned that, as a national of New Zealand, the child may not have the same access to treatment here as she will have in New Zealand.

FACTS SUMMARY:

  • The mother relocated the child to Australia without the father’s consent.
  • Application under the Hague Convention for the return of the child to New Zealand
  • Child has a disability from birth that requires surgery.
  • Concern the child will not have access to treatment in Australia.

ISSUE:

Does the father have rights of custody for the child?

Was there a wrongful removal of the child from New Zealand?

HELD:

Interim order made. 

It was determined the father has rights of custody under New Zealand law, Care of Children Act 2004 (NZ). It was further established there is at first glance a case for a return order to be made from the supporting evidence.

Interim orders were then made for the mother to surrender her and the child’s passport to the Department of Child Safety to prevent the mother from absconding Australia with the child ( the mother was also restrained from moving from her current residence) pending the determination of the Application for an order for the child’s return to New Zealand is heard. 

The mother and child were also placed on the Family Law Watch list for two years.

Due to the circumstances of the application, priority in the allocation of a final hearing was afforded.

Family Law Act 1975 (Cth)

Family Law Child Abduction Convention Regulations 1986 (Cth)

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Frangoulis & Xennon [2019] FamCA 103 (28 February 2019)

The father was required by previous orders to engage with a specific psychologist ‘Mr B’ who has experience with anger management and family violence or if unavailable such other therapist nominated by the ICL.  The father did not attend ‘Mr B’ instead the father saw ‘Mr F’ who is a psychologist however, the mother disputes whether ‘Mr F’ has professional expertise with anger management and family violence as were ordered by the court.

The mother contends the father has not complied with the orders and until the father has obtained “a report from a nominated therapist that the father has successfully engaged with therapy” the children’s time with the father should not resume.

The father alleges ‘Mr B’ was on leave and seeks to have time with the children reinstated and for the child to engage in re-unification therapy.

FACTS SUMMARY:

  • Children X born in 2009, Y born in 2011 and Z born in 2013.
  • Final parenting and property orders have been listed for trial to commence on 2 September 2019.
  • 4 August 2017, orders specifying that until further order the father spends time with the children supervised by Mr and Ms C.
  • 8 April 2018, the mother withheld the children from the father based upon one occasion the father spent time with the children without the supervision by Mr and Ms C.
  • 3 May 2018, the mother issued a Contravention Application, it was determined the father had contravened it and was then required he enter into a Bond for a period of one year.
  • The mother later withholds the children, she believes that the father has not complied with the orders and his time with the children should be suspended.
  • 15 January 2019, the father files an application in a case seeking to have time with the children reinstated with supervised time, including make-up time and reunification therapy with the child
  • The father was required by the earlier order to engage with a therapist Mr B who has experience with anger management and family violence.
  • The father saw therapist Mr F instead.
  • The mother states the father has not complied with the orders of 27 July 2018 and until the father has obtained “a report from a nominated therapist that the father has successfully engaged with therapy” the children’s time with the father should not resume.
  • The mother disputes the professional expertise of Mr F with respect to anger management and family violence.
  • The father contends that Mr B was on leave and that Mr F was approved by the ICL, he was unable to complete all of the required appointments in the 10 week period- Mr F was not available.
  • The ICL supports a recommencement of time with the father providing it is either supervised or that the supervisors are generally present when the children are with him.
  • The mother seeks that the father’s application be dismissed.

 

ISSUE:

  • Should an order for reunification be made?
  • Was the psychologist approved by the ICL?
  • Does the psychologist have expertise, experience or skillset in respect of family violence and anger management as per the orders?

HELD:

It was ordered for the father to attend Mr F for a further two sessions and to provide Mr F with the report from Mr B and the family consultant, including the previous judgements. Furthermore, Mr F is to prepare a report stating his expertise, experience or skillset in respect of family violence and anger management and a report directed to the father’s engagement with therapy and focussing on anger management and family violence. The fathers time with the children will be reinstated upon successfully engaging with counselling and therapy directed to family violence and anger management and upon the receiving the report from Mr F.

In determining this matter it was required to set out the relevant provisions of the orders made 27 July 2018:-

(2) That the father shall attend upon [Mr B] (psychologist) or if unavailable such other therapist nominated by the Independent Children’s Lawyer (“ICL”) with expertise in the area of anger management and family violence and to comply with all instructions and further counselling and/or therapy as may be recommended by him or her.

(3) At the completion of five (5) visits with the nominated therapist which are to occur within ten (10) weeks of the date of this order, the father is to obtain a report from the therapist as to his engagement with therapy and that he has successfully completed the five (5) visits.

(4) If the father has not completed the five (5) visits as nominated THEN until further order, paragraph 1 of orders made 4 August 2017 shall be suspended.

It was confirmed that Mr B was indeed on leave and not available to do the sessions with the father. The ICL therefore contends the consideration for the nomination of Mr F was “entirely within the discretion of the Independent Children’s Lawyer in accordance with paragraphs 2 and 3 of the orders. The ICL states that ‘I have exercised that discretion, and the issue is concluded’. This was accepted.

However, it was established that whilst Mr F does hold an Honours Degree in psychology and has widespread experience across health, welfare, education and management sectors focusing on trauma psychology it is unknown if he has expertise in the area or experience with family violence or anger management.

Moreover, it was confirmed the father has indeed not completed the required five therapeutic visits with either Mr B or any nominated therapist, it was also determined the father’s application was lacking for the orders he sought. There was no evidence provided to support his application for re-unification therapy. It was identified there needs to be a completed assessment from a nominated practitioner that reports the issues raised in the proceedings and provides an assessment as to the prospects of success, limited or otherwise for reunification. Reunification therapy is subject of the evidence provided, it’s not a matter of theoretical consideration.

 

Key Legislation In This Case.

BEST INTERESTS OF THE CHILDREN

Section 60CC(2) of the Family Law Act 1975 (Cth) (‘the Act”)

The primary considerations 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.

It is an appropriate enquiry by the Court to ensure any risk to the children (if same exists) is minimised such that the application of s 60CC(2A) does not outweigh the benefit of the children having a meaningful relationship with the father.

Interim Parenting Key Principles In This Case

In Deiter & Deiter  [2011] FamCAFC 82 the Court considered the situation where contested facts related to an assessment of risk and said at [61]:-...the assessment of risk in cases involving the welfare of children cannot be postponed until the last piece of evidence is given and tested, and the last submission is made.

In SS & AH [2010] FamCAFC 13 the Full Court considered the care that should be exercised in making findings in interim proceedings:... In our view, findings made at an interim hearing should be couched with great circumspection

In Marvel v Marvel [2010] FamCAFC 101 the Full Court discussed the difficulties associated with making findings on contested evidence as follows:-...As has frequently been emphasised interim parenting proceedings, and orders made as a consequence, are a necessary but temporary measure until all the evidence can be tested, evaluated and weighed at a final hearing by the making of final parenting orders Interim parenting orders are frequently modified or changed after a final hearing, and any allocation of parental responsibility made at an interim hearing is disregarded at the final hearing (section 61DB).

 

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Rocacelli & Seles [2019] FamCA 105 (28 February 2019)

FLAST CASE SUMMARY: A father seeks to change existing interim parenting orders before trial,the orders were previously made permitting the father to only communicate with the child by Skype for 30 minutes each fortnight, which is to be supervised at a Contact Centre.The mother and ICL oppose the proposal. The father in essence is now seeking a move for unsupervised telephone calls for one hour a week and to commence 3 face-to-face visitations at the contact centre, which would then graduate to unsupervised visitations if successful.

There is history of family violence with several police applied protection orders (one is in force) there have been breaches of the orders on occasion, the father has been charged and convicted at least twice.A psychiatrist assessed the father and claims he displays significant traits of Anti-Social Personality Disorder.

The child who is approaching 11 years of age has expressed her wish not to spend face-to-face time with the father.

FACTS SUMMARY:

  • There are competing proposals.
  • The child is approaching 11 years of age.
  • 28 January 2018, Family Report Writer asserts for a more cautious approach, suggests limiting time with the father and child to supervised Skype time that is to occur at a Contact Centre.
  • 17 May 2018, a Psychiatrist asserts the father displays significant traits of Anti-Social Personality Disorder, and recommends the father to only have Skype sessions with his daughter and that she continue to live with the mother.
  • July 2018, orders were made permitting the father to communicate with the child by Skype for 30 minutes each fortnight, which is to be supervised by the Contact Centre.
  • 9 October 2018, the father seeks changes to the existing interim parenting orders before the trial to commence unsupervised phone calls for one hour pre week and for face-to-face time to begin at the contact centre 3 times before graduating to unsupervised time if successful.
  • 25 October 2018, Contact Centre report states the Skype calls would be suspended if the father continued to breach the Service Agreement by raising unsuitable issues with the child.
  • The mother and ICL propose that existing arrangements continue until trial.
  • Domestic violence orders have been applied from time to time between both parties, one is currently in force, the father has breached orders on occasion, and has been charged and convicted of doing so at least twice.
  • The father was occasionally incarcerated as a result of sentencing for criminal convictions during the relationship.
  • Child has expressed views of not wanting to do face-to-face visitations with the father.

ISSUE:

  • Does the father pose any risk of harm to the child in an unsupervised setting?
  • Is there a benefit to the child having a relationship with the father?
  • What are the Child’s views?

HELD:

The father’s Application in a Case is dismissed the present orders are maintained.

In determining this matter, the judge considered the relevant statutory pathways and cases, combined with the opinions and recommendations from the psychiatrist and Report Writer (their opinions remains untested). Both professionals assert there is a concern for the fathers behaviour, and suggest no face-to-face time, only supervised Skype communication time between father and child. The Contact Centre reports do not ease the concern of the father’s alleged risk to the child. There has been instances the father raised unsuitable issues with the child, and seems to be fixated with himself, rather than being entirely concentrating on the child.

 The judge was satisfied there were adequate evidence presented to cause concern about the father’s ability to emotionally control himself, this may put the child’s safety at risk due to his actions.

Furthermore, the father asserts the child has been swayed by the mother to form the view she has of him. It was established there were significant scepticism to this claim due to the earlier notes that were provided by the contact centre that demonstrated the childs view may be sincerely held by her, this is in alignment with her past behaviour and earlier remarks relating to the type of comfort she experiences with her father.

It was determined that being at an interim stage in the proceedings, it’s problematic to correctly measure the level of risk which the father may pose to the child. However, based on the evidence provided a cautious approach at this point is in the best interest of the child by maintaining the current order, for there is benefit to the child to have a meaningful relationship with the father provided that she is kept safe. The child’s views were acknowledged and given weight due to her maturity and age, however it was not determinative.

There is a pending trial in April, where the issues which highlight the concerns about the father and risk can be determined at trial. 

Relevant legislation pathway and cases that were drawn upon in determining this matter:

  • Part VII of the Family Law Act contains the statutory provisions dealing with children.  Section 60B specifies the objects of Part VII, and the principles underlying those objects.
  • Section 60CA in deciding whether to make a parenting order, the court must regard the best interests of the child as the paramount consideration.
  • s 60CC. The matters which a court must have regard to in determining the best interests of a child are set out. Consideration does not mean discussion: Banks & Banks[2015] FamCAFC 36 at  [49].
  • s 61DA Deciding whether the presumption for equal shared parental responsibility applies or not in the best interests of the child due to 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.
  • Goode & Goode (2006) FLC 93-286 at 80,903 the Full Court set out the way in which an interim parenting application should be determined.
  • Salah & Salah [2016] FamCAFC 100 the Full Court at [36]-[40] said this in relation to the task of a judge conducting an interim hearing where disputed facts are unable to be resolved:[36] It is very common in interim parenting proceedings to see factual disputes which cannot be determined without the evidence being tested in the context of a trial. His Honour recognised this and indeed at [14] referred to "the usual pathway as highlighted in Goode & Goode(2006) FLC 93-286".
  • The Full Court in Eaby & Speelman went on to say (citing Marvel v Marvel [2010] FamCAFC 101;  (2010) 43 Fam LR 348) that findings (in disputed interim proceedings) should be couched with great circumspection.
  • Harridge & Harridge [2010] FamCA 445 outlines a list of inquiries in relation to risk assessment.

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