BELKIN & MING
[2020] FCCA 3538
•23 December 2020
FEDERAL CIRCUIT COURT OF AUSTRALIA
| BELKIN & MING | [2020] FCCA 3538 |
| Catchwords: FAMILY LAW – Interim parenting – best interests of Child – Orders made. |
| Legislation: Family Law Act 1975 (Cth), ss.60B, 60CA, 60CC, 61DA, 65D, 65DAA. |
| Cases cited: Goode & Goode (2006) FLC 93-286 Marvel & Marvel [2010] FamCAFC 101 Eaby & Speelman [2015] FamCAFC 104 Banks & Banks [2015] FamCAFC 36 |
| Applicant: | MS BELKIN |
| Respondent: | MR MING |
| File Number: | PAC 3506 of 2018 |
| Judgment of: | Judge Newbrun |
| Hearing date: | 4 December 2020 |
| Date of Last Submission: | 4 December 2020 |
| Delivered at: | Parramatta |
| Delivered on: | 23 December 2020 |
REPRESENTATION
| Solicitors for the Applicant: | Mr Finch, Aaron Legal Solicitors |
| The Respondent appeared in person |
| Solicitors for the Independent Children's Lawyer: | Ms Cole, Legal Aid NSW Parramatta Family Law |
ORDERS PENDING FURTHER ORDER
That Orders 3-16, and 17 of the Orders made on 17 December 2019, are suspended.
The Child X (“X”), born in 2017, shall spend time with the Father supervised by “B Contact Centre”, or another supervisor agreed by the parties and the Independent Children’s Lawyer in writing “the supervising service”, for a period of 2 months.
The supervised time should be for 3 hours per week as agreed by the parties, and if no agreement from 9:30 am to 12:30 am each Sunday, or at such alternate time as is offered by the supervising service.
That Order 3 is subject to dates and times that can be accommodated by the supervising service.
The supervised time will take place at a location agreed by the parties and approved by B Contact Centre, and if not agreed, will take place at C Play Centre, D Street, Suburb E).
For the purpose of supervised time, the Mother will deliver X to the agreed location at the commencement of time, as directed by the supervisor, and will collect X from the same location at the conclusion of time, as directed by the supervising service.
To facilitate these Orders, within 7 days, each party will:
(a)Contact B Contact Centre (or other agreed supervising service) within 7 days and complete any intake or other documents required by the supervising service.
(b)Comply with the terms and conditions as well as all reasonable rules, requests and directions of the supervising service.
That the cost of the supervised time be shared by the parties, with the Mother contributing $100.00 per week to the cost.
Each party is at liberty to request reports from the supervising service, and the supervising service is authorised by these Orders to provide reports to the parties, their legal representatives and the Independent Children’s Lawyer.
After the expiry of the above period of 2 months of supervised time between the Child and the Father, the Child shall spend unsupervised time with the Father as follows:
(a)For 2 months, on Tuesdays each week from 12 PM to 4 PM, and each alternate weekend from 12 PM to 4 PM on both Saturday and Sunday;
(b)Thereafter, on Tuesdays each week from 10 AM to 4 PM, and each alternate weekend from 9 AM to 4 PM on both Saturday and Sunday.
(c)Changeovers for the above time between the Child and the Father shall occur at McDonald’s restaurant, Suburb F.
That within 28 days of these Orders, the Mother make appointment and attend for hair drug testing with the Drug Detection Agency or Australian Workplace Drug Testing Services (AWDTS) Clinic or nominee (“the laboratory”) for hair drug testing purposes.
For the purposes of the hair drug testing:
(a)Collection is to be conducted by a qualified and certified collector.
(b)Chain of Custody procedure is to be applied to the sample.
(c)Testing is to be conducted at an approved laboratory, accredited to conduct hair drug testing to the recognised International Standard ISO/IEC 17025:2005 by the relevant national accreditation body for that laboratory.
(d)Testing will be for the purpose of analysis of drug use including methadone metaboliates, opiates, amphetamine type substances, benzodiazapines, cannabinoids, cocaine metabolite, barbiturates and buprenorphine.
(e)Either head or body hair may be collected for testing.
(f)The Mother is to provide a copy of these Orders to the laboratory
(g)The Mother is to provide the collector with photographic identification to be recorded before each hair collection and authority
(h)This Order authorises the laboratory to provide the results of each test to the legal representatives of the parties and the Independent Children’s Lawyer.
(i)The hair drug test should screen for drugs of abuse including amphetamine-type substances and metabolites, cannabis and metabolites, cocaine and metabolites, opioids and metabolites, methadone metabolite, benzodiazapines, barbituates and buprenorphine.
The cost of the hair drug test is to be met in the first instance by the Mother, or as otherwise ordered by the Court.
To give effect to the Order for hair drug testing the Mother must ensure that her head hair is not cut shorter than 4 cm in length, and that neither head hair nor body hair is bleached or dyed.
That the parties, their legal representatives (if any) and the Independent Children’s Lawyer attend Family Dispute Resolution in approximately 4 months’ time for the purpose of discussing the progression of X’s time with the Father.
That the Independent Children’s Lawyer has leave to provide to the Family Dispute Resolution Practitioner a copy of the Family Report dated 2 September 2019, and a copy of any reports obtained from the supervising service.
The Applicant, if so advised, is to file and serve an Amended Initiating Application within 6 weeks.
The Respondent, if so advised, is to file and serve an Amended Response within a further 6 weeks.
Both parties are to file and serve a single consolidated trial affidavit relevant to their case 28 February 2021.
Both parties are to file and serve any Affidavits by supporting witnesses upon which they rely by 28 February 2021.
The parties are to have issued by not later than 15 March 2021 any relevant subpoena and are to have inspected those subpoena and prepared a tender bundle of documents sought to be tendered in their case and are to lodge that tender bundle with the Court and exchange with the other party by not later than 15 May 2021.
The parties are granted leave at their expense to copy any documents produced in answer to subpoena that are required for the purpose of the tender bundle about which no objection is raised.
Leave is granted to the parties to issue more than 5 subpoena.
This case is listed for compliance check and call over at 9.30am on 23 July 2021.
Liberty to the ICL to seek to relist the proceedings on 7 days’ notice in the event of any difficulty implementing these Orders.
Pursuant to s 102NA(1)(c)(iv) Family Law Act 1975, the requirements of s 120NA(2) are to apply to the cross-examination by the Father of the Mother.
Direct the Father to forthwith make application for legal representation to the Commonwealth Cross Examination and Family Violence Scheme.
THE COURT NOTES
(a)In the event that a party is not in compliance, undefended hearing may proceed at the compliance call over.
(b)If both parties are non-compliant, consideration will be given to the dismissal of all outstanding applications and responses.
(c)If in any proceedings there are allegations of family violence and the provisions of section 102NA of the Family Law Act 1975 apply (see attached Family Violence Information Sheet), any unrepresented party will not be permitted to personally cross-examine the other party/parties.
(d)Affected unrepresented parties may apply to the Commonwealth Family Violence and Cross-Examination of Parties Scheme (“the Scheme”) for representation but any such application must be made at least 12 weeks prior to the final hearing.
(e)Further information about the legislation and the Scheme can be found at Part 4 of the attached Family Violence Information Sheet.
(f)If s.102NA applies and a party becomes unrepresented after trial directions have been made, that party is required to promptly advise the Court.
IT IS NOTED that publication of this judgment under the pseudonym Belkin & Ming is approved pursuant to s.121(9)(g) of the Family Law Act 1975 (Cth).
| FEDERAL CIRCUIT COURT OF AUSTRALIA AT PARRAMATTA |
PAC 3506 of 2018
| MS BELKIN |
Applicant
And
| MR MING |
Respondent
REASONS FOR JUDGMENT
Introduction
This Interim Hearing related to the Child X born in 2017.
On 9 January 2019, following an Interim Hearing held on 14 December 2018, the Court made Interim Parenting Orders providing, inter alia, that the Child live with the Mother, and spend unsupervised time with the Father on Wednesday and Friday each week from 2 PM to 6 PM, and each alternate Saturday from 9:30 AM to 4 PM, with changeovers to be supervised. Hair strand testing was ordered to occur of the Father at the request of the ICL.
On 26 April 2019 the Father’s solicitors filed a Notice of Withdrawal has Lawyer. Since then, the Father has acted without legal representation.
On 17 December 2019, by consent, Interim Parenting Orders were made, inter alia, discharging the above Orders relating to the Child spending time with the Father, and providing that the Child will spend time with the Father, initially, each alternate weekend from 9 AM to 4 PM on both Saturday and Sunday, and on Tuesday each week from 10 AM to 4 PM. From 16 May 2020 the Child was to spend time with the Father each alternate weekend from 9 AM to 4 PM on both Saturday and Sunday, and on Tuesday each week from 9 AM to 3 PM. From 8 August 2020, the Child was a spend time with the Father each alternate weekend from 9 AM on Saturday to 12 noon on Sunday, and on Tuesday each week from 9 AM to 3 PM. Changeovers were ultimately to take place inside the Suburb G McDonald’s. The Child was also to spend time with the Father and Christmas Day from 11 AM to 4 PM, and for three hours on his birthday.
The Father alleges that he has not spent time with the Child since 25 December 2019.
On 21 September 2020 the Father wrote to the Court requesting that he be permitted to reopen his case in relation to the earlier Interim Hearing held on 22 April 2020.
On 16 October 2020, by consent, the Court directed the parties and ICL have access to the file of the Suburb H Local Court in relation to certain former police charges against the Father.
Proposals
The ICL’s proposed Interim Parenting Orders were set out in Annexure A to her Case Outline; inter alia, she sought Orders that the Child spend supervised time with the Father through B Contact Centre, or another supervisor agreed by the parties and the ICL; that the supervised time should be for three hours per week; that the cost of the supervised time be shared by the parties, with the Mother contributing $100 per week to the cost; that the Mother attend for hair drug testing; that the parties, their legal representatives and the ICL attend Family Dispute Resolution in about four months’ time for the purpose of discussing the progression of the Child’s time with the Father.
The Mother sought Interim Parenting Orders as sought by the ICL above.
The Father had initially, in his Response filed 9 April 2020, sought Interim Parenting Orders that the Child live with the Mother; the parties have equal shared parental responsibility for the Child; that the Child spent time with the Father each weekend from 8 AM to 5 PM on both Saturday and Sunday, until further Orders are sought, and on Tuesday each week from 7:30 AM to 5 PM.
The Father ultimately sought Interim Parenting Orders as set out in his Application a case filed 6 October 2020; inter alia, he seeks Orders that he have sole parental responsibility for the Child; that the Child live with him, and that the Child spend time with the Mother every second weekend from 8 AM to 5 PM on Saturday until further Orders are sought, and on Tuesday each week from 9 AM to 5 PM. He also sought Orders that the Mother submit herself for hair follicle testing.
Material relied upon
The Mother relied upon the following documents:
i.Affidavit of the Mother filed 10 November 2020;
ii.Affidavit of Ms J filed 10 November 2020.
The Father relied upon the following documents:
i.His Affidavits filed 3 September 2018, 27 March 2020, 9 April 2020, 6 October 2020;
ii.Affidavit of Ms K filed 20 April 2020.
The ICL relied upon her Case Outline.
The following Exhibits were relied upon:
i.Subpoenaed document in sleeve 13, tab M1; Exhibit A
ii.Subpoenaed document in sleeve 15, tab M 1-8; Exhibit D
iii.Family Report dated 2 September 2019; Exhibit C
iv.ICL Tender Bundle; Exhibit D.
Evidence
The Court refers to the evidential material below, together with the evidential material referred to in its discussion under section 60CC of the Family Law Act 1975 (Cth) (“the Act”).
The Father is aged 33 years. The Mother is aged 31 years.
The Father alleges that he lives at Suburb L and is a tradesman.
The Mother alleges that she is an office worker.
The parties began living together in about 2014 and separated on 11 March 2018.
The Mother has a Child from a prior relationship, her son M born in 2009.
In the Father’s Affidavit filed 3 September 2018, he alleges that the parties have absolutely no communication, and that as the Mother has made allegations to police which have resulted in an Interim ADVO being placed on the Father, he wants to limit the contact he has between the parties.
In an email from the Mother to the Father of 20 July 2018, the Mother alleges that due to the escalating incidents of violence and aggression from the Father and Ms K she does not feel safe with the Child in the Father’s care at this point in time.
The Father alleges that he did not spend time with the Child from July 2018 to March 2019.
The Father, in his Affidavit filed 27 March 2020, alleges that the Mother failed to make the Child available to spend time with him on various occasions throughout 2019, including in March, April, May, December and early January 2020.
Again, the Father alleges that he has not spent time with the Child since 25 December 2019.
The Father alleges that on about 7 January 2020 he was informed by an officer from the Suburb N Contact Centre that the Mother would not be bringing the Child at all anymore because of the possibility of the Father being charged with criminal offences.
On 5 February 2020, the Mother’s solicitors wrote to the Father stating their understanding that there were currently criminal charges against the Father in relation to domestic violence issues also including firearm offences. The letter states, that under the circumstances, the Mother will be required to go outside the existing Orders and to spend time that the Child spend with the Father “until and at least the matter has been fully disclosed.”
In the Father’s letter to the Mother’s solicitors dated 24 February 2020, he denies the Mother’s allegations and maintains his innocence. In that letter, the Father refers to various dates prior to 5 January 2020 when he alleges the Mother did not facilitate the Child spending time with him.
Relevant legal principles
The relevant principles in relation to parenting proceedings, including Interim proceedings, are well settled: see Goode & Goode (2006) FLC 93-286.
In Marvel & Marvel [2010] FamCAFC 101, 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 Hearingis 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 Hearingshould 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.
Of this, the Full Court in Eaby & Speelman [2015] FamCAFC 104 said at [19]:
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.
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.
Section 60B of the Act sets out the objects of Part VII of the Act relating to Children that inform the making of parenting Orders.
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.
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).
When making a parenting Order in relation to a Child, the Court must apply a presumption that it is in the best interests of the Child for the Child’s parents to have equal shared parental responsibility for the Child: 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).
If the presumption of equal shared parental responsibility in relation to the Child applies, and 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.
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 65 DAA (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.
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, 65D.
The Best Interests of the Children
Section 60CC Considerations
Subsection (2a): the benefit to the Child of having a meaningful relationship with both of the Child’s parents: a primary consideration
The Child has a meaningful relationship with the Mother and will benefit from a continuance of that relationship. There is a significant suggestion, on the material before the Court, that the Mother has been the Child’s primary carer from birth to date and that the Child’s primary attachment is to the Mother. The Family Report writer had stated that the Child had consistently lived with the Mother, and no reasons were identified in the Family Report assessment to recommend any change to that arrangement. In this context, the Court observes that the Mother alleges that the Child and M are very close and inseparable at home. The Father’s Interim Application that the Child live with him is, respectfully, not Child focused and, if such Order was made, would carry the real risk that the Child would suffer significant emotional harm.
There is a significant suggestion on the material before the Court, that during the parties’ relationship, and post separation and up to 25 December 2019, the Child had a meaningful relationship with the Father. The Child has not spent time with the Father since 25 December 2019 and it may well be the case that the Child’s former meaningful relationship with the Father has diminished to some not insignificant extent. All the Child may well benefit from the re-establishment of his former meaningful relationship with the Father provided it is safe for him to do so.
Should the Child spend time with the Father as follows, there is a reasonable prospect that the Child’s former meaningful relationship with the Father can begin to be re-established in a timely fashion:
i.the Child should spend supervised time with the Father, as proposed by the ICL, but only for a period of two months;
ii.after the above two month period of supervision, the Child should spend daytime time only with the Father; specifically:
i)for 2 months, on Tuesdays each week from 12 PM to 4 PM, and each alternate weekend from 12 PM to 4 PM on both Saturday and Sunday;
ii)thereafter, on Tuesdays each week from 10 AM to 4 PM, and each alternate weekend from 9 AM to 4 PM on both Saturday and Sunday.
Should the Child spend such proposed above time with the Father, the Child’s meaningful relationship with the Mother should not be detrimentally affected.
Subsection (2b): the need to protect the Child from physical or psychological harm from being subjected to, or exposed to, abuse, neglect or family violence.
Both parties make serious allegations of family violence against each other, including alleged coercive and controlling family violence. Each party makes significant denials in relation to such allegations against the other. The Father denied to the Family Report writer ever doing anything “unsafe” although he said that the volatility of the parties’ arguments was not acceptable and that this was why he ended the relationship.
The Mother alleged to the Family Report writer that she is fearful of the Father. The Family Report writer had stated that the Mother’s allegations to her contained elements of alleged coercion and control by the Father.
The Court observes that the parties and Child were interviewed and assessed on 5 August 2019.
Again, the Court observes that the parties consented to Interim Parenting Orders on 17 December 2019 providing that the Child spend time with the Father, increasingly, on an unsupervised and graduated basis, leading to overnight time from early August 2020.
The Mother told the Family Report writer that the Father is a very angry man who can go from 0 to 100 very quickly. She alleged that the Father became physically violent only a few times, however, would smash or break or throw things. She alleged that her other Child M had heard the commotion of alleged family violence allegedly perpetrated by the Father against the Mother and had later revealed, in counselling, his distress on that occasion. The Mother expressed her concern about the Father’s allegedly poorly controlled anger and his hatred of her.
The Mother reported to the Family Report writer that every 4 to 6 weeks she receives a call from the Father in which he tells her that he and Ms K are separating. The Mother stated to the Family Report writer that she believes that the Father will behave similarly in their relationship to the way he behaved in theirs, and that she believes this to be “a bomb waiting to go off.”
The Mother alleges that throughout the parties relationship the Father has been both verbally abusive and physically violent towards her. She alleges that such abuse is often taken place whilst the Child and M had been in attendance.
The Father reported to the Family Report writer that he has been consulting a psychologist for about six months. He stated he now attends every 2 to 3 weeks. He stated that he was struggling, due to his inability to spend time with the Child, and that he consulted the psychologist to assist with managing stress and anxiety.
The Mother reported to the Family Report writer that while they were in a relationship, she tended to do whatever the Father wanted, because he would otherwise become angry. She stated to the Family Report writer that the Father regularly became defensive with the paternal grandparents, who would try to calm him to avoid escalation.
The Mother stated to the Family Report writer that she believes that the Father can offer the Child love, but fears that when the Child is older and challenges the Father, the Father will lose his temper. The Mother stated to the Family Report writer that the Father was very harsh on her Child M and would react over small things.
The Father’s former partner Ms K alleges in her Affidavit filed 20 April 2020 that she was assaulted by a man on 5 January 2020; she alleges that she was punched in the face and suffered injury.
Ms K alleges that she was in a relationship with the Father from April 2018 until January 2020. On 5 January 2020 she alleges that she had a disagreement with the Father over the telephone and she became angry and upset. She alleges she sought to walk home by herself about 12 AM. She alleges that on her walk home she was assaulted by a man in his mid to late 40s who smelt of alcohol. She alleges that the man had grabbed her with force on the arm and neck, and that after she pushed the man off her, the man punched her with great force on the left cheek/causing it to immediately swell.
Ms K alleges that an ambulance was called and police attended. She alleges that she refused to make a statement to the police “because I did not want to lie and was too scared to tell them I was coerced into accusing (the Father) of assaulting me”. She alleges that the Father has never been violent or abusive to her or her daughter during their relationship. She alleges that she entrusts the Father with the care of “the Child” and did so throughout their relationship.
The COPS report of 5 January 2020 refers to Ms K allegedly stating to the police that the Father inflicted her injuries. The injuries were stated by police to refer to an egg shaped swelling on the left side of Ms K’s face and bruising around her left eye. Police also allegedly observed red marks around Ms K’s neck. The police refer to Ms K being reluctant and refusing to provide a statement to police. The police record that prior to the police arriving Ms K had allegedly pleaded with a witness not to contact police as she was scared. The police provided their opinion that Ms K was terrified of the Father due to her reluctance with providing police details. The police alleged that it is from the witnesses that Ms K has told them that she thought that the Father was going to kill her. The police allege they have serious fears for Ms K and her well-being and safety due to her being hysterical and confused.
In another COPS report of 5 January 2020 the police are referred to having allegedly seized firearms and ammunition from the Father’s premises.
The Father was criminally charged on 5 January 2020 with assault occasioning actual bodily harm (DV) and intentionally choke etc person without consent (DV) in relation to the above incident on 5 January 2020. He was also charged with being a holder of category A or B licence not have approved storage; see Exhibit A.
In the Father’s Affidavit filed 9 April 2020, he alleges that he has been a responsible licensed firearms owner for over 10 years. He alleges that throughout his relationship with the Mother he had registered firearms and ammunition and housed them at “our Town O home”. The Father maintained his innocence relating to the allegations made against him in the current proceedings. He maintained his innocence of all criminal charges made against him.
On 18 September 2020 the police withdrew the above charges in relation to the alleged domestic violence against Ms K, they were dismissed, and the ADVO was revoked.
Despite the police withdrawing the above criminal charges against the Father, and despite the Affidavit of Ms K denying that the Father assaulted her, the Court does have a concern, based on all the material before it, that there is a real possibility that the Father may have seriously assaulted Ms K on 5 January 2020. Paragraph 19 of Ms K’s Affidavit which states that she was allegedly too scared to tell the police that she was coerced into accusing the Father of assaulting her lacks particularisation. On her own admission, Ms K alleges that she had had a disagreement with the Father prior to the assault as a result of which she had become angry and upset. There is force to the submission of the Mother, by reference to the above real possibility that the Father may have seriously assaulted Ms K, that it would concern the Court, should the Father have the Child in his care, that the Father may well suffer emotional dysregulation with (an adult) person with whom he is in a relationship. The Court further observes, in this context, that there is a dispute between the parties as to whether or not the Father indeed lives at Suburb L, as alleged by him, and whether or not he continues to be in a relationship with Ms K.
Taking into account the Court’s above concern, the Mother’s allegations of alleged family violence having been perpetrated against her by the Father assume greater importance. And further, again taking into account the Court’s above concern, the Mother’s allegations that the Father has an anger problem and, by inference, suffers bouts of emotional dysregulation, also assume greater importance. It is relevant in this context that the Mother has alleged that the Father has perpetrated family violence in the presence or near hearing of a Child.
The Family Report writer had stated that it might be helpful if daytime time between the Child and the Father could be gradually increased before overnight time was considered, “if the Court does not hold concerns about (the Father’s) perpetration of family violence”. In her final recommendations, the Family Report writer had stated that if the Court determines that the Child would be at risk of harm with regard to the Father having perpetrated coercive and controlling violence, it was recommended that time spent with the Father be limited to daytime only and in the manner currently occurring. The Court would place significant weight upon the views of the Family Report writer whilst acknowledging that her Family Report remains untested.
As referred to above, the Court does hold concerns in relation to the Mother’s family violence allegations against the Father. Elaborating upon these concerns, in relation to the Child, the Court has a concern that the Father may exhibit anger in the presence of the Child, and/or may become involved in physical or verbal disputation with a third person, such as a female partner, in the presence of the Child. To minimise the risk of the Child being exposed to such happenings, and again taking into account the views of the Family Report writer, the Child should initially spend supervised time with the Father for two months and thereafter spend daytime time only with the Father, on a graduated basis, pending further Order. The initial supervised time would also serve the useful purpose of reintroducing the Child to spending regular time with the Father, minimising emotional discomfort to the Child, and enabling the parties and ICL to obtain written supervision reports.
The Court now turns to the Father’s risk allegations against the Mother.
The Father alleges that he received, in early September 2020, a Facebook message from Ms J. He alleges that Ms J told him that the Mother “has been off the rails in the last year, she smoking ice and leaving the kids at mine and Ms P’s places for 3+ days at a time.” On the other hand, an Affidavit from Ms J filed 10 November 2020 alleges that she denies sending the Father any such Facebook message.
The Father alleges that he is aware that the Mother’s best friend Ms P and her husband deal drugs from the house where the Mother frequently leaves the Children. The Father does not state the source of his alleged awareness.
The Father alleges that the Mother is aware of Ms P and her husband’s alleged drug dealing. He alleges that he and the Mother have seen them use illegal drugs on many occasions without giving particularisation of the dates that such observations were made. The Mother denies ever having seen Ms P or her husband take drugs.
The Father alleges that he received an email from Ms K informing him that the Mother was escorted off the premises from her work due to being allegedly under the influence of drugs. The alleged email is dated 18 September 2020 and the alleged conduct of the Mother was on 8 July 2020. The Court has a concern in relation to the material relating to Ms K, as discussed above.
In any event, in relation to the allegations made by the Father against the Mother relating to the Mother’s alleged drug use, the Court proposes to Order that the Mother undergo hair drug testing as proposed in Order 10 and following of the ICL’s proposed Minute of Order.
The Father alleges that the Mother is not a fit parent and suffers from Munchausen’s Syndrome By Proxy and Borderline Personality disorder, without giving any significant particularisation of these conditions or how it is said the Mother allegedly suffers from them. The Mother told the Family Report writer that she has been attending a counsellor through Victims Services each fortnight for around six months. She denied any diagnoses or use of psychotropic medication.
The Court observes that the Father expressed alleged concerns to the Family Report writer regarding alleged neglect of the Child by the Mother (but only) “in that she is insufficiently concerned regarding (the Child) constipation”. The Mother, on interview with the Family Report writer, presented as a concerned parent who is aware of the Child’s physical needs.
On the material before the Court, the Court is not of the view that there is an unacceptable risk of harm posed to the Child in remaining living in the Mother’s primary care at this Interim stage by reason of alleged illegal drug use, and alleged neglect of the Child.
The Court gives significant weight to this need to protect primary consideration.
Section 60CC(3) - Additional Considerations
(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
The Child is too young to express a relevant view.
(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)
See above under the meaningful relationship primary consideration. The Child also appears to have a warm relationship with the Mother’s other Child M.
(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
Both parties would appear to have taken such opportunities.
(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
Both parties would appear to have maintained the Child when the Child was in their respective care.
The Mother alleges that the Father is about $26,000 in arrears with Child support. She alleges that the Father has maintained that the outstanding amount of Child support is not correct and the matter is under review by the CSA. The Mother disputes the matter is under review.
(d) The likely effect of any changes in the Child’s circumstances, including the likely effect on the Child of any separation from either of his or her parents; or any other Child, or other person (including any grandparent or other relative of the Child), with whom he or she has been living
Should the Child spend time with the Father, as discussed above under the meaningful relationship primary consideration, the Child’s meaningful relationship with the Mother should not be detrimentally affected.
(e) The practical difficulty and expense of a Child spending time with and communicating with the parent and whether that difficulty or expense will substantially affect the Child’s right to maintain personal relations and direct contact with both parents on a regular basis
Not applicable.
(f) the capacity of:
i) each of the Child’s parents; and
ii) any other person (including any grandparent or other relative of the Child); to provide for the needs of the Child, including emotional and intellectual needs
The Father alleges that the Mother post separation has significantly failed to facilitate the Child spending time with the Father pursuant to Court Orders and otherwise. On the other hand, the Mother alleges that when not facilitating the Child spending time with the Father, she has been acting protectively towards the Child, either relating to the Child’s alleged ill-health or risk in spending time with the Father. The Mother frankly alleges that in the best interests of both Children (referring to the Child and M) she stopped the Father’s time with the Child until the criminal charges and domestic violence issues could be fully investigated.
The Father had filed a contravention Application against the Mother in about March 2020, in which she alleges the Mother was in breach of certain Court Orders relating to the Child spending time with the Father, in particular during various occasions in 2019 and in early January 2020.
The Father alleges that on a number of occasions that he was supposed to spend time with the Child on Tuesdays, Fridays and Saturdays in 2019, pursuant to the Courts Orders of 9 January 2019, the Mother would fabricate illness for the Child yet still send him to day care on the Wednesday and Thursday in the same week. The Father alleges that the Child was never sent home from day care in those weeks for illness. By reference to the copy medical certificates, the dates of apparent medical examination of the Child, the diagnoses made of the Child, and the apparent dates that the Child attended daycare, it is not altogether clear that the Father’s allegations in this context have substance; the Father’s contentions in this context need to be tested at a final hearing.
(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
In relation to the parents, the Court refers to the need to protect primary consideration above.
(h) If the Child is an Aboriginal Child or a Torres Strait Islander Child: the Child’s right to enjoy his or her Aboriginal or Torres Strait Islander culture (including the right to enjoy that culture with other people who share that culture); and the likely impact any proposed parenting Order under this Part will have on that right
Not applicable.
(i) The attitude to the Child, and to the responsibilities of parenthood, demonstrated by each of the Child's parents
Subject to the Courts discussion above under the need to protect primary consideration, both parties attitudes to the Child and to their responsibility is of parenthood would appear to be satisfactory.
(j) Any family violence involving the Child or a member of the Child's family
The Court refers to its discussion under the need to protect primary consideration.
(k) If a family violence Order applies, or has applied, to the Child or a member of the Child’s family – any relevant inferences that can be drawn from the Order, taking into account the following: the nature of the Order; the circumstances in which the Order was made; any findings made by the Court in, or in proceedings for, the Order; any other relevant matter
An Interim ADVO was made against the Father on 19 July 2018, at the instance of the Mother, which was withdrawn and dismissed on 9 May 2019. An ADVO against the Father is alleged to have been dismissed on 18 September 2020.
(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
These are Interim proceedings.
m) Any other fact or circumstance that the Court thinks is relevant
The Mother, at the Interim hearing, in the event that the Court determined that the Child should spend unsupervised daytime time with the Father, suggested that changeovers could occur at McDonald’s restaurant at Suburb F, to which the Father had no objection.
Parental responsibility
It will not be in the best interests of this very young Child to make an express Order for parental responsibility. There is no major decision presently looming for this Child.
Summary
Evaluating the above discussed considerations under section 60CC of the Act, it will be in the best interests of the Children to make the following Interim Orders:
That Orders 3-16, and 17 of the Orders made on 17 December 2019, are suspended.
The Child X (“X”), born in 2017, shall spend time with the Father supervised by “B Contact Centre”, or another supervisor agreed by the parties and the Independent Children’s Lawyer in writing “the supervising service”, for a period of 2 months.
The supervised time should be for 3 hours per week as agreed by the parties, and if no agreement from 9:30 am to 12:30 am each Sunday, or at such alternate time as is offered by the supervising service.
That Order 3 is subject to dates and times that can be accommodated by the supervising service.
The supervised time will take place at a location agreed by the parties and approved by B Contact Centre, and if not agreed, will take place at C Play Centre, D Street, Suburb E.
For the purpose of supervised time, the Mother will deliver X to the agreed location at the commencement of time, as directed by the supervisor, and will collect X from the same location at the conclusion of time, as directed by the supervising service.
To facilitate these Orders, within 7 days, each party will:
(a)Contact B Contact Centre (or other agreed supervising service) within 7 days and complete any intake or other documents required by the supervising service.
(b)Comply with the terms and conditions as well as all reasonable rules, requests and directions of the supervising service.
That the cost of the supervised time be shared by the parties, with the Mother contributing $100.00 per week to the cost.
Each party is at liberty to request reports from the supervising service, and the supervising service is authorised by these Orders to provide reports to the parties, their legal representatives and the Independent Children’s Lawyer.
After the expiry of the above period of 2 months of supervised time between the Child and the Father, the Child shall spend unsupervised time with the Father as follows:
(a)For 2 months, on Tuesdays each week from 12 PM to 4 PM, and each alternate weekend from 12 PM to 4 PM on both Saturday and Sunday;
(b)Thereafter, on Tuesdays each week from 10 AM to 4 PM, and each alternate weekend from 9 AM to 4 PM on both Saturday and Sunday.
(c)Changeovers for the above time between the Child and the Father shall occur at McDonald’s restaurant, Suburb F.
That within 28 days of these Orders, the Mother make appointment and attend for hair drug testing with the Drug Detection Agency or Australian Workplace Drug Testing Services (AWDTS) Clinic or nominee (“the laboratory”) for hair drug testing purposes.
For the purposes of the hair drug testing:
(a)Collection is to be conducted by a qualified and certified collector.
(b)Chain of Custody procedure is to be applied to the sample.
(c)Testing is to be conducted at an approved laboratory, accredited to conduct hair drug testing to the recognised International Standard ISO/IEC 17025:2005 by the relevant national accreditation body for that laboratory.
(d)Testing will be for the purpose of analysis of drug use including methadone metaboliates, opiates, amphetamine type substances, benzodiazapines, cannabinoids, cocaine metabolite, barbiturates and buprenorphine.
(e)Either head or body hair may be collected for testing.
(f)The Mother is to provide a copy of these Orders to the laboratory
(g)The Mother is to provide the collector with photographic identification to be recorded before each hair collection and authority
(h)This Order authorises the laboratory to provide the results of each test to the legal representatives of the parties and the Independent Children’s Lawyer.
(i)The hair drug test should screen for drugs of abuse including amphetamine-type substances and metabolites, cannabis and metabolites, cocaine and metabolites, opioids and metabolites, methadone metabolite, benzodiazapines, barbituates and buprenorphine.
The cost of the hair drug test is to be met in the first instance by the Mother, or as otherwise ordered by the Court.
To give effect to the Order for hair drug testing the Mother must ensure that her head hair is not cut shorter than 4 cm in length, and that neither head hair nor body hair is bleached or dyed.
That the parties, their legal representatives (if any) and the Independent Children’s Lawyer attend Family Dispute Resolution in approximately 4 months’ time for the purpose of discussing the progression of X’s time with the Father.
That the Independent Children’s Lawyer has leave to provide to the Family Dispute Resolution Practitioner a copy of the Family Report dated 2 September 2019, and a copy of any reports obtained from the supervising service.
The Applicant, if so advised, is to file and serve an Amended Initiating Application within 6 weeks.
The Respondent, if so advised, is to file and serve an Amended Response within a further 6 weeks.
Both parties are to file and serve a single consolidated trial affidavit relevant to their case 28 February 2021.
Both parties are to file and serve any Affidavits by supporting witnesses upon which they rely by 28 February 2021.
The parties are to have issued by not later than 15 March 2021 any relevant subpoena and are to have inspected those subpoena and prepared a tender bundle of documents sought to be tendered in their case and are to lodge that tender bundle with the Court and exchange with the other party by not later than 15 May 2021.
The parties are granted leave at their expense to copy any documents produced in answer to subpoena that are required for the purpose of the tender bundle about which no objection is raised.
Leave is granted to the parties to issue more than 5 subpoena.
This case is listed for compliance check and call over at 9.30am on 23 July 2021.
Liberty to the ICL to seek to relist the proceedings on 7 days’ notice in the event of any difficulty implementing these Orders.
Pursuant to s 102NA(1)(c)(iv) Family Law Act 1975, the requirements of s 120NA(2) are to apply to the cross-examination by the Father of the Mother.
Direct the Father to forthwith make application for legal representation to the Commonwealth Cross Examination and Family Violence Scheme.
THE COURT NOTES
(a)In the event that a party is not in compliance, undefended hearing may proceed at the compliance call over.
(b)If both parties are non-compliant, consideration will be given to the dismissal of all outstanding applications and responses.
(c)If in any proceedings there are allegations of family violence and the provisions of section 102NA of the Family Law Act 1975 apply (see attached Family Violence Information Sheet), any unrepresented party will not be permitted to personally cross-examine the other party/parties.
(d)Affected unrepresented parties may apply to the Commonwealth Family Violence and Cross-Examination of Parties Scheme (“the Scheme”) for representation but any such application must be made at least 12 weeks prior to the final hearing.
(e)Further information about the legislation and the Scheme can be found at Part 4 of the attached Family Violence Information Sheet.
(f)If s.102NA applies and a party becomes unrepresented after trial directions have been made, that party is required to promptly advise the Court.
I certify that the preceding ninety-five (95) paragraphs are a true copy of the reasons for judgment of Judge Newbrun
Associate:
Date: 24 December 2020
Key Legal Topics
Areas of Law
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Family Law
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