Badnall & Bartle

[2020] FamCA 1134

FAMILY COURT OF AUSTRALIA

Badnall & Bartle [2020] FamCA 1134

File number(s):	NCC 3102 of 2017
Judgment of:	CLEARY J
Date of judgment:	27 October 2020
Catchwords:	FAMILY LAW – CHILDREN – Application by the Second Respondent mother to vary interim parenting orders for the subject child pending a now adjourned trial – Where first allocated trial dates coincided with the commencement of COVID-19 health restrictions and trial  adjourned to October 2020 – Where the adjourned trial could not proceed and the trial dates again vacated on the application of the father due to the high risk pregnancy of the father’s partner and the imminent delivery of their child – Where it will be a further six months until the matter is heard – Where is was reasonable for further interim orders to be contemplated – Where the mother seeks for supervision of herself and the subject child to cease – Where the First Respondent paternal grandmother and the ICL oppose the application – Where the subject child resides with the First Respondent paternal grandmother – Where the mother has had another child – Where the Department of Communities & Justice has expressed concerns about the ability of the mother to care for that child – Where the mother’s child has been exposed to domestic violence by the child’s father – Where the mother, although allegedly separated from the father of her child became pregnant with their second child due in January 2021 – Where the safety and security of the subject child has priority – Where certain orders by consent pending further order were made for the subject child to spend supervised time with the mother Application otherwise dismissed.
Legislation:	Family Law Act 1975 (Cth)
Number of paragraphs:	50
Date of hearing:	26 October 2020
Place:	Newcastle
Counsel for the Applicant:	Ms Carty
Solicitor for the Applicant:	Joplin Lawyers
Counsel for the First Respondent:	Mr Mueller
Solicitor for the First Respondent:	King Legal
Advocate for the Second Respondent:	Ms O’Rourke
Solicitor for the Second Respondent:	Legal Aid NSW
Counsel for the Independent Children's Lawyer:	Mr Mooney
Solicitor for the Independent Children's Lawyer:	Krstina Wooi Lawyer

ORDERS

NCC3102/2017

BETWEEN:

MS BADNALL

Applicant

AND:

MR BARTLE

First Respondent

MS HENTY

Second Respondent

INDEPENDENT CHILDREN'S LAWYER

ORDER MADE BY:	CLEARY J
DATE OF ORDER:	27 OCTOBER 2020

PENDING FURTHER ORDER, IT IS ORDERED THAT

1.Further to the orders of 10 May 2018 made in the Federal Circuit Court and to the orders of 26 October 2018 made in this Court; and with the consent of the Second Respondent mother and Applicant paternal grandmother, X (“the child”) shall spend additional time and communicate with the mother as follows:

1.1      On the child’s birthday (… 2020) from 11.00 am to 2.00 pm;

1.2      On Christmas Eve from 11.00 am to 2.00 pm.

2.For Facetime communication as agreed between the Second Respondent mother and Applicant paternal grandmother and failing agreement, on each Tuesday at any time between 4.00 pm and 4.30 pm and to facilitate the Facetime calls, the paternal grandmother will call the mother’s telephone number but in the event there is no response from the mother the paternal grandmother is not obliged to make further attempts to contact the mother during the nominated time period, although she may do so if she wishes.

IT IS FURTHER ORDERED THAT

3.The interim application of the mother contained in the Minute of Order dated 26 October 2020 (Exhibit 1) is otherwise dismissed.

THE COURT NOTES THAT

(A)The mother is expecting the birth of her child on 13 January 2021.

Note:   The form of the order is subject to the entry in the Court’s records.

Note: This copy of the Court’s Reasons for judgment may be subject to review to remedy minor typographical or grammatical errors (r 17.02A(b) of the Family Law Rules 2004 (Cth)), or to record a variation to the order pursuant to 17.02 Family Law Rules 2004 (Cth).

IT IS NOTED that publication of this judgment by this Court under the pseudonym Badnall & Bartle has been approved by the Chief Justice pursuant to s 121(9)(g) of the Family Law Act 1975 (Cth).

ORAL REASONS FOR JUDGMENT

CLEARY J:

INTRODUCTION

1. This is an application by Ms Henty (“the mother”) to vary current interim parenting orders for one subject child pending a now adjourned trial.

2. The variation sought is for supervision of the mother to cease.

3. The paternal grandmother and the Independent Children’s Lawyer (“ICL”) oppose the lifting of supervision at this time.

4. The application was heard in the context of a trial which could not proceed. On 26 October 2020 the trial dates were vacated on the application of the father. Medical evidence was tendered relating to the high risk pregnancy of the father’s partner and imminent delivery of the child of that relationship.

5. The subject child is X aged three years and 10 months. The child has been living with his paternal grandmother Ms Badnall since he was twelve months old. Relevant orders for residence were made in the Federal Circuit Court (“FCC”) on 19 December 2017.

6. The mother lives in Suburb B. The mother conceded prior to this trial that the subject child should remain living with the paternal grandmother.

7. The father continues to press for the child to live with him.

   HISTORY OF ORDERS AFTER RESIDENCE ORDERS IN DECEMBER 2017

   The 10 May 2018 orders

8. On 10 May 2018 orders were made by consent pending further order.

9. The orders relevantly to this application provided for the subject child to spend time with the mother on the third Thursday of each month for five hours (11.00 am to 4.00 pm) and otherwise as agreed in writing between the mother and the paternal grandmother.

10. Such time was ordered to take place at C Shopping Centre and to be supervised by one of three named paternal family members.

11. There was to be only one supervisor on each occasion and the mother was restrained from allowing any other person to attend the period of time.

12. The matter was transferred to this Court on that day.

13. There was to be an interim hearing in due course.

    Orders pending further order – 26 October 2018

14. On 26 October 2018 the matter came before this Court. Orders were made by consent between the paternal grandmother, the mother and the ICL, pending further order. All but two earlier orders remain operative.

15. On that Court date the mother was pregnant with a child of her then partner Mr G.

16. Time between the child and the mother was to increase to one occasion each fortnight supervised, three hours (not five) each alternate Thursday at F Shopping Centre.

17. The parties were to enrol with the E Contact Centre in the supervised contact programme until that centre could accommodate the parties, the child was fortnightly to spend three hours each alternate Thursday at F Shopping Centre.

18. It is apparent that neither the mother nor the paternal grandmother completed the intake procedure for acceptance into the E Contact Centre supervised contact service. The mother rang. The paternal grandmother enquired.

19. It is still open under the orders for both to do so if and when the centre is operating.

20. It may be a more engaging experience for the child than walking around a shopping centre. It would relieve the mother from being supervised by the paternal grandmother. It would relieve the paternal grandmother from the obligation to supervise the mother’s time.

21. In any event, fortnightly time in F Shopping Centre supervised by the paternal grandmother has continued as the arrangement pending trial.

22. On … 2019 the mother’s child with Mr G (Y) was born.

23. Prior to her birth the Department of Communities & Justice (“DCJ”) expressed concerns about the ability of the mother to care for the new child. These concerns were directed to the H Group. A report from that organisation was tendered into evidence.[1]

    [1] Joint Tender Bundle 1, pages 1 to 7.

24. On 13 May 2019 the parties attend on a Family Consultant for interviews for the purposes of preparing a Family Report. The report recommended residence with the paternal grandmother and for periods of unsupervised time with each parent.

25. On 5 June 2019 five days of trial were allocated to commence on 30 March 2020.

26. Unfortunately those trial dates coincided with the beginning of COVID-19 health restrictions. The trial could not proceed. The dates were vacated and in April 2020, five days in October 2020 were allocated.

27. On 11 November 2019, when Y was eight months old, the mother separated from Mr G, the father of the child.

28. Ten days later, the mother was approved for private renal accommodation with assistance from the K Housing program.

29. The mother entered a lease for an apartment in Suburb B in December 2019. No more than two persons were permitted to live in the property according to the terms of the lease; presumably that was the mother and Y. The H Group notes state that:

    Despite conditions of her tenancy being discussed on numerous occasions, Mother chose to breach her tenancy agreement by allowing new partner (Mr L) to live in the property without notifying stakeholders, placing child and herself at risk of homelessness again.[2]

    [2] H Charity Report, page 2 of 5.

30. On a visit in 20 March 2020, the H Group worker found in the mother’s property the mother’s pregnant cousin, the cousin’s partner and their two children living in the house with the mother and Y. These events raise the possibility to be explored at trial, no doubt, of the mother losing that accommodation. The mother advised the H Group that the father of Y, Mr G, had exposed her to domestic violence by strangling and choking her when the child Y was in the room. The mother nevertheless supervised time between Mr G and the child.

31. Further, in April or May of 2020 the mother became pregnant with her second child to Mr G, although the mother denies resumption of that relationship. The child is due to be born in early 2021. If what the mother told the H Group about Mr G was true and accurate, Mr G is a violent man and the mother is unable to protect the child from her violent father.

    THE APPLICATION OF THE MOTHER

32. The mother pressed for lifting of supervision immediately. She proposed a further three months of each alternate Thursday from 11.00 am till 2.00 pm, graduating to each alternate Thursday from 11.00 am till 5.00 pm. The proposal for changeover was a named shopping centre in Suburb J once per month and in Suburb F once per month. There were also proposals for FaceTime, two special occasions and a self-restraint by the mother on bringing the subject child into contact with Mr G or Mr L.

33. During the course of the hearing, the mother instructed her legal representative not to press for time to be spent in J Shopping Centre after the paternal grandmother, through her counsel, expressed her fear of being in the same area as the mother’s former partner and his family.

    THE LAW

34. There are mandatory considerations for a Court in determining the best interests of a child when making parenting orders. They are contained within section 60CC of the Family Law Act (“the Act”).

35. In this case, the child does have a meaningful relationship with the mother and also the father, but his primary relationship is with the paternal grandmother. The mother concedes that the paternal grandmother has met the child’s needs well for the past three years. The parents separated when the subject child was about three months old. The mother, then aged 18, moved to live with her own parents and met a new boyfriend. That relationship was short lived.

36. The mother and the subject child spent one homeless night in the park when the child was nine months old. The parents of the subject child reconciled and left the child with the paternal grandmother, which was child-focused and sensible, while they looked for somewhere to live together again. The parents then demanded the child back within days of having looked, but organised nothing in particular to achieve the stability they were looking for. The police delivered the child back to the parents in the absence of orders otherwise. It was those events which prompted the paternal grandmother in October 2017 to make an application to the FCC for the child to live with her.

37. By the following month the parents had separated again, with the father being arrested. There are allegations raised by the father from his time with the mother of the mother throwing and hitting the subject child, of leaving him unsupervised, of being drunk in charge of the child and of leaving the child without prior notice in the care of a relative. These allegations will no doubt be explored in final trial, as allegations of the father’s battles with mental illness and attempted suicide likewise.

38. In December 2017 the mother was living in a refuge in Sydney and had a new boyfriend, Mr M. In that context, the orders were made in the FCC.

39. There is a need to protect this child from physical or psychological harm, from being subjected to or exposed to abuse, neglect or family violence. The relationship between the parents of the child was a violent and volatile one. The parents moved constantly, staying for varying periods with different family members. The child as an infant was probably exposed to physical violence and allegedly may have been the victim of it. The mother was 17 when the child was born. She may not have been ready to give priority to his needs. There are allegations that the parties’ relationship was filled with violence, the police being called very often.

40. Thereafter, that chaotic and erratic pattern of the mother’s life continued. The mother was allegedly evicted from her emergency accommodation for breaching the rules of a refuge, but also because she no longer had a child with her.

41. In February 2018 the father and other family members are alleged to have reported to the paternal grandmother that they had witnessed the mother “orally sexually assaulting X” and also of the mother touching the child’s genitals without cause.[3] 

    [3] Affidavit of the paternal grandmother filed 2/10/2020, par 145.

42. The mother denies absolutely any such misconduct and rejects the allegations. Submissions indicate that that will be a matter for inquiry at trial. The paternal grandmother asserts that she had not witnessed the mother behaving in any sexual inappropriate way with the child and expressed her hope that it was not true.[4]

    [4] Affidavit of the paternal grandmother filed 2/10/2020, par 19.

43. The mother moved on to a violent relationship, as she described it to the H Group, with Mr G. Although she asserts separation from him in November 2019, she conceived a child with him a few months later. There was an incident where Mr G’s mother allegedly confronted the mother in a shopping centre, calling her an abusive name while the child Y was in the mother’s arms. The H Group described the mother as “more distracted, agitated and anxious, all of which impair her capacity to focus on Y’s wellbeing and needs”.

44. A caseworker noted that the mother needed prompting to give the child food during the course of a visit. The H Group worker reported that the mother and her new partner had been warned by police they would be charged with stalking if they continued to drive past Mr G’s house to get a reaction from him. That too is an allegation to be explored.

45. There is an immaturity and defiance in the conduct of the mother with or without a partner which raises a risk of harm to the child in her unsupervised care. She has been unwilling to discuss domestic violence or to fully engage with mental health services to address her own anxiety.

46. Until the very many allegations raised in this matter can be investigated at trial, the Court must take the protective course with the child of maintaining supervision. It has to be said that the proposal of the mother that she spend time with the child in the shopping centre, or within its vicinity, unsupervised could, in any event, be problematic. The paternal grandmother, who would have to wait in the area for the child to have the visit, would be likely to cross paths with the mother and the child would not easily be parted from her a second time.

47. The relationship between the child and the mother was assessed by the family consultant in May 2019 to be a happy and affectionate one. There is no reason to think that that is not still the case. The relationship can be attributed to the love and affection the mother feels and expresses for the child. It must also be the case that the paternal grandmother has supported and protected the love the child feels for the mother and has not criticised the mother or undermined that relationship in any way. There are important relationships to consider for the subject child with each parent, with the mother’s daughter Y, the father’s new child and the father’s partner.

    CONCLUSION

48. It will now be a further six months until the case is heard. It was reasonable for further interim orders to be contemplated. The mother wants more freedom and relaxation in the time she spends with the child; it is understandable. However, in the circumstances where there is another child for the mother due to be born in January 2021, a question over stability of present accommodation and over the relationship between the mother and Mr G, it would not be in the best interests of the child to remove the requirement for supervision. The safety and security of the child has priority.

49. Orders are made, incorporating the two periods of time for the child’s birthday and Christmas Eve, and the proposed communication on Tuesdays, as proposed by the mother and agreed to by the paternal grandmother.

50. Orders are made accordingly and will be distributed now.

I certify that the preceding fifty (50) numbered paragraphs are a true copy of the oral Reasons for Judgment of the Honourable Justice Cleary.

Associate:  

Dated:       27 October 2020