Goode v Goode

Note: This copy of the Court's Reasons for judgment may be subject to review to remedy minor typographical or grammatical errors (r 10.14(b) Federal Circuit and Family Court of Australia (Family Law) Rules 2021 (Cth)), or to record a variation to the order pursuant to r 10.13 Federal Circuit and Family Court of Australia (Family Law) Rules 2021 (Cth).

Part XIVB of the Family Law Act 1975 (Cth) makes it an offence, except in very limited circumstances, to publish an account of proceedings that identify persons, associated persons, or witnesses involved in family law proceedings.

IT IS NOTED that publication of this judgment by this Court under a pseudonym Kennedy & Peyton has been approved pursuant to subsection 114Q(2) of the Family Law Act 1975 (Cth).

1. This is an application for interim parenting orders concerning the children X born in 2015 and Y born in 2017 ("the children").
2. The applicant is the father of the children and the respondent is the mother of the children.
3. These parties have a lengthy litigation history in this Court. His Honour Justice Berman made orders on 15 September 2023 (Kennedy & Peyton [2023] FedCFamC1F 790), which provided for the children to live with the mother and spend informally supervised time with the father until 22 February 2026, after which time the father's time would become unsupervised.
4. No appeal was filed against the orders of 15 September 2023.
5. Approximately seven weeks after the making of the final orders, the mother commenced proceedings seeking to discharge those final orders.
6. Those proceedings were heard and determined on an interim basis by Kari J and orders were made on 14 June 2024.
7. Her Honour made orders which discharged the existing orders for time, supervised by family members, and made orders for professionally supervised time to occur monthly, for a period of two hours.
8. No appeal was filed against the orders of 14 June 2024.
9. On 20 February 2025 the father filed an Application in a Proceeding (sealed 28 February) seeking a different regime for each of the children as follows:

1. That the child [X] born [in] 2015 ("[X]") do spend time with the Respondent father ("the father") as follows:

a. On four occasions, each alternate Saturday at 11 :00am until Sunday at 4:00pm, with handovers to take place at [Town L]; and

b. Thereafter, each alternate Friday at 5:30pm until Sunday at 4:00pm, with handovers to take place at [Town L] at the commencement of the time and at [City JJ] at the conclusion.

2. That during school holiday periods the time that [X] spend with the father pursuant to paragraph l(b) shall be extended to conclude on Tuesday at 5:00pm.

3. That the child [Y] born [in] 2017 ("[Y]") do spend such time with the father as may be agreed in writing between the parties.

4. That on each Sunday that [X] is not spending time with the father, the Applicant mother ("the mother") do facilitate the father speaking by telephone to [X] between 5:00pm and 5:30pm, with the mother to allow [X] to speak to the father is private if [X] wishes.

5. That the mother do pay the father's costs.

(as per original)

1. In her Response to Application in a Proceeding the mother seeks that the father's application be dismissed.

1. It is necessary to set out, at least in summary form, the factual matters which led to the making of the final orders and to the more recent interim orders. In that regard I have read the reasons for judgement of his Honour Justice Berman and her Honour Justice Kari.
2. The parties separated on 5 September 2019 at which time their children were aged two and four.
3. The father re-partnered with Ms F and on 3 February 2020 D was born to the father and Ms F.
4. D was removed by the Department for Child Protection (DCP) following a full forensic medical assessment conducted under section 35 of the Children and Young People (Safety) Act 2017 (SA).
5. The medical assessment report read:

During the forensic medical assessment on 05/09/2020, [D] (aged 7 months) was documented to have extensive [injuries] with additional areas of inflicted bruising [...] Photographs, statements and GP records indicate a further episode of extensive [injuries] several weeks earlier in [mid] 2020. Forensic investigations have identified [numerous] rib fractures involving [multiple] ribs of at least two different ages and a recent [...] injury [...] and a possible [further] injury.

The photographs have also identified three additional previous episodes of injuries including forehead laceration ([early] 2020), facial bruising ([mid] 2020) and thigh bruising ([mid] 2020) suspicious for an inflicted mechanism.

Based on available information, it is concluded that [D] (a non-mobile infant) has suffered from at least 6 episodes of trauma (including a forehead laceration[...], facial and temple bruising [...] thigh bruising and minimum of two episodes of chest bruising [...], and other areas [...] and [numerous] rib fractures (from repeated episodes of inflicted blunt trauma to the chest) over a period of [several] months [in] 2020.

[D] is not considered safe to return to the care environment within which he has experienced these repeated physical assaults.

1. D is in the guardianship of the Chief Executive of the Department for Child Protection until age 18. He resides in foster care. The mother facilitates time between the children and D by arrangement with the foster carers.
2. In the hearing before Berman J the father offered the following explanation for the multiple rib fractures identified by the forensic medical assessment:

... the only observation made by the father that could have any connection with [D]'s injuries is the ported conversation with [Y] on 10 August 2020 that she had dropped a speaker away approximately 2.2 kg on [D]"

1. I note that his Honour in his reasons for judgement sets out a text message conversation which occurred between the father and Ms F to the following effect:

Father: I was just tickling him to try and make him laugh. I wouldn't of thought he would've bruised him

[Ms F]: I have no idea. I'm just really concerned. That's all it makes me upset. I don't want anyone thinking I am mistreating him.

Father: my mistake obviously I was too rough and need to remember even though he's a boy. He's still super small.

1. The situation was complicated by the response of the parties' child Y to the circumstances in which she found herself. She was initially exhibiting some resistance to spending time with the father at the time of interviews with the family report writer. She was plainly wrestling with the possibility that her sibling had potentially been harmed by her father.
2. At the trial before Berman J the mother sought to change the children's place of residence to a town with greater employment and educational opportunities and to facilitate supervised time with the father fortnightly.
3. The father sought orders to achieve a return to equal time and shared care commencing with non-professionally supervised time.
4. Berman J found that the father was consistent in his negative, toxic and derogatory attitude towards the mother for whom he and his family blamed his predicament.
5. The 15 September 2023 final orders permitted the mother to relocate and put in place informal supervision - described as time to take place "substantially in the presence of" a series of named persons.
6. When the matter returned to court on the mother's application in November 2023 Kari J found the child Y was presenting as dysregulated, her resistance to spending time appeared to have increased and objective evidence was tendered to support the conclusion that Y was presenting symptoms to support a diagnosis of suicidal ideation.
7. Her Honour varied the final orders on an interim basis to provide for professionally supervised time on a monthly basis.

1. As delineated by Austin J and Williams JJ in Radecki & Radecki [2024] FedCFamC1A 246 at [36]

Orders made in parenting proceedings are never unequivocally final, because the Court is empowered by s 65D(2) of the Act, to discharge, vary, suspend or revive some or all parenting orders. Parenting orders can be varied by consent of the parties or by a court determination. Parenting orders are only "final" in so far as they determine an existing cause of action brought under Pt VII of the Act.

1. It is trite to say that the court will vary orders where the evidence establishes that such variation is in the best interest of the subject children.
2. The father's current interim application has been filed in circumstances where the parties are awaiting a further final hearing. A new family report has been foreshadowed.
3. While the provisions of s 65DAA of the Family Law Act 1975 ("the Act") do not apply to interim orders it is important to understand that the manner in which interlocutory hearings are conducted, pursuant to the Rules, mean that the summary form of hearing is almost always best utilised when the circumstances warrant, that is, in circumstances of urgency and where the untested evidence supports the necessity to revisit existing interlocutory orders.
4. It is therefore appropriate that I consider the evidence contained in each parties' interim affidavit to determine whether it is appropriate to reconsider the existing interim arrangements.
5. Notwithstanding amendment to section 60CC and Part VII more generally, the Full Court of the Family Court in Goode v Goode (2006) FLC 93-286 under the heading 'how should interim proceedings be conducted?' remains a useful methodology to be applied in so far as the first four steps identified at [82]:

In an interim case that would involve the following:

(a) identifying the competing proposals of the parties;

(b) identifying the issues in dispute in the interim hearing;

(c) identifying any agreed or uncontested relevant facts;

(d) considering the matters in section 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);

1. In cases where there are allegations of risk, until the evidence can be tested, it is necessary to appreciate the impact on the children if allegations are subsequently found to be accurate or indeed, inaccurate (SS & AH [2010] FamCAFC 13 ("SS & AH") at [41] and [100]).
2. The Court's approach to the assessment of risk has recently been clarified by the decision of Isles and Nelissen [2022] FedCFamC1A 97; (2022) FLC 94-092.
3. This is a best interests determination informed by the matters in s 60CC(2) of the Act. The most significant consideration on this interim application is what arrangements would promote the safety of the children. As will be explored it is also significant to consider the psychological and emotional needs of both children, and finally the benefits of a relationship between the children and each parent (if safe).
4. The mother seeks to maintain the existing interim orders.
5. Matters in the father's affidavit which post-date the existing interim order include:

(a) Father's reflection on D's injuries;

(b) Involvement of Ms AP from AQ Service at request of DCP in D's case;

(c) Y has not exercised supervised time;

(d) The progress of X's supervised time.

1. On the basis of these factors the father agitates to revisit the existing orders - the effect of which, if granted would be, in broad terms, to allow for unsupervised time between X and the father.
2. It is necessary to consider those factors to determine whether the children's best interests would be served by an interim change in arrangements.
3. This interim hearing was coherently argued by counsel on instructions, adopting a theory that the mother had deliberately obstructed time between the father and Y and was endeavouring now to do likewise with X. I was taken to evidence of what occurred immediately post the final orders in support of the father's relief.
4. The difficulty with the father's case was that it was advanced almost entirely without reference to the fact that there had already been an interlocutory application heard and determined.
5. While, as already discussed, a party may approach the court to vary parenting orders at any time a judge of the FCFCOA (Div 1) does not sit in Review of the decision of a judge of the FCFCOA (Div 1). The focus of any further interlocutory application must be on what has occurred since the orders of June 2024.
6. True it is that I am entitled to (and ought) consider the findings of Berman J - reached after the evidence had been tested. But I must also have regard to the orders of Kari J. In coming to a view as to whether those interlocutory orders should be disturbed the focus must be on what has happened since the making of the interim orders which were not the subject of an appeal.

1. The father's affidavit proffers a new theory to explain D's injuries, namely a group or family hug. Such an explanation is untested both in terms of cross-examination and in terms of being evaluated by a medical practitioner qualified to offer an opinion about causation.
2. I cannot attach any weight to the father's new theory in light of the report of Dr PP and the findings of Berman J. The father's affidavit is critical of the report, its conclusions, the trial, and the findings of Berman J. The father did not appeal the resulting orders and his complaints can be given no weight at an interim hearing.
3. It follows that the safety considerations which underpinned the decision of Berman J inform my consideration of the interim issues.

1. The next matter raised by the father is the involvement of a social worker, from AQ Services, engaged by DCP, to facilitate family contact between D and the maternal and paternal families.
2. The father relies on an email addressed to Mr AR dated 4 November 2024 which details the plans for D's contact. The father characterises this as Ms AP seeking to "reintroduce [D's] mother and I back into [D's] life".
3. On 28 February 2025 her Honour Justice Kari made a request pursuant to section 91B of the Act for the Department for Child Protection to consider an invitation to intervene in the proceedings. On 5 March 2025 Ms AT of the Department for Child Protection wrote to the court declining the invitation to intervene and providing information about the department's involvement with the family of relevance to this interim application in the following paragraphs:

The department held a meeting with [Mr Peyton] on 10 November 2023 with the department suggested that [Mr Peyton] and [D]'s biological mother engaged with a therapeutic service who work with children, families and adults to help with a social story/life story for [D] [Mr Peyton] agreed to this and at this time the department completed a referral to connecting families with their consent on 5 January 2024. Social worker is [Ms AP] from [AQ Services] has been working with The [Mr Peyton] and [D]'s biological mother and carers to work towards the parents having face-to-face contact with [D] in a safe and supported manner in a frequency and duration that would be in [D]'s best interest.

The decision regarding future contact between [D] and [Mr Peyton] has not yet been made and will be determined by the department. A consultation with departmental psychological services and the relevant department practice lead is scheduled for [mid] March 2025 to review [D]'s connection to his birth father. The department is not considering any unsupervised contact between [D] and [Mr Peyton] at this time face-to-face contact has not yet commenced. Decision is made to introduce [Mr Peyton] to [D]. This would need to occur slowly and would likely begin with an exchange of photos and/or cards.

1. As the letter makes plain any reintroduction between the father and D is in its infancy. I accept that if the DCP had formed the view that D could spend time with the father unsupervised this would be a significant change of circumstances but that is not the position. At present no supervised time has occurred.
2. No submissions were made that these matters represent any substantial change to the factual circumstances of the parties or children.

1. That Y has not been exercising time is an agreed fact. It may warrant a change to the orders but not one which provides that Y's attendance be in accordance with any agreement between the parents (the father's application). The parties' ability to communicate, let alone reach agreement, is seriously compromised.
2. What is abundantly clear is that the father has not established a case to relax supervision on an interim basis. I was taken to Exhibit 2 in submissions which was a psychiatric assessment of Y by Dr AS conducted 5 June 2024.
3. The report contained the following paragraph:

There is a risk of potential mental health deterioration, and future self harm or harm to her sister, if [Y] has forced unsupervised contact with her father and if the girls continue to be treated differently.

1. The submissions on behalf of the father focused on the issue of causation, specifically whether the mother or the father is responsible for Y's current presentation. These submissions were made with reference to school records returned on subpoena. The father's case is that Y's current level of dysfunction must be related to the factors within the mother's control (decision to relocate, "dysfunction") since the father has not spent time with Y. The father's hypothesis does not acknowledge the factors which were considered by the family report writer at the trial before Berman J. It is not possible to make findings about causation at an interim hearing. I must act cautiously given Y's presentation.
2. The father's application does not seek to "force" Y to have either supervised or unsupervised time but it does seek an immediate move to unsupervised time for X.
3. The question for the court has to be - what has changed to make such an order in the best interests of X before the evidence has been tested. The father submits, with some force, that the court now has the benefit of supervised contact reports.
4. I have taken into account the positive supervised contact reports, which indicate that supervised time with the father appears to have been a positive experience for X. The mother conceded same.
5. The mother has indicated that X remains wary and her sleep is disturbed prior to supervised time. I cannot make a finding. But that does not entitle me to ignore the mother's evidence: SS & AH [2010] FamCAFC ("SS & AH") 13 at [41] and [100].
6. Further, I would have to consider the potential impact on Y of her sister attending unsupervised time. This includes the potential impact on Y's mental health but also on the sibling relationship. It is not possible to safely draw conclusions about this topic without the benefit of objective contemporary expert opinion.
7. The mother submits that the move to immediate unsupervised time would also be taking place in a context where there is no communication between the parties - the father having declined to utilise the parenting application which was the subject of a final order.
8. Finally, I would have to consider the risk that X may be exposed to an unhelpful view of her mother and her mother's actions whilst in the care of the father and his family.
9. The submissions on behalf of the father at this hearing were overtly critical of the mother's parenting, effectively arguing that Y's presentation at school and in the home were a product of "dysfunction" in the mother's home. It may well be that the father would be able to shield the children from his view but the strength of his conviction in this regard raises a concern that the children's emotional well being would be at risk if he were unable to keep his views and feelings to himself.
10. The mother gave evidence in her affidavit that a recent letter from the father's parents (which she did not pass on to X) contained the following:

Unfortunately, those times were taken away from us and there was nothing we were able to do to keep seeing you which has broken our hearts as we love you and want you to be a part of our lives

Hoping to see you soon if we are allowed to

1. These sentiments (in late 2024) are an echo of earlier expressions of concern raised by with the family report writer to the effect that contact had exposed her to "mean words".
2. Until the evidence can be tested, I am satisfied that the weighing of the need to protect the safety of both children against the benefit to them of being able to have relationships with the father and other significant people (where safe) favours maintenance of the existing interim orders.
3. It follows that I am not satisfied that it would be in the best interests of the children or either of them to vary the existing interim order and the father's application will be dismissed.

1. Counsel for the father accepted that it was appropriate that, contrary s117(1) of the Act, there be "costs in the cause". The mother is legally aided. This is a second interim application. The father shall pay the mother's costs of the application at legal aid scale.

I certify that the preceding sixty-seven (67) numbered paragraphs are a true copy of the Reasons for Judgment of the Honourable Justice Christie.