Bickerton and McNamara and Anor

[2017] FCCA 2254

FEDERAL CIRCUIT COURT OF AUSTRALIA

BICKERTON & MCNAMARA & ANOR [2017] FCCA 2254

Catchwords:
FAMILY LAW – Parenting – unacceptable risk – interim parenting orders – practice and procedure.

PRACTICE & PROCEDURE – Transfer to the Family Court of Australia.

Legislation:

Family Law Act 1975, s.65C

Cases cited:

Valentine & Lacerra & Anor (2013) FLC 93-539

Lindon v the Commonwealth (No.2) (1996) 136 ALR 251
Redmond & Redmond [2014] FamCAFC 155
Goode & Goode (2006) FLC 93-286
SS & AH [2010] FamCAFC 13
AMS v AIF (1999) 199 CLR 160
Reece & Reece [2011] FamCAFC 24
Stott & Holger & Anor [2017] FamCAFC 152
M v M(1988) 166 CLR 69
B v B(1993) FLC 92-357

Applicant: MS BICKERTON

First Respondent: MS MCNAMARA

Second Respondent: MR BICKERTON

File Number: MLC 9887 of 2016

Judgment of: Judge Harland

Hearing dates: 11 & 12 September 2017

Date of Last Submission: 12 September 2017

Delivered at: Melbourne

Delivered on: 15 September 2017

REPRESENTATION

Counsel for the Applicant: Mr Stanley

Solicitors for the Applicant: Marcou & Associates

Counsel for the First Respondent: Ms Mansfield

Solicitors for the First Respondent:	Cathleen Corridon & Associates
Counsel for the Second Respondent:	Mr Hall
Solicitors for the Second Respondent:	Hartleys Lawyers
Counsel for the Independent Children’s Lawyer:	Mr Kiernan
Solicitors for the Independent Children’s Lawyer:	Beswick Foulkes Family Law

ORDERS

1. That order 2 of the consent orders made 17 May 2017 be discharged.

2. That for a period of not more than three months X born (omitted) 2015 (“the child”) spend time with the mother as follows:

   (a)Each Saturday from 2.00pm until 4.00pm commencing 23 September 2017;

   (b)At “(omitted)” in (omitted);

   (c)Supervised by the Applicant; and

   (d)At other times as agreed between the mother and the applicant, with notice being given to the Independent Children’s Lawyer.

3. That should the Applicant observe the mother to attend at time, pursuant to Order 2 herein, drug affected then the applicant be at liberty to cancel that time.

4. That the mother undertake a hair follicle test no earlier than three months from the date of this order.

5. That should the hair follicle test undertaken by the mother reveal that there has been consumption of illicit substances in the past three months, then mother’s time pursuant to Order 2 herein become supervised time at one of the contact centres provided at order 6 herein.

6. That the applicant and the mother do all acts and things to enrol at the Children’s Contact Service at (omitted), the Berry Street Children’s Contact Service at (omitted), and Children’s Contact Service at Children and Family Services at (omitted), for the purpose of the mother spending time with the child as can be accommodated by the Contact Service with costs associated to be borne by the mother.

7. That the applicant and the father do all acts and things to enrol at the Children’s Contact Service at (omitted), the Berry Street Children’s Contact Service at (omitted), and Children’s Contact Service at Children and Family Services at (omitted) for the purpose of the father being placed on waiting list with costs associated to be borne by the father.

8. That the father undertake supervised drug screen testing (“the testing”):

   (a)the testing occur at a pathology centre or other place approved by the Independent Children’s Lawyer; and

   (b)the testing occur randomly and within 24 hours of the Independent Children’s Lawyer making a written request for the testing to occur.

   The results of the testing, on each occasion be forwarded, as soon as possible, to the Independent Children’s Lawyer, the applicant’s solicitors, and the mother’s solicitors.

9. That pursuant to section 39 of the Federal Circuit Court of Australia Act1999 (Cth), these proceedings are transferred to the Melbourne Registry of the Family Court of Australia to be listed with such priority as that Court is able to provide.

10. That all parties be permitted to provide a copy of the Family Report and these reasons for judgment and orders to any treating psychologist, psychiatrist, or counsellor.

11. That pursuant to Rule 21.15 of the Federal Circuit Court Rules 2001 the Court certifies that it was reasonable for the parties to employ an advocate to appear in the proceedings.

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

FEDERAL CIRCUIT COURT
OF AUSTRALIA
AT MELBOURNE

MLC 9887 of 2016

MS BICKERTON

Applicant

And

MS MCNAMARA

First Respondent

And

MR BICKERTON

Second Respondent

REASONS FOR JUDGMENT

1. Ms C prepared a family report in this matter, which I released to the parties on 1 May 2017. The family report raised serious issues of risk with respect to the second respondent and also recommended that X born (omitted) 2015, (“X”) be transitioned from the applicant’s primary care to the mother’s primary care. The matter came before me for consideration of the family report on 17 May 2017. It was clear that there are serious issues to be tested with respect to the family report and that the matter had taken on some urgency.

2. Due to this, I listed the matter for an urgent five day final hearing commencing on 11 September 2017.  The urgent listing also took into account the fact that the second respondent was due to be released from prison by 31 July 2017.

3. The dispute centres on the best interests of X. The first respondent is X’s mother. It appears that X’s biological father has never been a part of X’s life and has not participated in the proceedings.

4. The second respondent is X’s stepfather. He is named as X’s father on his birth certificate. The second respondent says that he was shocked when the mother told him he was not biological father of X. He says he is the only father figure in X’s life and he dearly wishes to continue that role.

5. The applicant is the second respondent’s mother. X was placed in her care voluntarily. The Department of Health and Human Services (“the Department”) was involved with the family but did not commence proceedings in the Children’s Court of Victoria.

6. The position of each of the parties at the time of the family report interviews was that X should be in their respective primary care. The applicant and the mother maintained that position at the listing of the final hearing.  The second respondent sought orders to spend time with the X initially supervised and then moving to unsupervised.

7. The Independent Children’s Lawyer requested the mother undergo a supervised drug test the week before the hearing. The mother’s legal representatives obtained a copy of the test result shortly after the hearing was due to commence. The test was positive for methamphetamines and cannabis. Due to this result, which the mother seeks to adduce evidence on about in due course, the mother conceded that she would not be able to proceed with her application for X to live primarily with her at this time and instead sought interim orders. The second respondent also sought interim orders permitting him to spend time with X. He was incarcerated at the time of the family report and was interviewed by telephone. He wants the opportunity to participate fully in an updated family report.

8. At a couple of points during the interim hearing, I informed the parties that I did not need to hear submissions about the second respondent’s standing to seek parenting orders as an non biological parent. The concerns I have about the second respondent do not relate to his status as a non-parent. No one disputes that he satisfies the requirements of s.65C of the Family Law Act 1975 (Cth) (“Family Law Act”). Biological parents are not in a special position as against non biological parents. The mother’s counsel indicates that the second respondent’s bona fides may be challenged but if it is, that can be addressed at the final hearing.[1]

   [1] See Valentine & Lacerra & Anor (2013) FLC 93-539.

The applicant’s interim application

1. The applicant seeks orders that for a period of not more than three months she supervise X’s time with the mother for two hours each week until a place becomes available at a children’s contact centre. She says she is uncomfortable about supervising the mother’s time given the mother’s conduct in removing X from her care when she was supervising the mother’s time in October 2016. The applicant says she is worried about being the appropriate supervisor of the mother if she is taking methamphetamines but she also recognises the importance of X maintaining a relationship with his mother. It is for this reason that she is willing to supervise the mother’s time once a week for a period of up to three months whilst the parties are on the waiting list for a contact centre.

2. She says she is not prepared to supervise the mother’s time more than once a week. She also opposes the mother’s proposal that if the mother provides a clear hair follicle test, her spend time with arrangements should revert to the May 2017 orders. The applicant says that the May 2017 orders with respect to the mother’s time are untenable. She gives evidence in her trial affidavit at [101] to [114] that X has not coped well with the increase to the mother’s time of two overnight visits a week. She says that X should spend overnight time with his mother if her hair follicle test is clear but it should be only once a week.

3. The applicant says she is extremely concerned about the mother’s positive drug test. She says this is underscored by the fact that in her trial affidavit the mother said she was free of methamphetamines. The applicant argues that the mother’s relapse cannot be airbrushed away and that, whilst she accepts that the relapse is part of recovery, it is not in X’s best interests to spend extended overnight periods with the mother.

4. The applicant says she also supports the second respondent spending supervised time with X but does not have a strong position about whether she should supervise or it should be supervised by a professional service.

The mother’s interim application

1. The mother acknowledges that in light of her positive drug test her time should be supervised until she can provide evidence that she is not taking methamphetamines.  She says she is grateful to the applicant for agreeing to supervise her time pending a place becoming available at a contact centre.

2. The mother argues that throughout the Departments’ involvement with the family, the mother has had the opportunity to spend time with X twice a week. She says that has been the template for X. She also submitted that Mr A could be an alternate supervisor to relieve the pressure on the applicant. She conceded that she had not approached Mr A about his willingness to supervise.  Given this concession, I am not prepared to make an order that Mr A be a supervisor.

3. The fact that the applicant is willing to supervise the mother’s time at all is to her great credit given the circumstances of this case and her previous experience in supervising the mother’s time. It must be remembered that she has taken all the full-time care of X when the mother and second respondent were unable to do so and she will not have the respite that she has had in the past few months when the mother was having overnight time. The anxiety and worry the applicant has expressed is understandable and it would not be in X’s best interests to require her to supervise the mother for longer periods than she is willing to provide.

4. It is true that X has been used to seeing his mother twice a week but he will already be undergoing significant disruption because of the mother’s positive drug test.

5. The mother also sought an order for family therapy for herself and the applicant to improve their relationship. Whilst that may be great benefit to them in the future, it is not appropriate to order it at this stage as the mother must focus on her recovery in order to be able to regain the applicant’s confidence.

6. The mother wishes to be able to provide the family report, orders and reasons to any psychologist she sees and as I indicated during submissions I will make the same order enabling the second respondent to do so as well. I will include the applicant in the event she seeks any assistance from a psychologist or counsellor.

7. The mother is opposed to the second respondent having supervised time on an initial basis. She says she made a previous proposal for the applicant to supervise the second respondent’s time before the subpoenaed material was available when she was not aware of the extent of the father’s criminal record and the threats made to the applicant and other members of her family.

8. The mother says she is also concerned about the disclosures the father made at [6] of his affidavit affirmed on 14 March 2017 where he said:

   When I was 16 years of age in 1998 I had a motorbike accident suffered head injuries. I believe as a result I have an acquired brain injury. I have memory loss short-term and long-term. I need to be reminded of things and forget things. I have comprehension issues. I do not always remember details accurately and they can be jumbled. I note my mother says I am bipolar.  … I do have a “short fuse”. I do get frustrated. Over the years I’ve seen a number of doctors and psychologists both in prison and outside but there does not seem to be a consensus as to what is the state of my mental condition. Prior to coming to prison I was taking serikal [sic] for my depression. I was told it could not be prescribed in prison so I am on no medication. I found it quite helpful in calming me.

9. In his trial affidavit, which was prepared with the assistance of a lawyer, he does not challenge what he said in that paragraph and does not provide the Court with any update apart from annexing a report from a prison psychologist. I will return to that report. He does talk about the courses he has undertaken in prison and annexes certificates evidencing completion of those courses. He also talks about the treatment he received in prison, however he does not provide detail as to his current and future treatment plants.

10. The mother points out that the second respondent’s case is that he was X’s primary carer during the first months of his life. She points out that both were living in the chaotic environment that they exposed X to and they both have to take responsibility for X’s difficulties and their drug use.

The second respondent’s interim position

1. The second respondent proposes that the applicant supervises his time with X twice a week until a place is available at a supervised contact centre. He says he agrees to an order that he will leave the home when the applicant requests and that he would be happy to participate in any psychological or psychiatric assessment.

2. The second respondent relies on the observations of the Department in the case plan, which is annexed to page 64 of the applicant’s affidavit. Counsel for the second respondent extracted the following comment from the report:

   Father was observed interacting with X during home visit, X actively sought out the attention of his father, positive and appropriate engagement, good eye contact and appropriate responses by father.

3. Significantly, Counsel for the second respondent failed to refer to the two paragraphs appearing immediately above which give context which state that the applicant was present and the father made admissions about long-term substance abuse of ice and cannabis. He said he last used drugs five weeks prior. Since then he had moved into the applicant’s home. The report also states that the second respondent also acknowledged family violence between himself and the mother, his ongoing mental health issues; he reported that he has been diagnosed with bipolar and unmedicated for 12 months but had resumed taking his medication five weeks ago.

4. The report details the interactions the Department has had with the family in 2015 and 2016. It is dated 10 November 2016. The Department records in its first intake report from the period of 2 September 2015 to 21 September 2015 that it assessed that there was no evidence suggesting that either parent was taking drugs at that time and both appeared committed to ensuring X had his needs met and they were also willing to engage with appropriate support services. The second report concerned a verbal incident of family violence which recorded that the police did not have any concerns for X and assessed the incident as due to two exhausted parents of a new baby having an argument.

5. The second respondent says that during the first six months of X’s life, he lived with and cared for X. The second respondent points to observations by the Department of positive interactions between himself and X, with him acting appropriately towards X during a home visit to the applicant and second respondent’s home. He also refers to the fact that until I made orders in May 2017 suspending the time, for 12 months he had spent time with X at the prison supervised by his mother twice a week. I accept that these are positive interactions but this does not lessen the serious issues of risk which the second respondent’s submission simply did not address in any meaningful way.

6. Counsel for the second respondent argues that the family report writer’s recommendations should not be relied upon to continue to exclude the second respondent from spending time with X on an interim basis. The second respondent points to [106] of the family report where the family report writer assumed that the father made threats to kill the mother from prison. His counsel submitted that since that time the police have listened to the recordings and were satisfied that father had not made threats to kill and dismissed and withdrew those charges. He also pointed to the standard clause at the beginning of the report referring to fact that a limitation of the report is the fact that the writer relies on the parties to be truthful. He also refers to [104] of the family report where clearly, at that stage, the family report writer envisaged that X would be living with the mother which he submits is now less likely to happen. He says the credibility of the mother being the real issue. Further to this, he says that the mother has failed to report any physical violence between herself and the second respondent and says that these are all reasons to significantly test her credibility.

7. At this stage the family report is untested. The parties’ evidence is also untested and it is clear that certainly the credibility of both the mother and the second respondent will be tested. 

8. The Court cannot predict what the parties’ applications will be by the time of final hearing in this case. One of the reasons for adjourning the hearing is because the mother wants the opportunity to address the drug test and her rehabilitation acknowledging that she cannot succeed in her application for a change of residence at this stage. The father’s position prior to the final hearing was that he was seeking that X live primarily with him. It is likely that the Family Court of Australia (“Family Court”) will order a further family report that the second respondent will be able to participate in more fully, provided he is not further incarcerated.

9. The written submissions of the second respondent refers to his denials that he was ever physically violent, that mother had readily admitted that both parties’ were verbally violent, that initially the mother had proposed that he spend time with X during the applicant’s time with X, and argues that the mother’s current proposal is inconsistent with this. The mother’s counsel addressed this by saying that she had made that proposal prior to being aware of the subpoenaed material with respect to the father’s criminal and family violence history.

10. Neither the written nor oral submissions of the second respondent properly engaged with the risk issues posed by the second respondent given his extensive criminal and family violence history, which was not challenged by him, and his mental health issues.

1. During the course of argument, I indicated to the second respondent’s Counsel that my greatest concern was the issue of unacceptable risk given the second respondent’s criminal history, including family violence offences, and his mental health. Despite this, Counsel for the second respondent did not engage with those issues.

2. For example, Counsel for the second respondent argued that if his client is not permitted to spend time with X pending the final hearing it is prejudging his application. Firstly, that assumes that the application would not come before the Court prior to trial. After the matter is transferred to the Family Court it will be allocated a direction hearing before a Registrar. It is also open to the second respondent to file an application in a case and provide evidence addressing the concerns the court has. It also ignores the fact that I am obliged to make orders that are in the best interests of the X and this is the paramount consideration.

3. In his written submissions Counsel for the second respondent quotes Kirby J in Lindon v the Commonwealth (No. 2) (1996) 136 ALR 251 at 256 and sets out the following quote:

   If there is a serious legal question to be determined it should ordinarily be determined at trial the proof of facts may sometimes assist the judicial mind to understand and apply the law that is invoked and to do so in circumstances more conducive to deciding a real case involving actual litigants rather than one determined on imagined or assumed facts.

4. I accept the learned comments of Justice Kirby but it is notable that he made the comment in a completely different context. It is important to note that Justice Kirby made these comments in the context of an application to summarily dismiss a statement of claim which did not disclose a reasonable cause of action. This is entirely different to the task I am facing in making an interim parenting decision. That case has no application here. 

5. Counsel for the second respondent then referred to the prejudice to the father if his time is not reinstated pending the trial, including his ability to place evidence before the Court with respect to the nature of his relationship with X at the final hearing. He talked about natural justice, the second respondent and X, and that continuing to suspend the second respondent’s time amounts to a pre judgment of the issue to be determined. He said the applicant supported the second respondent being reformed and drug-free. Counsel for the applicant was not prepared to go that far. In any event it is not a submission that the Court places much weight on given the father’s extensive criminal history and the fact that he has only been released from prison for a few months whilst under the scrutiny of this Court.

6. As was pointed out during the course of the submissions, the case law with respect to the treatment of risk on at an interim hearing is very clear. I refer to [21] to[24] of the Full Court of the Family Court’s reasons in  Redmond & Redmond [2014] FamCAFC 155 which are set out:

   21. Before dealing specifically with each of these grounds we observe that permeating several of them as they were argued by the father – both in his summary of argument and his oral argument on the appeal (particularly grounds 1, 2, 4 and 7) – there appeared to be misapprehension by the father as to the place of disputed issues of fact as between the parties which remained untested on an interim hearing. In purported reliance upon Goode & Goode (2006) FLC 93-286 the father’s arguments seemed to proceed on the footing that the trial judge ought to have ignored or disregarded any allegations of fact which were adverse to the father by reason of his disputing them and which could not be determined in an interim hearing.

   22. This approach overlooks two important things. First is the distinction between, on the one hand, the acknowledged limitations in an interim hearing to determine disputed issues of fact on untested evidence and, on the other, the need for the court to consider, particularly when the subject facts or allegations are centrally important to a child’s welfare, the risks to that welfare if those facts or allegations are ultimately established at a trial. Second, the fact that an issue or allegation of fact is disputed does not sit in isolation. Consideration of other evidence, including independent expert evidence, may weigh in the court’s consideration as to probabilities, one way or the other, of an allegation ultimately being established, or rejected, at a trial.

   23. In SS & AH [2010] FamCAFC 13 Boland and Thackray JJ said at [99]-[100]:

   99. We also should keep in mind what Kirby J said in AMS v AIF (1999) 199 CLR 160 at 211:

   [A]n appellate court, invited to review the exercise of discretion at first instance will avoid an overly critical, or pernickety, analysis of the primary judge’s reasons, given the large element of judgment, discretion and intuition which is involved.

   100. 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.

   24. Here, given that the disputed issues of fact were of central importance to the child’s welfare it was necessary for Forrest J to weigh the probabilities and to determine whether controversial assertions ought be acted upon…

7. I refer to [76] of the Full Court of the Family Court’s (“Full Court”) reasons in Reece & Reece [2011] FamCAFC 24:

   While a judicial officer does therefore need to be cautious in relation to the use of contested evidence at an interim hearing and making findings on contested issues, in this case I consider that there is merit in the wife’s complaint regarding the Federal Magistrate’s failure to have regard to the report of Dr N. Although the family report was clearly in dispute and would be the subject of cross-examination at trial, the report and Dr N’s recommendations should nonetheless have been considered by the Federal Magistrate at the interim hearing. Dr N is a qualified clinical psychologist and had been tasked with preparing a family report in this matter. She had conducted interviews with the wife, the husband, the two children and the wife’s partner Mr Q, and had observed interactions between the husband and the children, the wife and the children and also the wife with M and Mr Q. Although the report could not be tested at an interim hearing, I consider that the Federal Magistrate fell into appealable error by failing to have regard to this report and the observations and recommendations of Dr N.

8. The comments of the Full Court in the paragraph above with respect to the treatment of family reports at interim hearing apply to this case The father’s counsel failed to engage with the very serious concerns outlined in the family report based on the subpoenaed material that is summarised at [63] to [89] which are set out in full below:

   Victoria Police:

   LEAP records reported that Ms Bickerton was charged with careless driving and false report to police heard in the Sunshine Magistrates Court on 7 December 2012 which was discharged with a diversion completed.

   LEAP records were received at the Court on 16 November 2016. In relation to Ms McNamara’s advice that Mr Bickerton had been charged with more recent offences, there was nothing recorded.

   Mr Bickerton was recorded with a lengthy criminal history from 1997. As he said at interview many charges were driving, theft, burglary and possess drugs charges. However, there were also weapons offences, criminal damage and damage to property offences and breaches of sentence orders in 2006, 2008, 2010, 2012, 2014 (twice), contravene Family Violence Order in 2016. He was charged with assaults in 1997 (withdrawn), 2012 (imprisonment 3 months) assault and make threat to kill 2014 (2 months imprisonment).   

   LEAP records for Ms McNamara also showed charges from 1997 of intentionally cause injury (bond) 1999 theft (withdrawn). In 2015 she was charged with dishonestly receive stolen goods which was discharged and a diversion completed.   

   Family Violence Incidents:

   Police recorded a family violence incident between Mr Bickerton (respondent) and Mr R AFM (Mr Bickerton’s brother)- there was a physical confrontation. Mr Bickerton punched his brother about ten times and he punched the wall. Mr Bickerton then used a baseball bat and attempted to use it to hit his brother. Mr Bickerton was remanded to appear at the La Trobe Valley Magistrates Court in December 2013.

   In 2003 there was a family violence incident reported of verbal argument between Mr Bickerton and his mother. No concerns from police about either party.

   In 2004 a further incident between Mr Bickerton and his mother Ms Bickerton. Argument only. No violence.

   In 2004 Mr Bickerton was named as the perpetrator and Mr S as the AFM in a verbal argument. The AFM would not cooperate with police and left with Mr Bickerton.

   In 2006, there was an IVO naming Mr Bickerton as the respondent and Mr S as the complainant.

   In 2006 there was a verbal argument between Mr Bickerton and his brother Mr C over alcohol. Mr Bickerton left when police arrived.

   In 2011 Mr Bickerton was named as the respondent and Ms M as the complainant and an interim IVO was granted.

   In 2013 Mr Bickerton was named as the respondent in an incident with Ms I (complainant). The application for IVO was made by Child Protection (omitted).

   In 2015 Mr Bickerton was named as the respondent and Ms V and Ms T and Mr D as the complainants.

   In 2015 Mr Bickerton was named as the AFM and Ms R as the perpetrator in a verbal argument. Civil action was advised to Ms R.    

   In relation to Ms Bickerton (complainant) and her former husband Mr P   (respondent) there were family violence reports in 2008 (an IVO was issued) 2003 (an argument and Mr P  was alcohol affected).

   In 2008 Ms Bickerton called police in relation to her son Mr B who would not pay his board. Nil violence recorded.

   In 2008 Ms Bickerton was the AFM and Mr Bickerton the respondent. Mr Bickerton threatened his mother by text message and threw a rock at her car. Mr Bickerton threatened his mother that “you’re dead” and stood in front of her car so she could not leave. He damaged her property, smashing garden lights doors and security camera. An IVO was taken out.

   In 2012 Ms Bickerton and Mr R, Ms S and Mr N were AFM’s and Mr F was the respondent for an IVO. No details of the incident were available.

   In 2012 Ms Bickerton was the AFM and Mr Bickerton the respondent in an IVO initiated by police. Mr Bickerton had threatened his mother and brother that he was going to “off” them. He sent sms messages continuously to her threatening to kill and saying he wished she was dead and that he would damage her house.  The IVO was served on Mr Bickerton in 2013

   In 2014 Ms Bickerton and three of her children were complainants and Mr F the respondent in an IVO.

   In relation to Ms McNamara:

   In 2009 she was a complainant with Ms R and Mr N was the respondent. 

   In 2011 there was a further IVO naming Ms McNamara, Ms A and Ms R as the complainants and Mr N as the respondent.

   In 2014 Ms McNamara was the AFM and Mr Bickerton was the Perpetrator. Neighbours called police because they heard raised voices and banging from the home where Ms McNamara was residing. This was six weeks after the couple had separated. Ms McNamara advised it was verbal only and nil violence or damage.

   In 2014 Ms McNamara was the AFM and her mother Ms R the perpetrator in a verbal argument about the AFM’s dog being allowed to urinate on the carpet of the unit they shared.

   In 2015 Mr Bickerton was the AFM and X was present, and Ms McNamara was the perpetrator in a verbal argument about who was getting up to the baby. Police had no concerns for any party.

   In January 2016 a limited IVO was granted with Ms McNamara and X as the complainants and Mr Bickerton as the respondent. It was in relation to a verbal argument between the parties about the custody and care of X. Mr Bickerton was yelling at Ms McNamara about the inappropriateness of X’s clothing. Mr Bickerton had been recently released from jail. X was included in the IVO. Ms McNamara had described the incident as a “really bad argument” only. 

9. I referred to this during the course of submissions and the fact that the subpoenaed material was before the court, and no one sought to contradict or correct the family report writer’s summary of the subpoenaed material. Despite being given the opportunity to do so, Counsel for the second respondent did not address me with respect to the concerns I raised based on summary of the father’s criminal and family violence history and also his mental health.

10. The difficulties with the second respondent’s submission is that it focused on narrow portions of the Department record and the family report, ignoring the other portions which I have referred to in these reasons. The second respondent annexes his criminal record to his first affidavit and he also annexes a letter from his criminal’s solicitor referring to his appearance before Magistrate White on 1 July 2016. He stated the fact that Magistrate White rejected his submissions that he could be dealt with by way of imprisonment combined with a  community corrections order given his poor history of compliance with orders in the past correction orders and suspended sentences.

11. The applicant annexes the Department’s crisis response and management meeting record of the family led decision-making meeting on 26 May 2016. The Department recorded that second respondent did not attend the meeting arriving just as the meeting was closing, noted that X was that developmentally delayed due to his environment, and that he had an undescended testicle which required treatment however “neither parent had followed up about this.” The applicant did advise that X will need surgery in the future. On page 2 of the report, which appears at page 62 of the annexures to the applicant’s affidavit, the Department records that the second respondent has not engaged with what he had been asked to do with respect to his mental health and substance abuse issues, and that mother had been lazy and had only started to address this recently.

12. The second respondent annexes a report from the mobile forensic mental health services dated 27 July 2017 to his trial affidavit. The report refers to a range of psychological assessments including a neuropsychological assessment and personality assessment conducted by them. It says:

    … based on the information available on the results of the psychological assessments, it seems that at the current time your experiences make the best understood as borderline personality disorder (BPD) and antisocial personality disorder(ASPD) people with borderline personality disorder often have a history of experiencing trauma. You identified with many of the symptoms associated with BPD, including;

    Difficulty coping with abandonment and loss.

    A pattern of intense and unstable relationships

    Expressing inappropriate anger towards others experiencing intense, fluctuating emotions. A fragile sense of self.

    Impossible in risk taking behaviour, such as illegal drug use and antisocial behaviour.

    Black and white thinking.

13. The psychologist goes on to record in the report that at times the second respondent struggled to get to the sessions and found having visual reminders useful. The second respondent was also given information about referrals to psychologists and councillors to assist him on his release from prison.

14. In Stott & Holger & Anor [2017] FamCAFC 152 the Full Court of the Family Court helpfully discusses succinctly the law with respect to the unacceptable risk test. At [34] to [38] the Full Court states:

    The “unacceptable risk” test articulated by the High Court, in the context of disputed allegations of sexual abuse, is expressed as follows in M v M (1988) 166 CLR 69 where the High Court said at 78:

    In devising these tests the courts have endeavoured, in their efforts to protect the child’s paramount interests, to achieve a balance between the risk of detriment to the child from sexual abuse and the possibility of benefit to the child from parental access. To achieve a proper balance, the test is best expressed by saying that a court will not grant custody or access to a parent if that custody or access would expose the child to an unacceptable risk of sexual abuse.

    The “unacceptable risk” test applies also to other forms of risk, including risks to children associated with exposure to family violence.

    In B and B (1993) FLC 92-357 at 79,778, the Full Court described the test as:

    the standard used by the Family Court to “achieve a balance between the risk of detriment to the child from sexual abuse and the possibility of benefit to the child from parental access”. In other words, where the Court makes a finding of unacceptable risk it is a finding that the risk of harm to the children in having access with a parent outweighs the possible benefits to them from that access.

    As an eminent former judge of this Court has said (emphasis added):

    ... unacceptable risk in the High Court’s formulation requires two separate steps. Is there a risk, and is it unacceptable? The concentration by the High Court is upon both the nature and the degree of risk in the particular case. Its formulation is all about balance. In some cases a risk is ‘acceptable’ when balanced against other factors and other orders. The object of safeguards is to convert an unacceptable situation to an acceptable one where that is feasible and is of ‘benefit to the child’ ...

    We accept that where an unacceptable risk is alleged, the court must give real and substantial consideration to the facts of the case and decide whether or not, and why or why not, those facts could be said to raise an unacceptable risk of harm.

    (Footnotes omitted)

The Independent Children’s Lawyer’s submissions

1. The Independent Children’s Lawyer supports the applicant’s submissions with respect to the mother’s time and frequency of that time. The Independent Children’s Lawyer also supports the mother having one overnight period week if the results of the head follicle test are clear. The Independent Children’s Lawyer expressed concerns about the mother’s drug tests. The only clear drug screen the mother provided was in early February 2017. The subsequent drug tests have all been positive for cannabis and the latest drug test which I will mark as Exhibit “A” is positive for both cannabis and methamphetamines. The Independent Children’s Lawyer submitted that these test results are concerning and that the mother needs to know that the Court views it as a serious matter, including the cannabis use. That is certainly true as chronic and/or heavy cannabis use can reduce a parent’s parenting capacity. I am mindful that cannabis stays in a person’s system some months, but it is concerning that she has continued to test positive during these proceedings. The hair follicle test, which the mother has proposed she will undertake, will clarify the extent and currency of the mother’s drug use.

2. With respect to the second respondent’s time, the Independent Children’s Lawyer submitted that the subpoenaed material, which is documented in the family report, is of enormous concern and that at this stage the recommendations in the report should be followed.

3. Counsel for the Independent Children’s Lawyer referred to [65] of the family report which refers to the second respondent’s lengthy criminal history, which is not only in relation to burglary and traffic offences but also weapon offences and violence. At [105] of the family report writer summarises these concerns which include the second respondent’s:

   ·    Drug use;

   ·    Criminal history;

   ·    Brain injury and memory issues;

   ·    Mental health.

1. Counsel for the Independent Children’s Lawyer pointed out that the family report writer did not have the benefit of the psychological assessment which refers to the second respondent as having borderline personality disorder and antisocial personality disorder. The family report writer refers to having called the Department and they advised that they had concerns about the second respondent having any contact with X without there being further assessment. The family report writer goes on to note that “short-term memory problems usually mean a person has trouble learning which poses significant concerns for Mr Bickerton’s capacity to learn from his past mistakes and genuinely rehabilitate.” She went on to observe that he had been named as the respondent in the family violence proceedings with respect to a number of complainants including the mother, her mother, his mother, his brothers and two other women.

2. The second respondent acknowledged that he had produced a negative drug screen since prison and indicated that he undertook drug screens in prison but, as Counsel for the Independent Children’s Lawyer points out, the second respondent’s history is just one concern. It is necessary to consider the whole of the history rather than isolating individual aspects as Counsel for the second respondent urged me to do. Due to these concerns, the Independent Children’s Lawyer submits that the second respondent should spend no time with X on an interim basis. If the Court finds that he should spend time, it should be supervised professionally at a contact centre as Counsel did not think it was appropriate to burden the applicant with that responsibility.

Conclusions

1. With respect to the mother’s time, I accept the submissions of Counsel for the mother and Counsel for the Independent Children’s Lawyer. If the applicant felt unable or unwilling to supervise the mother’s time, it would not be appropriate to force her. She has good reason to be concerned. I am not prepared to order that she supervise twice a week. It is also reasonable to put the time on it that the application seeks as it is very much a stop gap measure.

2. As is clear from these reasons, there are a number of risks identified with respect to the second respondent that would intersect with one another, including his criminal history and periods of incarceration, history with respect to family violence complaints apart from complaints by the mother, his brain injury, and mental health issues.

3. I cannot ignore that there are serious risks to X who is only two years old. Having identified that there are risks to X’s welfare, I must consider whether the risks are unacceptable or whether safeguards can be put in place to make those risks acceptable in the circumstances having reference to the case law of referred to above. No party seeks that the second respondent spend unsupervised time with X in the interim period.

4. I find that there would be an unacceptable risk to X if the applicant was to supervise the second respondent’s time given the very serious concerns about the second respondent and the concern about the applicant’s ability to protect X if the second respondent was to act in such a way to place them at risk during supervised visits. This is not in any way a criticism of the applicant. She is in a difficult position and clearly wants to believe that her son has reformed and be a positive a father figure in X’s life.

5. The next issue is to consider whether or not supervised time at a contact centre would make the risk acceptable. Whilst supervised time at a contact centre does provide a safe environment, and has the benefits of providing reports of observations between the second respondent and X which clearly could be of assistance at the final hearing, it only addresses concerns about X’s physical well-being. It does not address the impact on X of being reintroduced to the second respondent after a period of four months when it may be found that, due to the various risks identified and if established at a final hearing, it is in X’s best interests that he spend no time with the second respondent on a final basis. One issue that will need to be explored, particularly if X remains living with the applicant, is how workable that arrangement would be. I reject the second respondent’s submissions that his case will be unduly prejudiced or rendered nugatory if he is not provided with supervised time pending the final hearing. Clearly that is a disadvantage to him but that cannot be the Court’s concern when faced with needing to protect X on an interim basis. Much of the focus of the second respondent’s submissions are on his perceived rights and the prejudices to him. However, I must make orders which are in X’s best interests based on the state of the evidence before me, which I acknowledge is untested, to best protect him from the second respondent.

6. In my view, before even supervised time at a contact centre can be properly considered between the second respondent and X, he needs to put on further evidence with respect to his mental health treatment and a fuller assessment of his functioning. This should include the impact of his brain injury and memory difficulties, as well as his mental health diagnoses on his capacity to be a safe father figure for a X.  I will not make an order about this. It will be open to him to seek orders in this regard at the directions hearing before the Family Court.

7. I will order that the parties enrol at contact centres with respect to the mother and second respondent. In the event the Family Court determines that there should be supervised time between the second respondent and X, they will not be disadvantaged by not being on the waiting list which is extensive. This is also the reason why the parties seek to be enrolled at more than one contact centre.

Transfer to the Family Court

1. As I indicated to the parties before submissions began, this Court is simply not in a position to accommodate a further five day trial at the expense of the other cases in my docket. The number of cases waiting to be heard such that listing hearings for four days or more has a great impact on the docket and the waiting times for final hearings.  The protocol for the division of work between the Family Court and the Federal Circuit Court recognises this.

I certify that the preceding fifty-nine (59) paragraphs are a true copy of the reasons for judgment of Judge Harland

Date: 15 September 2017