COURT, GIVING MORE WEIGHT ON PROTECTING THE CHILDREN, DENIED FATHER’S APPLICATION FOR TIME WITH THE CHILDREN

RAIMER & WALCUTT

FEDERAL CIRCUIT COURT OF AUSTRALIA

[2020] FCCA 1686

These proceedings concern a dispute over parenting orders X, born in 2004, and Y, born in 2006 (the children).

FACTS:

Mr. Raimer (the father) commenced proceedings in this Court for parenting and property orders, under the Act, by an initiating application on 9 October 2018. The father stated that he had not spent time with the children for many months.  Hence, the Court made interim orders for the children to spend supervised time with the father, the parties to attend an s.11F conference, the appointment of an Independent Children’s Lawyer.

By the beginning of the next year, the supervised time between the children and the father had broken down. When the matter returned to Court, the family consultant who conducted the s.11F conference gave evidence that the parties agreed the children should live with the mother but were in dispute about whether the children should spend time with the father.  The family consultant detailed the results of her interviews with the parties and the children, and recommended time with the father should be reserved pending the father completing an anger management or Men’s Behavioural Change Program, the children receiving therapeutic counselling and the completion of the police investigation into the incident.  As a result, the Court made further interim orders which included that the children spend no time with the father.

It is the father’s position that all parenting orders be dismissed and that the children live with the mother and spend time with him.  The father proposed unsupervised contact with the children to occur once a week with a gradual increase and for the children attend therapeutic counselling with him.   However, the mother proposed she have sole parental responsibility for the children and no contact occur with the father until he undergoes a Psychiatric assessment. Then for supervised time to be revised depending on the outcome of the assessment.

The Family Report provided recommendations that the parties share equal parental responsibility for the children; that the children live primarily with the mother; that the father successfully completes the Men’s Behavioural Change Program and seek individual and ongoing counselling to address his behavioural responses, build his coping and communication resources and parenting skills; that the parties undertake a Parenting after Separation course;  that the parties refrain from insulting, belittling, abusing or otherwise denigrating the other parent in the presence or hearing of the children and that they refrain from discussing the court proceedings or the children’s access or living arrangements in the presence or hearing of the children; that parties receive or access information and documents from school in relation to the children and all matters pertaining to the children’s education, health and well-being with their school and medical and like practitioners; that once the father has completed the Men’s Behavioural Change Program and one to one professional counselling is in place and he receives a positive report from the program and/or from that counsellor, he has access with Y initially in the presence of one of his family members one evening a week where she is collected directly from school and returned home at a reasonable time for a period of two months and after this period, access progresses to unsupervised visits with her father, to overnight stays once a week progressing to fortnightly weekends over a 6 to 9-month period and that Y be collected from school and be returned to school at the conclusion of the overnight visits. This is subject to no incidents of family violence and review (and opinion) by her treating counselor at Headspace over this period, and opinion of the father’s treating counselor; and that X be given a choice about whether he wants to attend with his sister.

ISSUE:

Whether or not there is any benefit to the children, in attempting to frame orders, so as to maintain a meaningful relationship with the father.

HELD:

Ordinarily it is the children’s best interests to have a meaningful relationship with both parents. A meaningful relationship is a meaningful involvement that is important, significant and valuable to the child.^[1]

Legislation requires a court to focus on the benefit to the child of a meaningful or significant relationship. It is not simply focused upon the question of whether or not there should be a meaningful relationship, but rather the benefit that the child may derive from it. It requires an assessment of the relationship and a consideration in the context of how that relationship is to be exercised of the benefits that will accrue to the child.

In Tait & Densmore [2007] FamCA 1383, Cronin J said the question of whether a relationship is meaningful also involves a parent being a role model for a child. It involves a parent teaching a child what it is to be a parent, and that that role model role is very important in whether a relationship is meaningful or not. There is nothing meaningful or valuable about a violent and abusive parental role model.

It is the ICL’s position that the Court weigh up the contents and recommendations of the Family Report, the psychiatric assessment reports on the parties, the expressed wishes of the children, and family violence allegations against the Father.  It is the opinion of the ICL that a possible problem with the Family Report is that the consultant does not appear to have provided arguments as to why it is in Y's best interests to resume time with the father nor has the Family Consultant perused the parents psychiatric assessments.  The ICL also suggested that the Court should determine the issue on parental responsibility.   It could be argued that the equal parental responsibility presumption may have been rebutted by family violence or otherwise not in the best interests of the children.

After considering the evidence, the Court has given greater weight to the consideration of the need to protect the children from physical or psychological harm against the benefit of having the opportunity to have a meaningful relationship with the father into the future.  The evidence as a whole supports a finding that the children have been exposed to family violence perpetrated by the father. All of the evidence supports a finding that the mother and the children have been victims of family violence by the father. Hence, the Court was not persuaded that there is a benefit to the children in making orders which compel time with the father other than when they wish to do so.

^[1] Brown J in Mazorski & Albright [2007] FamCA 520.