BULOW & SNELL

[2015] FamCA 326

FAMILY COURT OF AUSTRALIA

BULOW & SNELL [2015] FamCA 326

FAMILY LAW – CHILDREN – Interim interim parenting – Where the Court has very limited information – Best interests of the child – Whether there is an unacceptable risk of harm to the child – Whom the child should live and spend time with – Alleged family violence –Issues regarding capacity of each parent – The issue of the mother’s alcohol use and liver function to be addressed – Allegations of attempted suicide

Family Law Act 1975 (Cth)

APPLICANT: Ms Bulow

RESPONDENT: Mr Snell

FILE NUMBER: PAC 6198 of 2014

DATE DELIVERED: 16 April 2015

PLACE DELIVERED: Parramatta

PLACE HEARD: Parramatta

JUDGMENT OF: Hannam J

HEARING DATE: 16 April 2015

REPRESENTATION

SOLICITOR FOR THE APPLICANT: Simone Wimalaratne of SVW Legal

COUNSEL FOR THE RESPONDENT: Mr Gould

SOLICITOR FOR THE RESPONDENT: Patrick Duffy of Duffy Law Group

Orders

1. That B (the child) is to live with his father.

2. That the child is to spend time with his mother on an alternating weekly regime as follows:

   (a)Week 1 – to commence 18 April 2015

   From Saturday after the child’s sports game, noting that the mother is at liberty to attend the sports game, until 2.00pm Sunday.

   (b)Week 2

   From Friday after school until the following Monday before school.

3. Changeovers for the purposes of Order (2) on school days are to occur at school, and non-school days are to occur at the sports ground where the child is playing on a Saturday and on the Sunday at McDonalds at Suburb C.

4. The mother is to submit to a liver function test and carbohydrate transferring deficient blood test (CTD) at her expense:

   (a)Prior to the next Court event; and

   (b)On a random basis after the appointment of an Independent Children’s Lawyer; and

   (i)Such testing be requested by the Independent Children’s Lawyer not greater than once per month with such request to be made by letter, email, fax or phone call to the legal representative of the mother and the father.

   (ii)Such testing is to be undertaken within 24 hours of such request.

   (iii)The mother is to provide copies of such testing results to the solicitor for the other party and the Independent Children’s Lawyer as soon as practical.

5. By consent, the parties are restrained from contacting each other except in relation to the child and in an emergency, in which case contact should be by text message or email.

6. By consent, each of the parties is restrained from publishing including placing any publication on social media any details concerning the dispute between the parents relating to the child.

7. The matter is to be adjourned for a further interim parenting hearing on a date to be fixed after the Independent Children’s Lawyer has been appointed, by arrangement between the legal representatives and my Associate.

8. The parents are each restrained from drinking alcohol while the child is in their care and 12 hours prior to the child coming into their care.

IT IS NOTED that publication of this judgment by this Court under the pseudonym Bulow & Snell 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 PARRAMATTA

FILE NUMBER: PAC 6198  of 2014

Ms Bulow

Applicant

And

Mr Snell

Respondent

REASONS FOR JUDGMENT

Introduction

1. This is an application which I have described as for interim interim orders brought on very short notice by the mother in relation to the child who is 6 years of age, the only child of the mother and the father.

2. The parents began living together in approximately May 2006, married in 2011 and separated on a final basis either in late 2013 or early 2014.

3. Whilst there is dispute about many of the matters that are relevant to the child’s wellbeing and best interests, there is no dispute that following separation the child who was 5 at the time, lived with his mother and two half-sisters and spent regular weekends with his father.

4. Whilst both parents may have some complaints about the way in which that arrangement operated, it appears to have worked reasonably well for the child until late 2014.  Recently, just prior to the Easter holidays there seems to have been a significant breakdown in the communication between the parents and about the expectations for the child’s care during the holiday period.

5. The child recently commenced spending time in the holidays with his father and it appears that he was picked up after school at the commencement of the Easter break but there is a dispute between the parties about how long the child was to spend time with his father on this occasion.

6. The mother essentially brought this application for parenting orders, not strictly as an application for a recovery order, but for parenting orders that the child remain living with her and only spend supervised time with his father.  The father essentially seeks the converse, that the child live with him and spend ideally supervised time with the mother, but the father does accept that his concerns about risk with the mother are not of such magnitude that if a supervision arrangement could not be made that the child should not spend any time with her.

7. As I have indicated, virtually everything other than that which I just recited is in dispute between the parties, though I have been assisted to some extent by an Issues Assessment carried out by a Family Consultant helpfully on very short notice today.

8. As I indicated, I am critical of the parents in the way in which they have gone about making arrangements for the child’s care especially since they have been separated for so long.  I do not accept the mother that she has been attempting to obtain parenting orders but equally I think that the way the father has gone about obtaining orders by simply retaining the child in his care is highly unsatisfactory and not child-focussed.

9. Be that as it may, I now have application before me that I need to deal with.  As I say it needs to be dealt with urgently and on a short term interim basis because school holidays are about to end and there has to be a resolution about where the child should reside prior to the Independent Children’s Lawyer becoming engaged pursuant to an appointment that I made yesterday, and the Court having further information from other sources such as information produced on subpoena.

10. So far as the mother is concerned, she says that the risks of harm to the child arise from the fact that the father has been a perpetrator of family violence to her, as I understand it, at quite serious level throughout her relationship, that the father has been a drug user and currently is an associate with drug users and criminals and she does express some views in her affidavit about fears that the child has expressed about his own safety when in his father’s care.

11. So far as the father is concerned about risk factors in the mother’s household, he alleges that the mother has a significant alcohol abuse problem and that it affects her capacity to care for the child and also affects her behaviour in that she behaves quite irrationally as a result of her alcohol misuse.  He also alleges that she is a perpetrator of domestic violence.  He alleges that the mother has mental health problems, it appears suggested to be both associated with her drinking and independent of her drinking and there is the associated risk factor he says that she has attempted suicide.  He also raises the issue of the child’s parentification and some other issues about the stability of the mother’s current living arrangements.  In particular, he says that the mother’s lease is due to run out soon, though I note that issue was not addressed in submissions.  Also, as I have indicated, he makes a general allegation about irrational behaviour which seems to be again associated with the issue of mental health.

12. The Family Consultant discussed each of those matters that the parents have raised as risk factors and herself also identified the mother’s social isolation as a risk factor.  She also described something that I understand which is not in dispute that the mother has had a particularly difficult childhood and has significant estrangement from her family of origin and appeared to the Family Consultant to be socially isolated which is a risk factor in that those who are not socially isolated have that support as a protective factor.

13. All of these matters will need to be explored to a much greater extent by an appropriate expert who has access to other material including material produced on subpoena.  All of them are potentially serious risk factors for this child and he is as identified by the Family Consultant a very young child and if even some of them are found to be established, there are concerns for his future care.

14. This is a matter today that is mostly about the issue of protection from harm and that is the factor to which I must attach the greatest weight in terms of the best interest considerations.

15. The preponderance of the risk factors are risk factors associated with the child living with his mother.  The only risk factors identified by the mother in relation to the father are the issue of his association with criminals and his potential drug use and the issue of domestic violence.  Of all of the risk factors it seems that the issue of criminal associations at this stage on the very limited information known to me is the most tenuous and the least significant, though it is something that may with further evidence turn out to be a more significant risk factor.

16. The issue of domestic violence is an extremely serious one and there seems to be no doubt even in the parents’ own affidavits and descriptions of incidents and certainly in the information that the child gave to the Family Consultant, that the child has been exposed to and has witnessed both of his parents being physically violent toward the other.  There also appears to be, particularly by the mother, on the limited information again, a high degree of verbal violence perpetrated by her or certainly in written form.  The issue of domestic violence is a very serious one and trauma and harm to the child is a matter of great concern.  At this stage, of course, as I say, apart from the fact that there seems to be some evidence that both parents have perpetrated domestic violence it is one of the many matters that I cannot make any firm conclusions about.

17. The other factors are all as I have indicated factors that arise in the mother’s household.  On the issue of alcohol abuse, there is some corroboration that comes from emails said to have been sent by the mother to the father.  There is the issue that the Family Consultant identified of liver damage but there is also the mother’s own description in an email sent by her on 18 October 2014 when the mother says “All I want to do is drink because when I do I forget and the time passes quicker”.  She goes on to say “I know I’m killing myself by drinking.  When I went to the doctor ages ago, he said that if I kept going my liver will fail eventually as I have already damaged it”.  She went on to say “So I drank more, I drink about a bottle of Vodka a day, my heart does this really weird thing the next day and beats really erratically and kind of pauses then starts again so I know what I am doing is working.  I’ve had about four seizures that I know of since I’ve lived here.  I wake up disoriented and exhausted and then I get really hot”.

18. The mother submits today that she did have an alcohol problem but that she has overcome it.  That assertion is extremely hard to reconcile with that email but as has been submitted on the mother’s behalf it is also hard to reconcile that if she had been drinking at that level that she had not come to the notice of either Child Protection Authorities or the Criminal Justice System.

19. Other concerns about the mother are that she is alleged to be a perpetrator of domestic violence.  As far as domestic violence is concerned, as the Family Consultant pointed out, that in neither side does it appear to be coercive, controlling violence but it appears to be more episodic.  However, the Family Consultant herself did note that it is a very limited form of assessment that she has carried out and once again that is a matter that still needs to be determined.  I understand that it is the mother’s case that the father’s violence was the controlling type.

20. On the issue of the mother’s attempted suicide, I understand that the mother told the Family Consultant that this happened two times.  Combined with some of the statements that the mother makes again in her emails in around October last year and her own description of having had a “nervous breakdown” at that time and combined with her own assertions of having been a victim of ongoing serious domestic violence and a very dysfunctional and disrupted childhood, it would appear that there is a likelihood that there are significant mental health problems which could potentially impact upon her capacity to care for the child.  This may also be relevant to the issue of parentification which the father raises, though I note that the Family Consultant did not see anything consistent with that in the very limited assessment that she had.

21. The issue of social isolation again I think is also confirmed in some of the emails about not being able to turn to anybody, and certainly the father has a greater family support.  That is not said in any way as a criticism of the mother but it was said as a greater risk factor of the mother as opposed to a strength of the father.

22. As I indicated, so far as the best interest factors are concerned, in my view, the most significant of the primary factors is the protection from harm.  The issue of the benefit of a meaningful relationship with both parents would be met on either of the proposals of living with one parent and spending time with the other.

23. So far as the other best interests factors are concerned, the child has, at this stage, expressed a view of some slight preference for living with his father and also some views that seem consistent that he feels safer with his father.  Bearing in mind his age, the limited assessment and the extremely acrimonious relationship that he is caught in I would attach little weight to his views.  As far as the relationship is concerned with each parent, the Family Consultant is of the view that the child has an attachment relationship with each parent.  Some of the other factors I simply am unable to make any comment upon at this time.

24. As far as the likely effect in any change in child circumstances is concerned, under the father’s proposal the child will continue to go to the same school which is obviously very important.  The father’s acknowledgment that it is important that the child spend some time with his half-sisters is obviously also important.  The child is clearly comfortable living in either household.  I cannot accept, at this stage, not to say it will not be accepted down the track, the statements about the child being scared to go to his father’s in light of what the child told the Family Consultant today.  In my view there will not be any great issue to do with the change in circumstances, though obviously he will miss his mother.

25. The issue of the capacity of the child’s parents to provide for his needs is, in my view, a significant one, but is unable to be determined beyond the simple sort of analysis that I have made on the undisputed facts.  The issue obviously of family violence is also going to be a matter of great significance.  It suffices to say that it is clear that the child has already suffered some trauma from being exposed to violence between his parents.

26. Taking all of the matters into account, in my view, whilst as I have said it is highly unsatisfactory the way in which the father’s application has been brought before the Court, I think there are on the very limited information available to me more risk factors associated with the child returning to live with his mother and it would be less detrimental for him to live with his father.  It is important, however, that he spend significant time with his mother and as I have foreshadowed I make orders as follows:

    (1)That the child is to live with his father.

    (2)That the child is to spend time with his mother on an alternating weekly regime as follows:

    (a)Week 1 – to commence 18 April 2015

    From Saturday after the child’s sports game, noting that the mother is at liberty to attend the sports game, until 2.00pm Sunday.

    (b)Week 2

    From Friday after school until the following Monday before school.

    (3)Changeovers for the purposes of Order (2) on school days are to occur at school, and non-school days are to occur at the sports ground where the child is playing on a Saturday and on the Sunday at McDonalds at Suburb C.

    (4)The mother is to submit to a liver function test and carbohydrate transferring deficient blood test (CTD) at her expense:

    (a)Prior to the next Court event; and

    (b)On a random basis after the appointment of an Independent Children’s Lawyer; and

    (i)Such testing be requested by the Independent Children’s Lawyer not greater than once per month with such request to be made by letter, email, fax or phone call to the legal representative of the mother and the father.

    (ii)Such testing is to be undertaken within 24 hours of such request.

    (iii)The mother is to provide copies of such testing results to the solicitor for the other party and the Independent Children’s Lawyer as soon as practical.

    (5)By consent, the parties are restrained from contacting each other except in relation to the child and in an emergency, in which case contact should be by text message or email.

    (6)By consent, each of the parties is restrained from publishing including placing any publication on social media any details concerning the dispute between the parents relating to the child.

    (7)The matter is to be adjourned for a further interim parenting hearing on a date to be fixed after the Independent Children’s Lawyer has been appointed, by arrangement between the legal representatives and my Associate.

    (8)The parents are each restrained from drinking alcohol while the child is in their care and 12 hours prior the child coming into their care.

I certify that the preceding twenty-six (26) paragraphs are a true copy of the reasons for judgment of the Honourable Justice Hannam delivered on 16 April 2015.

Associate: 

Date:  7 May 2015