Ball & Ball (No 6)
[2024] FedCFamC1F 308
•30 April 2024
FEDERAL CIRCUIT AND FAMILY COURT OF AUSTRALIA
(DIVISION 1)
Ball & Ball (No 6) [2024] FedCFamC1F 308
File number(s): NCC 34 of 2022 Judgment of: SMITH J Date of judgment: 30 April 2024 Catchwords: FAMILY LAW – CHILDREN – Interim proceedings – where child has significant mental health impairments – where child unilaterally removed herself from the care of the father and refuses to live with him – where the child self-placed with the mother contrary to mother’s bail conditions – where Court placed child with maternal grandmother – where the maternal grandmother is travelling overseas for period of eight or so days – where child to live with known family friend for that period.
FAMILY LAW – CHILDREN – Interim orders – child to live with family friend for short period – child to spend supervised time with mother in line with orders for other siblings – child to spend additional supervised time with mother – child may spend time with father in accordance with her wishes.
Legislation: Family Law Act 1975 (Cth) Pt VII, ss 69ZL, 69ZN Cases cited: B & B (1993) FLC 92-357; [1993] FamCA 143
Ball & Ball [2022] FedCFamC1F 1068
Ball & Ball (No 2) [2023] FedCFamC1F 752
Ball & Ball (No 3) [2024] FedCFamC1F 215
Ball & Ball (No 4) [2024] FedCFamC1F 232
Ball & Ball (No 5) [2024] FedCFamC1F 261
Deiter & Deiter [2011] FamCAFC 82
Eaby & Speelman (2015) FLC 93-654; [2015] FamCAFC 104
Goode & Goode (2006) FLC 93-286; [2006] FamCA 1346
SS v AH [2010] FamCAFC 13
Division: Division 1 First Instance Number of paragraphs: 61 Date of hearing: 26 April 2024 Place: Newcastle by Microsoft Teams Counsel for the Applicant: Mr Bithrey Solicitor for the Applicant: Byrnes Lawyers Counsel for the Respondent: Mr Willoughby Solicitor for the Respondent: Hannaway Lawyers Solicitor Advocate for the Independent Children's Lawyer: Ms McGregor Solicitor for the Independent Children's Lawyer: McGregor Family Law ORDERS
NCC 34 of 2022 FEDERAL CIRCUIT AND FAMILY COURT OF AUSTRALIA (DIVISION 1)
BETWEEN: MS BALL
Applicant
AND: MR BALL
Respondent
INDEPENDENT CHILDREN'S LAWYER
ORDER MADE BY:
SMITH J
DATE OF ORDER:
30 APRIL 2024
THE COURT ORDERS THAT:
1.The matter be listed for mention on Monday, 16 December 2024 at 11.30 am by Microsoft Teams.
2.Vary the extant interim orders as follows:
3.Y shall live with her maternal grandmother Ms E.
4.For a period in mid-2024, Y shall live with Ms N (date of birth 1961), until the maternal grandmother returns from overseas.
5.Y and Z spend supervised time with their Mother each Saturday from 2pm until 6pm, noting that this is the time that Z spends with his Mother pursuant to Orders dated 21 August 2023.
6.In addition to Order 5 Y shall spend supervised time with the Mother each Wednesday from the conclusion of school, or 4pm if a non-school day, until 6pm.
7.Subject to the availability of a supervisor, Y shall spend additional time with the Mother for a period of three hours from the conclusion of school if the date occurs on a school day, or a period of five hours from midday until 5pm if the date occurs on a weekend or non-school day on the following days:
(a)Y’s Birthday,
(b)The Mother’s Birthday,
(c)Christmas Day,
(d)Mother’s Day.
8.The Mother’s time with the children shall be supervised by B Services.
9.The Mother’s time with Y shall occur at the locations as per Order 8 of the Orders dated 21 August 2023.
10.Each party shall be liable for half of the supervision costs.
11.Y may spend time with the Father as per Y’s wishes.
12.Y may communicate with the Father at all reasonable times when she is not with him and for the purpose of this Order Y is to have access to a phone.
13.Y may spend time with her siblings as per Y’s wishes.
14.Y may communicate with her siblings as per Y’s wishes and for the purpose of this Order Y is to have access to a phone.
15.Y may live with the Father, rather than live with the maternal grandmother, in accordance with Y’s wishes.
16.If the maternal grandmother is unavailable to care for Y, and if Ms N is available and willing to care for Y at that time, Y may live with Ms N for that period of time.
17.The Independent Children’s Lawyer have liberty to apply to re-list at short notice.
THE COURT NOTES THAT:
A.Y has indicted she is content to live with Ms N for the specified period of time.
B.If the Father seeks sole use and occupation in the property proceedings, he may file an Application in a Proceeding for determination by a Senior Judicial Registrar in due course in the usual way.
Note: The form of the order is subject to the entry in the Court’s records.
Note: This copy of the Court’s Reasons for judgment may be subject to review to remedy minor typographical or grammatical errors (r 10.14(b) Federal Circuit and Family Court of Australia (Family Law) Rules 2021 (Cth)), or to record a variation to the order pursuant to r 10.13 Federal Circuit and Family Court of Australia (Family Law) Rules 2021 (Cth).
Part XIVB of the Family Law Act 1975 (Cth) makes it an offence, except in very limited circumstances, to publish an account of proceedings that identify persons, associated persons, or witnesses involved in family law proceedings.IT IS NOTED that publication of this judgment by this Court under a pseudonym has been approved pursuant to subsection 114Q(2) of the Family Law Act 1975 (Cth).
EX-TEMPORE REASONS FOR JUDGMENT
SMITH J:
These are short form oral reasons for decision pursuant to s 69ZL of the Family Law Act 1975 (Cth) (“the Act”) concerning the subject child Y, born 2009 (hereafter “Y”), who is now 14.
Whilst always relevant, s 69ZN(3), which sets out the principles pursuant to which parenting proceedings have to be conducted, is particular apt here. It states:
69ZN Principles for conducting child‑related proceedings
…
Principle 1
(3) The first principle is that the court is to consider the needs of the child concerned and the impact that the conduct of the proceedings may have on the child in determining the conduct of the proceedings.
The overall proceedings have clearly had an impact upon Y, and the reason this matter continues before me on an interim basis is to try and minimise the adverse impact of these proceedings and, to the extent possible, the criminal proceedings upon Y.
I note, that the background to the application present before me is set out in my five previous interim decisions, Ball & Ball [2022] FedCFamC1F 1068 on 21 December 2022 (“the first judgment”) and Ball & Ball (No 2) [2023] FedCFamC1F 752 on 21 August 2023 (“the second judgment”) and Ball & Ball (No 3) [2024] FedCFamC1F 215 on 14 March 2024 (“the third judgment”) and Ball & Ball(No 4) [2024] FedCFamC1F 232 on 10 April 2024 (“the fourth judgment”) and Ball & Ball (No 5) [2024] FedCFamC1F 261 on 23 April 2024 (“the fifth judgment”).
This decision to be read together with those decisions. I will not repeat what was said in them. The relevant principles that apply in interim applications are there.
Suffice to say, the mother's criminal trial in relation to child exploitation material or sexual abuse has not been heard yet. Y decided that she does not want to live with the father so that the existing orders for her to live with the father are ineffective. She has self-placed first with the mother, and then was placed with the maternal grandmother.
The present issue
Y was placed with the maternal grandmother and has lived there since, I estimate, 13 March 2024. That appears to have worked reasonably well, particularly in terms of Y’s mental health. However, as previously noted, the maternal grandmother and her partner are travelling overseas in mid-2024, which is to say they are travelling overseas from this week. Therefore, a decision needs to be made about what happens in terms of Y’s residence in that eight-day period of time.
The question before the Court is where Y should live for this eight or so day period. The choices are the mother, the father, or Ms N, who is known to the family and who Y, as I understand, has agreed she will live with if required to. I consider this the sole issue before me.
As a result of Y’s poor mental health and her decision to self-place, I have spent more time on this matter and delivered more decisions in it than I would usually spend on a matter in my docket through to completion of a final hearing. I consider that to be appropriate because I am concerned about Y’s mental health.
However, the fact that I had brought the matter back due to my concern for Y’s mental health, did not and does not entitle the parties to take the attitude that since they happen to be before a judge on an interim basis, they are entitled to, can and should, re-litigate afresh every issue they feel like litigating and, by doing so, avoid the rules which limit the number of interim hearings in any given matter.
Those are important rules, which are there to ensure that scarce judicial resources are not expended disproportionately on a small number of cases with litigious, high conflict parents taking up the Court's time to the detriment of the many, many other cases and many, many other children patiently awaiting a judge's time.
Much of what was put before me asked me, in effect, to relitigate matters I have decided, and I am not going to do that or allow that.
I consider the question of where Y should spend her time when the maternal grandmother is away, and matters purely consequential to that and essential to that are the only issues that are currently listed before me and the only issues I will decide.
I understand that Y has told the Independent Children’s Lawyer (“ICL”) she is content to live with Ms N for the relevant period of time, although she would prefer to live with the mother, and there is no doubting what Y’s preference is.
The position regarding the mother and the father is as set out at length in my five previous judgments.
In her affidavit of 12 April 2024, Ms N deposes to being aged 62. She is well known to the family, as she used to do work for them. She had known Y from the birth to age six, and has had occasional contact with her since. Ms N deposes to being aware of the criminal proceedings; she is aware Y does not want to live with the father and may not be able to live with the mother; she is aware the maternal grandmother is going away, and she says that, in that context, she is prepared to have Y stay with her during that time. She has no criminal convictions, is retired, will supervise homeschooling for the week, and she is not working. She says she understands her obligations not to speak to Y about any of the Court proceedings and assures the Court she will not do so, and says she will try to comply with any other orders.
Further, no one made any submission to me, that if I felt that the mother and the father were not appropriate, that there was any reason why this lady, who is well known to the family and who Y accepts, would not be an appropriate adult to supervise for a week. I note the voluminous additional evidence was allowed because of the complexity of the matter.
I note the following additional documents were provided in preparation of the “further” interim hearing:
(1)Applicant mother's court book (MFI 8);
(2)Applicant mother's minute of orders sought (MFI 9);
(3)Applicant mother's additional tender bundle (MFI 10);
(4)Respondent father's consolidated court book (MFI 11);
(5)Respondent father's affidavit filed 26 April 2024 (MFI 12);
(6)Respondent father's consolidated tender bundle (MFI 13);
(7)ICL’s case outline filed 16 April 2024 (MFI 14); and
(8)ICL’s tender bundle (MFI 15).
I note that MFI 15 was tendered as Exhibit ICL1, which is the clinical notes. Exhibit A was comprised of the letter from the MFI 8 pages 140 to 141 and 157; MFI 10 pages 3 to 22; and the bail conditions contained in MFI 8 at page 156. The COPS entry dated 2 April 2023 at MFI 13 pages 122 to 126 was tendered as Exhibit 1.
I note in particular, the mother relied on a further affidavit filed 12 April 2024; the affidavit of Ms E (“the maternal grandmother”) of the same date; and the affidavit of Ms N of the same date. Her employee's affidavit, I indicated, was of little benefit to me.[1] Her partner also is not independent.[2]
[1] Affidavit of Ms O filed 6 March 2024.
[2] Affidavit of Mr P filed 6 March 2024.
The father relied on the affidavits of 2 April 2024, 15 April 2024 and 26 April 2024, as well as his financial statement filed on 2 April 2024. The last affidavit, I note, in particular, put a very different light on the messages between the mother and Y which the mother selected to copy and provide to the Court. The father says this shows her dishonesty. I cannot make any findings about any of that, and the reality is, that this voluminous additional evidence added little to my ability to know what has occurred.
The mother's and the father's submissions each effectively asked me to make findings or draw inferences in their favour. Each party in my view ask that I go beyond the limits of the principle in Eaby & Speelman (2015) FLC 93-654 that merely because I cannot make findings of fact, that does mean I can give weight to matters.
The difficulty is, that to the extent that I am required to and able to weigh and balance all the competing evidence, at the moment, unfortunately, the only thing I am reasonably confident of is that I do not know what is actually going on or who, if anybody, is telling the truth about what. Unfortunately, that includes Y.
Nevertheless, I must make the best decision I can because the time pressures are such that the person the current live with order applies to, who is the maternal grandmother, will be leaving the country this week.
In these regards, I refer back to the principles I have referred to, particularly in Goode & Goode (2006) FLC 93-286, about the difficulties and the restrictions on what I can do. I note what was said again in SS v AH [2010] FamCAFC 13 at [88] and [100], and what was said in Deiter & Deiter [2011] FamCAFC 82 about the fact that, in these circumstances, a judge, despite having little idea of what is actually happening, has no choice but to make a decision because Y must live somewhere.
The one thing that is clear to me is that Y’s treating psychiatrist, Dr H, has diagnosed Y, as set out in the letter of 25 January 2024, as suffering from a mental health condition, major depressive disorder and possible post-traumatic stress disorder and that Y was being treated with an antidepressant medication and had:[3]
… consistently expressed thoughts of self-harm and passive suicidal ideation, and in the past is known to have acted on thoughts of self-harm at times of distress.
[3] Exhibit A, MFI 8 pp.140-141.
In that context, Dr H recommended against Y giving evidence in the criminal trial.
It appears clear that these mental health impairments are, at least in part, the consequence of a combination of family dysfunction, the high parental conflict, the criminal proceedings of which Y is aware, the family law proceedings of which Y is aware, and all of these matters which she has been brought into.
To the extent it was suggested to me, for the father, that from a review of Y’s treating clinical notes I would form the view that this letter from Y’s treating psychiatrist overstates the risks, having been prepared in the context of litigation, in the same way it was suggested a qualified expert might be, in effect, as I understand it, “captured”, I reject those submissions.
Firstly, Dr H is a treating practitioner who has no apparent interest in these or the criminal proceedings, other than to protect Y’s mental health. To the extent that Dr H has dealt primarily with one of the parents who might have “captured”, she has primarily dealt with the father, not the mother.
Secondly, it is not at all clear to me that the clinical notes tendered by the ICL and previously by the father are as benign as suggested, and I indicate that in the prior judgment. I also note that in his own affidavit filed 26 February 2024 at paragraphs [65] to [67], the father referred to his concerns for Y’s mental health with threats of serious self-harm. These are all entirely consistent with Dr H’s concerns.
Finally, it is not for a judge on an interim hearing to second guess and downplay the clinical judgment of risk to an adolescent suffering from mental health disorders made by an experienced treating practitioner. To do so, would be entirely inconsistent with the conservative approach required of a judge at an interim hearing where there is such manifest uncertainty and where such risk is raised by a qualified psychiatrist.
Now, fortunately, the evidence does indicate reasonably consistently, it seems, that Y’s mental health and her expression of it has improved since living with the maternal grandmother, which is positive. It is not unsurprising, given the many negative things she has said about the father, and obviously it may all be more about the paternal grandmother, but it is not surprising that with the change of residence to the maternal grandmother, she is happier.
Y obviously has indicated that she would rather be with the mother. I do note, I am also concerned she has disengaged from her regular treating practitioner and from medication, but given her age and the current circumstances, there is little that can be done in that regard at this time.
Each party’s proposal, I note, appears, in terms of the parents, primarily focused on their own litigation success and provides little, if any, assistance to the Court in making orders which are in Y’s best interests in line with the relevant principles which bind the Court. Each parent's proposal also far exceeds the issues that require determination.
I am only going to determine the issue that requires determination, consistent with the principle that you do not get to have six or seven interim hearings on anything you want, and given the only reason I am hearing this matter is because I have concerns about Y’s mental health and immediate wellbeing.
I note, the mother's proposed orders are set out at MFI 9. I am not going to read them all out. In effect, they are cascading orders, but whilst the mother formally abandoned the proposal that Y live with her, to the extent to which she then says, Y might not live with her but can spend time with her and communicate with her as she wants, that is effectively a live with order, given Y wants to live with her.
To the extent she says that, she lives with the maternal grandmother but can spend time with the mother whenever she is being supervised by another adult; and since she also proposes that adult would be her partner, in effect, that is the same as a live with order; and such attempts to circumvent reality are of no assistance to me.
Counsel for the mother was not able to point to any authority or indeed anything which could possibly justify orders that, in effect, allow Y to live with the mother where, despite Y’s views, the mother remains the subject of serious outstanding criminal charges for child sex abuse and which include Y.
I note the question of supervision by the maternal grandmother. I note what I said about it previously. However, the matter has moved on. I note what was said in B & B (1993) FLC 92-357, and the more this goes on, the more weight, in fact, I give the other way and think that, indeed, both the mother's partner and the maternal grandmother are unsuitable supervisors, and in finding that, I put considerable weight on what the ICL’s submissions that it puts the maternal grandmother in a very difficult position, and it is important that Y’s one safe harbour, which is with the maternal grandmother, not be affected.
Fortunately, we have the maternal grandmother and Ms N as options.
If for any reason Y decides not to live with the maternal grandmother and, given she cannot live with the mother, and she will not live with the father, then, we may end up back looking at asking DCJ to intervene. That would not be a good option for Y, but as is often the case, I am looking for is the least worse option. Thus, anything that interferes with the maternal grandmother's ability to continue to care for Y, I think, is not in Y’s best interests. The mother's proposals in that regard do not assist me.
The mother also sought a variation to Z's orders, apparently because she was in front of a Judge. I am not going to make those orders. I am not going to make additional orders about Mr P’s children being present during any visit by him. As I have said Y’s issues are not an invitation to the parties just to try and relitigate every issue every time they are back in front of me.
The father's minute,[4] also seeks additional orders in relation to all the children, which I will not make or determine. There are orders in place, and they will only be varied to the extent necessary by reason of Y’s refusal to comply and, to some extent with her brother, but only just to make things line up because of what has happened with Y.
[4] MFI 11 p.2.
To the extent the father still seeks a sole use and occupation order as part of the parenting proceedings, if that is still pressed, I do not consider it appropriate. I will not consider it. To the extent the father seeks that Y live with him, it is just untenable and unsafe, and I accept the ICL’s submission, noting Y’s text messages.
Regardless of whether or not Y was put up to it by the mother, she did walk out in the middle of the night and place herself at risk to walk to the mother's place; and I accept that given her poor mental health and given the inability to know what a 14 year old suffering from depression, trauma, and another mental health condition might do, I find that the likelihood is that if Y is required to go back to the father she is just going to run away again. If that happens again, then next time, if she feels she cannot go to the mother and the grandmother is not there, she may go somewhere less safe, and she will be another child ending up on the streets of Suburb Q. I cannot see why the father would think that would be any different for the 10 days that the maternal grandmother is overseas.
I am not going to make a recovery order to lie in chambers. I am not going to make additional warrants directed to NSW Police Force in respect of the breach of communications. I made certain findings about certain texts, but the mother's legal representatives can advise her that the orders around communication have not been varied, and if she chooses to keep communicating with Y in breach of orders, she may yet find herself in significant legal difficulties other than, or in addition to, the criminal charges she is facing. It seems to me that the ICL’s proposals,[5] are the only ones that really address the issue before me and the ones that are actually focused on what is necessary to deal with the issue.
[5] MFI 14.
I note, the ICL suggests that Y live with the paternal grandmother, Ms E , which is as it is. She suggests and proposes, which I agree, that for the period in mid-2024, Y should live with Ms N while the maternal grandmother is overseas. I think that is the only option. She cannot live with the mother. She will not live with her father, and there is no other alternative.
I have grave concerns for Y. While it was suggested to me that she is doing pretty well, and her risk of suicide is very low, that may be, maybe it is, but unfortunately, as this Court has seen in other cases, it does not necessarily take a lot to push a 14-year-old with a mental health condition and depression over the edge and have them do something, something which can only take seconds, that can cause them either permanent physical harm or death, and that is the context in which I make my decision.
The ICL proposes that Y and Z spend supervised time with the mother each Saturday from 2.00 pm to 6.00 pm, noting that is the time Z spends with the mother, and I think that is very sensible. The ICL proposes to balance the issues and Y’s desires and to try and ameliorate her desire to live with the mother and minimise the risk that she will do something foolish, that Y spends supervised time with the mother each Wednesday at the conclusion of school or 4.00 pm on a non-school day, and also on certain other days, including Y's birthday, the mother's birthday and so on.
The ICL proposes that the mother's time with the children be supervised by B Services. I refer back to my first decision. I think it is appropriate. The reality is that what has gone on since then actually makes it more appropriate. I was willing to allow some variability at the time because of cost, but I think supervision by B Services is more necessary than ever. I think it is essential. I think it should occur at the locations as per order 8 of the orders dated 21 August 2023, as the ICL proposes.
I also agree with the ICL that Y should spend time with her father as per Y’s wishes. Despite not wanting to live with him today, it does appear that she has reached out to him. I note, what I said, picking up what the expert had said quite some time ago that Y’s views have changed: first she wanted to live with both parents; then she wanted to live with her mother; then she wanted to live with her father; now the mother again. The expert said Y was:[6]
… a child triangulated in her parents' dispute, her wishes are likely to have been influenced and therefore caution should be given to placing weight on [Y’s] wishes in the interim.
[6] Single Expert Report prepared by Ms D dated 23 June 2022, p.64 at [201].
Now, it may be as the father says, and as the ICL seems to think it is a possibility, that if he gets a different residence, and it may not be the locational residence but the fact that his mother, the paternal grandmother is not there, it may be that Y’s view changes again. It may be that if Y is told, “well, he has got his own residence, and his mother is not living with him, and you cannot live with your mother – so your options are the paternal grandmother or the father”, given Y’s age and her mental health issues and changeability, it may be that we will find a sudden switch, and she will want to go back to the father, in which case, I do not see a problem with that.
Therefore, I think it is appropriate to make that order proposed by the ICL. I think it is also appropriate for Y to communicate with her father at all reasonable times when she is not with him. The ICL said, for this purpose, she should have access to a phone. I thought Y had her own phone. She certainly seemed to have had one to communicate with the mother. The ICL proposed that should the father obtain his own independent accommodation, Y shall live with the father if the maternal grandmother is unavailable to care for Y, save for the period coming up on Friday. I am reluctant to make that order at this time. The maternal grandmother is going away later in the year. It seems to me that if the maternal grandmother goes away again and Y will not live with the father, then, if Ms N is willing again to have her stay, she should stay with Ms N.
If the relationship with the father improves; if the father gets his own accommodation; if Y is happy to live with him, well then, it is easy. Y can live with the father in that period if she wants to, and I will make orders, not “shall” but “may”.
I will just note in the orders, which may not be contentious in any event, but each party should be liable for half the supervision costs, which is the existing order.
I will make an order that Y can spend time with her siblings as per Y’s wishes, and that Y can communicate with her siblings as per her wishes.
Otherwise, I am not making orders about parental responsibility that vary what is done. I am not making the variety of other orders that people sought that I make. I am making only the orders that I think are necessary to be made.
In terms of the father's property proceedings, he can ask for expedition or to deal with something there. The issue will be joined in due course. He can file an Application in a Proceeding in the property proceeding. That is a matter for him.
The fact, as I said, that Y has problems which has brought this matter back before the Court, does not entitle these parties in the property proceedings to leapfrog the other 59 matters in my case docket.
Those are my reasons.
I certify that the preceding sixty-one (61) numbered paragraphs are a true copy of the ex-tempore Reasons for Judgment of the Honourable Justice Smith. Associate:
Dated: 14 May 2024
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