Interim instead of final orders following 4 day trial
Henderson & Kent  FCCA 1324 (1 June 2016)
For full case:http://www.austlii.edu.au/au/cases/cth/FCCA/2016/1324.html
- There is no contest that there should be a final order that the children live with their mother. That is consistent with arrangements in place for the children throughout their lives.
- It is an unusual circumstance that parties at the conclusion of a four day contested hearing join together in seeking that interim orders be made by the Court. The Court must have regard the best interests of the children as paramount, and be guided by section 60CC in determining the children’s best interests in interim and final proceedings.
- The ICL submitted that interim orders are necessary in this matter because there is uncertainty around how the mother will manage the children spending overnight time with the father. Both parents are HIV positive and it is important for these children to develop a meaningful relationship with both their parents should either suffer problems with their health, which could be significant, in the future.
- The impact of the children spending overnight time with the father on the mother’s capacity to parent was not particularly canvassed in the evidence. There was, for example, no psychological report dealing with the mother’s mental health, or ability to cope with such orders being made. The issue came into focus during the course of the mother giving evidence. Whilst being cross-examined by the ICL about the involvement of the father’s new wife in the care of the children, the mother became extremely upset and was unable to continue giving evidence, such that an early lunch break was taken to let her compose herself.
- The father’s wife, Ms S, gave evidence prior to the mother. There was nothing in what Ms S said, or her demeanour, that suggested there was a concern about her providing care for the children. Her evidence was respectful of the mother’s role: “she’s the biological mother and [there is] no comparison between biological mother and father. I’m not equal to their real mother.” With respect to discipline she regarded the father as the one who should make decisions about it, and that neither she, nor the father, support physically disciplining the children.
- The family consultant, Mr B, gave evidence. He was questioned about the mother’s highly distressed response during cross-examination. During the course of interviews for the report, the mother told him something of her early childhood experiences. Both her parents were killed in a car accident when she was around twelve months old and she was raised by her paternal uncle and aunt, along with their seven children. The mother “described her uncle as ‘very controlling’ and said she was ‘beaten’ by him and her cousins. She said that she experienced considerable trauma in her childhood and declined to elaborate on this.” The evidence of the mother and the family consultant, suggests that the mother’s traumatic experiences in childhood remain an issue for her. There is no evidence that the mother has had any therapeutic assistance to address those matters.
- The counselling proposed by the ICL accords with the evidence of the family consultant. The family consultant commented that it was important for the mother to have counselling from a “trauma informed practitioner”, and that Relationships Australia (“RA”) have suitably qualified counsellors. It is intended that the counselling would assist the parents in exploring their own emotional responses in regard to the parenting needs of their children, that is, to separate their own experience from their children’s experience.
- Orders were made on 4 May 2016 to facilitate the parties in applying for counselling assistance through RA.
- The orders provide for a structured, gradual increase in time arrangements between the children and their father. It is intended that the parties commence counselling, and start to build a framework of communication, prior to overnight time commencing. Both parents are required to comply with all reasonable recommendations made by RA for other forms of support, intervention or parenting education. The mother may well require some individual counselling to deal with issues stemming from her early years.
- Section 60CC sets out the matters the Court must have regard to in determining what is in the children’s best interests. Given that the parties are in agreement with respect to the girls living with their mother on a final basis and interim time arrangements with their father, it is not necessary to consider all aspects of section 60CC in detail. The limited areas of dispute are dealt with below and pertinent section 60CC details are discussed.
- The proposed orders provide the children with the benefit of having a meaningful relationship with each of their parents. The family consultant observed positive interactions between both children and each of their parents. This is broadly supported by the observations of (omitted) Contact Centre.
- X is aged now 7 years and Y 5 years. They are not of an age or stage of development where their views carry weight with respect to parenting orders. Their discussions with the family consultant are helpful in considering the nature of their relationships with their parents. X commented that she liked seeing her father on Saturdays and would like to stay overnight with him. Y enjoyed seeing her father and was sad when she did not see him. The consultant observed that “the children have positive and loving relationships with both of their parents.”
- The mother makes complaint of family violence against the father. There were interim proceedings taken by the Police for an AVO for the protections of the mother against the father at a time the father was out of the country, on 13 October 2014. A final order was not pursued by the mother, and there is no current order on foot.
- During 2015 there were occasions when the father stood outside the Contact Centre prior to the mother arriving with the children so that he was able to observe their arrival. This was the subject of criticism of the father by Contact Centre staff as potentially intimidating of the mother and against the agreement of the father with the centre. He was given a verbal warning, then issued with a “Letter of Warning” by the Contact Centre on 1 October 2015. There is no evidence of similar difficulties since the letter was issued.
- Whilst (omitted) Contact Centre is involved there remains a buffer for the children in not having their parents come together at times of changeover. The Contact Centre has provided a great deal of assistance to the parents and children, including facilitating the parents passing messages to each other important for the children, particularly regarding their health.
- The girls have a (nationality omitted) and (nationality omitted) heritage through their parents. Their father is a practising (religion omitted) and their mother has attended a (omitted) Church in (omitted) and identifies as a (religion omitted).
- In the context of this matter the interim orders consented to by the parties are in the best interests of the children. Without orders for counselling that support the parents communicating with each other, there is a risk that time arrangements will be unsuccessful for the children. The lack of communication at present has significant risk for misunderstandings to occur between the parents, creating difficulties for the children.
- The clearest example of this is X returning from time with her father on 27 June 2015, complaining to her mother of pain in her genital area. The father did not raise any difficulties for X when returning the children to the contact centre staff. The mother did not speak to the father about X’s complaint, nor advise the contact centre staff until some time later. X’s report to the mother, JIRT and (omitted) Hospital was consistent with her being wiped too roughly by her father after going to the toilet during a visit. Had the parties been able to communicate X could have avoided an invasive medical examination and interview.
- It is common ground that at present there is no communication between the parties. The purpose of the orders being made on an interim basis is to give the parties the opportunity to develop with assistance effective communication between them. The parties do not make any decisions together with respect to the children at present as they do not communicate.
- The mother has been able to pass messages for the father through the Contact Centre staff to take the girls to medical appointments and the father has sent back prescribed medication. The parties have had the ability to deal with the children’s health needs, other than in the specific example of X’s complaint with respect to toileting, set out above. The mother gave evidence she was confident that the father dealt appropriately by taking the children to the doctor and obtaining medication as required. She was of the view he would continue to do so.
- I do not propose to apply the presumption that it is in the best interests of these children to make orders for equal shared parental responsibility at this interim stage. It is counterproductive for the parties, given that they are committing to engage in ongoing counselling to establish a framework for communication. They do not yet have the skills to do this. Both parties shall retain parental responsibility as referred to in section 61C, so that they are not required to exercise it jointly. They have been able to exercise this co-operatively with respect to the children’s general health to date.
- The orders proposed make specific provision for each of the parents to be able to participate in the children’s education and health. This will resolve any problem of provision of information to each of the parents and alleviate concerns the father had about the school communicating with him.
- The orders give the parents the opportunity to develop a way to communicate with each other, which is essential for the children. There is a clear and structured regime for gradually increasing time that should provide each of the parents with a greater degree of confidence in dealing with the other parent, whilst providing the mother with the security of a final order for the children to live with her.