BRANTON & BIRCH

[2014] FamCA 1125

FAMILY COURT OF AUSTRALIA

BRANTON & BIRCH [2014] FamCA 1125

FAMILY LAW – CHILDREN – Interim hearing – With whom a child lives with – Best interests of the child – Abuse and Family Violence – Where current shared care arrangement in place – Where father alleges the mother poses an unacceptable risk of physical and psychological harm to the child by virtue of alcohol and cannabis use and her toxic neighbourhood – Where court unable to determine contested facts on material – Where court noted a cautious approach often taken but satisfied that still in the best interests of the child to continue the shared care arrangement.

Family Law Act 1975 (Cth) ss 60CC, 65DAA.

APPLICANT: Mr Branton

RESPONDENT: Ms Birch

INDEPENDENT CHILDREN’S LAWYER: Mr. Figg

FILE NUMBER: TVC 129 of 2008

DATE DELIVERED: 19 February 2014

PLACE DELIVERED: Townsville

PLACE HEARD: Townsville

JUDGMENT OF: Tree J

HEARING DATE: 19 February 2014

REPRESENTATION

SOLICITORS FOR THE RESPONDENT: Stevenson & McNamara

SOLICITORS  FOR THE INDEPENDENT CHILDREN’S LAWYER Ruddy Tomlins Baxter

Orders by Consent

1. The Respondent Mother forthwith attend an assessment at ATODS in relation to alcohol and other drug use and submit to any treatment recommended by them.

1. The Respondent Mother submit to any mental health assessment or evaluation that may be required of her by the Independent Children’s Lawyer from time to time.

1. The Respondent Mother and the Applicant Father be restrained and an injunction issue restraining them from:

(a)the use of physical force upon B born … 2007 (“the child”) when disciplining her and the Mother and Father shall ensure that no other person physically disciplines the child;

(b)the consumption of alcohol to excess in the presence of the child and the Mother and Father remove the child from the presence of anyone else who is consuming alcohol to excess in the presence of the child;

(c)the use of any prohibited drugs whilst the child is in either parent’s care and for a period of at least 48 hours prior to the child coming into their care and the Mother and Father shall remove the child from the presence of anyone else who is using prohibited drugs;

(d)taking prescribed drugs in excess of their prescribed dosage whilst the child is in either parent’s care or within 48 hours prior to the child coming into their care; and

(e)denigrating either parent, their respective partners or other children to or in the presence of hearing of the child and will remove the child from anyone else who is denigrating either parent, their respective partners or other children to or in the presence or hearing the child.

AND IT IS FURTHER ORDERED:  

1. That otherwise Application in a Case filed 25 October 2013 by the Applicant Father be dismissed.

IT IS NOTED that publication of this judgment by this Court under the pseudonym Branton & Birch has been approved by the Chief Justice pursuant to s 121(9)(g) of the Family Law Act 1975 (Cth).

FAMILY COURT OF AUSTRALIA AT TOWNSVILLE

FILE NUMBER: TVC 129 of 2008

Mr Branton

Applicant

And

Ms Birch

Respondent

EX TEMPORE

REASONS FOR JUDGMENT

1. Before me is an application by the father seeking interim parenting orders in relation to the child, B, born in 2007.  The current parenting orders which prevail in relation to her were consent orders made by then Coker FM on 7 August 2009.  Relevant to the proceedings before me, those orders provide, in effect, for an arrangement of shared care in relation to the child.  The application before me appears to have been precipitated in consequence of an event which occurred in January of last year during which the mother, who is the respondent to these proceedings, was involved in an altercation with one or more of her immediate neighbours and which culminated in her apparently using one or more stones and throwing them at one of the other neighbours.

2. It appears as though that episode was precipitated by the mother’s belief that one or more of her neighbours had informed police of the fact that there were cannabis plants in her property, which led to the police executing a warrant upon her premises earlier that day.  The mother has pleaded guilty to a number of offences arising from the events of that day and was, in about October of last year, sentenced to one month’s imprisonment in consequence of her plea of guilty.

3. She served about six days of that time before she obtained bail pending the hearing of an appeal in relation to the allegedly excessive penalty which one month imprisonment represented for a person who was said to have been of otherwise previously good behaviour without any other relevant criminal record.  I am not in a position to be able to assess the prospects of that appeal.

4. Although those events precipitated this proceeding, the applicant says that he was unaware of the fact that the mother had been charged, much less pleaded guilty to the relevant offences, and hence the mother’s incarceration in October came as something of a shock to him, particularly because there had been no mention of it to him by the mother, nor had there been any advertence to the prospect of her not being able to care for the child in accordance with the consent orders.  Such a lack of communication is lamentable.

5. However, that has plainly prompted the father to bring these proceedings and he supports his application by affidavits, not only of himself, but also of two of the neighbours of the mother.  In addition, he also relies upon a Family Report which was released to the parties at the end of November 2013.  I will return to the contents of that material in greater detail in due course.  In broad terms, the father’s material asserts that the mother is a regular abuser of alcohol, a regular user of cannabis, that she has difficulty maintaining good relationships with others including her neighbours and family members, and that she is prone to outbursts of anger from time to time.

6. The father’s affidavit descends to some specificity in relation to those allegations, as indeed do the affidavits of Ms C and Ms D, the two neighbours.  However, in broad terms, save for the specific events in January of 2013 which led to the mother’s incarceration, the mother wholly denies the raft of allegations that are made against her, and points to a number of matters including that in the past where notifications have been made to the Department of Communities, Child Safety and Disability Services in relation to her parenting and the alleged risk of harm to the child, those have been found to be unsubstantiated and the child not in need of protection.

7. The father, whose position is supported by the Independent Children’s Lawyer, seeks that the child, the child, lives with him and, instead of the present arrangement where the child would spend one half of her time with the mother, to in fact only spend such time as may be afforded to the mother and the child by the E Town Contact Centre for supervised contact.  In reality, that would amount to something in the order of about four hours a month.  The basis for the father’s application, once analysed, is that the mother presents as a risk of physical and emotional harm to the child by virtue of her alcohol abuse, by virtue of her use of cannabis, and by virtue of the unsatisfactory neighbourhood situation which the father says exists in relation to the street where the mother lives.

8. He and the Independent Children’s Lawyer say that that risk is of sufficient moment on the facts before me to justify a finding that it would be in the best interests of the child that the present arrangements give way to the arrangements sought by the father.  On the other hand, the mother seeks to maintain the present orders which, as I have said, permit each of the parties to spend equal time with the child. 

9. Against that overall background, it is appropriate to now review, in broad terms, the Family Report.  Whilst I do not stay to set out particular paragraphs of that report, it is ultimately the conclusion of the Family Report writer at paragraph [126] as follows:

   If [Ms Birch] is found to currently pose a risk to the child through alcohol abuse or conflicted relationships with the neighbours or both, the use of the children’s contact centre for supervised visits would minimise the risk to [the child].

10. She continued at paragraph [127]:

    However, if this ensues, the child will miss her mother considerably.  Given that the CCS is unlikely to be able to facilitate more than one visit per week, it would be important for [the child] to be allowed other forms of contact with her mother, provided it is safe, such as telephone calls.  Such calls may need to be monitored.

11. Also relevant in this regard are paragraphs [128] and [129] and [130] of the report. 

12. It will be appreciated that the Family Report writer, quite appropriately, stopped short of concluding the level of risk which the mother presently poses to the child, albeit that she identified that the risk, to the extent that it exists, arises from alcohol abuse and relationships with the neighbours or both.  To that, I would add the prospect of use of cannabis.

13. The Family Report writer, as would be expected, spoke with the child the child, who is nearly seven years of age.  She plainly has a good relationship with her mother and her father and that was demonstrated during the course of the writer’s observations.  At paragraphs [114] to [116] of the report, the writer said as follows:

    Although [the child] has never experienced her parents together in a relationship, it is significant that one of her wishes is for them to be together.  This fantasy is not unusual for children with separated parents, even when there has been no relationship to speak of or a short-lived one.  [The child] also spoke about living in the one house.  Although it would appear on the surface that [the child] is coping with living in two homes and that she is able to name positive features of both, her comment could be interpreted as a wish for more stability.

    [The child] demonstrated her feelings of uncertainty regarding the future when she raised her concern of not knowing which house she would be living in.  It appeared [the child] may harbour the idea that she will just be living in one house in the future and, perhaps, she needs to choose.  It can only be speculated as to where her thoughts come from and it may be that she has heard the opinions of one or both of her parents.”

14. In the part of her report which dealt with her observations of the child, the Family Report writer initially noted that she presented as a bright and bubbly child and that she identified many positive aspects of living at her mother’s house.  They include animals, a friend and the ability to see relatives which I assume to be on the maternal side of the family.  She identified positive features associated with her father’s home as well, including pets and other family members.  She identified that she was worried about not knowing which house she was going to stay in when she got bigger, to which she continued, “I am a little confused because they are both great houses.”  She further worried that “I will miss someone” and “I might never get to see the animals again”.

15. It is plain – at least at present and on the basis of the Family Report which remains, of course, untested – that the child, B, appears not to be presently demonstrating any adverse consequence of either the alleged alcohol abuse of the mother, or the cannabis use of the mother, or – and perhaps even more remarkably – the events of January 2013 and the difficult neighbourhood which it appears she lives in.  I think it is of significance that she identifies, seemingly, only positive things about living at her mother’s house and, indeed, only positive things about living at her father’s house.  As will be seen, in my view that is a matter of some significance.

16. The father, as I have indicated, asserts risks associated with the mother’s present habits and living arrangements.  I propose to analyse those risks in detail.  The first risk is said to arise from her alcohol abuse.  It is difficult on an interim application such as this to resolve the conflict of fact between the parties in relation to alleged alcohol abuse.  The father and his witnesses assert that there is a long history of the mother being drunk and abusive to neighbours when so under the influence of alcohol.  The mother wholly denies it.  Moreover, she asserts that she has been abstinent since January 2013.  That may be so; I do not know nor am I in a position to resolve the conflict of fact.

17. However, it does appear to be the case that there is no instance detailed in the evidence, relied upon by the father, or indeed in the Family Report, of any antisocial or untoward conduct of the mother that would be attributable to her being drunk or otherwise having abused alcohol since January 2013.  It may be that she has learnt her lesson from that day.  It would certainly be much to be hoped for.  Therefore, I am presently not in a position to make any conclusion that the mother presents an unacceptable risk of either emotional or physical harm based upon alleged abuse of alcohol.

18. I turn then to cannabis use.  It is plain that, as at January 2013, cannabis was a component and a regular component of the mother’s life.  She admitted as much in her affidavit and, of course, there is the fact that cannabis plants were found in her possession on that day by the police.  However, she asserts again that this is not a feature of her present life.  This is in conflict with what is reported in the Family Report where the writer recorded that the mother told her that she would have a couple of cones about once a week when the child was not in her care.

19. In his submissions, the solicitor for the mother identified that the mother will dispute that that is, in fact, what she said, or at least to the extent that the Report writer identified that that was a current habit – that that was, in fact, what was intended to be signified or intimated by the mother to the writer.  Again, it is simply not possible for me to determine what present use or abuse of cannabis the mother engages in.

20. At this point, it is convenient to note that, in the course of dealing with the application before me, a number of matters were able to be resolved by consent, including the mother agreeing to submit to an assessment by ATODS and agreeing to undertake any therapeutic treatment which they may recommend, and further, she agreed to submit to psychiatric assessment, should that be required of her by the independent children’s lawyer.  Assessment by ATODS and, indeed, the psychological or psychiatric assessments, will provide real facts and a more sound basis from which conclusions in relation to the mother’s alcohol abuse and drug use can be determined.

21. I should also note that it is unfortunate in the extreme that, notwithstanding the fact that the Family Report writer recommended on 29 November 2013 that the mother attend for an assessment at ATODS regarding her alcohol and other drug use, she declined to do so, albeit that she has now consented to such an order before me today.  Her solicitor told me that the reason for her declining to do so in November had to do with the prospect of her not being able to properly complete the assessment or attend to any recommendation of ATODS because of the prospect of imprisonment interrupting it.  In my view, that explanation is spurious at best.

22. It is, as I say, extremely regrettable that the mother has chosen to be, in my view, somewhat oppositional to a recommendation of the Family Report writer which, had she complied with, would have potentially assisted her case in enabling the court to be confident as to the absence of any present abuse of drugs or alcohol in her lifestyle.  It is to be commended that she has consented to such an order today and, as I say, that process will enable a more confident assessment of her position to be ultimately arrived at by the court.  However, it remains the case that, on the material before me, I am not able to satisfactorily resolve the competing allegations and I am simply not in a position of being able to make a determination that there is an unacceptable risk of harm based upon those behaviours.

23. I then turn to the allegation of a risk of physical and emotional harm arising from the toxic neighbourhood environment in which the mother is alleged to live.  There is considerable material which would suggest that, even if it be unjustified, the neighbours in the street live in fear of the mother.  The mother, of course, denies that she has so conducted herself since January to give rise to any justifiable basis for that fear on the part of at least two of her neighbours, however of course, she is not in a position to deny that they in fact experience such fear.

24. Moreover, there is the undoubted fact that the mother found herself in such deteriorated neighbourhood relationships by January 2013 that she resorted to violence of, it seems, a particularly ugly kind to try and deal with the situation confronting her.  That was, of course, wholly inappropriate.  I should also say that, given that event in January, it is not at all unsurprising that neighbours would have fear of her or, more precisely, fear of the prospect of her unpredictable anger venting again.

25. That said, leaving aside the allegations of stalking and intimidation which two of the neighbours make in relation to the mother, there has not been any further explosion of a violent kind by the mother and there is no allegation of further name-calling or other abuse which the neighbours allege was a regular feature of the mother’s conduct prior to January and particularly on the day of the assault.  I am not persuaded that there has been any repetition of such behaviour.  However, I am satisfied on the preliminary basis which an interim application such as this affords, that the neighbours are indeed in fear of her.

26. That, of course, does not mean that the neighbourhood represents an unacceptable risk of physical or emotional harm to the child.  Indeed, to the extent there is material as to any risk to the child, it is to the contrary.  In Ms D’s affidavit, filed 25 October 2013, at paragraph 8, she said:

    I kept an eye out for the child over the time that I have known her, as I was concerned about [Ms Birch’s] ability to provide her with care.  [The child] is friends with my children and they sometimes play together and buy her presents, etcetera.

27. That, to my mind, far from suggesting that the neighbours represent some form of physical risk to the child, in fact suggests that, if it be the case that the mother has behaved for so long in an antisocial way in the neighbourhood, the neighbours are acutely aware of the possibility that that would impact upon the child and would be prepared to act protectively in relation to her, should that be necessary.  That is quite inconsistent with the neighbours themselves representing some form of unacceptable risk to the child.

28. There is then the question of whether or not the atmosphere of the neighbourhood, leaving aside any prospect of physical harm, is so toxic as to represent a risk of emotional harm to the child.  I have already recited those passages from the Family Report which identify that the child was able to point to positive features, and indeed only positive features, in relation to the mother’s home and of a similar character and positiveness to those that attend the father’s home.  I therefore am without any material other than speculation as to whether there is any emotional toll that has been exacted upon the child by virtue of the seeming hostility of the neighbourhood in which she spends one half of the time.

29. To the extent that the child has disclosed any unsettling emotions, it appears not to have arisen from any experience in her neighbourhood, but rather to have arisen directly from the prospect of having to choose between the two homes which she presently shares.  I think that that is of significance, at least in the context of this interim application. 

1. I turn to consider the section 60CC factors in the order in which they appear in that section.

2. In my view, there is clearly a benefit to the child of having a meaningful relationship with both of her parents and no party contended to the contrary.  As to the need to protect the child from physical or psychological harm, I have, in large part, already addressed this in the preceding discussion of the facts.  I do not overlook the fact that subsection (2A) applies to this case, and thereby requires the need to protect her from physical and psychological harm to be given greater weight than other considerations.  However, that said, I am not of the view that the mother presently, on the material before me, represents an unacceptable risk of harm to her such as to justify a conclusion that the child should only see her in a supervised environment.

3. I turn then to consider the additional considerations in s.60CC(3). In my view, such wishes as being expressed by the child should be given little, if any, weight because of her age and inability to understand the concepts in question. As to (b), the nature of the relationship of the child with each parent, I have, in large part, already addressed this. The child presently has a good relationship with both of her parents. There is no suggestion that her relationship with her mother has been impaired by any of her antisocial behaviour and, moreover, it would appear that the child only identifies good aspects to the relationship.

4. As to (c), the parties are equal in relation to the extent to which they have taken or failed to take opportunities to make decisions and spend time and communicate in relation to the child.  Sub-paragraph (ca) deals with the parents’ obligations to maintain their child.  There is an allegation which appears to be admitted by the mother that on occasions she has had insufficient money available to her to put fuel in her car or provide lunch for the child at her school.  There is no real explanation for that but, in any event, it is not a matter to which I give much weight.

5. Sub-paragraph (d) is the likely effect of any changes in the child’s circumstances, including the likely effect on the child of separation of either its parents is a matter to which I give real weight in this case.  In my view, the Family Report writer is correct when she identified that the child will miss her mother considerably if the time that she was to spend with her for the foreseeable future would be restricted to only, at most, four hours per month.  This would represent a dramatic change in her circumstances.

6. Whilst it is true that the child may well be able to adapt to that, and that the use of telephone communication – even very liberal telephone communication – may assist with that, in my view, there is nonetheless a substantial impact that will be visited upon her if the arrangements which have prevailed since 2009, and which seem to have given rise to a bright and bubbly child that appears to be otherwise well adjusted, were changed. 

7. Sub-paragraph (e) is not relevant.

8. Sub-paragraph (f) is relevant here because of the mother’s antisocial, aggressive and violent behaviour.  Given that the child the child was inside the house, it seems, at the time when that behaviour was being engaged in by the mother in January 2013, that calls seriously into question her capacity to provide for the child’s emotional needs, because such conduct is completely inconsistent with a mature, sensible approach to dealing with stressful situations that raising a child would give rise to.  However, that is but one of the matters that I weigh in the balance in this case.

9. Sub-paragraph (g) is not relevant.  Sub-paragraph (h) is not relevant.  Sub-paragraph (i) is relevant but I have sufficiently addressed it already in these reasons.  Sub-paragraph (j) is potentially relevant.  It is not to the point as to whether or not what the mother engaged, and potentially still engages, in comprises family violence.  The reality is it is a form of violence and it is most lamentable.  Sub-paragraph (k) does not appear to apply.  Sub-paragraph (l) does not appear to presently apply and I can identify no other factor or circumstance that is presently relevant.  The parties have, by consent, agreed to there being an order for equal shared parental responsibility.

10. That therefore invokes section 65DAA which requires me, to consider whether the child spending equal time with each of the parents would be in the child’s best interests and, if it is, to then consider whether spending equal time would be reasonably practicable. In the event that I am not satisfied of either of those matters, then the section requires me to consider whether the child should spend substantial and significant time with each of the parents and, specifically, requires me to consider whether doing so would be in the best interests of the child and reasonably practicable.

11. I have already traversed the section 60CC factors which are at the heart of determining where the best interests of the child lie. My task is, in the exercise of my discretion, weigh those factors, to determine whether it is in the best interests of the child to spend equal time albeit with each of the parents. That is, of course, the arrangement that has prevailed, with one aberration in 2013, for about four years. It has, as I have said, produced a child that appears to be well adjusted.

12. In my view, adverting to the fact specifically that I am unable to, on the present material, conclude that the mother presents an unacceptable risk of either physical or emotional harm to the child, weighing the section 60CC factors sees it in the best interests of the child to maintain the present arrangements of spending equal time with each of the parents.

13. I am mindful in coming to that conclusion that in interim proceedings such as this, the Court is not able to make determinations of fact, save where they are based on uncontradicted or incontrovertible material and that, on occasion, has caused the Court to adopt a particularly cautious approach and to be particularly risk averse in relation to children’s physical and emotional safety.

14. Whilst I acknowledge that the Court, by virtue of the inability to resolve factual matters with any certainty in interim proceedings, does adopt a cautious approach to protect children, no doubt, in part because of that inability, in my view, notwithstanding that, the best interests of the child still favour her spending equal time with each of the parents. 

15. There was no suggestion by anybody – in fact, it was conceded by all parties – that, by virtue of the close physical proximity of the parties, it was reasonably practicable for the child to spend equal time with each of the parents if it was in her best interests.

16. That being so, in my view, the application made by the father that the living arrangements of the child change so that she comes to live with him and only spends supervised time with the mother at the E Town Contact Centre, should be dismissed. 

I certify that the preceding forty-five (45) paragraphs are a true copy of the reasons for judgment of the Honourable Justice Tree delivered on 19 February 2014.

Associate: 

Date:  19 February 2014