BRAND & HOPPER
[2017] FCCA 1998
•23 August 2017
FEDERAL CIRCUIT COURT OF AUSTRALIA
| BRAND & HOPPER | [2017] FCCA 1998 |
| Catchwords: FAMILY LAW – Interim parenting – competing live with applications – father contending an unacceptable risk of harm posed to child continuing to live with the mother – best interests of child – child live with mother and spend time with father, with protective and other orders made. |
| Legislation: Family Law Act 1975, ss.60B, 60CA, 60CC, 61DA, 65DAA, 65D |
| Cases cited: Goode & Goode (2006) FLC 93-286 Banks v Banks (2015) FamCAFC 36 |
| Applicant: | MS BRAND |
| Respondent: | MR HOPPER |
| File Number: | PAC 1590 of 2017 |
| Judgment of: | Judge Newbrun |
| Hearing date: | 7 June 2017 |
| Date of Last Submission: | 14 July 2017 |
| Delivered at: | Parramatta |
| Delivered on: | 23 August 2017 |
REPRESENTATION
| Solicitors for the Applicant: | Claremont Legal |
| Counsel for the Respondent: | Mr Hodgson |
| Solicitors for the Respondent: | Russo & Partners |
ORDERS PENDING FURTHER ORDER
The child live with the mother.
That the mother be restrained from bringing the child [X] born 2012 (“the child”) into any form of contact with Mr S and/or Mr M whilst the child is in her care.
That the mother shall do all things to ensure that she continues to attend upon therapeutic intervention with her current treating psychologist and follow all recommendations as given by that therapist, including but not limited to, attending upon her scheduled appointments and taking all medications, if so prescribed.
That the mother ensures that the child attends all scheduled appointments with his treating practitioners including but not limited to, psychologists and occupational therapists. The Mother is to ensure that she complies with all recommendations and directions given by the child’s treating medical practitioners.
That within 14 days from the making of these orders, the mother shall give all authorities and consents necessary to the child’s treating medical practitioners and educational professionals to allow the father to discuss and engage with those practitioners in relation to the child’s treatment and medical health.
That the mother and father shall be restrained from making any derogatory comments about the other parent or any other members of that parent’s household or extended family in the presence of the children.
That the mother and father shall be restrained from physically disciplining the child when the child is in their respective care.
That the mother and father are restrained from publication of the proceedings on social media.
That the mother and father shall not consume any alcohol in excess of blood alcohol limit of 0.05 in the presence of the child or by in any way affected by alcohol whilst the child is in their care.
That the mother and father be restrained from consuming any illicit substance when the child is in their respective care.
That the mother and father shall within 14 days from the date of these Orders, contact Relationships Australia (omitted) for the purpose of undergoing parenting courses such as Keeping Kids in Mind and the Triple P Programme.
That the mother shall ensure that she further engage with (omitted family service) if so recommended by any of her current treating practitioners.
That the mother submit to random drug chain of custody urinalysis at the request of the father’s solicitor subject to the following conditions:
(a)That the urine sample be provided under chain of custody to the current Australian/New Zealand Standard and to avoid any doubt that such sample be provided under supervision;
(b)That the text be undertaken within 24 hours of the mother’s receipt of a request in writing from the father’s solicitor to undergo testing;
(c)That there be no more than one (1) request once every six (6) weeks;
(d)That the mother provide to the father’s solicitor the urinalysis results within 48 hours or his receipt of them;
(e)That these requests be at the father’s expense.
The child spend time with the father each alternate weekend in Sydney from 8AM Saturday until 4PM Sunday subject to the following:
(a)Visits shall commence on the first Saturday following the making of these orders;
(b)The father shall collect the child from (omitted) McDonald's Restaurant at the start of time spent and return him to such place at the conclusion of each period
Pursuant to Section 68L of the Family Law Act 1975 the child shall be independently represented and request that the Legal Aid Commission provide that representation.
The solicitors for the parties are to forward copies of all applications, responses, affidavits and any other relevant documents to Legal Aid NSW for the attention and use of the Independent Children’s Lawyer when appointed.
Leave to the parties and Independent Children’s Lawyer to issue more than 5 subpoena for production of documents.
IT IS NOTED IN CONNECTION WITH THESE ORDERS that the judgment of Judge Newbrun delivered this day will for all publication and reporting purposes be referred to as Brand & Hopper.
| FEDERAL CIRCUIT COURT OF AUSTRALIA AT PARRAMATTA |
PAC 1590 of 2017
| MS BRAND |
Applicant
And
| MR HOPPER |
Respondent
REASONS FOR JUDGMENT
This was the hearing of the father’s application for interim parenting orders relating to the child of the relationship, [X] born 2012 (“the child”). The child lives with the mother in Sydney at (omitted). The father lives in the Albury-Wodonga region.
In particular, the father sought an interim order that the child live with him, and spend supervised time with the mother each alternate Saturday and Sunday from 10am to 5pm. The father’s applications were opposed by the mother.
The mother sought interim orders that the child spend time with the father every second weekend in Sydney from 5pm Friday until 5pm Sunday, and for a period of 1 week during the school holiday period, changeovers to be at McDonalds Family Restaurant at (omitted), such proposed orders being set out in her Initiating Application filed 7 April 2017. Further, the mother, following submissions during the interim hearing, proposed certain interim parenting protective orders (see her proposed “Minute of Order Pursuant to Orders dated 11 May 2017”) in the event that the child remained living with her.
The father submits that there is an unacceptable risk of harm posed to the child if he remains living with the mother, and/or spending unsupervised time with her, by reason of, inter alia, the mother’s alleged continued association with Mr S and Mr M; the child’s alleged exposure (and allegedly a victim as well) to family violence by these men; the mother’s alleged inability to adequately parent the child; and the child allegedly self-harming himself in the mother’s care.
The mother submits that there is no unacceptable risk of harm posed to the child if he remains in her primary care, particularly if the Court makes the protective orders referred to above.
The father is aged 33 years and the mother is aged 30 years.
Material relied upon by the parties
The mother relied upon:
a)Initiating Application filed 7 April 2017;
b)Notice of Risk filed 7 April 2017;
c)Mother’s Affidavits filed 7 April 2017, 5 May 2017, 19 June 2017; and
d)Written submissions pursuant to orders dated 8 June 2017 filed on 14 July 2017.
The father relied upon:
a)Response filed 2 May 2017;
b)Notice of Risk filed 2 May 2017;
c)Application in a Case filed 25 May 2017;
d)Father’s Affidavits filed 21 April 2017, 5 May 2017, 10 May 2017, and 6 June 2017;
e)Affidavit of Ms E filed 2 May 2017;
f)Affidavit of Ms K filed 21 April 2017;
g)Affidavits of Ms C filed 2 May 2017, 25 May 2017;
h)Affidavit of Ms A filed 25 May 2017;
i)Father’s supplementary submissions dated 16 May 2017; and
j)Supplementary written submissions pursuant to orders dated 8 June 2017, dated 27 June 2017.
The following exhibits were in evidence being:
a)Exhibit A: Respondent father’s case summary;
b)Exhibit B: Sleeve 3 & 6, (omitted family service); (omitted family service) (folder);
c)Exhibit C: Sleeve 3, (omitted family service); (omitted family service)M1 and M2;
d)Exhibit D: Sleeve 6, (omitted family service), (omitted family service)M1;
e)Exhibit E: Sleeve 4, Department of Family and Community Services, Ms S, psychologist (11 tabbed pages);
f)Exhibit F: Urine analysis of the Applicant mother; and
g)Exhibit G: Family and Community Services (M tabs).
The Court has considered all this material of the parties, including the subpoenaed material, and submissions.
Evidence
The parties’ relationship commenced in about March 2011. They began living together in November 2011 in Western Australia.
The parties moved to Sydney about early 2013. They commenced living with the paternal grandparents at (town omitted). In about August 2013 the parties rented premises in (town omitted).
The father joined the Australian Army in about September 2013. He was often away from home and the mother looked after the child primarily. The father did his training for three months at (location omitted), and then was transferred to (omitted). The father came to Sydney for the Christmas holiday period in 2013. In late January 2014 he returned to the army base in (omitted). At about this time the father broke his ankle in training and was unable to visit the child until his ankle healed. Throughout 2014, the parents effectively communicated and the mother accommodated the child’s visits with the father whilst he was training in the army. The father had regular contact with the child and saw him, whenever he was on leave.
The parties separated in about January 2014. The father moved out of the parties’ residence at (town omitted) and moved into his parent’s residence. The mother and child moved into the maternal grandparent’s home in Canberra in about March 2014. At about this time the father was stationed in (omitted).
In about May 2014, the parties signed a document headed “Minute of Proposed Consent Orders”. That document provided, inter alia that the parties would have equal shared parental responsibility for the child; that the child would live with the mother; that the child would spend time with the father every third weekend, and on other special days and at all such other times as agreed between the parties. A notation to the agreement provided that the father was enlisted in the Australian Army, and his work hours and availability on weekends to spend time with the child may be subject to the demands of his employer.
The mother met her ex-partner Mr S in about April 2014. A child [Y] was born to this relationship on 11 March 2015. The mother and Mr S and the child lived together in rented premises in Canberra from about July 2014. The mother was subjected to extensive domestic violence by Mr S, including an assault in September 2014. She separated from him in October 2014. He was jailed for one year for an assault upon his mother in about November 2014.
In about June 2014, the father met Mr S on a changeover to the child at (omitted), ACT. In early September 2014, the father collected the child from the mother in the ACT. The father noticed the mother had a black eye. The mother provided an explanation to the father that she had been hit by an elbow while she was wrestling for an iPad. The father did not believe this statement of the mother, “but did not want to raise any issue for fear that she would not let me see (the child)”.
According to the father, throughout the 2015 year, the parties had a good communicative relationship, and the mother promoted the child’s relationship with the father. The usual contact regime was that the father had contact with the child every second weekend from Friday to Sunday, however the contact regime had often changed due to the father’s army commitments.
In March 2015, when the child [Y] was born, the mother told the father that [Y]’s father was Mr S. The mother informed the father that Mr S was not present at the child’s birth as he was presently in jail for assaulting the mother and somebody else.
In about June 2015, the father was transferred to an army base in Queensland.
From about late June 2015 to about mid-February 2016, the father’s new partner Ms E and the mother were very friendly and often communicated with each other and exchanged pictures of the children.
The father spent time with the child during the weekend of 1 May 2015, 29 May 2015, 24 July 2015, and 21 August 2015.
In about July/August 2015 the mother moved to Sydney with the child and [Y], and she began renting premises in (omitted). The father continued to spend time with the child every second weekend, and also some school holiday time.
In October 2015, the mother resumed her relationship with Mr S. The domestic violence incidents continued and the mother separated from him finally in December 2015. The police facts document, in relation to alleged assaults upon the mother in about mid-November 2015 and late November 2015, alleges that the mother was assaulted in the presence of the child, and on another occasion the child was locked in a room by Mr S until eventually the child was released from the room to the mother. The fact sheet suggests that the mother acted protectively towards the child. The fact sheet states that the mother reported the incidents to her case worker at (omitted family service) shortly after they occurred.
On 19 November 2015 a protection order made in the Magistrates Court of ACT on (omitted) 2015 was registered in the Local Court of NSW at (town omitted).
In about early February 2016, the mother telephoned the father and told him that an incident had occurred when Mr S had been smacking the child, the mother intervened, she was assaulted, with the child being pushed off the mother by him. Following this information, the father requested to leave the Australian Defence Force to care for the child, stating his concerns in particular in relation to Mr S.
By mid-February 2016, the father had made up his mind that the child needed to live with him for safety reasons.
On 12 March 2016 the father spent time with the child at the mother’s residence for the child’s birthday party.
On the 26 March 2016, the mother informed the father that Mr S had been sentenced to jail for 14 months with a seven month non-parole period. She also informed the father at this time that she was concerned that the father would take the child from her. She asked the father to decide what he was going to do and to let the mother know. The mother stated that the child needed the father in his life. After this time until about late May 2016, the father did not spend time with the child.
The father spent time with the child on 22 May 2016 in the presence of the mother.
In July 2016 the father left the Army and temporarily relocated to Sydney.
On 19 July 2016 the mother said a text message to the father requesting that the father promise that he will return the child to her on Sunday. She stated that for the child to be taken away from the mother and his little brother would be very traumatic for him.
On 19 August 2016, the mother told the father that the child was consulting with this Ms S, psychologist at (town omitted). On this day the father collected the child from the mother’s residence. The mother requested the father to take the child for several weeks, which occurred. About the end of this period the father met the mother’s new boyfriend Mr M. The father ascertained that this person had been released from jail previously.
In about November 2016, the child was being cruel to a cat. The mother took action to deal with the behavioural issue and raised the issue with the child’s psychologist. The father also spoke to the child. The mother gave the cat away. (Ms C alleges that the mother was lying about the child and the cat).
On 13 December 2016 the parties attended the (omitted) Hospital for an appointment with the child’s paediatrician.
On about 15 December 2016 the mother informed the father that she did not feel comfortable with the child going with the father to Albury until Court orders were in place. The mother told the father it will be much better for the child if the parents could work together to co-parent him.
On 20 December 2016, the mother confirmed with the father that, “all visitation (with the child) with you has been suspended until you initiate mediation and we agree on consent orders.”
On 3 January 2017, the mother attended the father’s workplace with the child.
The mother dated a man by the name of Mr D. She dated him from January 2017 until March 2017.
On 10 March 2017 the father telephoned the police stating his concern about the safety and welfare of the mother, the child and [Y]. The next day the father was informed by the police that they were safe.
Mr S was jailed for a period in 2016 in relation to an assault. He was released on about 27 December 2016.
In about mid-March 2017 the father moved into a residence at (omitted), NSW. This is in the Albury/Wodonga region.
The father alleges that in at least March 2017 the mother was seeking to contact Mr S through Facebook under a pseudonym, which the mother denies.
On 31 March 2017, the clinical psychologist, Ms S, informed the father that the child was no longer in treatment with her. She advised that the child’s last appointment with her was 10 January 2017. She stated that at that consultation she observed the child during play and noted he enjoyed playing with familiar toys and was excited about going to school in the new term. She stated that as the child did not have a current referral or any further appointments, she made no plans for further treatment
On 5 April 2017, the father retained the child without the consent of the mother. He travelled to Albury by car with the child from Sydney. The father sent a message to the mother stating that the child was now away from violence, ever-changing new partners and instability.
The mother took the child back into her care on 20 April 2017. She alleges that she and her stepfather drove to the father’s residence. They followed the father’s car. The father pulled into a service station car park. He left the vehicle and locked. The mother approached the car to see if the child was in the car. The child allegedly said to the mother, “Mummy… are you taking me home now?.” The mother unbuckled the child from his car seat and she alleges the child cuddled her tightly. A short time later, according to the mother, she informed the father by text message that the child was safe and sound and on the way home.
Mr S was released from jail on about 27 December 2016. The mother asserts that she has not seen Mr S since this time, and she has no intention of resuming a relationship with him. The mother obtained an Apprehended Domestic Violence Order protecting herself initially, and later the child, from Mr S. The order was made a final order in about September 2015 and was to be in force for a period of two years. The mother asserts that he has no contact with the child “due to safety reasons”.
The mother became concerned that the father would not return the child to her care because he wanted an order that the child live with him. The mother made the decision not to allow the father to continue spending unsupervised time with the child for fears that he would not return him to the mother.
In about December 2016, the mother moved from the house in (omitted). She asserts that she did not want Mr S to know where she lived, as he was coming out of jail. She moved into a home at (omitted).
The mother engaged with (omitted family service) from about late 2015. The (omitted family service) caseworker was Ms U. Annexure E to the Affidavit of the mother filed 7 April 2017 is a letter from (omitted family service), signed by Ms U, and stating, inter alia, that Ms U had been meeting the mother in her home “over the last year and a bit.” Ms U stated that she enjoyed visiting and interacting with the mother’s family. She appreciated the mother’s willingness during these visits to share her personal world with Ms U. Ms U stated that she was sending the letter following “the closure of the file here at (omitted family service)”. She stated that she wanted to acknowledge that the mother’s family had made great progress; in particular she wanted to acknowledge the mother’s bravery in protecting her boys from conflict; “you have made some very brave and considered decisions since we have known you that I know weren’t easy for you.”
The mother attended a Triple P – 2 to 12 years Positive Parenting Program (Level 4 Group), having completed 5 of 6 sessions (11.5 hours of 14 hours) in 2016.
The mother attends upon a counsellor through Victims Services for post-traumatic stress disorder caused by the abuse perpetrated upon her by Mr S. She sees Ms S from (omitted psychological service) in (town omitted). The mother saw this counsellor on a fortnightly basis throughout 2016. She stated she was next due to see her in May 2017.
The mother takes medication on a daily basis for the post-traumatic stress disorder. She is prescribed this medication by a GP in (omitted).
The father was hospitalised in about early 2014. The mother alleges that the father telephoned her at this time stating he was in hospital and he was on suicide watch. The father denies this allegation and states that he was in hospital due to stress related to, inter alia, the information he says he was receiving about the child.
According to the mother, the child suffers from attention deficit hyperactivity disorder and was diagnosed in 2017.
In February 2016, the mother took the child to a paediatrician for an assessment at (omitted) Hospital. The assessment noted that the child was attending School A to half days a week. The assessment recommended that the child continue to see a psychologist through play therapy; the child displayed features consistent with hyperactivity, and the assessors would like to see how the child progresses with behavioural management. The report refers to the mother describing difficulties with the child’s behaviour, including tantrums when the child can get quite violent towards the mother, and a previous problem with the child hitting the younger brother “which has recently ceased”.
On 8 March 2016 (omitted) Preschool came out to the child’s preschool and did an assessment for autism and ADHD. The child presented as a happy, bright and active young boy who appears to enjoy his time at preschool. His cognitive skills, fine motor skills and language skills all appeared to be that developing within age expected range. The child presented with a short attention span and he had difficulty keeping still. He showed an interest in play and social interactions, although had difficulty maintaining focus and attention. Certain recommendations were made by the Early Childhood Screening Service.
On 24 May 2016 the mother caused the child to have a Comprehensive Occupational Therapy Assessment at (omitted therapy centre). Inter alia, the assessment indicated the child had significant difficulty with social and emotional skills, generally age-appropriate imaginative play skills but difficulty persisting with play. Recommendations were made as to further occupational therapy, consideration of a further year of preschool in 2017 and entry upon the National Disability Insurance Scheme.
In December 2016, the mother took the child for a further assessment by a paediatrician at the (omitted) Hospital with the problems noted as Complex Behavioural Issues – hyperactivity, short attention span, Challenging behaviours – tantrums, and Speech delay – expressive. The mother reported that she had been at (omitted) Early Childhood Interventional Service who did an assessment on the child on 8 March 2016 and the report indicated that the child had difficulty maintaining focus and attention. She reported that the child further had an occupational therapy assessment from (omitted therapy centre) on 24 March 2016, which showed that the child had mild fine motor delay, significant difficulty with social and emotional skills and difficulty with some personal care skills. The mother stated that in spite of trying all the possible behavioural management strategies, the child continued to be inattentive and hyperactive. She referred to the child’s tantrums almost every day, which could last up to 20 minutes. He calms by himself after some time. The mother reported that the child’s father visits the child once every fortnight on the weekend. She reported that there had been no behavioural concerns at school. On examination, the child appeared well. He was able to sit on a chair for most of the consultation. Some recommendations were made.
On 16 January 2017, the mother caused the child to have a further paediatric assessment. At that assessment it was noted that the child attends prep school on Mondays, Tuesday and half Wednesdays at School B, who have noted that the child is not yet ready for school, so he will be starting school in 2018. It was noted that the main concern had been around the child’s behaviours, particularly around his ADHD-like symptoms. It was noted that the mother is supported by (omitted family service), and the paediatrician stated that, “considering the vulnerabilities I have no hesitation in stating that she needs ongoing supports.” The paediatrician noted that the mother has attended the Triple P parenting course with Ms N and has developed a lot of good strategies to manage the child. The paediatrician stated that he thinks the child clearly has ADHD like behaviours. The paediatrician’s report was noted to be sent to Ms U at (omitted family service).
The mother states that she has ensured that the child attends all of his medical appointments.
The mother is studying a bachelor of education through (omitted) University. She started the degree in 2016. She has deferred for a period. She has a diploma in (omitted) obtained through TAFE NSW in 2016.
The Court also refers to additional affidavit material referred to in its discussion below within the section 60CC considerations.
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 v Marvel [2010] FamCAFC 101; (2010) 43 Fam LR 348 the Full Court (Faulks DCJ, Boland and Stevenson JJ), discussed the problems associated with making findings on disputed evidence as follows:
[120] As has frequently been emphasised interim parenting proceedings, and orders made as a consequence, are a necessary but temporary measure until all the evidence can be tested, evaluated and weighed at a final hearing by the making of final parenting orders. Decisions judicial officers have to make in interim proceedings are difficult and, often for very good reason, a conservative approach, or one which is likely to avoid harm to a child is adopted. This is often to the understandable distress of a party who may not achieve the outcome he or she desires, or thinks to be in the best interests of their child or children. Interim parenting orders are frequently modified or changed after a final hearing, and any allocation of parental responsibility made at an interim hearing is disregarded at the final hearing (s 61DB).
[122] In SS & AH [2010] FamCAFC 13 the majority (Boland and Thackray JJ) discussed at paragraph [88] of their reasons the care necessary to be exercised in making findings in interim parenting proceedings. Their Honours said:
In our view, findings made at an interim hearing should be couched with great circumspection, no matter how firmly a judge’s intuition may suggest that the finding will be borne out after a full testing of the evidence.
[123] Later, at [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) FLC 93-654 said at 80, 332:
[80] As would be immediately apparent, this approach enables the Court to appropriately and carefully deal with contentious issues relevant to the welfare of the child, and for those issues to not be ignored.
The Court also refers to the recent decision of the Full Court of the Family Court of Australia in Banks v Banks (2015) FamCAFC 36, especially at paragraph 46 to 52.
Section 60B of the Family Law Act 1975 (Cth) (“the Act”) sets out the objects of Part VII of the Act relating to children that inform the making of parenting orders.
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 65DAA (3)) with the parents, unless contrary to the child’s best interests as a result of consideration of one or more of the matters in section 60CC, or impracticable.
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 would appear to have a meaningful relationship with the father and would benefit from a continuance of that relationship.
The mother has been the primary carer of the child since birth to date. The child would appear to have a meaningful relationship with the mother and would benefit from a continuance of that relationship, subject to the child not being exposed to physical or psychological harm from being subjected to, or exposed to, abuse, neglect or family violence in her care.
Although there is material before the Court indicating difficulties that the mother has had in her relationship with the child, particularly in the context of parenting him, there is positive material relating to steps the mother has taken, in particular with the assistance of (omitted family service), consultations with a psychologist, and the participation in the Triple P parenting course, with a view to dealing with those difficulties and with some apparent positive results.
In the view of the Court, at this interim stage, there would appear to be a real risk that the child’s meaningful relationship with the mother will be detrimentally affected if the child is taken out of her primary care to live with the father, who lives in Albury/Wodonga region.
Further, at this interim stage, the Court is of the view that to accede to the father’s proposed interim order that the child spend supervised time with the mother would also carry the real risk that the child’s meaningful relationship with the mother would similarly be detrimentally affected.
At this interim stage, should the child remain in the mother’s primary care, and spend fortnightly weekend time with the father, the child’s meaningful relationship with the father should not be detrimentally affected.
The Court refers to its discussions below under the need to protect primary consideration, relating to the Court’s view that there should be no unacceptable risk of harm to the child in remaining in the mother’s primary care provided certain protective orders are made by the Court.
The Court gives significant weight to this meaningful relationship primary consideration.
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.
The father asserts that there is an unacceptable risk of the child being exposed to abuse, neglect or family violence if he remains in the primary care the mother; the father submits that the necessary protection of the child justifies an interim order that the child only spend supervised time with the mother.
The Court has considered all the Affidavit material and tendered subpoenaed material in this context. A significant portion of this material relates to the difficulties that the mother has experienced in her personal relationships with 2 men, Mr S and Mr M, and their impact upon the mother’s household, her difficulties in parenting the child (who has particular needs) and the mother’s involvement with (omitted family service) in relation to addressing these difficulties. A significant portion of the father’s material and his witnesses are disputed by the mother.
The father caused to be filed Affidavits from a Ms C and Ms K. Those Affidavits allege, inter alia, that the mother displayed poor parenting skills when with the child and did not have a close relationship with him. The mother significantly disputes the allegations of these witnesses, and alleges that both witnesses are friends of Mr S and that Ms K has formed a relationship with Mr S, the mother’s former partner. It is noted that Ms K states that she had been a good friend of Mr S for the past 10 years. Ms K also states that she became good friends with Ms C. It is noted that Ms C refers to the mother asking her to come with her to her playgroup; when Ms C arrived, she noticed that it was a different playground and it was for people in the (omitted family service) Program.
On 23 April 2017 the father asserts that the mother forwarded to him screenshots messages of communication between Mr S and the mother “creating a false Facebook profile saying it was Mr S”; the mother , in response stated that she did forward copies of Facebook messages from Mr S to the father so that the father would know that Mr S was trying to get back at the mother.
The mother asserts that during her relationship with Mr S she observed him create several fake Facebook accounts; he would then send messages to people who he would call his “victims” under these accounts. He would then take screenshots of those conversations and send them to the victim’s family in an attempt to embarrass them. He called this “ruining” someone. The mother asserts her belief that Mr S has created fake Facebook accounts to make it seem like the father’s alleged Facebook conversations between the mother’s former friends Ms K and Ms C belong to the mother.
The mother alleges that on 22 April 2017, she received a Facebook message from Mr S confirming that Ms K is now in a relationship with him and that she has made a false statement to support the father.
The father’s partner alleges that the child told herself and the father that the mother had pushed him out of a window and hurt himself. In Exhibit G, the subpoenaed records of the Department of Family and Community Services, there is reference to a contact record for this alleged incident which states, inter alia,
“Mother allegedly threw (the child) out of a window causing an injury. No date is provided, no injury described and no further contractual information given. A history check could not locate this particular incident.”
Ms C in her Affidavit filed 25 May 2017, alleges that on 20 May 2017, outside her workplace, she observe the mother standing next to Mr M, who was holding the child in his arms. The mother responds by stating that she was not at (omitted) shops on 20 May 2017 however she was at those shops on 22 May 2017 and she met with Mr M, his girlfriend, and his mother for lunch. The mother states that apart from that occasion, she has not had any further contact with Mr M.
Ms A, the father’s solicitor, in her Affidavit filed 25 May 2017, states that in the proceedings before the Court on 11 May 2017, the mother’s solicitor informed the Court that the mother no longer associates with Mr S and Mr M.
On 31 May 2017, the father spoke to the child on the telephone. They spoke about the child’s football team. The father overheard the mother to talk about a friend of the child’s called [C]. This child [C] is the son of Mr M.
The mother asserts that after 27 May 2017 the father has been talking to the child each Wednesday at 6:30 PM.
Exhibits
The Court refers below to aspects of the subpoenaed material tendered. It does not propose to refer to all such material which is of considerable length.
(omitted family services) (Exhibit B)
Again, the Court notes that the mother annexed a letter dated 3 April 2017 from this organisation to herself, annexure B to her affidavit filed 7 April 2017, signed by caseworker Ms U, who had been meeting with the mother in her home over the last year, and confirming that the (omitted family service) file in relation to the mother’s family had been closed.
Tab 1 , being a NSW Police Force document from its Child Well-being Unit, in relation to the child [Y], addressed to Ms U and dated 21 October 2016, stated, inter alia, that the unit had undertaken a preliminary risk assessment of the child [Y] not to be at risk of significant harm. The information in the document stated, inter alia, that the mother and Mr M had been previously “in a domestic relationship between July and August 2016”. (The mother stated that she had previously dated this man). The information provided by the unit included reference to an incident on about 7 October 2016 when Mr M sought entry to the mother’s premises which she denied. Mr M became angry and threw a glass beer bottle at the glass window near the front door which smashed. The child [Y] was in the near vicinity when this occurred. They record that a short time later Mr M had sent a message to the mother apologising. The information further provides that the mother did not wish to have any further contact with Mr M.
A (omitted family service) document in Tab 1 refers to its practitioner as being Ms U. It is dated 4 January 2016. The document refers to the mother’s problems with Mr S. It refers to the mother coping intermittently with the child’s behaviour. It states that the mother’s coping skills have not been fully explored by Ms U.
Tab 9 refers to Mr M having been involved in a car accident in June 2016 and suffering a serious brain injury. It refers to an occasion when he returned to the mother’s premises and the mother reported that he was affected by drugs. The mother asked him to leave the house and find alternative accommodation. The document refers to the police becoming involved with the above incident on 7 October 2016 after the mother rang the police.
Tab 4, being an email from a child protection caseworker with the Department of Family and Community Service to Ms U of 12 September 2016 refers to the child [Y] being admitted to hospital having had a seizure and a bit of a temperature earlier that day, having seen his GP who had advised the mother to watch the child. The mother had called an ambulance. The document refers to an examination of the child and him appearing to be well cared for and the mother being appropriate with him. The mother left the hospital with the child [Y] at 4AM. There is reference to the mother having had issues with anxiety and depression and needing to go home and take medication.
A further document in Tab 5 refers to Ms U being the (omitted family service) practitioner as at 18 November 2015, with the document referring to the mother’s problems with Mr S, particular in late 2015.
A further document in Tab 5, headed [Y] – Child Needs/Strengths, page 50” refers, inter alia, to the child [X] having
“outbursts of emotion and although (the mother) has changed her parenting and is more nurturing and supportive of [X] this has not always been the case. There have been periods where (the mother) struggles with [X]’s behaviour and resorts to yelling at [X].”
Tab 6 documents referred, inter alia, to the mother reporting that she struggles with her relationship with the child, interacting with him and comforting him. The caseworker states,
“there is still work to be done to support (the mother) in her parenting with [X] and her understanding of [X]’s behaviour. (The mother) has in the past looked at a possible diagnosis of ADHD for [X] to explain [X]’s difficulties, she is now becoming more aware that [X]’s difficulties maybe stemming from trauma (in witnessing domestic violence) and attachment related difficulties.”
A further Tab 6 document refers to the mother
“coping better with her difficulties with [X]’s behaviour and has been observed as being less overbearing and scary. (The mother) has good insight into the roots of the difficulties she has had with [X]’s behaviour and is open to discuss ways to resolve or manage this, she has also asked for help with her relationship with [X].”
The document further refers to the mother having a complicated relationship with her extended family and that she is able to speak to her mother on the telephone “and (the mother) has talked about this recently as a positive”.
A further Tab 6 document refers to the child continuing
“to be very sensitive and still struggles to contain emotions. Observations on home visits are that this is improving and that he is able to follow instructions and show enjoyment in task and showing off toys that he enjoys…. [X]’s preschool teacher has reported that emotionally [X] is improving, he separates well from (the mother) at school but can become upset if the separation of school is prolonged.” “The relationship with Mr M had elements of conflict and they have subsequently separated. The house is calmer and free from conflict currently. [X]’s relationship with (the mother) is improving, she has committed to review the Triple P training that she completed and is working on a rewards chart with him.”
A further Tab 6 document refers to the child [Y]
“appears to have a stable relationship with (the mother) and is able to be comforted by her when he is upset. He has a normal sibling relationship with [X] where sharing can sometimes be an issue…. [Y] has been diagnosed with childhood epilepsy, he is now on medication for the control of this. [Y] has not had a seizure since commencing on this medication.”
A further Tab 6 document refers to the mother continuing
“ to put the Triple P parenting strategies into practice for [X], she has been observed as being calmer and more patient with him. (The mother) has followed through with health care for [X] and [Y] during this review period… (The mother) has discussed recommencing counselling for herself and for [X]. Follow-up sessions with Ms N had been suggested for (the mother) but she has decided against these, opting instead to go over the Triple P techniques and workbooks herself.”
A Tab 7 document refers to the mother having been diagnosed with depression and anxiety, she is on medication which she takes readily and sees her GP regularly. Since re-partnering she has suffered five (5) panic attacks, she has agreed to go to her GP and have a mental health review.
A Tab 8 document refers to Mr M. It also refers to the (omitted family service) caseworker having been in communication with the mother’s GP who has confirmed that the mother was seen for a review and disclosed the panic attacks.
A further Tab 8 document refers to the child’s first appointment with Ms S from (omitted psychological service) on 11 July 2016. A further document refers to an action plan developed on 12 September 2016 regarding [X] and [Y] living in a calm environment free of conflict.
A further Tab 8 document refers to an action plan developed on 14 April 2016, and the child [X] starting (omitted sport) on a Saturday morning.
Further documents in Tab 8 refer to the caseworker Ms U and the closure of the file 3 April 2017. The Reason for Closure of the file is stated as being, “Goals Achieved”, and additional information stated, the
“(the mother) has demonstrated significant changes to improve the welfare and safety of her children while she has been connected to the (omitted family service) program. (The mother) feels she is now capable to connect to appropriate child specialist services when required for support for parenting.”
Caseworker Ms U is noted to have signed the closure of the file on 3 April 2017, with team leader, Ms B, also signing the closure on this date.
Tab 11 refers to, inter alia, concerns for the child
“as he has inserted objects into his bottom on two occasions…(The mother) has been asked to and encouraged to take (the child) to the doctor about this but not as yet. She has told Case Worker the children taking him to the doctor on 19 November.”
(The Court interpolates here that there is no reference to the child injuring himself in this context)
A Tab 12 document refers to a safety assessment on 19 April 2016 with the mother having “plans in place to work on her parenting and attachment with the child [X], she is committed to making the home safer for the children.”
A further Tab 12 document with the heading “[Y], 24 February 2017”, page 119, the Family/Caseworker Response states, inter alia, “In (omitted family service) interactions with (the mother), [X] and [Y], there have been no concerns about the care of [X] or [Y]. There has not been concerns that (the mother) is using any drugs. ..”
A further Tab 12 document for the date of a meeting with the mother on 8 September 2016, refers to Mr M having left a rehabilitation Hospital, where he was being treated for a serious car accident, when he was in a coma for a month, then an inpatient for another two months, and coming to reside at the mother’s residence. The document refers to the pressure that has been added to (the mother’s) life since Mr M has started to live in her household as being immense. A Safety Plan was developed and agreed to that Mr M will be supported to find alternative accommodation.
A Tab 13 document for 16 March 2017 refers, inter alia, to the mother continuing to use Triple P techniques.
A Tab 14 document refers to a home visit by the caseworker on 3 February 2017; the child and [Y] were at home. The child was given colouring in and he happily coloured in for the time that the meeting took place (proximally 45 minutes). The child asked the caseworker to help colour one thing in – but did not disturb the meeting. The child [Y] bought cars to the caseworker and played with these. The document refers to the mother having had contact with Mr S, but that this has not been harmful or threatening, and she reported that she feels like she has taken steps to protect herself and the children. (The Court interpolates here that the nature of the mother’ s contact with Mr S is not clarified in this entry in the document, nor as to which party instigated such contact)
A further document dated 30 January 2017 refers to the caseworker’s contact with the child’s preschool which reports that he has settled in again to preschool this year: they reported that emotionally the child has improved, and he is separating well from the mother in the morning.
A Tab 16 document for 3 November 2016, refers to the mother “dating” Mr M but that the mother reports that they are not seeing each other as much and Mr M is not relying on the mother as he had. The mother refers to there being no conflict or upset seeing Mr M, and that he has his own place in (town omitted).
The Tab 18 documents, inter alia, referred to an entry for 21 September 2016, “(the mother) said that (Mr M) had made some threats to her and another person ((the mother) said Mr M’s drug dealer), had also contacted her in relation to him moving out…..” (The Court observes here that this reference would not appear to be a statement that the mother told the caseworker that Mr M was a drug dealer but that he had an association with a drug dealer).
A further Tab 18 document refers to a conversation between caseworker Ms U and the father with the father confirming that he has the child for the month now. The father refers to the child seeming fine – he has a cuddly toy that the mother had given him for the night and the father said that he had not asked for it.
A Tab 19 document for 7 July 2016 refers to a home visit by the caseworker to the mother’s residence; the child dropped a small amount of food on his lap and immediately screamed and cried. He was very distressed. The mother calmly got a towel to clean up his clothes, she knelt down and cleaned him up and then warmly hugged him. He was calmed by this and went back to eating.
Ms S, psychologist: Exhibit E
Tab 5 is a document from the Department of Family and Community Services, dated 4 May 2017, addressed to the psychologist and thanking her for contacting Community Services on 2 December 2015 about the child and [Y]. The letter states that the “risk of significant harm” report has been forwarded to (omitted) Community Services Centre for triage and assessment.
“This assessment may result in referrals, review of/or obtaining additional information and discussions with other services involved prior to making a decision about allocation or closure.”
Tab 6 and 7, for periods during 2016, refers, inter alia, to the (omitted family service) caseworker, Ms U, speaking to the psychologist in relation to the family. In August 2016, Ms U refers to a meeting with the child and the mother, where the session focused on important people in the child’s life. The child’s emotions were explored with him expressing happiness in visiting the father, being sad to leave the mother, and identified other caring people being missed Ms U, the caseworker. The psychologist refers to a discussion with Ms U referring to the mother’s difficulties coping with university, work placement, the child’s behaviour, and the mother’s new relationship.
A Tab 8 entry for a 10 January 2017 consultation with the psychologist, refers to the mother reporting the child “on the go” after returning from visits to the father in Albury. The mother felt the long car trips were too long for the child and he was restless at home, on edge. No contact with the father for a few weeks and reports that the child’s behaviour has settled. Behavioural charts working at home.… Reports once contact with the father stopped (the child) was calmer at home, sleeping in his own bed again. The mother reported the child slept in her bed for a month after the four weeks with the father. The mother wants a routine regarding contact with the father. In session the child asked for particular toys he was familiar with, he was responsive to instruction from both the psychologist and the mother, he reported feeling happy and looking forward to school.… Discussed option of the child being referred outside of practice so that the mother could re-enter treatment.
A Tab 8 entry for 2 February 2017 refers to the psychologists telephone discussion update with caseworker Ms U regarding the child and the mother. Ms U stated that she was still engaged with the family. The child had seen another paediatrician who discussed the issue of ADHD. Ms U would speak with the school regarding the child’s current needs.
The Tab 11 document, being the psychologist’s report of 13 September 2016 to the GP, states, inter alia, that the child was seen for assessment on 12 June 2016, and had been seen for a further 4 sessions in conjunction with the ATAPS referral. It states that the mother and staff at the child’s preschool had expressed concern about a number of behavioural issues including poor retention, difficulty following instructions, and outbursts where it is difficult to calm him down.… Psychological treatment had focused on assessment of behavioural issues and building parenting skills around managing the child’s behaviour and emotions. The mother was also attending the parenting Triple P course in addition to individual therapy. The child’s progress in treatment had been slow but positive, with the mother reporting some shifts in his behaviour in response to increased consistency in her responses, and a focus on positive reinforcement. The documents states that the child continues to display behaviours including impulsivity, anger outbursts and separation anxiety, and he would benefit from further treatment. The report states that the psychologist plans to continue to work with the child and the parents, with regular appointments on a fortnightly basis. The psychologist states to the GP that she would welcome her re-referral under the ATAPS program to assist in this ongoing treatment.
Family and Community Services: Exhibit G
Tab M4 refers to the child being taken to a paediatrician in relation to his previous attempts to insert toys into his bottom. It was ruled out that the child had worms and there was no bruising to his bottom.
(omitted family services) (omitted family service): Exhibit D
Tab M1 refers to the child showing “an attachment to his mother and will respond when cuddled and comforted. He will respond abruptly when (the mother) shows displeasure in his behaviour if she starts to count 1, 2…”. Caseworker has noted that (the mother) does not have to get to a “3” for the unwanted behaviour to stop. During home visits (the child) is often asked to play outside or in his room – he will ask for help and callout but will stop when (the mother) tells into. He is compliant with her requests. The document refers to the child and the mother having a loving relationship. It is stated that there appears to be respect from the child to the mother and he will generally listen to what she is asking him to do. The child, the document states, had increasingly become wary of the stepfather’s moods and the mother had reported that (omitted) child would “walk on egg shells” around him. Mr S has now left the home. The document refers to the child seeing the father intermittently and had contact with the father’s family more regularly. The mother has said that this is good support for him, they support outside activities for the child such as (omitted).
(omitted family services) (omitted family service): Exhibit C
Tab M1 refers to the child having “outbursts of emotion and although (the mother) has changed her parenting and is more nurturing and supportive of (the child) this is not always been the case…”
One of the father’s concerns in relation to the child remaining living with the mother relates to the mother’s past associations with Mr S and Mr M and her allegedly continuing association with Mr M.
There is material before the Court to suggest that the mother has severed her past relationship with Mr S, although there appears to have been some form of contact between the mother and this man in early February 2017 (see the (omitted family service) material) and there was contact between the mother and this person in April 2017 through the alleged receipt by the mother of a Facebook message, indicating this person in a relationship with another woman. The material before the Court suggesting that the mother is not actively seeking to re-establish a relationship with this person.
There is material suggesting that ultimately the mother took protective action in relation to the child following violent incidents between Mr S and herself, in the presence of the child, and involving the child on at least one occasion. Mr S appears to been jailed again in late 2015. An Apprehended Domestic Violence Order was taken out against Mr S.
Although there is some dispute between the parties, there is material before the Court suggesting that the mother had a fairly short form of relationship with Mr M.
The mother concedes that she met this man, his mother and girlfriend on 22 May 2017 for lunch. The mother disputes Ms C’ allegation that the mother and this man and the child appeared outside her workplace two days previously.
It is arguable on the material before the Court that the mother has not and does not intend to enter into a relationship with this man. The father criticises the mother by reason of the mother’s solicitor having submitted to the Court on 11 May 2017 that the mother was no longer associating with Mr M, however the mother’s assertion of a casual lunchtime engagement with this man, his mother and girlfriend, is arguably not inconsistent with this submission.
There is further material from the mother arguably indicating her understanding that formal Court orders restraining her from bringing the child into contact with Mr S or Mr M had not yet been made. The submission by the father that the mother has given inconsistent evidence in relation to Mr M being a drug dealer is not clearly shown by the material before the Court, and referred to previously in these reasons, although the Court makes no finding of fact in this context.
The father criticises the mother’s affidavit material as being deficient in revealing full details relating to, inter alia, the mother’s previous relationship with Mr M; violent behaviour by this man to the mother in the near presence of the child, namely the throwing of a beer bottle which shattered into the lounge room of the mother’s residence with the child present; the mother’s parenting difficulties in relation to the child; the children witnessing acts of violence by the mother’s previous partners to the mother; the mother failing to reveal alleged “self-harm” by the child; and the mother allegedly failing to refer to any connection between the child’s behavioural problems and witnessing violence. The Court, without proceeding to make findings of fact, has some doubt as to the father’s contention that the mother’s Affidavit material, clearly reveals a failure to be full and frank with the Court.
Whilst the mother’s affidavit material is arguably somewhat sparse in detail, relating to the above issues, the mother did refer in her Affidavit filed 7 April 2017 to her involvement with Family and Community Services, including the involvement of (omitted family service) and their caseworker Ms U, and her treatment with psychologist Ms S. She referred to having fully engaged with (omitted family service). She refers to her file with (omitted family service) being closed at the end of March 2017 and annexes the closure letter from the caseworker Ms U dated 3 April 2017. Unsurprisingly, after this Affidavit of the mother was filed and served, the father’s solicitors caused subpoenas to produce documents to be issued against (omitted family service), (omitted family service), Department of Family and Community Services, Ms S, and NSW Police. The subpoenaed material in evidence reveals in significant detail the mother’s historical difficulties in relation to her parenting of the child with behavioural difficulties, arguably contributed to by his witnessing, in particular, acts of violence perpetrated against the mother. That material refers to the mother’s voluntary and willing participation with (omitted family service) in relation to adopting strategies to assist her in parenting the child, with what appears to be positive results for both the mother and child.
Further, the health assessment reports (involving paediatricians and others) relating to assessment and treatment of the child’s behavioural problems, instigated by the mother, were annexed to the mother’s Affidavit filed 7 April 2017, and these reports clearly reveal aspects of the child’s behavioural difficulties and the mother’s own difficulties in parenting the child in this context.
The Court refers to the father’s allegation that the child has previously sought to “self harm” by inserting play objects into his bottom, and that the mother has failed to reveal such incidents. Without making findings of fact, and noting that these incidents are clearly revealed in the subpoenaed material from at least (omitted family service), it is not at all means clear that these incidents reveal the child’s intention to hurt himself. The material suggests that the mother attended upon a paediatrician with the child in relation to these incidents with no overt injury revealed to the child.
The Court should also observe at this interim stage that there is material before the Court suggesting the father’s awareness from about September 2014, and leading up to the father retaining the child without the mother’s consent on 5 April 2017, of numerous matters relating to the mother’s former partners, the mother and the child.
The father ascertained in about September 2014 that the mother may well have been subjected to family violence at the hands of Mr S, having observed the mother’s black eye at that time and not believing the mother’s innocent explanation for it. Then in March 2015, when the child [Y] was born, the mother appears to have informed the father that Mr S was this child’s father and that he was presently in jail for assault. The father was spending time with the child during 2015. In February 2016 the mother informed the father of a physical altercation involving Mr S, the mother and the child. The father apparently formed a view at about this time that the child needed to live with him for safety reasons. In late March 2016 the mother informed the father that Mr S had been jailed with a seven month non-parole period. In August 2016 the mother told the father that the child was consulting with a psychologist. The father then spent several weeks with the child in his care. The father met Mr M having ascertained that this man had been released from jail previously. Following the father being informed by the police in early March 2017 that the child and his step sibling were safe, the father having contacted the police at about that time expressing his concerns, the father moved from Sydney to the Albury/Wodonga region.
The Court has noted all the concerns that the father has in relation to the children spending unsupervised time with the mother, including his submissions.
The Court is of the view, at this interim stage, that the child will not be exposed to an unacceptable risk of harm, through neglect, abuse or family violence, in remaining in the mother’s primary care, provided that certain protective orders are made by the Court, outlined below.
The Court notes the father’s submission that the Court would not be satisfied that the mother would comply with any such protective orders as proposed by the mother, including proposed orders restraining her from bringing the child into any form of contact with Mr S and Mr M.
The Court notes the father’s submissions (including his supplementary written submissions of both 16 May and 27 June 2017) in relation to the mother’s alleged lack of veracity in her Affidavits, in particular relating to her contentions in respect to her continued association with Mr M. The Court notes the recent Affidavits of the solicitor Ms A, and the Affidavits of Ms C in relation to the alleged appearance of the mother and Mr M outside Ms C’s workplace on 20 May 2017. The Court notes the competing contentions of the mother in this context.
Based on the present material before the Court, the Court is not satisfied that there is a significant risk that the mother will fail to comply with such proposed protective orders, and in this context, the Court notes, historically, the mother’s engagement with the police, her persistent wish expressed to the father that he enter into a binding parenting agreement in relation to the child, and the absence of any evidence that the mother has failed to facilitate the child spending time with the father pursuant to the Court’s interim consent parenting orders of 11 May 2017. The Court observes that there were in fact no protective restraining orders made by the Court on 11 May 2017, and the father did not seek that such orders be made on 11 May 2017.
The Court’s proposed protective orders are as follows:
a)That the mother be restrained from bringing the child [X] born 2012 (“the child”) into any form of contact with Mr S and/or Mr M whilst the child is in her care.
b)That the mother shall do all things to ensure that she continues to attend upon therapeutic intervention with her current treating psychologist and follow all recommendations as given by that therapist, including but not limited to, attending upon her scheduled appointments and taking all medications, if so prescribed.
c)That the mother ensures that the child attends all scheduled appointments with his treating practitioners including but not limited to, psychologists and occupational therapists. The Mother is to ensure that she complies with all recommendations and directions given by the child’s treating medical practitioners.
d)That within 14 days from the making of these orders, the mother shall give all authorities and consents necessary to the child’s treating medical practitioners and educational professionals to allow the father to discuss and engage with those practitioners in relation to the child’s treatment and medical health.
e)That the mother and father shall be restrained from making any derogatory comments about the other parent or any other members of that parent’s household or extended family in the presence of the children.
f)That the mother and father shall be restrained from physically disciplining the child when the child is in their respective care.
g)That the mother and father are restrained from publication of the proceedings on social media.
h)That the mother and father shall not consume any alcohol in excess of blood alcohol limit of 0.05 in the presence of the child or by in any way affected by alcohol whilst the child is in their care.
i)That the mother and father be restrained from consuming any illicit substance when the child is in their respective care.
j)That the mother and father shall within 14 days from the date of these Orders, contact Relationships Australia (omitted) for the purpose of undergoing parenting courses such as Keeping Kids in Mind and the Triple P Programme.
k)That the mother shall ensure that she further engage with (omitted family service) if so recommended by any of her current treating practitioners.
l)That the mother submit to random drug chain of custody urinalysis at the request of the father’s solicitor subject to the following conditions:
i)That the urine sample be provided under chain of custody to the current Australian/New Zealand Standard and to avoid any doubt that such sample be provided under supervision;
ii)That the text be undertaken within 24 hours of the mother’s receipt of a request in writing from the father’s solicitor to undergo testing;
iii)That there be no more than one (1) request once every six (6) weeks;
iv)That the mother provide to the father’s solicitor the urinalysis results within 48 hours or his receipt of them;
v)That these requests be at the father’s expense.
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.
The Court notes that, according to the father, and his partner, the child has allegedly told them that he finds the mother’s home a sad place. The Court also observes that there is other material arguably suggesting that the child is sad to leave the mother’s care whilst being happy to spend time with the father.
(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)
The Court refers to its discussions above under the meaningful relationship primary consideration. It would appear that the child has a positive relationship with the paternal grandparents, and with (omitted), the daughter of the father’s new partner.
(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
The 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
The Court notes that the Child Support Agency recently accepted the mother’s request to end child support payments for the child from the father; the mother alleges that she made such request due to alleged genuine fears for her own safety, including alleged fears that the father is colluding with persons associated with Mr S and that man himself. The evidence in relation to this additional consideration otherwise is somewhat sparse at this interim stage, although it would appear that each party has maintained the child whilst he has been in their respective care.
(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
The Court refers to its discussion above under the meaningful relationship primary consideration.
(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
The mother lives in Sydney, and the father lives in the Albury/Wodonga region. The Court notes that the Court’s consent interim orders of 11 May 2017 provided that the child spend time with the father each alternate weekend in Sydney from 8AM Saturday to 4PM Sunday, commencing 20 May 2017.
(f) The capacity of each of the child’s parents; and any other person (including any grandparent or other relative of the child), to provide for the needs of the child, including emotional and intellectual needs
Subject to the Court’s discussion above under the meaningful relationship primary consideration, both parties would appear to have such capacities.
(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
The Court notes the material before the Court indicating the child has behavioural difficulties, and has been diagnosed with ADHD-like symptoms. The Court also refers to its discussion above under the need to protect primary consideration.
(i) The attitude to the child, and to the responsibilities of parenthood, demonstrated by each of the child's parents
The Court refers to its discussions above under both the primary and additional considerations.
The Court notes that the evidence presently before the Court, suggests a willingness on the part of the mother, historically, at least for significant periods, to facilitate and maintain the children’s meaningful relationship with the father. However, prior to the commencement of proceedings by the mother, there were periods when the mother did not regularly facilitate the child’s time with the father by reason of what arguably was her fear that in the absence of binding parenting agreements in relation to the child, the father might retain the child against the mother’s wishes.
(j) Any family violence involving the child or a member of the child's family.
The Court refers to its discussion above 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.
The mother obtained the benefit of a form of Apprehended Domestic Violence Order against Mr S on 19 November 2015 from the Magistrates Court of ACT being a two-year order. At a later date the order was extended for the benefit of the child as well. On 2 March 2015 the order was registered in the Local Court of NSW at (town omitted). On 24 March 2016, in the Local Court of NSW at (town omitted), the apprehended domestic violence order made on 19 November 2015 was varied such that it was extended for 2 years from 24 March 2016.
(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 father seeks an interim order that the mother be restrained by injunction from relocating her residence more than 550 km from (omitted) Local Court. There does not appear to be any significant evidence that the mother is proposing to move her residence from (town omitted). At this interim stage, it will not be the best interests of the child to make such an order.
The father also seeks an interim order that the mother be restrained by injunction from engaging the services of any other health or educational professionals to care for the child without first obtaining the written consent of the father. At this interim stage, the court has some concern that such a proposed injunction may well lead to significant conflict between the parties, with resulting emotional detriment to the child. The Court refers to the material indicating the mother’s engagement historically, on behalf of the child, with various health and educational professionals.
The Court has some further concern with the father’s proposed interim order that the parties provide their current residential address to each other, there being some concern that such an order might result in conflict between the parties, with resulting emotional detriment to the child.
Equal shared parental responsibility: section 61DA(1) and (2)
At this interim stage, the father seeks an interim order for equal shared parental responsibility for the child. The mother seeks no express order for parental responsibility.
At this very early interim stage, in all the circumstances, the Court is of the view that it would not be in the best interests of the child to make an express order for parental responsibility.
In any event, by reason of serious historical and contemporary conflict between the parties, and noting their present poor communication and mutual lack of trust, and noting practical issues by reason of the parties’ respective residences, it would not be in the best interests of the child for the parties to care for him in an equal time arrangement.
The Court’s proposed interim parenting order that the child spend time with the father each alternate weekend from 8AM Saturday to 4PM Sunday (being an interim parenting order that the father seeks in the alternate) would not constitute substantial and significant time as defined under the Act, however for practicality reasons, noting the parties’ respective residences, at this interim stage an interim parenting order constituting substantial and significant time would not be in the best interests of the child.
The Court proposes to appoint an Independent Children’s Lawyer.
Summary
Evaluating the above considerations under section 60CC of the Act, the Court is of the view at this interim stage that it will be in the best interests of the child to make these interim orders:
(1) The child live with the mother
(2) That the mother be restrained from bringing the child [X] born 2012 (“the child”) into any form of contact with Mr S and/or Mr M whilst the child is in her care.
(3) That the mother shall do all things to ensure that she continues to attend upon therapeutic intervention with her current treating psychologist and follow all recommendations as given by that therapist, including but not limited to, attending upon her scheduled appointments and taking all medications, if so prescribed.
(4) That the mother ensures that the child attends all scheduled appointments with his treating practitioners including but not limited to, psychologists and occupational therapists. The Mother is to ensure that she complies with all recommendations and directions given by the child’s treating medical practitioners.
(5) That within 14 days from the making of these orders, the mother shall give all authorities and consents necessary to the child’s treating medical practitioners and educational professionals to allow the father to discuss and engage with those practitioners in relation to the child’s treatment and medical health.
(6) That the mother and father shall be restrained from making any derogatory comments about the other parent or any other members of that parent’s household or extended family in the presence of the children.
(7) That the mother and father shall be restrained from physically disciplining the child when the child is in their respective care.
(8) That the mother and father are restrained from publication of the proceedings on social media.
(9) That the mother and father shall not consume any alcohol in excess of blood alcohol limit of 0.05 in the presence of the child or by in any way affected by alcohol whilst the child is in their care.
(10) That the mother and father be restrained from consuming any illicit substance when the child is in their respective care.
(11) That the mother and father shall within 14 days from the date of these Orders, contact Relationships Australia (omitted) for the purpose of undergoing parenting courses such as Keeping Kids in Mind and the Triple P Programme.
(12) That the mother shall ensure that she further engage with (omitted family service) if so recommended by any of her current treating practitioners.
(13) That the mother submit to random drug chain of custody urinalysis at the request of the father’s solicitor subject to the following conditions:
(a) That the urine sample be provided under chain of custody to the current Australian/New Zealand Standard and to avoid any doubt that such sample be provided under supervision;
(b) That the text be undertaken within 24 hours of the mother’s receipt of a request in writing from the father’s solicitor to undergo testing;
(c)That there be no more than one (1) request once every six (6) weeks;
(d) That the mother provide to the father’s solicitor the urinalysis results within 48 hours or his receipt of them;
(e)That these requests be at the father’s expense.
(14) The child spend time with the father each alternate weekend in Sydney from 8AM Saturday until 4PM Sunday subject to the following:
(a) Visits shall commence on the first Saturday following the making of these orders;
(b) The father shall collect the child from (omitted) McDonald's Restaurant at the start of time spent and return him to such place at the conclusion of each period
(15) Pursuant to Section 68L of the Family Law Act 1975 the child shall be independently represented and request that the Legal Aid Commission provide that representation.
(16) The solicitors for the parties are to forward copies of all applications, responses, affidavits and any other relevant documents to Legal Aid NSW for the attention and use of the Independent Children’s Lawyer when appointed.
(17) Leave to the parties and Independent Children’s Lawyer to issue more than 5 subpoena for production of documents.
I certify that the preceding one hundred and seventy-three (173) paragraphs are a true copy of the reasons for judgment of Judge Newbrun
Date: 23 August 2017
Key Legal Topics
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Civil Procedure
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Administrative Law
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Judicial Review
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Standing
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Procedural Fairness
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Natural Justice
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Appeal
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