BADRAN & JANICK

[2019] FCCA 3239

FEDERAL CIRCUIT COURT OF AUSTRALIA

BADRAN & JANICK [2019] FCCA 3239

Catchwords:
FAMILY LAW – Interim parenting – 8 children aged between 17 and 5 – Mother mental health issues – Father family violence – where parents and children are all highly vulnerable – where family situation is highly fluid – where is the least risk for the children?

Legislation:

Family Law Act 1975 (Cth), ss.60B, 60CA, 60CC, 61DA, 65DAA, 91B

Cases cited:

Goode & Goode [2006] FamCA 1346
MRR v GR [2010] HCA 4

Applicant: MS BADRAN

Respondent: MR JANICK

File Number: WOC 770 of 2018

Judgment of: Judge Altobelli

Hearing date: 23 September 2019

Date of Last Submission: 23 September 2019

Delivered at: Wollongong

Delivered on: 25 November 2019

REPRESENTATION

Solicitors for the Applicant: Access Law Group

Solicitors for the Respondent: Wilkinson Throsby & Edwards

Solicitors for the Independent Children's Lawyer: Legal Aid NSW Wollongong Family

ORDERS

1. Within 7 days of the date of these Orders, the Independent Children’s Lawyer provide to Chambers a minute of order consistent with the Reasons for Judgment delivered today.

IT IS NOTED that publication of this judgment under the pseudonym Badran & Janick is approved pursuant to s.121(9)(g) of the Family Law Act 1975 (Cth).

FEDERAL CIRCUIT COURT
OF AUSTRALIA
AT WOLLONGONG

WOC 770 of 2018

MS BADRAN

Applicant

And

MR JANICK

Respondent

REASONS FOR JUDGMENT

Introduction

1. This case is about eight children: S who is 17 years old, T who is 16 years old, U who is 15 years old, V who is 12 years old, W who is 11 years old, X who is 10 years old, Y who is 8 years old, and Z who is 5 years old.

2. The existing Interim Orders made 30 October 2018 provide that seven out of the eight children live with their mother, and U lives with his father.  Currently, however, three of the children (S, T, and Z) are with their mother, and five (U, V, W, X and Y) with their father.  Of concern is that there was, until Orders were made on 6 September 2019, no direct contact between the siblings, and equally problematic is the contact between the children and the parent with whom they are not living.

3. This is a complex case.  Serious allegations are made by each parent against the other.  All the children and both parents present with vulnerabilities.  There is a real sense in which the Court cannot be confident that any order that it makes will in fact be adopted and implemented by the parents.  The situation is fluid.  Another variable is that the children, or some of them, are of an age where they will make their own decisions about where they live.

Competing proposals

1. At the Interim Hearing held on 23 September 2019 the competing proposals were as follows: –

   a)The Independent Children’s Lawyer proposed that four children remained with their mother, and four with their father, with appropriate consequential orders for contact.

   b)The Mother proposed that all eight children live with her, and no proposal was made for the children to spend time with their father.

   c)The Father proposed that the three children who are currently in their mother’s care remained there, and that the five children in his care, remained with him, with consequential orders for contact and communication.

2. The precise minutes of order sought by the Independent Children’s Lawyer, and by the parents, are reproduced in the First Schedule to these Reasons for Judgement. 

Evidence

1. The evidence before the Court consisted of the following. In the Mother’s case, she relied on the following documents:

   a)Application in a Case filed 5 July 2019;

   b)Affidavit of Ms Badran filed 3 August 2018;

   c)Affidavit of Ms Badran filed 21 August 2018;

   d)Affidavit of Ms Badran filed 18 October 2018;

   e)Affidavit of Ms Badran filed 3 July 2019;

   f)Affidavit of Ms Badran filed 20 September 2019; and

   g)Notice of Risk filed 3 August 2018.

2. In the Father’s case, he relied on the following documents:

   a)Response to an Application in a Case filed 18 September 2019;

   b)Affidavit of Mr Janick sworn 17 September 2019 and filed 18 September 2019; and

   c)Notice of Risk filed 18 September 2019.

3. The following document were tendered as evidence during the course of the proceedings:

   a)Child Inclusive Conference Memorandum dated 15 - 16 October 2019;

   b)Report prepared by Dr A dated 24 February 2019

4. A very useful aid for the Court was the comprehensive chronology that was prepared by the Independent Children’s Lawyer.  This document is particularly useful because it was prepared independently of the parties, refers to the Affidavits filed by the parties, and also summarises all of the relevant documents produced on subpoena. The parents’ representatives did not cavil with the accuracy of the chronology.  The Court expresses its appreciation to the Independent Children’s Lawyer for preparing this most useful document.  The Court also expresses its appreciation to the parents for conceding as to the matters referred to in the chronology.  The Court accepts that neither party, however, conceded the truth of allegations made against them by the other parent, but accepted that the assertions had been made.  The chronology is reproduced in the Second Schedule to these Reasons.

Section 91B Order

1. The Department of Family and Community Services, as it was then known, was invited to participate in the proceedings pursuant to an order made under section 91B of the Family Law Act 1975 (herein referred to as ‘the Act’) on 23 October 2018. The Secretary decided not to intervene, and notified the Court of this by way of letter dated 8 May 2019.  This is notwithstanding the fact that between 23 October 2003 and 19 March 2019 there have been approximately 14 risk of significant harm reports in relation to the children, including concerns about their basic physical and psychological needs, the emotional state of the carer, inadequate supervision, inadequate shelter or homelessness, parental capacity, risk of physical abuse, domestic violence, medical neglect, and risk of significant neglect and psychological harm in the context of parental mental health.  The Secretary further explained that over the course of those years a number of safety and risk assessments are had been conducted, and appropriate referrals made for the family.  The most recent referral occurred in September 2018 when the Mother was referred to Brighter Futures.

The Child Inclusive Conference Memorandum

1. Family Consultant Ms B conducted a Child Inclusive Conference over two days, 15 and 16 October.  The memorandum became exhibit ICL1.  This document is probably the most reliable assessment of the views of the children, and of their relationships with their parents, and siblings.  It is therefore significant evidence in this case.

2. S is 17 years old.  Her views were quite clear – she wants to live with her mother and she might on rare occasions spend time with her father.  She recalled significant conflict between her parents, and perceived her father as the aggressor.  The Court notes that on all proposals before the Court, the S would be living with her mother.

3. T is 16 years old.  She described a close emotional bond with her mother, and a distant relationship with her father.  The Court notes that on all proposals, T would remain living with her mother.

4. U is 15 years old.  He described his closest relationship as being with his father and he wants to continue to live with his father.  U described his mother physically attacking him, and some of his siblings.  The Court notes that both the Independent Children’s Lawyer and the Father propose the U continue to live with his father.  Only the Mother proposes that he live with her.  Given his age, the Court notes, and his description of what he described as his mother’s violence towards him, the Mother’s proposal is somewhat problematic in relation to him.

5. V is nearly 13.  In the family drawing she produced for the Family Consultant, she depicted her mother, herself, and the other six siblings living with her, as being part of her family.  She did not include either her father or U.  V wanted to remain living with her mother, but was reluctant to consider spending overnight time with her father.  The Court notes that both the Independent Children’s Lawyer and the Father propose the V live with him.  At the Child Inclusive Conference the Family Consultant believed that she was sad and missed her father and U.  V said that sometimes she found it easier to talk with her father, rather than her mother, but identified her mother as the person she goes to if worried or sad.

6. W is nearly 12.  He was angry about his father and some of the things he had done.  W’s comments indicated to Ms B that his mother is likely to have always been his source of emotional support.  W said that he does not want to have any contact with his father.  The Court notes that on the Father and Independent Children’s Lawyer’s proposal W would be living with the Father, but according to the Mother W would live with her. 

7. X is 10.  In her family drawing she depicted her mother and all of her siblings, but not her father saying “I don’t like him”. She misses U.  She described her closest relationship as with her mother.  She described her father as “creepy”.  The Court notes that both the Independent Children’s Lawyer and the Mother propose that X live with the Mother, but the Father proposes that she live with him.  Interestingly, in submissions, both parents acknowledged that X had a close bond with T who was, arguably, a safety net for her.  Both parents are also submitted that X and Y should not be separated.  It is hard to understand the Father’s proposal that X live with him, given the concession made by his solicitor in submissions.

8. Y is 8 years old.  In her family drawing she depicted both her parents and all of her siblings.  She described her father as angry.  She feels closest to her mother, and then X, and then Z.  She spoke about seeking emotional comfort from her mother and X.  Both the Independent Children’s Lawyer and Father propose that Y live with him.

9. Z is 5 years old.  She made a number of comments, but the Court places no weight on them.  It is common ground that Z should live with her mother.

10. In her concluding comments Ms B expressed concern about the exposure of these children to parental conflict and in particular that it could be limiting their behaviour/emotional/social/cognitive development and their ability to form and maintain relationships.  Ms B said it was important for arrangements to be put in place for the children to spend time together.  One consideration, Ms B felt, was the Mother’s capacity to meet the needs of all eight children, as well as to support them emotionally.

Dr A's Report

1. Dr A provided a Report dated 24 February 2019, pursuant to an Order made in December 2018. The Father did not attend the report interviews.  The Mother was interviewed on 23 January 2019.  It is clear that the interview took place at about the same time as, or shortly after, the Mother relinquished the care of the S, V and Y to the Father.  Even though the Father was not interviewed, the Report contains some important evidence in relation to the Mother, as well as important background generally.

2. The parental relationship commenced in 2000 when the Mother was 16, and the Father 22.  Dr A reviewed subpoenaed documents and observed that these parents have had a turbulent, chaotic, and upsetting relationship for many years.  The family has been known to the child welfare authorities since at least 2008.  She observed that the Mother alleges coercive controlling behaviour by the Father which escalated to physical violence over the years.  The Father claimed that the Mother’s mental health was poor, and that her outbursts were frightening for the children.  Indeed, the Mother confirmed to Dr A a long history of mental health struggles, including anorexia, bulimia and recurrent depression and anxiety.  She was depressed and suicidal at times.  She manifested what Dr A described as confused thinking: on the one hand characterising the Father as a sadistic, abusive, controlling man and yet on the other hand deeming him safe to leave the children with for several weeks.

3. Dr A administered a number of tests.  At paragraph 26 of her Report she discusses the results of the child abuse potential inventory administered to the Mother:-

   Ms Badran obtained an extremely high CAP score, placing her in the top 5% of the distribution which includes known, physical child abusers. Her impression management score  indicates she was “faking-good.”  This is a very concerning result. As noted above, a low CAPI score may not exclude the possibility of abuse but a high CAPI most likely excludes the possibility of normal nurturance. Of the sub-scales comprise the Child Abuse Potential total score, Ms Badran showed great elevation on the Distress sub-scale, which probes the individual’s personal adjustment. Research indicates that high Distress scores are related to high levels of anxiety, depression, and loss of emotional and behavioural control – all of which have been reported for Ms Badran.

4. At paragraph 29 she discusses the results of a parental reflective function interview:-

   Although Ms Badran did not display hostile misattributions about the motivated behaviour of any of her children except U, her mentalization overall was shallow and glib.  She did not identify her own contributions to a child’s predicament and attributed all causality outward (i.e. to the impact of Mr Janick’s bad  behaviour and/ or to the child’s fixed temperamental characteristics, especially in U’s case). To that extent, Ms Badran’s discourse displayed deficits in maternal empathy despite the kindly intentions she expressed towards her children, and the apparently good care she has taken of them at times. For the purposes of this discussion empathy is defined as the capacity to understand another person’s feelings from within their frame of reference. “Kindness” is defined as a caring response meant to be helpful. Kindly-meant words and deed may not help, or may even cause distress, if they are not based on accurate empathy. Parents with low PRF typically disavow their own negative reactions to normal parenting stress whereas normative parents usually describe joy, anger and guilt as equally salient in their interactions with their children. Normally-nurturant parents frequently express guilt for past failures to curb their own emotions or self-interest for the child’s benefit. Parents who deny the impact of their own negativity are not well-placed to exercise emotional self-control for the purposes of strategic parenting.   In a crisis Ms Badran would probably be too emotionally overwhelmed to rationally evaluate her children’s interests, including the impact of her behaviour on them.

5. In Dr A’s case formulation she stated that child welfare is deemed to be the determining issue.  She was of the view that, based on the materials before her, neither parent seemed capable of providing a safe, calm, stable environment for the children.  Neither seems disposed to abide by family law orders, or to cooperate with court processes.

6. She expressed concern about the material before her suggesting intractable long-standing high conflict escalating into violence in this family.  She suggested that the Mother’s allegations of abuse and violence were plausible, as were the Father’s allegations about the Mother’s outbursts at the children.  She raised serious concerns about the parenting capacity of both parents.  In relation to the Mother, she was concerned about cross-generational transmission of pathological child rearing practices in her family of origin, and severe lifetime trauma exposure of the kind often reported by those diagnosed with borderline personality disorder.

7. Dr A acknowledged that her evaluation remained incomplete.  Nonetheless, on the basis of the information before her, she concluded that child protection is the determining issue, and an urgent concern.  She thought the matter would have been better dealt with in the Children’s Court.  She was concerned that whatever orders the Court makes about the care and contact for these children, the parents will make a crisis driven decision in response to the contingencies arising, with the effect that all eight children will continue to experience a chaotic, unsettling home life with routine exposure to high conflict at best and family violence at worst.  She strongly recommended that the Department be asked to intervene.

The current and past arrangements

1. As noted above currently S, T, and Z live with their mother, and the remaining children with their father.  Pursuant to an interim Order made 6 September 2019, as a result of negotiations facilitated by the Independent Children’s Lawyer, the children are spending, or are supposed to be spending, time with each other and the other parent. Thus, S and T spend time and communicate with their father, and thus their brother U, as agreed between the parents, but taking into account the views expressed by the children.  Given their ages, the Court notes, this seems quite appropriate.  U is to spend time and communicate with his mother, and thus his sisters S and T, at times as agreed between the parents, and again taking into account his views.  Again, in the circumstances of this case, that seems appropriate.  V, W, X and Y spend time with the mother on Saturdays between 10:00am and 6:00pm.  The Mother is to bring as many of the other children currently in her care to the visit as she possibly can.  There is a specific order for Z to spend time with her father on Saturdays from 9:30am to 5:30pm.  The Father is to bring as many children currently in his care to the visit as he can.  There are Orders for communication.  The Court notes that these Orders were made on 6 September 2019.  Even when the matter came before the Court for Interim Hearing on 23 September, there seem to be some concerns expressed by both parents about the others compliance with these Orders.

2. A brief overview of the past arrangements in relation to the children is also helpful.  V, X and Y have been in the Father’s care since 4 January 2019.  Before that they were with the Mother.  W has been in the Father’s care since 11 March 2019.  S, T and Z came into the Father’s care on 11 March 2019, but returned to the Mother’s care on 25 June 2019.  It seems relatively uncontentious that the children were living with their mother before the Mother relinquished their care to the Father in January 2019.  There are different explanations given by the parents as to the circumstances of this.  A common theme, however, is that the Mother experienced mental health issues.  A study of the chronology supports this contention.  Indeed, an ongoing concern expressed by the Independent Children’s Lawyer was the way in which, if at all, the Mother has satisfactorily addressed her mental health concerns.

3. What should become apparent from the above, is that these children have experienced enormous change in their lives, in a relatively short period of time, and have experienced parental dysfunction of quite a high level.  The issue is, of course, what is to be done about that?

The applicable law

1. The applicable law is found in Part VII of the Family Law Act 1975 (Cth) (hereafter referred to as ‘the Act’). In determining parenting matters under Part VII of the Act the Court must regard the best interests of the child as the paramount consideration: s.60CA.

2. The objects and principles of Part VII are set out at s.60B:

   60B  Objects of Part and principles underlying it

   (1)     The objects of this Part are to ensure that the best interests of children are met by:

   (a)     ensuring that children have the benefit of both of their parents having a meaningful involvement in their lives, to the maximum extent consistent with the best interests of the child; and

   (b)     protecting children from physical or psychological harm from being subjected to, or exposed to, abuse, neglect or family violence; and

   (c) ensuring that children receive adequate and proper parenting to help them achieve their full potential; and

   (d)     ensuring that parents fulfil their duties, and meet their responsibilities, concerning the care, welfare and development of their children.

   (2)     The principles underlying these objects are that (except when it is or would be contrary to a child’s best interests):

   (a)     children have the right to know and be cared for by both their parents, regardless of whether their parents are married, separated, have never married or have never lived together; and

   (b)     children have a right to spend time on a regular basis with, and communicate on a regular basis with, both their parents and other people significant to their care, welfare and development (such as grandparents and other relatives); and

   (c) parents jointly share duties and responsibilities concerning the care, welfare and development of their children; and

   (d)     parents should agree about the future parenting of their children; and

   (e)     children have a right to enjoy their culture (including the right to enjoy that culture with other people who share that culture).

   (3)     For the purposes of subparagraph (2)(e), an Aboriginal child’s or Torres Strait Islander child’s right to enjoy his or her Aboriginal or Torres Strait Islander culture includes the right:

   (a)     to maintain a connection with that culture; and

   (b)     to have the support, opportunity and encouragement necessary:

   (i) to explore the full extent of that culture, consistent with the child’s age and developmental level and the child’s views; and

   (ii)     to develop a positive appreciation of that culture.

1. At the very core of Part VII of the Act is the creation of a presumption of equal shared parental responsibility in s.61DA. Section 61DA provides:

   61DA  Presumption of equal shared parental responsibility when making parenting orders

   (1)     When making a parenting order in relation to a child, the court must apply a presumption that it is in the best interests of the child for the child’s parents to have equal shared parental responsibility for the child.

   (2)     The presumption does not apply if there are reasonable grounds to believe that a parent of the child (or a person who lives with a parent of the child) has engaged in:

   (a)     abuse of the child or another child who, at the time, was a member of the parent’s family (or that other person’s family); or

   (b)     family violence.

   (3)     When the court is making an interim order, the presumption applies unless the court considers that it would not be appropriate in the circumstances for the presumption to be applied when making that order.

   (4)     The presumption may be rebutted by evidence that satisfies the court that it would not be in the best interests of the child for the child’s parents to have equal shared parental responsibility for the child.

2. If the presumption applies, the Court is required to consider certain things:

   65DAA Court to consider child spending equal time or substantial and significant time with each parent in certain circumstances

   Equal time

   (1)     If a parenting order provides (or is to provide) that a child’s parents are to have equal shared parental responsibility for the child, the court must:

   (a)     consider whether the child spending equal time with each of the parents would be in the best interests of the child; and

   (b)     consider whether the child spending equal time with each of the parents is reasonably practicable; and

   (c) if it is, consider making an order to provide (or including a provision in the order) for the child to spend equal time with each of the parents.

   Substantial and significant time

   (2)     If:

   (a)     a parenting order provides (or is to provide) that a child’s parents are to have equal shared parental responsibility for the child; and

   (b)     the court does not make an order (or include a provision in the order) for the child to spend equal time with each of the parents; and

   the court must:

   (c) consider whether the child spending substantial and significant time with each of the parents would be in the best interests of the child; and

   (d)     consider whether the child spending substantial and significant time with each of the parents is reasonably practicable; and

   (e)     if it is, consider making an order to provide (or including a provision in the order) for the child to spend substantial and significant time with each of the parents.

   (3) will be taken to spend substantial and significant time with a parent only if:

   (a)     the time the child spends with the parent includes both:

   (i) days that fall on weekends and holidays; and

   (ii)     days that do not fall on weekends or holidays; and

   (b)     the time the child spends with the parent allows the parent to be involved in:

   (i) the child’s daily routine; and

   (ii)     occasions and events that are of particular significance to the child; and

   (c) the time the child spends with the parent allows the child to be involved in occasions and events that are of special significance to the parent.

   (4)     Subsection (3) does not limit the other matters to which a court can have regard in determining whether the time a child spends with a parent would be substantial and significant.

   Reasonable practicality

   (5)     In determining for the purposes of subsections (1) and (2) whether it is reasonably practicable for a child to spend equal time, or substantial and significant time, with each of the child’s parents, the court must have regard to:

   (a)     how far apart the parents live from each other; and

   (b)     the parents’ current and future capacity to implement an arrangement for the child spending equal time, or substantial and significant time, with each of the parents; and

   (c) the parents’ current and future capacity to communicate with each other and resolve difficulties that might arise in implementing an arrangement of that kind; and

   (d)     the impact that an arrangement of that kind would have on the child; and

   (e)     such other matters as the court considers relevant.

3. Because s.65DAA refers to the best interests of the child the Court must then go back to consider s.60CC which specifies how the Court must determine what is in a child’s best interests.

   Determining child's best interests

   (1)  Subject to subsection (5), in determining what is in the child's best interests, the court must consider the matters set out in subsections (2) and (3).

   Primary considerations

   (2)  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.

   Note:         Making these considerations the primary ones is consistent with the objects of this Part set out in paragraphs 60B(1)(a) and (b).

   (2A)  In applying the considerations set out in subsection (2), the court is to give greater weight to the consideration set out in paragraph (2)(b).

   Additional considerations

   (3)  Additional considerations are:

   (a)  any views expressed by the child and any factors (such as the child's maturity or level of understanding) that the court thinks are relevant to the weight it should give to the child's views;

   (b)  the nature of the relationship of the child with:

   (i)  each of the child's parents; and

   (ii)  other persons (including any grandparent or other relative of the child);

   (c)  the extent to which each of the child's parents has taken, or failed to take, the opportunity:

   (i)  to participate in making decisions about major long-term issues in relation to the child; and

   (ii)  to spend time with the child; and

   (iii)  to communicate with the child;

   (ca)  the extent to which each of the child's parents has fulfilled, or failed to fulfil, the parent's obligations to maintain the child;

   (d)  the likely effect of any changes in the child's circumstances, including the likely effect on the child of any separation from:

   (i)  either of his or her parents; or

   (ii)  any other child, or other person (including any grandparent or other relative of the child), with whom he or she has been living;

   (e)  the practical difficulty and expense of a child spending time with and communicating with a parent and whether that difficulty or expense will substantially affect the child's right to maintain personal relations and direct contact with both parents on a regular basis;

   (f)  the capacity of:

   (i)  each of the child's parents; and

   (ii)  any other person (including any grandparent or other relative of the child);

   to provide for the needs of the child, including emotional and intellectual needs;

   (g)  the maturity, sex, lifestyle and background (including lifestyle, culture and traditions) of the child and of either of the child's parents, and any other characteristics of the child that the court thinks are relevant;

   (h)  if the child is an Aboriginal child or a Torres Strait Islander child:

   (i)  the child's right to enjoy his or her Aboriginal or Torres Strait Islander culture (including the right to enjoy that culture with other people who share that culture); and

   (ii)  the likely impact any proposed parenting order under this Part will have on that right;

   (i)  the attitude to the child, and to the responsibilities of parenthood, demonstrated by each of the child's parents;

   (j)  any family violence involving the child or a member of the child's family;

   (k)  if a family violence order applies, or has applied, to the child or a member of the child's family--any relevant inferences that can be drawn from the order, taking into account the following:

   (i)  the nature of the order;

   (ii)  the circumstances in which the order was made;

   (iii)  any evidence admitted in proceedings for the order;

   (iv)  any findings made by the court in, or in proceedings for, the order;

   (v)  any other relevant matter;

   (l)  whether it would be preferable to make the order that would be least likely to lead to the institution of further proceedings in relation to the child;

   (m)  any other fact or circumstance that the court thinks is relevant.

The Case Law

1. In MRR v GR [2010] HCA 4, the High Court referred to s.65DAA(1) and said:

   9.  Each of sub-ss (1)(b) and (2)(d) of s 65DAA require the Court to consider whether it is reasonably practicable for the child to spend equal time or substantial and significant time with each of the parents.  It is clearly intended that the Court determine that question.  Sub-section (5) provides in that respect that the Court "must have regard" to certain matters, such as how far apart the parents live from each other and their capacity to implement the arrangement in question, and "such other matters as the court considers relevant", "[i]n determining for the purposes of subsections (1) and (2) whether it is reasonably practicable for a child to spend equal time, or substantial and significant time, with each of the child's parents".

2. A little later in the judgment the High Court said:

   13.    Section 65DAA(1) is expressed in imperative terms.  It obliges the Court to consider both the question whether it is in the best interests of the child to spend equal time with each of the parents (par (a)) and the question whether it is reasonably practicable that the child spend equal time with each of them (par (b)).  It is only where both questions are answered in the affirmative that consideration may be given, under par (c), to the making of an order.

3. At [15] the High Court emphasised the need for a practical approach:

   15.    Section 65DAA(1) is concerned with the reality of the situation of the parents and the child, not whether it is desirable that there be equal time spent by the child with each parent. The presumption in s 61DA(1) is not determinative of the questions arising under s 65DAA(1). Section 65DAA(1)(b) requires a practical assessment of whether equal time parenting is feasible.

4. The Full Court’s decision in Goode & Goode [2006] FamCA 1346 provides some guidance about the interpretation of Part VII and the way to proceed in interim hearings.

   68. In our view some of the comments of the Full Court in paragraph 18 are still apposite. For example, the procedure for making interim parenting orders will continue to be an abridged process where the scope of the enquiry is “significantly curtailed”. Where the Court cannot make findings of fact it should not be drawn into issues of fact or matters relating to the merits of the substantive case where findings are not possible. The Court also looks to the less contentious matters, such as the agreed facts and issues not in dispute and would have regard to the care arrangements prior to separation, the current circumstances of the parties and their children, and the parties’ respective proposals for the future.

   …

   72. In our view, it can be fairly said there is a legislative intent evinced in favour of substantial involvement of both parents in their children’s lives, both as to parental responsibility and as to time spent with children, subject to the need to protect children from harm, from abuse and family violence and provided it is in their best interests and reasonably practicable. This means where there is a status quo or well settled environment, instead of simply preserving it, unless there are protective or other significant best interests concerns for the child, the Court must follow the structure of the Act and consider accepting, where applicable, equal or significant involvement by both parents in the care arrangements for the child.

   …

   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 s 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);

   (e) deciding whether the presumption in s 61DA that equal shared parental responsibility is in the best interests of the child applies or does not apply because there are 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;

   (f) if the presumption does apply, deciding whether it is rebutted because application of it would not be in the child’s best interests;

   (g) if the presumption applies and is not rebutted, considering making an order that the child spend equal time with the parents unless it is contrary to the child’s best interests as a result of consideration of one or more of the matters in s 60CC, or impracticable;

   (h) if equal time is found not to be in the child’s best interests, considering making an order that the child spend substantial and significant time as defined in s 65DAA(3) with the parents, unless contrary to the child’s best interests as a result of consideration of one or more of the matters in s 60CC, or impracticable;

   (i) if neither equal time nor substantial and significant time is considered to be in the best interests of the child, then making such orders in the discretion of the Court that are in the best interests of the child, as a result of consideration of one or more of the matters in s 60CC;

   (j) if the presumption is not applied or is rebutted, then making such order as is in the best interests of the child, as a result of consideration of one or more of the matters in s 60CC; and

   (k) even then the Court may need to consider equal time or substantial and significant time, especially if one of the parties has sought it or, even if neither has sought it, if the Court considers after affording procedural fairness to the parties it to be in the best interests of the child.

Relevant events

1. The present focus is on events which occurred in 2019.  The chronology prepared by the Independent Children’s Lawyer is particularly useful in this regard.  Whatever may have been the legal arrangement in place between the parents at the time, certainly as at early January, the Mother seemed to be indicating to the Father, and objectively corroborated through other sources, that she was unable to care for the children.  At about 5 January 2019 V, W, X, Y and Z went into the Father’s care.  The situation seems to have been fluid in January, with some of the children going back to the Mother.  Even the Mother agrees, however, consistent with the Father’s evidence, that by 10 January all of the children were in the Father’s care, even though by 13 January the Mother claims to have changed her mind.  She says that the children returned to her care for a further three weeks from mid-January, but her mental health was clearly declining.  This is corroborated by Dr A's Report, and records from the Department of Family and Community Services. 

2. By early February it seems that most of the children, if not all of the children, were in the Father’s care, and the Mother’s mental health was deteriorating seriously.  By late February the Mother’s solicitor informed the Court that she intended to file a Notice of Discontinuance because she was convinced that the children were better off without her and that they would be removed from her care if she did not give them to the Father. 

3. As at early March even the Mother concedes that all the children were in the Father’s care.  The Mother conceded she was in a poor mental state at the time.  The Mother contends that from April she started to work on improving her mental health, and was engaged with various practitioners to assist her.  The Father contends that the Mother moved back into the home with the children and himself, but this does not appear to have lasted long. 

4. By about May the Mother applied to set aside the Notice of Discontinuance and this was eventually consented to.  There are numerous records from New South Wales Police, and the Department of Family and Community Services, strongly suggesting that the Mother continued to struggle with her mental health.  There were reports about the welfare of the children in the Father’s care.  By June, the Mother asserted that some of the children returned to her care because of the Father’s behaviour.

Discussion

1. The dysfunction experienced by this family is self-evident from the material before the Court.  The question is what to do about it, particularly in a highly fluid environment?

2. The strong impression created by the evidence is that the Mother experienced, and arguably continues to experience, mental health issues.  Moreover, the strong impression formed from the totality of the evidence before the Court is that she has either failed to engage with the services available to assist her with those mental health problems, or has failed to do so consistently.  This has, the Court suspects, contributed to the dysfunction in the maternal household, may have caused the Mother to become dysregulated, and may have led to the children being placed in their father’s care, or self-placing into their father’s care, notwithstanding the potential risks to their wellbeing in his household.  The Court is not satisfied with the assurances given on the Mother’s behalf in relation to her mental health, and engagement with services.  The history of the matter speaks far more eloquently than the submissions made on her behalf.  It is interesting that nowhere in the orders proposed by the Mother does she address these issues.

3. In those circumstances it is very difficult indeed to see or understand the basis on which the Mother contends that all eight children should be placed in her care.  The reality of the matter is that U would not comply with such an order and, the Court fears, would in any event place unacceptable additional pressure on the Mother’s household because of the poor relationship he has with her.  Moreover, the above strongly contra-indicates the remaining seven children going into the Mother’s care.

4. The issue remains: in which manner should the children be placed, pending the completion of the Family Report that was commenced but not concluded?  S, T and Z are already in the Mother’s care.  Both the Independent Children’s Lawyer and Father proposed that they remain there.  The evidence suggests that X and Y have a strong bond, and that for X, her relationship with T is very important.  Ideally, X, Y and T would be living together.

5. One option, therefore, would be to order that X and Y also live with the Mother so that they can be with T.  This would mean the Mother would have care of five children, and the Father three.  The Court suspects that this would be at the very upper limits of the Mother’s capacity.  Nonetheless, it seems to be a placement of the children that, on the available evidence, provides them with support from each other that is so critically important in a case where the support they are receiving from their parents may be inconsistent and less than optimal.  This proposed order also means that the Father has a greater chance of being able to meet the needs of the three children in his care. W, of course, does not want to live with his father, but has done so for some time. The difficulty for the Court is that placing him with his mother may well be an unacceptable burden on her already depleted parenting capacity.

6. In her submissions, the Independent Children’s Lawyer, Ms O’Donnell, submitted that, in effect, making an order that is in the best interests of the children may not be realistic in this case, and that all the Court can aspire for is managing risk, for the time being, and placing the children in a situation where it believes there is the least risk for them.  The totality of the evidence is consistent with that view of this case.  Whether the children are in their father’s care, or their mother’s care, there are risks to them.  The history of this matter amply demonstrates that.  Interestingly, the risks to the children do not appear to have been mitigated by the ongoing litigation, and consequential Court scrutiny, which is usually a regulating factor.  If the Mother can be encouraged to, and does in fact, engage with the services available to support her, there is a much more realistic prospect that the placement of the children discussed above can be sustained.  The Court is satisfied that it is the best of the options available in the circumstances.

1. The minute of proposed order submitted by The Independent Children’s Lawyer represents, from the Court’s perspective, the correct structure for the parenting orders in this case.  It will, therefore, be adopted as the template for the present interim Orders.  The Independent Children’s Lawyer will be directed to provide to Chambers, within seven days, a minute of order, consistent with the Court’s decision above, and otherwise in accordance with the minute of order proposed by the Independent Children’s Lawyer.

2. Hearing dates will be allocated but, regrettably, those dates will not be until early 2021.  The parents will be ordered to participate in the completion of the Family Report, and it is likely that Dr A's Report, in so far as it applies to the Mother, will in any event need to be updated.

3. Finally, the Court considers it important to make a number of observations about the family violence aspects of this case. Ms O’Donnell submitted that an inference, or impression, can be formed from the available evidence to suggest that the Mother’s mental health problems may well be associated with experiencing family violence in the relationship with the Father, as well as possibly other matters. Very little has been said in these Reasons for Judgement about family violence. The focus has been on providing safety, and stability for the children. It may well be that the significance of the family violence allegations will become much greater at a Final Hearing. The Court is obliged under the Family Law Act to make an order that is in the best interests of the children, and this involves taking into account a range of considerations a significant one of which is family violence.

I certify that the preceding fifty-two (52) paragraphs are a true copy of the reasons for judgment of Judge Altobelli

Date: 25 November 2019

Schedule One

Orders proposed by the Independent Children’s Lawyer

1. That all previous parenting Orders be and are hereby discharged.

1. That the children S (born … 2002), T (born … 2003), X (born … 2009) and Z (born … 2014) live with the mother.

1. That the children U (born … 2004), V (born … 2006), W (born … 2007) and Y (born … 2011) live with the father.

1. That, pending further Orders, the children S and T will spend time and communicate with the father (and their brother U) at times as are agreed to between the parents in writing, and taking into consideration any views expressed by the children.

2. That, pending further Orders, the child U will spend time and communicate with the mother (and his sisters S and T) at times as are agreed to between the parents in writing, and taking into consideration any views expressed by the child.

1. That, for the purposes of Order 2 above:-

   (a)the mother will collect the child X from the father in the foyer of the Town E Police Station at 12pm on Saturday, 28 September 2019;

   (b)each parent is restrained by injunction from communicating directly with the other parent during changeover;

   (c)each parent must ensure that changeover is facilitated in less than five (5) minutes;

   (d)the father will ensure that the child X brings with her whichever of her personal belongings she would like to have at her mother’s home; and

   (e)the father will ensure that the cat F (belonging to T) and all relevant items linked to the cat travels with the child X to changeover and is handed to the mother at changeover.

2. That the children V, W and Y will spend time with the mother (and their siblings living with the mother) as follows:-

   (a)commencing on Saturday, 5 October 2019, on each fourth weekend from 11am Saturday until 4pm Sunday;

   (b)changeover on the Saturday will occur in the foyer of the Suburb D Police Station;

   (c)changeover on the Sunday will occur in the foyer of the Town E Police Station;

   (d)each parent is restrained by injunction from communicating directly with the other parent during changeover;

   (e)each parent must ensure that changeover is facilitated in less than five (5) minutes;

   (f)in the event any other person travels with the father or the mother for changeover, the father and the mother are to ensure that such person(s) does not actively participate in the changeover;

   (g)in the event either parent is running more than 10 minutes late for changeover due to traffic or other unforeseen difficulties, they are to send a text/SMS message to the other parent advising them that they are running late and indicating an estimated time of arrival.

1. That the children X and Z will spend time with the father (and their siblings living with the father) as follows:-

   (a)commencing on Saturday, 19 October 2019, on each fourth weekend from 11am Saturday until 4pm Sunday;

   (b)changeover on the Saturday will occur in the foyer of the Town E Police Station;

   (c)changeover on the Sunday will occur in the foyer of the Suburb D Police Station;

   (d)each parent is restrained by injunction from communicating directly with the other parent during changeover;

   (e)each parent must ensure that changeover is facilitated in less than five (5) minutes;

   (f)in the event any other person travels with the father or the mother for changeover, the father and the mother are to ensure that such person(s) does not actively participate in the changeover;

   (g)in the event either parent is running more than 10 minutes late for changeover due to traffic or other unforeseen difficulties, they are to send a text/SMS message to the other parent advising them that they are running late and indicating an estimated time of arrival.

1. That the children will communicate with each other by telephone or video stream on each Wednesday between 7pm and 7:30pm and, for the purposes of this Order:-

   (a)the father will arrange for the children in his home to contact their siblings via the mother’s mobile telephone and the father will immediately leave the room / area of the home the children are in, so as to provide the children with complete privacy;

   (b)the mother will ensure that the children in her home are available to accept the call and the mother will immediately leave the room / area of the home the children are in, so as to provide the children with complete privacy.

10.  That the children V, W and Y will communicate with the mother on each Tuesday between 7pm and 7:30pm and, for the purposes of this Order:-

(a)the father will arrange for the children to contact the mother’s mobile telephone and the father will immediately leave the room / area of the home the children are in, so as to provide the children with complete privacy;

(b)the mother will ensure that she is available to accept the call.

11.  That the children X and Z will communicate with the father on each Thursday between 7pm and 7:30pm and, for the purposes of this Order:-

(a)the mother will arrange for the children to contact the father’s mobile telephone and the mother will immediately leave the room / area of the home the children are in, so as to provide the children with complete privacy;

(b)the father will ensure that he is available to accept the call.

12. That, pursuant to s68B of the Family Law Act 1975, the father is restrained by injunction from:

(a)approaching or coming within 100 metres of any place where the mother or the children S, T, X and Z might reside from time to time;

(b)approaching or coming within 100 metres of any place where the children S, T, X and Z might attend school.

13. That, pursuant to s68B of the Family Law Act 1975, the mother is restrained by injunction from:

(a)approaching or coming within 100 metres of any place where the father or the children U, V, W and Y might reside from time to time;

(b)approaching or coming within 100 metres of any place where the children U, V, W and Y might attend school.

14.  That each parent will ensure that the other parent is kept informed of:-

(a)any serious medical problems or illnesses suffered by the children, with the other parent to be notified as soon as possible;

(b)any medical emergencies or hospitalisation involving the children, with the other parent to be notified immediately;

(c)any medication that has been prescribed for the children that needs to be taken during the time the children are with the other parent, with the other parent to be notified no later than four (4) hours prior to changeover (and with each parent to ensure that the medication travels with the children);

(d)any specialist appointments with any specialist medical doctor, psychiatrist, psychologist, counsellor or therapist regarding the children, with the other parent to be notified no later than fourteen (14) days prior to any such appointment (except in the case of an emergency, with the other parent to be notified immediately);

(e)any change to the parents’ contact mobile telephone numbers, with any such changes to be advised within twenty-four (24) hours;

(f)any other matter relevant to the children’s welfare, with the other parent to be notified as soon as is reasonably practicable.

15.  That each parent will provide to the other parent the name and contact number for any medical practitioner, health service provider or institution attended by the children; and that this Order operates as the authority of each parent to the medical practitioner, health service provided or institution attended by the children to provide to either parent such information as he or she may seek in relation to the children.

16.  That (subject to Orders 12(b) and 13(b) above) each parent is permitted to liaise directly with the children’s school(s), sporting bodies and/or extra-curricular organisations to obtain any necessary information about the children’s progress; and that this Order operates as the authority of each parent to the children’s school(s), sporting bodies and/or extra-curricular organisations to provide to either parent such information as he or she may seek in relation to the children.

17.  That this Order operates as the authority of each parent to the children’s school(s) to ensure that the school forwards to both parents copies of the children’s school reports as they fall due along with copies of all school circulars, newsletters and invitations to any school activities which parents are invited to attend.

18.  That the mother and the father will undergo random urinalysis screening with such testing to be undertaken in accordance with the Australian/New Zealand Standard 4308:2008: Procedure for the collection, detection and quantitation of drugs of abuse in urine.

19.  That in Order to facilitate Order 18 above:-

(a)The Independent Children’s Lawyer will send a request by no later than 12pm by email to the mother’s solicitor (or by SMS text message and/or email to the mother in the event she is no longer represented) and to the father’s solicitor (or by SMS text message and/or email to the father in the event he is no longer represented);

(b)Such requests will be sent no more frequently than once per calendar month;

(c)Each parent is responsible for the cost of their respective testing;

(d)Each parent will provide the necessary samples no later than 6pm on the business day following the request;

(e)Once the results are released to each parent, they will ensure that a copy is forwarded to their solicitor no later than the next business day (or directly to the Independent Children’s Lawyer in the event they are no longer represented);

(f)The solicitor for each parent is to forthwith forward a copy of the results to the Independent Children’s Lawyer;

(g)The Independent Children’s Lawyer is at liberty to provide a copy of the results to the other parent’s solicitor (or directly to the other parent in the event they are no longer represented).

20.  That, without admissions, each parent is restrained by injunction from:-

(a)Taking, consuming and/or being affected by any illicit substance or alcohol to excess while the children are in their care;

(b)Exposing the children to any person who has taken, consumed and/or is affected by any illicit substance or alcohol to excess;

(c)Speaking or permitting any other person to speak to or about the other parent or members of their family (including their partners) in a negative, offensive or unpleasant fashion in the presence or hearing of the children;

(d)Discussing the parental relationship or separation in the presence or hearing of the children;

(e)Discussing any legal proceedings between or involving the parents in the presence or hearing of the children;

(f)Discussing the parents’ respective proposals as to the children’s living arrangements in the presence or hearing of the children;

(g)Questioning the children about their time with the other parent (beyond simple pleasantries when the children return to their respective care);

(h)Using physical discipline on the children or allowing any other person to do so;

(i)Verbally abusing the children;

(j)Calling the children unpleasant names;

(k)Using the children to pass messages to the other parent; and

(l)Smoking tobacco (or any other substance) indoors, in any other confined space and/or within ten metres of the children or allowing any other person to do so.

21.  That, for the purposes of parental communication, unless as otherwise agreed to between the parents in writing:-

(a)   Telephone communication will be used for emergencies only;

(b)  For all other parenting issues, the parents will communicate by SMS/text message;

(c)   That each parent is restrained by injunction from using abusive and/or aggressive language in any form of communication between them.

22.  That the mother is to ensure that X is immediately enrolled in school and thereafter attends school on the first date the Principal advises that she is able to.

23.  That the father is to ensure that for changeover on Sunday, 20 October 2019, the child Z brings with her whichever of her personal belongings she would like to have at her mother’s home.

24.  That, within seven (7) days, the mother is to provide to the Independent Children’s Lawyer (either direct or via her solicitor) details of the following:-

(a)   The name and phone number for any counsellor the mother has attended upon since October 2018;

(b)  The name and phone number for any counsellor (other than a school counsellor) any of the children have attended upon since October 2018;

(c)   The name and phone number for any GP the mother has attended upon since October 2018;

(d)  The name and phone number for any GP any of the children have attended upon since October 2018;

(e)   The name and phone number for any medical specialist any of the children have attended upon since October 2018.

25.   That, within seven (7) days, the father is to provide to the Independent Children’s Lawyer (either direct or via his solicitor) details of the following:-

(a)   The name and phone number for any counsellor the father has attended upon since October 2018;

(b)  The name and phone number for any counsellor (other than a school counsellor) any of the children have attended upon since October 2018;

(c)   The name and phone number for any GP the father has attended upon since October 2018;

(d)  The name and phone number for any GP any of the children have attended upon since October 2018;

(e)   The name and phone number for any medical specialist any of the children have attended upon since October 2018.

26.  That liberty is granted to the Independent Children’s Lawyer to relist the matter on seventy-two (72) hours’ notice in appropriate circumstances (including, but not limited to, in the event either parent fails to return the children at the conclusion of a visit).

Orders proposed by the Mother

1. That the Notice of Discontinuance filed by the Applicant Mother on 27 February 2019 be set aside.

2. That the children S (born … 2002), T (born … 2003), V (born … 2006), W (born … 2007), X (born … 2009), Y (born … 2011) and Z (born … 2014) live with the Mother until further Order of the Court.

3. That the child U (born … 2004) live with the Father until further Order of the Court.

4. That the Respondent Father return the children to the Applicant Mother at 5:00pm on the date of listing.

5. That a Recovery Order be issued for the children pursuant to s67Q of the Family Law Act 1975.

6. That the Marshall, the Deputy Marshall, all officers of the Australian Federal Police and all officers of the State and Territory Police be authorised and directed with such assistance as they require and if necessary by force to:

6.1.Stop and search any vehicle, vessel or aircraft and search the premises or place for the purpose of finding the children;

6.2.Recover the children;

6.3.Deliver the children to the Applicant Mother;

6.4.Arrest, without warrant, the Respondent Father in the event that the Respondent Father again removes or takes possession of the child.

1. That pending further Order of the Court, the Applicant Mother have sole parental responsibility for the children in her care.

2. That the children in the Mother’s care spend no time with the Respondent Father until further Order of the Court, unless at a supervised contact centre.

3. That the Respondent Father be restrained by injunction from:

9.1.Denigrating the Applicant Mother, or members of the Applicant Mother’s family;

9.2.Contacting the Applicant Mother unless through solicitors;

9.3.Allowing the children to remain in the presence of any person denigrating the Applicant Mother, or members of the Applicant Mother’s family;

9.4.Discussing these proceedings, parenting or living arrangements with the children.

9.5.Collecting the children from school; and

9.6.Coming within 200 metres of contact of the children or Applicant Mother.

Orders proposed by the Father

1. That all previous parenting Orders be and are hereby discharged.

1. That the children S (born … 2002), T (born … 2003), and Z (born … 2014) live with the mother.

1. That the children U (born … 2004), V (born … 2006), W (born … 2007), X (born … 2009) and Y (born … 2011) live with the father.

2. That, pending further Orders, the children S, T and Z will spend time and communicate with the father (and their siblings) at times as are agreed to between the parents in writing, and taking into consideration any views expressed by the children.

3. That, pending further Orders, the children U, V, W, X and Y will spend time and communicate with the mother (and their sisters S, T and Z) at times as are agreed to between the parents in writing, and taking into consideration any views expressed by the children.

4. That the children will communicate with each other by telephone or video stream on each Wednesday between 7pm and 7:30pm and, for the purposes of this Order:-

   (a)the father will arrange for the children in his home to contact their siblings via the mother’s mobile telephone and the father will immediately leave the room / area of the home the children are in, so as to provide the children with complete privacy;

   (b)the mother will ensure that the children in her home are available to accept the call and the mother will immediately leave the room / area of the home the children are in, so as to provide the children with complete privacy.

5. That the children V, W, X and Y will communicate with the mother on each Tuesday between 7pm and 7:30pm and, for the purposes of this Order:-

   (a)the father will arrange for the children to contact the mother’s mobile telephone and the father will immediately leave the room / area of the home the children are in, so as to provide the children with complete privacy;

   (b)the mother will ensure that she is available to accept the call.