Badrick and Gersam (No. 2)
[2020] FamCAFC 202
•5 August 2020
FAMILY COURT OF AUSTRALIA
| BADRICK & GERSAM (NO. 2) | [2020] FamCAFC 202 |
| FAMILY LAW – APPEAL – INTERIM PARENTING – Where the appealed orders provide for a very young child to live in a week about arrangement – Where the orders were not within the reasonable contemplation – Denial of procedural fairness – Where child was settled with the father – Mother retained child – Father’s application for the child to be returned dismissed – Risk of harm to the child by reason of the mother’s mental health and her partner’s history of family violence – Appeal allowed – Re‑exercise of discretion – Child to live with the father and spend time with the mother. |
| Family Law Act 1975 (Cth) s 94AAA(3) Federal Proceedings (Costs) Act 1981 (Cth) s 9 |
| Akston & Boyle (2010) FLC 93-436; [2010] FamCAFC 56 Bolitho and Cohen (2005) FLC 93-224; [2005] FamCA 458 Gronow v Gronow (1979) 144 CLR 513; [1979] HCA 63 House v The King (1936) 55 CLR 499; [1936] HCA 40 Rice and Asplund (1979) FLC 90-725; [1978] FamCA 84 U v U (2002) 211 CLR 238; [2002] HCA 36 |
| APPELLANT: | Mr Badrick |
| RESPONDENT: | Ms Gersam |
| FILE NUMBER: | EAA | 74 | of | 2020 |
| APPEAL NUMBER: | SYC | 2912 | of | 2020 |
| DATE DELIVERED: | 5 August 2020 |
| PLACE DELIVERED: | Sydney |
| PLACE HEARD: | Sydney |
| JUDGMENT OF: | Ryan J |
| HEARING DATE: | 5 August 2020 |
| LOWER COURT JURISDICTION: | Federal Circuit Court of Australia |
| LOWER COURT JUDGMENT DATE: | 15 May 2020 |
| LOWER COURT MNC: | [2020] FCCA 1567 |
REPRESENTATION
| COUNSEL FOR THE APPELLANT: | Mr Guterres |
| SOLICITOR FOR THE APPELLANT: | Shipton & Associates |
| THE RESPONDENT: | Self-represented |
Orders
That service of the Notice of Appeal (as amended) on Mr Hill be dispensed with.
That the Application in an Appeal filed 15 July 2020 to adduce further evidence be allowed in part.
The appeal be allowed.
Orders 4 and 5 made on 15 May 2020 be set aside.
There be no order as to costs.
The Court grants to the appellant a costs certificate pursuant to the provisions of s 9 of the Federal Proceedings (Costs) Act 1981 (Cth), being a certificate that in the opinion of the Court it would be appropriate for the Attorney-General to authorise a payment under that Act to the appellant in respect of the costs incurred by him in relation to this appeal.
PENDING FURTHER ORDER, IT IS ORDERED
That Z Hill (also known as Z Gersam-Badrick), born in 2017 (“the child”):
(a) live with the appellant father;
(b)spend time with the respondent mother from 3.00 pm on Friday until 4.00 pm on Sunday each alternate weekend, commencing from Friday 14 August 2020; and
(c)unless otherwise agreed by the parties, the mother shall deliver the child to the father’s residence at the conclusion of her time with the child, and the father deliver the child to the mother’s residence at the commencement of the mother’s time with the child.
That the applications for interim parenting orders the subject of this appeal, including any response, be otherwise dismissed.
IT IS NOTED THAT:
A.Pursuant to ss 65DA(2) and 62B of the Family Law Act 1975 (Cth), the particulars of the obligations these orders create and the particulars of the consequences that may follow if a person contravenes these orders are set out in Annexure A and those particulars are included in these orders.
Note: The form of the order is subject to the entry of the order in the Court’s records.
IT IS NOTED that publication of this judgment by this Court under the pseudonym Badrick & Gersam (No. 2) has been approved by the Chief Justice pursuant to s 121(9)(g) of the Family Law Act 1975 (Cth).
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 ordear pursuant to r 17.02 Family Law Rules 2004 (Cth).
| THE APPELLATE JURISDICTION OF THE FAMILY COURT OF AUSTRALIA AT SYDNEY |
Appeal Number: SYC 2912 of 2020
File Number: EAA 74 of 2020
| Mr Badrick |
Appellant
And
| Ms Gersam |
Respondent
EX TEMPORE REASONS FOR JUDGMENT
Introduction
By Amended Notice of Appeal filed 22 June 2020, Mr Badrick (“the father”) appealed various interim parenting orders made on 15 May 2020. The father and Ms Gersam (“the mother”) are the parents of Z Hill who was born in 2017 (“the child”). The child is also known by the surname Badrick-Gersam. The mother thought her then partner, Mr Hill, was the child’s father and she recorded Mr Hill on the child’s birth records. Subsequent DNA testing confirmed the father as the child’s parent.
When the child was 21 months of age, the mother asked the father to assume the child's full‑time care, which he did. For the next 11 months the child lived with the father and had alternate weekend time with the mother. In early May 2020, the mother refused to return the child and, thus, the father commenced proceedings to secure the child’s return and ongoing living arrangements. The father’s application failed and interim orders were made for the child to live with his parents week about (Orders 4 and 5). It is against those orders that the father appeals. The mother seeks to uphold the decision of the primary judge.
In accordance with s 94AAA(3) of the Family Law Act 1975 (Cth) (“the Act”), the Chief Justice directed that the appeal be determined by a single judge.
Because Mr Hill is recorded as the child’s parent, he is a party to the proceedings. However, it is common ground that he has not sought and does not have a relationship with the child. It is understood that he was not served in the court below and he has not been served with this appeal. In these circumstances, it is appropriate to dispense with service of the appeal on Mr Hill and to proceed without notice to him.
An application filed by the father on 15 July 2020 to adduce further evidence in the appeal must also be considered. The application was presented on two bases; firstly, to establish error if none of the grounds based on the trial record did so, and secondly, for the purpose of any redetermination of the interim parenting application.
Background
So as to provide context to the appeal, a brief factual background is required, most of which is, if not all, uncontroversial.
The mother and father have never lived together. They became friends while living and working in City S and then went in different directions. The father went to City T and the mother moved to Sydney.
At Christmas 2016, the father visited the mother and the child was conceived, after which they lost contact. The father was not involved with the mother during her pregnancy and he only sought to become involved in the child’s life after it was confirmed that the child is his. By then the father had partnered with Ms B. Ms B has two children, U, who was born in 2008, and L who was born in 2009.
In March 2018, the father, Ms B and her children moved to Region L of New South Wales and the child commenced regular overnight contact with the father in May 2018. For good reason, by June 2018 the father was concerned about the mother’s mental health and her capacity to care for the child full‑time.
On 2 July 2018, the father commenced proceedings in the Federal Circuit Court of Australia in relation to the child. The proceedings were resolved by agreement, and on 23 October 2018, final parenting orders were made by consent. Stated broadly, the effect of the orders was that child would continue to live with the mother and spend time with the father from Friday afternoon until Sunday afternoon each alternate weekend. Provision was made for contact during the Christmas period and for block periods once the child was of school age. Relevantly, the mother was ordered to:
… [a]ttend upon all current medical treating practitioners assisting her with respect to her mental health and ensure that she comply with all recommendations made by such treaters and comply with treatment including medication, if so prescribed. (Order 5)
Thereafter, the child spent time with the father along the lines of the orders until in early June 2019, when the mother asked him to assume the child’s full‑time care. There was an exchange of messages over the next few days in which the parties agreed that this would happen and that the child would have every second weekend with the mother. It was also agreed that the arrangement would be reassessed in six to 12 months’ time.
The child came into the father’s primary care on 5 June 2019 and thereafter had regular contact with the mother, albeit there were difficulties on a couple of occasions created by one or other parent.
The COVID-19 pandemic created tensions about the child’s movements between households and how to best achieve isolation. By mid‑April 2020, the parties were in dispute about the child’s living arrangements. Nonetheless, they agreed that the child would be with the mother from 1 May 2020 and that she would return him to the father on 5 May 2020. However, there was a dispute about the changeover point, and the mother reneged on the agreement and refused to return the child. Thus, on 12 May 2020 the father commenced proceedings in the Federal Circuit Court for interim orders.
The application was listed at short notice and on 15 May 2020, the parties, each of whom were legally represented, appeared before the primary judge. Time constraints meant that the mother did not file affidavit evidence. The mother did not give oral evidence and the hearing was conducted on the papers, namely, on the evidence filed in the father’s case and without cross-examination.
Having made the interim orders challenged in this appeal, the proceedings were adjourned for mention on 29 May 2020. The mother was directed to file affidavit evidence and a report from a medical practitioner as to her mental health and parenting capacity. In the event that the mother failed to file such evidence, or the evidence raised concerns about her parenting capacity, the primary judge noted that on the next occasion he would “consider hearing the parties on whether the orders made today should be varied” (Notation A).
The mother filed an affidavit and the court was provided with her current mental health plan. Although on 29 May 2020, the father pressed the Court to reconsider the equal time order, his application was refused and the proceedings were adjourned for further mention on 2 September 2020. The father’s request that his application for interim orders be listed for further hearing on 2 September 2020 was similarly refused.
The grounds of appeal
It needs to be understood that this is an appeal against the exercise of discretion, to be determined in accordance with the principles set out in House v The King (1936) 55 CLR 499. A different view by an appellate court only as to matters of weight by no means justify the refusal of the decision of the primary judge, Gronow v Gronow (1979) 144 CLR 513.
It is important to remember that this is an appeal against a judgment given ex tempore immediately following the hearing. Appellate courts make assumptions in favour of an ex tempore judgment, including that a failure to refer to evidence or analyse it fully may be excused on the basis that the currency of the judgment make it unlikely that it was overlooked. Such an approach is appropriate in this appeal. I agree with Boland J in Akston & Boyle (2010) FLC 93-456 at [28]:
Recognition that an appellate court should not over critically scrutinise an ex tempore judgment given shortly after a hearing in the same manner as a reserved judgment delivered after some period is based on commonsense and practicality. As Mason P observed in Maviglia v Maviglia [1999] NSWCA 188 “[a]n ex tempore judgment should not be picked over. And appropriate allowance should be given for the pressures under which judges of the District Court are placed by the volume of cases coming before them.” These comments are apposite to the caseload of Federal Magistrates in the Federal Magistrates Court (see also Porter v Byrne (2009) 40 Fam LR 644).
Furthermore, s 69ZL of the Act permits the reasons for judgment given for an interim parenting order to be in short form, which the primary judge did [1].
The father presented seven grounds of appeal which, stated broadly, assert that the primary judge erred:
· by denying the father procedural fairness in relation to the equal time order (Ground 1);
· in the application of the principle in Rice and Asplund (1979) FLC 90-725 (“Rice and Asplund”) (Ground 2);
· as to the assessment of risk to the child by reasons of the mother’s mental health and in making related findings that were not available (Ground 3);
· by failing to properly evaluate and consider the father’s proposal to restore living arrangements that had been in place since June 2019 (Ground 4);
· in making orders as to equal time arbitrarily and contrary to the best interests of the child (Ground 5);
· in failing to give reasons which explain the orders for week about time and why the father’s application was dismissed (Ground 6); and
· in refusing to reconsider the week about order on 29 May 2020 (Ground 7).
Procedural fairness
The gravamen of this challenge is that the primary judge made orders for equal time which were not within the contemplation of either party, and without giving the father an opportunity to be heard. The father proposed that the existing orders be suspended, the child live with him and spend time with the mother each alternate weekend. Assuming this order was made, the father sought that the mother return the child to him within 48 hours and for a recovery order which was to lie in the registry pending the child’s return.
The solicitor for the mother informed the court that the mother wished to resume the child’s primary care and sought that the parenting orders of 23 October 2018 prevail (Transcript 15 May 2020, p.14 lines 37-42). As to the child’s long term arrangements, the court was informed that “ultimately” the mother contemplated “a week about” or a similar sort of arrangement to that to what she had for the child’s half-brother (Transcript 15 May 2020, p.13 lines 29–32). It may be that the primary judge misunderstood that the mother’s reference to equal time was she proposed that equal time commence forthwith. She did not, and at its highest this was a possibility to be considered at an unstated point in the future. No doubt, the mother’s position was informed by the child’s young age and his developmental needs.
His Honour heard this case in a busy duty list and no criticism is made of the misunderstanding. However, the parameters of the dispute were not as his Honour believed them to be, and the orders made differed significantly from the parties’ proposals.
It is uncontroversial that a judge is not confined to a choice between the parties’ proposals and is obliged to determine a parenting issue with the best interests of the child as the paramount consideration (U v U (2002) 211 CLR 238). In making that determination, if an outcome substantially different to that proposed by either party is in contemplation, natural justice considerations require that the parties are given notice of the proposal and afforded the opportunity to address it (Bolitho and Cohen (2005) FLC 93-224). This did not happen.
This young child had never lived in the week about arrangement. The father was entitled to address the effect on the child as he saw it of a week about arrangement. Not only did a week about arrangement raise issues concerning the mother’s parenting capacity, which were comprehended by the father’s application that the child primarily lives with him, but also the effect on the child of a substantial change to well‑settled living arrangements and of living between two very different homes week about. Natural justice considerations required that the father be given the opportunity to address these matters, and in making orders as to equal time week about the father was denied procedural fairness.
The remedy for this denial of procedural fairness is that Orders 4 and 5 should be set aside and the issue re‑determined.
The application of Rice and Asplund
The focus of this ground is on statements by the primary judge concerning the application of Rice and Asplund. Rice and Asplund requires that where there are existing orders in relation to a child, the court needs to consider whether an applicant who seeks to change those orders has demonstrated the existence of changed circumstances that warrant reconsideration of the orders. The primary judge was alive to the issue and engaged with it during the hearing and in the reasons for judgment. The father’s Summary of Argument parses his Honour’s remarks in exquisite detail and contends that his Honour’s formulation of the principle is confused and/or incorrect.
This is an argument of form over substance. It will be recalled that the primary judge did not enforce the orders made in October 2018. There can be no doubt that his Honour was satisfied that subsequent to the consent orders there had been a relevant change of circumstances and the child’s best interests required a new set of orders. In other words, his Honour accepted the father’s case that circumstances had changed, and that the Rice and Asplund threshold was met. The complaints made by the father about the formulation of the principle used in oral addresses and the reasons for judgment are at best of academic interest. The submissions ignore the allowance to be made in favour of ex tempore decisions and should be rejected.
Ground 2 has not been established.
Assessment of risk
By Ground 3, the father challenges the approach taken to the assessment of risk made in relation to evidence concerning the mother’s mental health. There was and is no controversy that the changes made to the child’s living arrangements in June 2019 were initiated by the mother and, as the primary judge found, that the mother had “mental health concerns” which caused her to “[ask] the father to care for the child” [9].
At [17] and [18], the primary judge noted the father’s evidence about the mother’s mental health and in respect of her parenting capacity. The primary judge identified this evidence as raising “serious matters” which it did. His Honour continued:
19.Clearly, the mother has acknowledged her concerns. And clearly, when she felt that she was unable to care for the child, she didn’t seek to have the child with her. That is something in her favour today because it shows a degree of child focus despite what’s being said to me by the father.
20.I don’t have, unfortunately, any evidence of the mother’s mental health status at the moment. And it appears that until the father took the child away for four weeks, he was not seeking to stop her having time with the child. So if she was safe with the child for two days at a time a few weeks ago or a few months ago, it’s difficult to say that the historical issues of mental health should be given excessive weight, at the moment.
Having acknowledged that there was no controversy that the child was presently safe with the mother for a few days at a time, the primary judge determined that this circumstance should have greater weight than evidence of her prior mental health issues. As there was no suggestion that the child was at risk with the father, the primary judge reasoned that the child was not at risk in either parent’s care [23]. Thus, and although, “the child is young for a week about arrangement”, “a week about arrangement might provide some comfort to each party and to me and also make it very apparent if a risk arises” [23].
The inconsistency between the findings as to the child not being at risk with the mother and for ordering week about time established the flaw in the process of reasoning raised under the rubric of Ground 6. It also demonstrates that the primary judge misconstrued the nature of the risk to the child for which the father contended. As the transcript of the hearing demonstrates, there was no suggestion that the mother posed a grave and immediate risk to the child’s life, such that the child spending one or two days with her at a time was inappropriate. Rather, the risk to the child arose from the mother’s inability to care for him on “any extended or ongoing basis”. In other words, the risk was pervasive but not acute.
In addition to the evidence that in June 2019, the mother’s mental health was such that she was unable to care for the child, the father gave evidence as to the mother’s history of threatening suicide, her being scheduled under state mental health legislation, the involvement of child welfare agencies for both her children, and that in 2018 the children were taken into, albeit brief, temporary external care. There was evidence of accommodation instability, relationship instability, homelessness, and that the child was often returned to the father unwashed and unkempt.
In relation to these matters, the father submits that:
63.These facts in themselves ought to have been sufficient to satisfy his Honour that there was at least some risk that the respondent’s mental health could adversely impact her ability to care for the child.
64.His Honour did not have any evidence about the circumstances which led to the deterioration in the respondent’s mental health in June 2019 nor evidence as to why she had been unable to care for Z. There was no medical evidence of any diagnosis, prognosis or treatment. It was not possible for his Honour to be satisfied that those circumstances had ameliorated. His Honour could not discount the possibility or even likelihood that what had occurred in June 2019 would occur again.
(Father’s Summary of Argument filed 15 July 2020)
These submissions should be accepted and, thus, Grounds 3 (and 6) are established.
Before leaving this discussion, it is noteworthy that the primary judge did not provide any explanation as to how a week about arrangement for this young child was in his best interests. Consideration of the decided cases demonstrate that it is a most unusual order for such a young child. Indeed, on an admittedly cursory examination, I have been unable to locate any cases, where, in the face of a parental dispute, that outcome was ordered. On what basis the primary judge decided week about was developmentally appropriate for this child was never revealed. Even putting to one side that neither of the child’s parents suggested that such an order would be appropriate, the unusual nature of the order required an exposé of the facts and reasoning which persuaded the primary judge that it was in the best interests of the child.
The remaining grounds
These challenges have been sufficient to justify the orders being set aside. Although all the challenges raised would usually be considered, counsel for the father was content that if any of the grounds were established so that the orders would be set aside, the remaining grounds need not be discussed. This constructive approach was, no doubt, driven by the father’s desire to ensure that the serious issues raised about the welfare of this young child could be addressed immediately.
I will treat the remaining grounds as abandoned.
Re‑exercise or remitter
The question then arises; what to do, having decided that Orders 3 and 4 should be set aside. The mother appeared unrepresented today and did not file any documents in the appeal. Because there was a possibility that the Court would re-exercise, directions were made for the parties to file such further evidence as they considered was necessary. The mother did not do so.
I contemplated whether, in those circumstances, the question of the interim parenting arrangement should be remitted for rehearing so that she could secure legal representation. However, the mother said that she has a list of 25 lawyers, and I understood that she approached many of them, but has been unable to secure representation for the appeal. She received a grant of Legal Aid for the appeal and it would seem that payment was not a barrier to representation.
I was left unconvinced that if the matter was remitted, that the mother would be represented on the next occasion. I say this, conscious that the mother did arrange representation for 15 May 2020, but things seem to have become more difficult for her since then. More importantly, there is evidence that the child is very distressed by the current arrangements and it is unquestionably in his best interests that his circumstances are looked at urgently. As already mentioned, the father’s applications to the primary judge for the existing orders to be reconsidered have been rebuffed, and there is real uncertainty about when a remitted rehearing might be made available. Thus, I decided to rehear the application for interim parenting orders.
The further evidence upon which the father relies will be received, but not the solicitors’ notes as to the contents of documents produced under subpoena. The mother’s documents filed on 21 May 2020 are before me, as well as the documents tendered to the primary judge on 29 May 2020. I have the Child Dispute Conference Memorandum following the parents’ meeting with the Family Consultant on 24 July 2020. As the dates recorded just now indicate, I am confident that I have current and, indeed, the necessary evidence in order to re‑exercise the primary judge’s discretion.
Turning then to the parties’ proposals. The father’s proposal is as it was on 15 May 2020, namely, that the child would live with him at Suburb J, which is on the lower reaches of Town K, with his partner and her children. This is a home with which the child is familiar. The father proposes that the child resumes day care where he previously attended each Monday and Wednesday and where, according to the father’s evidence, the child had made friends and where he enjoyed himself.
The father proposes that the mother have alternate weekend time with the child. It is his case that this strikes the right balance between ensuring the child maintains his important relationship with her and his half‑brother, Y, but balanced against the risks of exposure to family violence, the risks arising from the mother’s inability to reliably and consistently meet the child’s needs and the logistics that arise by virtue of the parties living some two hours by road apart. In other words, the father contends that there are risks associated with alternate weekend time for the child with the mother, but there are also countervailing factors which mean those risks should be tolerated.
In her Response filed on 21 May 2020, the mother proposed that the week about arrangement established by the primary judge continues. She affirmed that position in the hearing this morning. However, the mother became teary when asked to address the information contained in the Child Dispute Conference Memorandum against such an arrangement and, in particular, what could be expected from it for a child as young as her son. The mother explained that she was trying to find a solution to a difficult situation, but that she too, was worried about whether the week about arrangement was suitable for him. Her fall‑back position, is that she has primary care of the child with the arrangements along the lines contained in the October 2018 orders.
The mother lives with her partner Mr C at Suburb H with the child’s half‑brother, Y. There are orders in place for Y to live week about with the mother and Y’s father. However, according to the mother, Y is more often with her than he is with his father. The mother feels healthier than she has for a long time and she is confident that she is in a position to resume primary responsibility for the child’s day‑to‑day care. Importantly, the mother emphasised that when she has been unwell, she sought help, and the Court could be confident that she would do so again.
I agree with the submission made by counsel for the father that, to a very considerable degree, the uncontentious facts may drive the outcome of the proceedings. I have already referred in the background facts to much of them and which need not be repeated.
The mother’s evidence is that:
I believe [the father] to be a good father and to act in the child’s best interests when caring for him. There have never been any concerns of neglect or family violence.
(Mother’s affidavit filed 21 May 2020, paragraph 86)
Next, the mother acknowledged the lack of risk to the child in the father’s care. The mother raises no concern about Ms B, and today said that her children are lovely boys. The father’s evidence about his living arrangements is largely unchallenged and when that evidence is considered, in light of the mother’s observations about his parenting capacity, it is clear that as at June 2019, the child was well‑settled living with the father and his needs were well met. There is no reason to doubt that they would not continue to be met and, with his father, the child would enjoy a settled home base.
The father did not agree to change those arrangements and the changes in the child’s living arrangements made in May 2020 were imposed by the mother and had the effect of uprooting a well‑settled living arrangement. What has unfolded since then has been unfortunate for the child.
Of the current week about arrangement, the Family Consultant said:
It is highly concerning to note that [the child] is currently living in an equal time arrangement. Given [the child’s] age and stage of development, it is very inappropriate for him to be living in such an arrangement, and concerns noted by [the father] about [the child] regressing in his development are unsurprising. [The child] needs a primary base at this time, as the current arrangement is highly developmentally harmful to him. [The child] would not yet have enough memory capacity to make sense of the current arrangement, and may be living in a state of perpetual loss. The distance between the paternal and maternal households could possibly exacerbate the situation further.
(Child Dispute Conference Memorandum dated 27 July 2020, paragraph 16)
This evidence resonates with the mother’s observation that during the two hour drive between the parties’ homes the child cries non‑stop.
The changes to the child’s functioning to which the Family Consultant makes reference is to evidence given by the father, including as follows:
39.…
(a)[The child] was more clingy and anxious. He was waking up at 3:00 am in the morning and coming into my bedroom. On one occasion, he said to me “I’m scared.”. At bedtime, [the child] has not wanted me to leave, asking “Are you coming back?” when I leave the bedroom. I had to stay sitting on [the child’s] bed until he fell asleep on almost every night when he was with us during the first two weeks that he was in my care. Prior to [the mother] retaining [the child], I left [the child’s] room as soon as we finished reading a bedtime story, with no issues.
(b)[The child] began stuttering when [the child] and I read a book before bedtime. I have noticed that [the child] has had trouble pronouncing and correctly naming animals in his picture book. [The child] pointed to an otter and said “cow”. Prior to 1 May 2020 [the child] had no issues pronouncing and correctly naming the animals in the same picture book.
…
43.For example, [the child] is struggling to follow my simple instruction without having an emotional breakdown. On multiple occasions every day, I say to [the child] “put your rubbish in the bin”, “put your plate into the sink”, “pick up your toys and put them in your toy box” and “come and get dressed”. [The child] often responds by crying uncontrollably. It usually takes a while to get him to settle. I try to get him to focus on doing something else and he is able to calm down and seems to forget about what I asked. I also see that [the child] behaves in the same manner when [my partner] asks him the same requests.
44.Prior to the change in care arrangements, I had not experienced [the child] having a problem with these issues at all. Previously, when we have given [the child] little tasks like this, he attended to them almost automatically. He seemed to love helping around the house and liked being involved in what we were doing. He had a routine at our home which he was familiar with and so, for example, he would put his plate in the sink after dinner because that is what he did each night.
(Father’s affidavit filed 15 July 2020) (As per the original)
At paragraph 46 of the same affidavit, the father deposes to the child now being physically aggressive and at paragraph 47, to the child throwing things. This is different to how he was prior to the week about arrangement. I agree with the father’s sentiments at paragraph 52 of his affidavit, that these matters considered in the context of the opinion expressed by the family consultant suggests that “the week about arrangement is unsettling and destabilising for him”.
These matters all point in the direction that the week about arrangement is contraindicated and it should stop. This evidence also suggests that for the foreseeable future the child has a particularly acute need for a primary home base and for as attuned and skilled parenting as possible. This need in the child throws into stark relief the significance of the risk factors for him if he lives primarily with the mother compared to the absence of risk if he lives primarily with his father.
In this respect, it is established:
·the mother has a long history of depression and anxiety;
·these difficulties pre-date the birth of her children; and
·have compromised her capacity to care for both her children;
·so much so that the children have been placed elsewhere.
As to the manner in which these issues have affected the mother’s parenting capacity, records from the New South Wales Department of Family and Community Services contain risk of serious harm or risk of harm assessments, dated 1 March 2018. The records show a caller to the Department reported speaking to the mother and the caller said “that [the mother] is going to kill herself… come and take Z (six months) and Y (two) to a home with the mother”.
It is recorded that the mother threatened to kill herself a number of times. The mother agreed with the caller that she would not to hurt herself while the children were there. The Department assessed the risk as being high. Then the records at page 33 of the same bundle report, that, someone possibly related to Y reported that the state of the home was of a concern. There were dirty nappies inside and outside the home which was described to be in a “poor hygiene state”. The Department records that due to the mother’s mental health and having the care of the child, who was then one, and Y, three, a further assessment was appropriate. The Department noted that the mother’s mental health needs to be assessed as it appears to impact on her parenting capacity.
Of course, some caution is appropriate in relation to the anonymised notification, but the fact that at least one of them was made by a person connected to Y, means, at least, this father is not the notifier. The first set of records noted from page 29 of the subpoenaed documents strongly indicates that the notifier is likely to be a mental health professional or counsellor associated to the mother and not someone connected to the father.
These matters are troubling and the concerns are not assuaged by the documents the mother has filed in support of her current mental health. I note that the letter of 27 May 2020 from T Psychology Centre, is of a phone consultation with the mother the preceding day, and the mental health plan provided by Dr R was executed on 19 May 2020. By that latter report, the doctor records that the mother is stable on antidepressant medication and his observations of her in the report are supportive of what she said today, that she is presently well. I accept this is likely to be the case. But the assessment of risk is more than simply an analysis of the current state of affairs and requires some predictions about the risk of, relevantly, a relapse in the future.
The mother’s mental health issues are of long duration and the documents produced under subpoena by the Department of Family and Community Services indicate that there is something of a pattern of periods of her being well and unwell. A period of her being well does not negate the real possibility of future relapse. The episodic nature of the mother’s mental ill health is such that there is a risk of relapse, and if the mother relapses, her parenting capacity can be seriously compromised.
As mentioned earlier, the mother lives with Mr C. They formed a relationship last year and commenced living together in about February this year. Mr C’s criminal antecedents are in evidence, and established that he has been convicted of domestic violence offences in relation to two of his former partners. The offences span a number of years, from about 2013 and as recently as 2018. In relation to these matters, Mr C has been imprisoned and commencing in November 2018 he was subject to a community corrections order which concluded on 22 May 2020.
The number of domestic violence offences involving different partners suggests that Mr C is a recidivist and poses an obvious risk to the child from exposure to family violence from him and to the mother. The mother says there has been no family violence in her relationship with Mr C to date, and I proceed on the basis that there has been none. However, given that the supervision provided under the community corrections order has just expired, I cannot be satisfied that there is no ongoing risk of family violence to the mother and the child from Mr C. Plainly there is.
It is for this reason that I asked the mother whether she would commit to the Court that in the event of any family violence involving Mr C and her, that she would call the police. The mother said she would, and I believe her. She also said she is confident that the police would respond immediately. I wondered whether this is because the mother appreciates what I have just indicated, that Mr C is an obvious risk to her of family violence.
Given the importance for the child of a stable home life, some reference to the mother’s circumstances since he was born are needed. In that time, the mother has partnered with three partners who lived with her and her children. She has moved home on numerous occasions, and for a short time, was homeless and living in a car. The mother’s relationship with Mr C is relatively new, and it is impossible to be confident that it will endure for any length of time.
Thus, although the mother and Mr C have secured a 12‑month lease on their home at Suburb H, it is not safe to proceed on the basis that the mother can provide the child with a secure and settled home life into the future.
It follows that it is in the best interests of the child for him to live primarily with the father where his needs have and will be met. The father has demonstrated that he will facilitate time between the child and the mother and I am confident that the child’s ongoing important relationship with the mother will be supported and the order for time will be fulfilled. That is of undoubted benefit to the child. I have no doubt that if the child was returned to the mother, that she too would ensure that the child had an ongoing beneficial relationship with the father who is very much at the forefront of her thinking.
But returning to the arrangement for the child’s time with the mother, I agree with the position taken by the father that two days each alternate weekend achieves the right balance between the child’s need to see and spend time with his mother. After all, for his early life, she was his primary carer. I accept that such an arrangement comes with the attendant risks already discussed, some of which are very troubling. However, I take some comfort in the fact that when in the past the mother has threatened self-harm and/or to hurt the children, she has always sought help and has never hurt them.
The father is reasonably attuned to signs that the mother may not be well, and it can be accepted that he is likely to act with appropriate caution around that issue.
I place real weight on the mother’s statement to the court that if Mr C is violent towards her or the children, she will call police, so as to keep herself and the children safe.
Conclusion
For these reasons, as I have indicated, I am satisfied that it is in the best interests of the child to make orders that he live with the father and spend alternate weekends with the mother.
I certify that the preceding seventy-two (72) paragraphs are a true copy of the reasons for judgment of the Honourable Full Court delivered on 5 August 2020.
Associate:
Date: 13 August 2020
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