BEASLEY & BEASLEY

[2017] FCCA 246

FEDERAL CIRCUIT COURT OF AUSTRALIA

BEASLEY & BEASLEY [2017] FCCA 246

Catchwords:
FAMILY LAW – Interim parenting – time the father should spend with the children – whether time should be supervised – best interests of children.

Legislation:

Family Law Act 1975, ss.60B, 60CA, 60CC, 61DA(3), 65D, 65DAA(3)

Cases cited:

Goode & Goode (2006) FLC 93-286

Marvel & Marvel (2010) 43 Fam LR 348

SS & AH [2010] FamCAFC 13
Eaby & Speelman (2015) FLC 93-654
Banks & Banks [2015] FamCAFC 36

Applicant: MS BEASLEY

Respondent: MR BEASLEY

File Number: PAC 3250 of 2015

Judgment of: Judge Newbrun

Hearing date: 19 December 2016

Date of Last Submission: 19 December 2016

Delivered at: Parramatta

Delivered on: 17 February 2017

REPRESENTATION

Solicitors for the Applicant: Thurlows Family Lawyers

Solicitors for the Respondent: Self-represented

Solicitors for the Independent Children’s Lawyer: Legal Aid NSW Bankstown Family Law

ORDERS PENDING FINAL ORDER

1. That the mother have sole parental responsibility for major decisions relating to the care, welfare and development of the children X born (omitted) 2006 and Y born (omitted) 2008 (“the children”).

2. That the children will spend time with the father at (omitted) Children's Contact Centre on the following basis:

   (a)Up to one occasion per month for two hours at times to be set by the staff of the (omitted) Contact Centre;

   (b)Both parties are to comply with all rules, requests and directions of the staff of the (omitted) Contact Centre, including in relation to times for delivering and collecting the children;

   (c)The father will be responsible for all costs involved in spending time with the children at the Centre.

3. The mother is to contact the (omitted) Children's Contact Centre before 24 February 2017 to register for the service, and both parties are to attend intake interview as arranged by the service.

4. The parties are each restrained from denigrating the other parent or members of that parents’ family in the presence or hearing of the children.

5. The father is to undertake hair follicle testing on the following basis:

   (a)The father is not to cut the hair on his head for a period of 6 weeks from the date of these orders.

   (b)In the week commencing 3 April 2017, the father is to present to the Drug Detection Agency at (omitted), or another accredited pathology service able to conduct hair follicle testing for the purpose of providing a chain of custody hair sample for the purposes of testing for illicit drug use, and sign all such documents as are required to ensure that the results of the test are provided to the Independent Children’s Lawyer and the mother’s solicitor.

   (c)The father is to be responsible for all costs involved in obtaining the hair follicle test.

6. That the mother may take the children to counselling at (omitted) if she believes it is necessary for the purposes of providing support for the children and she is to notify the father and the Independent Children’s Lawyer if the children commence counselling and authorise the counsellor to speak with the Independent Children’s Lawyer about the children’s progress.       

7. The father is to submit to chain of custody urine drug screening up to once per month, within 24 hours of receiving a request to do so by email from the Independent Children’s Lawyer, and is to provide the results of such testing to the Independent Children’s Lawyer and the mother’s solicitor as soon as they are available.

8. That the Independent Children’s Lawyer has liberty to apply to relist the matter on 7 days’ notice if there are any difficulties in relation to the implementation of these orders.

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

FEDERAL CIRCUIT COURT
OF AUSTRALIA
AT PARRAMATTA

PAC 3250 of 2015

MS BEASLEY

Applicant

And

MR BEASLEY

Respondent

REASONS FOR JUDGMENT

Introduction

1. This interim hearing relates to the children X born (omitted) 2006, and Y born (omitted) 2008.

Chronology

1. The Court respectfully adopts the chronologies of the parties, noting that the chronologies do refer to some disputed allegations.

Issues in dispute in the interim hearing

1. The essential issue in dispute in this interim hearing is whether the children should spend time with the father supervised at a Contact Centre or spend no time with the father, and there are several other issues including parental responsibility, telephone contact, and hair follicle testing.

Material relied on by the parties

1. The mother relies upon her Initiating application filed 2 July 2015, her Affidavit filed 14 September 2016, the Affidavit of Ms C filed 14 September 2016, and Notice of Risk.

2. The father relies upon his Response filed 14 December 2015, his Affidavits filed 14 December 2015 and 5 December 2016, the Affidavit of Ms M filed 23 September 2015, and the Affidavit of Mr M filed 13 September 2016.

3. The parties also relied upon various Exhibits, including subpoenaed documents and other documents.

Agreed or undisputed relevant facts

1. The parties’ relationship commenced in about 2005. They separated on a final basis in about April 2012 (according to the father, but only initially according to the mother), or in April 2013 (according to the mother).

2. The father relocated to Brisbane from Sydney in about October 2012.

3. During 2013 to about July 2014, often on a monthly basis, the mother took the children to Queensland to visit the father.

4. In late November 2014 to about June 2015, on about 6 occasions, the children were seen by the father, on a supervised basis at their school, but not in the presence of the mother. The father has not spent time with the children since about June 2015.

5. The mother commenced proceedings in this Court on 2 July 2015.

Relevant legal principles

1. The relevant principles in relation to parenting proceedings, including interim proceedings, are well settled: see Goode & Goode (2006) FLC 93-286.

2. In Marvel & Marvel (2010) 43 Fam LR 348, the Full Court of the Family Court of Australia discussed the problems associated with making findings on disputed evidence as follows:

   [120] As has frequently been emphasised interim parenting proceedings, and orders made as a consequence, are a necessary but temporary measure until all the evidence can be tested, evaluated and weighed at a final hearing by the making of final parenting orders. Decisions judicial officers have to make in interim proceedings are difficult and, often for very good reason, a conservative approach, or one which is likely to avoid harm to a child is adopted. This is often to the understandable distress of a party who may not achieve the outcome he or she desires, or thinks to be in the best interests of their child or children. Interim parenting orders are frequently modified or changed after a final hearing, and any allocation of parental responsibility made at an interim hearing is disregarded at the final hearing (s 61DB).

   [122] In SS & AH [2010] FamCAFC 13 the majority (Boland and Thackray JJ) discussed at paragraph 88 of their reasons the care necessary to be exercised in making findings in interim parenting proceedings. Their Honours said:

   In our view, findings made at an interim hearing should be couched with great circumspection, no matter how firmly a judge’s intuition may suggest that the finding will be borne out after a full testing of the evidence.

   [123] Later, at paragraph 100 their Honours amplified their comments and said:

   The intuition involved in decision-making concerning children is arguably of even greater importance when a judge is obliged to make interim decisions following a hearing at which time constraints prevent the evidence being tested. Apart from relying upon the uncontroversial or agreed facts, a judge will sometimes have little alternative than to weigh the probabilities of competing claims and the likely impact on children in the event that a controversial assertion is acted upon or rejected. It is not always feasible when dealing with the immediate welfare of children simply to ignore an assertion because its accuracy has been put in issue.

3. Of this, the Full Court in Eaby & Speelman (2015) FLC 93-654 said at 80, 332:

   [80] As would be immediately apparent, this approach enables the court to appropriately and carefully deal with contentious issues relevant to the welfare of the child, and for those issues to not be ignored.

4. The Court also refers to the recent decision of the Full Court of the Family Court of Australia in Banks & Banks (2015) FamCAFC 36, especially at paragraphs 46 to 52.

5. Section 60B of the Family Law Act 1975 (Cth) (the Act) sets out the objects of Part VII of the Act relating to children that inform the making of parenting orders.

6. In deciding whether to make a particular parenting order in relation to a child, a Court must regard the best interests of the child as the paramount consideration: section 60CA of the Act.

7. Section 60CC of the Act provides that in determining what is in the child’s best interests, the Court must consider the matters set out in subsections (2) and (3).

8. When making a parenting order in relation to a child, the Court must apply a presumption that it is in the best interest of the child for the child’s parents to have equal shared parental responsibility for the child: section 61DA of the Act. 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: section 61DA(3).

9. If the presumption of equal shared parental responsibility in relation to the child applies, and it is not rebutted, the Court must firstly consider whether the child spending equal time with each of the parents would be in the best interests of the child and reasonably practicable.

10. If equal time is found not to be in the child’s best interests, or impracticable as a result of consideration of one or more of the matters in section 60CC, the Court must consider making an order that the child spends substantial and significant time (as defined in section 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 section 60CC, or impracticable.

11. If neither equal time nor substantial and significant time is considered to be in the best interests of the child, or impracticable, then the Court may make such orders in the discretion of the Court that it thinks proper, being orders that are in the best interests of the child, as a result of consideration of one or more of the matters in section 60CC: sections 60CA, 60CC and 65D.

The Best Interests of the Children

Section 60 CC considerations

(2)(a) - the benefit to the child of having a meaningful relationship with both of the child’s parents: a primary consideration

1. The children have a meaningful relationship with the mother, she having been their primary carer since birth to date, and they would benefit from a continuance of that relationship.

2. As to the children’s relationship with the father, it would appear that the children did enjoy a meaningful relationship with the father until some stage following the parties’ separation.

3. The mother’s Affidavit filed 14 September 2016, paragraph 46, refers to the children being very distressed in about late 2012 when the father would leave the family home and would cry. This suggests some significant attachment between the children and the father at this time. In paragraph 74, the mother refers to the period in about July 2013, when she was considering taking the children to Queensland to spend time with the father, that she still wanted the children to have a relationship with the father, albeit that she was concerned about the children being exposed family violence. The mother refers in paragraph 78, at the end of October 2013, to the father having taken the children “trick or treating”, with the father dressed up as Spiderman. It is noted that the mother, often on a monthly basis, took the children to visit the father in Queensland during 2013 to about July 2014, albeit she alleges it was under threat from the father. The mother refers to the father having come to see the children for the elder child’s birthday in (omitted) 2014.

4. For the father’s part, his affidavit refers to his time in Queensland with the children post separation being positive, he having always observed the children to be happy and relaxed when spending time with him.

5. Again, the father spent some short time with the children at their school on about 6 occasions between November 2014 and June 2015, and the Court refers below to the children’s statements to the psychologist during their anxiety treatment in 2014.

6. The eldest child did inform the Family Consultant at the Child Inclusive Conference that there were previous times that he had spent time with the father that were fun, such as playing football in the park with him. He further referred to his father’s new child A, and explained that “he had hoped that his father and mother would live together again, but no longer thought that this was possible.” The younger child also referred to previous fun things that he had done with the father, including going to the park and playing football.

7. Although it is not totally clear, it would appear that the children’s meaningful relationship with the father may well have been adversely affected prior to and by the time they commenced psychological treatment in about July 2014. Their present relationship with the father, not having spent time with him since June 2015, in particular by reference to their statements to the Family Consultant at the Child Inclusive Conference in March 2016, and their statements to the psychologist during their treatment in the second half of 2014, is probably not meaningful, and is perhaps tenuous at best.

8. Should the children not spend supervised time with the father at the contact centre, as proposed by the Independent Children’s Lawyer and the father, there is a significant risk that their prospect of re-establishing their former meaningful relationship with him will be detrimentally affected. In this context, the court notes that the present waiting time at the Parramatta Registry of this court for Family Reports is some 9 months. It can be reasonably expected therefore, assuming no supervised time is to occur, that by the time of the family report interviews, the children would not have spent time with the father for well over 2 years, representing a further impediment to the prospect of the children re-establishing their former meaningful relationship with the father.

9. Should the children spend time with the father, as proposed by the Independent Children’s Lawyer, supervised at the Contact Centre, the proposed supervised visits, up to one occasion per month for 2 hours, may well assist the children in at least forming the foundation stones for a possible re-establishment of their former meaningful relationship with the father.

10. The Court gives significant weight to this meaningful relationship primary consideration.

(2b) The need to protect the child from physical or psychological harm from being subjected to, or exposed to, abuse, neglect or family violence.

1. The mother makes very serious allegations of family violence perpetrated by the father against her, in the presence of the children, both during the relationship and following the separation. The children have made supportive statements both to the Child Inclusive Conference Family Consultant, and to the psychologist who treated them for anxiety in 2014, that they have witnessed the father assaulting the mother and are fearful of the father. The father denies these allegations, and suggests that the mother has brainwashed the children.

2. Without proceeding to making findings of fact, the Court is of the view, at this interim stage, based upon all the evidence presently before it, that there is a strong suggestion that the mother’ s allegations of family violence perpetrated by the father against her, in the presence of the children, may well have merit.

3. Again, in support of the mother’s very detailed family violence allegations are the statements of the children both to the Family Consultant and a psychologist who treated them in 2014. There are the father’s own admissions as to his past illicit drug use during the relationship (for example, see the father’s history taken by the psychiatrist who saw the father on 10 November 2016, referring to methamphetamine use, and paragraph 20 of the father’s affidavit filed 14 December 2015 referring to his recreational drug “ice” use on occasions in the past), and his decision to leave New South Wales and Queensland in about October 2012 “to clean himself up”. The father refers to seeking health professional treatment for his anxiety and mood disorder in about September 2014.

4. There is supportive material of the mother’s allegations of family violence perpetrated by the father against her, in the presence of the children, through the affidavit evidence of her friend Ms C, in particular relating to an alleged incident on 17 May 2013, when it is alleged that the father prevented the mother and children and her friend’s children from leaving the family home for a certain period. The witness also alleges that the father admitted to her that he was using illicit drugs including ice and cannabis, and that she observed the father to smoke ice with a pipe.

5. The subpoenaed records in evidence reveal, inter-alia, that he commenced anger management treatment from a psychologist in early December 2016. The subpoenaed records in Exhibit I contain admissions by the father in February 2015 that he is aware of his own anger issues and “short temper”, and that he is receiving treatment from a psychologist and psychiatrist. The Court also notes the subpoenaed records from (omitted) indicating, inter-alia, that in February 2014 the father reported being in a bikie gang, being always anxious, he refers to gunfights and hypervigilance, and having almost died on three occasions.

6. The NSW police records in evidence, being police reports of certain incidents relating to the father, whilst obviously not conclusive of the matters stated therein, provide supportive material indicating the father’s involvement in illicit drug use, including an incident relating to minor drug supply (23 January 2011, relating to the police allegedly observing the father supplying ecstasy tablets for $150).

7. The above subpoenaed material is arguably supportive of the mother’s family violence allegations, in particular those allegations of the mother that violence was perpetrated against her by the father during the years 2010 to 2011.

8. The father submits that the mother’s allegations of family violence allegedly perpetrated by him against her are significantly weakened by the fact of her failure to report family violence to the police. The mother in turn points to her detailed allegations that she, at least for a significant period during the relationship and post separation, was fearful of the father causing her further harm if she was to do so, and she refers to threats made to her by the father.

9. As to the competing parenting proposals of the parties at this interim hearing in the context of this need to protect primary consideration, the father, inter-alia, seeks an order that the children spend time with him at (omitted) Children's Contact Centre on one occasion per month for two hours at times set by the centre. The ICL also proposes an order that the children spend time with the father at such Contact Centre for, “Up to one occasion per month for two hours at times to be set” by the centre. To the contrary, the mother seeks an interim order that there be no time to be spent by the children with the father.

10. The mother submits that the father has failed to complete treatment for relevant mental health issues, and hair follicle drug testing has not been carried out by reason of the father’s bald scalp, and the court should infer that the father is hiding his use of illicit drugs.

1. There is evidence before the Court that the father arguably has taken some steps to rehabilitate himself in certain respects. He has, in December 2016, sought to commence an anger management course, and his affidavit annexes to his GP’s report of 8 November 2015 referring to regular consultations for assistance and counselling for anxiety and mood disorder. The father has been seen by a psychiatrist, Dr S, on 10 November 2016, who prepared a report dated 21 November 2016 (and the Court notes the Court’s order of 15 September 2016 that the father obtain and filed with the Court a report from a psychiatrist in relation to, inter alia, his mental health and substance use) who stated, inter alia, that the risk of the father’s previous depression and substance use relapsing were significantly less likely.

2. Dr S, in his report, refers to having discussed the father’s condition with his regular GP, Dr D, who had known him for several years. The GP confirmed to the psychiatrist that the father had been in good health and showed no signs of mental health problems or alcohol or drug abuse in recent years. The psychiatrist requested the father to undertake a urine drug screen, which he did on 11 November 2016 which was negative for illicit drugs. In this context, the Court notes that the father’s affidavit filed 5 December 2016 states, inter-alia, but he has not undertaken any mental health treatment since April 2015; such treatment in April 2015 is not clearly indicated in the evidence, and it is not referred to in the psychiatrist’s report.

3. The father’s affidavit refers to cognitive behavioural therapy for the father’s anxiety involving the father attending over 6 sessions and engaging very well prior to November 2015.

4. Contrary to the father’s evidence of alleged rehabilitation, as above, the mother submits that the material before the Court suggests that the father’s mental health issues remain untreated. The Court is unable to make findings of fact in this context at this interim stage, although again the Court does note that, for example, the father’s own reference to mental health treatment in April 2015 is not clearly disclosed in his own evidence, including the report of the psychiatrist, and there is some suggestion in the subpoenaed material that the father may have received treatment from other mental health professionals which is not fully apparent in the father’s evidence, and accordingly the court does express some caution as to the reliability of the father’s evidence relating to his alleged mental health rehabilitation.

5. The mother further submits that no interim order should be made for supervised time, even at a Contact Centre, because, inter-alia, there is an unacceptable risk that the children will be re-traumatised in spending time with the father at the contact centre. In this context, the children, it is submitted, have expressed their fears of spending time with the father to both the Child Inclusive Conference family consultant and to the psychologist ((omitted)) who treated them for anxiety relating to their alleged experience of witnessing family violence perpetrated by the father against the mother in 2014.

6. The ICL submits that her suite of proposed orders (Exhibit C) should ameliorate the risk of the children experiencing any significant emotional harm in spending time with the father at the Contact Centre. Those proposed protective orders include the following orders:

   a)The father to undertake hair follicle testing and chain of custody urine drug screening,

   b)The mother be permitted to take the children to counselling at (omitted) if she believes it is necessary for the purposes of providing support for the children, and she is to notify the father and the ICL if the children commence counselling, and authorise the counsellor to speak with the ICL about the children’s progress

   c)The ICL has liberty to apply to relist the matter on 7 days’ notice, if there are any difficulties in relation to the implementation of the ICL’s orders.

7. The ICL also submits that the likely supervision afforded by staff at the contact centre will not only remove the risk of physical harm to the children but also reduce the risk of the children experiencing emotional harm. The ICL submits further that there is no evidence that the children are currently suffering emotional disturbance. The ICL submits that the children’s treatment for anxiety was successful. There is some force to these submissions.

8. The father’s protective proposals largely mirror the ICL’s above proposed orders, except for hair follicle drug use testing, which he does not consent to.

9. In the context of the Court considering the mother’s submissions that there is a significant risk of the children being re-traumatised in spending time with the father, it is important to consider the following matters.

10. The subpoenaed records from (omitted) indicate that the children received psychological treatment during 2014 for anxiety allegedly arising out of their witnessing family violence perpetrated by the father against the mother. The treatment commenced on 29 July 2014 and concluded in about early December 2014. There were six consultations until about the end of September 2014 and at least a further few consultations up until the consultations concluded.

11. In the initial psychological consultation of the elder child on 22 July 2014, the clinical notes record, inter alia, that the child was very scared, and had witnessed the father be violent/aggressive. He had seen the mother hurt by the father. He stated that the father had never physically hurt the mother in Queensland, although once it seemed like he would. He refers to the father locking the mother in a room.

12. The psychologist’s clinical notes of 2 September 2014 record, inter alia, the elder child reporting that the (telephone) conversations with the father “have been fine”, however he still worries about the events in Queensland and thinks of this when the father calls. He goes on to state that he has lots of fears about the father taking himself and his brother and never being returned to the mother. This concern of the elder child is repeated to the psychologist at the final consultation on 9 December 2014, with the child stating that even if “we could be sure that dad wouldn’t take him” the child still wouldn’t want to see him. The child stated on 9 December 2014 that he had cried a lot when the father came to visit him at his school, “but he wasn’t bothered anymore.” At this last consultation, the elder child told the psychologist that he thought he was “ok” and didn’t need to come any more.

13. The younger child, on 14 October 2014 also reported his concern that the father would take himself and his brother away from Sydney and from the mother. At the last consultation on the 9 December 2014, the younger child was asked how he felt seeing the father. The child referred to a meeting between the children and the father at their school and stated that, the father having brought him some shoes, he, “still felt scared a little bit.”

14. The father refers in his Affidavit to having visited the children at their schools on about 6 occasions between late November 2014 and June 2015 (specifically he refers to having seen the children at their school, between 27 November 2014 and 29 November 2014; between 27 January 2015 and 4 February 2015; between 28 March 2015 and 30 March 2015; and in June 2015), such time having been supervised by a school officer, but not in the presence of the mother. The mother refers to the children having been seen by the father at their school during 2015.

15. The mother states that after one visit in February 2015, the elder child was so anxious and frightened after contact with the father that he bit his nails down. The mother alleges that on that occasion the child had told the father not to come any more and that he didn’t want to see him.

16. It is not without relevance that the mother did not seek restraining orders against the father from this Court, seeking to prevent him from approaching the children at both their home and their school, until commencing proceedings on 2 July 2015. The mother alleges that on 23 June 2015, when the father was at the children’s school, her sister in law sent her a message stating that the father was proposing to take the children. She alleges that the children had told her later that the father had told the children that he was going into “win you in court very slowly”, which alleged statement by the father is denied by him.

17. It is also not without relevance that, the children’s psychological treatment having concluded in December 2014, the mother being aware of the father’s visitations to the children at their school, and an alleged negative reaction by the elder child following the visit in February 2015, the mother did not seek to return the children for psychological treatment at any stage.

18. Following the father’s visits to the children at their school, concluding in June 2015, the children spoke with the Child Inclusive Conference Family Consultant on 17 March 2016. The elder child stated, inter alia, that he felt a bit happy not seeing the father, “because every time I speak to him I feel scared.” This child referred to feeling scared following the father hitting the mother, and that he had seen this occur on more than one occasion. The elder child stated one of the things he likes about school is that they keep them safe. He stated that he didn’t like that the father used to come to his school to see him.

19. The younger child told the Family Consultant that he also felt happy about not seeing the father, “because my dad always hits us or he shouts at us.” (The court interpolates here that there is no express evidence by the mother that the father had used physical chastisement on the children) The mother told the Family Consultant that the elder child’s anxiety symptoms had been more severe than the younger child’s symptoms.

20. The Family Consultant concluded his Memorandum by stating, inter alia, that both children had indicated fears or concerns about their safety with the father which may reflect exposure to family violence instigated by the father, but he couldn’t exclude the possibility that the children’s statements reflected undue pressure from the mother, or that the children’s accounts reflected a combined experience of both issues.

21. The Court notes there is no expert psychological or psychiatric evidence before the Court indicating any significant risk of the children experiencing emotional harm in spending time with the father supervised at a Contact Centre, to the extent proposed by the ICL and noting the ICL’s proposed protective orders.

22. The Child Dispute Conference Family Consultant (report dated 2 February 2016) and the Child Inclusive Conference Family Consultant (report dated 17 March 2016) pass no comment in relation to the children spending time with the father, although the latter Family Consultant suggests that there were no indications that referral for family therapy or other post separation parenting interventions would assist “at this time”, and noted that the appropriateness of such a referral in the future may ultimately depend on findings of fact relating to family violence that allegedly occurred between the parties and the extent to which the children may have been exposed to such violence.

23. The children’s psychological treatment for anxiety concluded in December 2014, and it was not resumed at the instance of the mother following the father’s visits with the children at their school. A significant theme in the children’s fears expressed to the psychologist was that were they to see the father he might take them away and not return them to the mother, and, perhaps to a lesser extent, their fear that the father would hurt the mother; clearly the prospect of the father doing this in the context of supervised time at a contact centre would be minimal. It can be reasonably anticipated that supervising staff at the Contact Centre would ensure that if at any stage during the children’s supervised time with the father it was observed that they were adversely affected emotionally, that the visit would be curtailed and relevant reports made. It could also be recently anticipated that such supervising staff would take reasonable steps to ensure that inappropriate comments were not made by the father to the children at such supervised time.

24. Having considered all the relevant evidence before the court at this interim hearing, as discussed above, the Court is of the view that there is no need to protect the children from the risk of psychological harm in spending supervised time with the father at a Contact Centre in accordance with the ICL’s proposals, provided the above referred proposed protective orders of the ICL are made; there should be no unacceptable risk of the children experiencing psychological harm in spending such time with the father in these circumstances.

Section 60CC(3) - Additional Considerations

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

1. The Court refers to its discussion above under the need to protect primary consideration, relating to statements made to the children’s psychologist in 2014 and to the Child Inclusive Conference Family Consultant in March 2016. The child X was aged 8 years in 2014, and the child Y was aged 6 years at that time. In March 2016, the child X was aged 10 years, and the child Y was aged almost 8 years. The Court attaches significant weight to the views of X and some weight to the views of the child Y.

3(b) The nature of the relationship of the child with each of the child’s parents; and other persons (including any grandparent or other relative of the child)

1. The Court refers to its discussion above under the meaningful relationship primary consideration.

3(c) The extent to which each of the child’s parents has taken, or failed to take, the opportunity: to participate in making decisions about major long-term issues in relation to the child; and to spend time with the child; and to communicate with the child

1. The children have been in the primary care of the mother since birth to date. The father relocated to Brisbane from Sydney in 2012 which resulted in him spending less time than previously with the children. The mother during 2013 to about July 2014 would on occasion travel monthly to Brisbane to permit the children to spend time with the father. The mother contends that thereafter she would not facilitate time between the children and the father for safety reasons, noting her family violence allegations against the father, with the father contending that he sought to spend time with the children during this latter period, beyond that which actually occurred. The father travelled from Brisbane to Sydney on occasion post separation to spend time with the children.

3(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

1. The mother contends that the father failed to financially maintain the children post separation. Whilst the father appears to have financially supported the children to some extent when they visited him in Brisbane post separation, it is not clear from the father’s evidence that he regularly financially maintained the children when they were living with the mother in Sydney post separation.

3(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

1. Should the children spend supervised time with the father at a Contact Centre, in accordance with the ICL’s proposals, and noting the protective orders sought by the ICL in her proposed orders in this context, the Court is of the view that the children’s meaningful relationship with the mother should not be detrimentally affected.

3(f) The capacity of: each of the child’s parents; and 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

1. The mother would appear to have such capacities. As to the father’s capacities in this regard, in view of the father’s apparent previous meaningful relationship with the children, it would appear that the father may well possess such capacities, although the father may well need to demonstrate insight and sensitivity relating to the children’s previously expressed concerns in relation to spending time with him.

3(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

1. The Court refers to the need to protect primary consideration.

3(i) The attitude to the child, and to the responsibilities of parenthood, demonstrated by each of the child’s parents

1. The mother appears to have demonstrated appropriate attitudes to the children and to the responsibilities of parenthood, whilst noting her allegations that she did not report family violence to the police by reason of her fears of the father. The father admits to prior illicit drug use and his relocating to Brisbane, for the purposes of cleaning himself up, and in this latter context, there is a significant suggestion in certain of the evidence before the court that the father’s lifestyle (including possible criminal behaviour) for a not insignificant period, was not conducive to his relationship with the family, including the children.

3(j) Any family violence involving the child or a member of the child’s family

1. The Court refers to the need to protect primary consideration.

3(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

1. These are interim proceedings.

3) (m) Any other fact or circumstance that the court thinks is relevant

1. The Court should state that it has carefully considered all of the mother’s submissions. For example, the mother points to numerous alleged inconsistencies between assertions in the father’s affidavit and subpoenaed records in evidence, suggesting that the father’s affidavits in certain respects are untruthful; for example, the father’s assertion that he remains in a new relationship with Ms M, his assertion as to a certain residential address, his statement to the Queensland Child Authority that he was legally able to travel to New South Wales and Queensland and take the children in the face of a restraining order of this court made in August 2015 (the father was not present when that order was made). The court does not feel able to make findings of fact in the above respects, as submitted by the mother, at this interim stage, although it does cause the court to further view the reliability of the father’s allegations of fact, in particular those unsupported by objective evidence, with caution.

2. The Court notes the mother refers to complaints received by the Queensland Department of Communities, Child Safety and Disability Services, relating to the father’s child A from his new relationship with Ms M in Queensland. The Court is unable to make findings of fact in this context, at this interim stage, and notes Annexure D to the father’s affidavit filed 5 December 2016, being a letter dated 18 December 2015 addressed to the father from the Department stating, inter alia, that the outcome of the department’s investigations is “Unsubstantiated-child not in need of protection” in relation to the said child A.

3. The ICL seeks not only a urinary chain of custody drug screening order against the father, but also a hair follicle testing order, and in that context seeks an order that the father be required to grow his hair for 6 weeks, noting that on 3 October 2016 a hair follicle drug screen test could not be conducted because of the father’s bald scalp. In light of the material before the Court relating to the father’s past illicit drug use, including methamphetamine use, the ICL’s proposed urinary chain of custody and hair follicle drug tests are in the best interests of the children, should they spend time with him supervised at a Contact Centre.

1. The ICL proposes that the father be responsible for the costs of spending supervised time at the Contact Centre. The father seeks an order that the parties share such costs. By reference to the Court’s above discussion under the need to protect primary consideration, should an order be made for supervised time, it is considered reasonable for the father to bear such costs.

2. The father’s proposed order for liberal telephone contact with the children and video contact 3 times a week, including a video contact with the children on Christmas Day, in the view of the Court at this interim stage, would not be in the best interests of the children, noting their fears and concerns as expressed to the psychologist in 2014, and to the Family Consultant at the Child Inclusive Conference, and the fact of their anxiety treatment through such psychologist.

Equal shared parental responsibility: section 61DA(1) and (2)

1. The mother seeks a sole parental responsibility interim order, whilst the ICL and father seek no order in this context. The mother has been the primary carer of the children since birth to date. The father has not spent time with the children since about June 2015. He seeks an order that he spend supervised time with the children on one occasion each month for two hours at times as set by the staff of the (omitted) Contact Centre. Since 26 August 2015, there has been a restraining order of this court in place preventing the father from telephoning the mother and children. The Court also refers to its discussion above under the need to protect primary consideration.

2. The Family Consultant in the Child Inclusive Conference memorandum dated 2 February 2016 notes, inter-alia, under the heading “Co- parenting Relationship” that there appears to remain an acrimonious relationship with no communication regarding the children between the parties.

3. In the above circumstances, and where the Court proposes to make an interim order that the children spend time with the father supervised at a Contact Centre, in accordance with the ICL’s proposals, the Court is of the view that it is in the best interests of the children to make an interim order that the mother have sole parental responsibility for major decisions relating to the children’s care welfare and development.

Summary

1. Evaluating the above primary and additional considerations under section 60CC of the Act, the Court is of the view at this interim stage that it will be in the best interests of the children to make interim orders as follows:

   (1)   That the mother have sole parental responsibility for major decisions relating to the care, welfare and development of the children X born (omitted) 2006 and Y born (omitted) 2008 (“the children”).

   (2)   That the children will spend time with the father at (omitted) Children's Contact Centre on the following basis:

   a.Up to one occasion per month for two hours at times to be set by the staff of the (omitted) Contact Centre;

   b.Both parties are to comply with all rules, requests and directions of the staff of the (omitted) Contact Centre, including in relation to times for delivering and collecting the children;

   c.The father will be responsible for all costs involved in spending time with the children at the Centre.

   (3)   The mother is to contact the (omitted) Children's Contact Centre before 24 February 2017 to register for the service, and both parties are to attend intake interview as arranged by the service.

   (4)   The parties are each restrained from denigrating the other parent or members of that parents’ family in the presence or hearing of the children.

   (5)   The father is to undertake hair follicle testing on the following basis:

   a.The father is not to cut the hair on his head for a period of 6 weeks from the date of these orders.

   b.In the week commencing 3 April 2017, the father is to present to the Drug Detection Agency at (omitted), or another accredited pathology service able to conduct hair follicle testing for the purpose of providing a chain of custody hair sample for the purposes of testing for illicit drug use, and sign all such documents as are required to ensure that the results of the test are provided to the Independent Children’s Lawyer and the mother’s solicitor.

   c.The father is to be responsible for all costs involved in obtaining the hair follicle test.

   (6)   That the mother may take the children to counselling at (omitted) if she believes it is necessary for the purposes of providing support for the children and she is to notify the father and the Independent Children’s Lawyer if the children commence counselling and authorise the counsellor to speak with the Independent Children’s Lawyer about the children’s progress.       

   (7)   The father is to submit to chain of custody urine drug screening up to once per month, within 24 hours of receiving a request to do so by email from the Independent Children’s Lawyer, and is to provide the results of such testing to the Independent Children’s Lawyer and the mother’s solicitor as soon as they are available.

   (8)   That the Independent Children’s Lawyer has liberty to apply to relist the matter on 7 days’ notice if there are any difficulties in relation to the implementation of these orders.

I certify that the preceding eighty-five (85) paragraphs are a true copy of the reasons for judgment of Judge Newbrun

Date:  17 February 2017