Carder and Koster and Anor

[2019] FCCA 3016

FEDERAL CIRCUIT COURT OF AUSTRALIA

CARDER & KOSTER & ANOR [2019] FCCA 3016

Catchwords:
FAMILY LAW – Interim parenting – where Paternal Grandmother has care of the child – where both parents have issues – wisdom of seeking interim orders and subjecting oneself to intense forensic scrutiny.

Legislation:

Family Law Act 1975 (Cth), ss.60B, 60CA, 60CC, 61DA, 65DAA

Cases cited:
Goode & Goode [2006] FamCA 1346
MRR v GR [2010] HCA 4
Insley & Insley [2018] FCCA 438

Applicant: MS CARDER

First Respondent: MS KOSTER

Second Respondent: MR CARDER

File Number: WOC 480 of 2019

Judgment of: Judge Altobelli

Hearing date: 25 September 2019

Date of Last Submission: 25 September 2019

Delivered at: Sydney

Delivered on: 8 October 2019

REPRESENTATION

Solicitors for the Applicant: Nikolovski Lawyers

Solicitors for the First Respondent: Legal Aid NSW Wollongong Family Law

Solicitors for the Second Respondent: Robert Webley & Associates

Solicitors for the Independent Children’s Lawyer: Acorn Lawyers

ORDERS

1. The Applicant Grandmother have sole parental responsibility for the Child X (born … 2017) (the “Child”).

2. Without derogating from the meaning of sole parental responsibility, in considering a decision about a major long-term issue in relation to the Child;

   2.1The Grandmother will advise the Mother and Father by SMS transmission (to a number nominate by each of the Father and the Mother) of her proposal relating to the Child and her reasons for such proposal;

   2.2If the Father or the Mother wishes to comment on the Grandmother’s proposal, they shall, within seven (7) days after the date on the Grandmother’s SMS transmission, advise the Grandmother by SMS transmission (to the number from which the Grandmother shall give consideration to such views; and

   2.3Upon receipt of any comment or proposal by the Father and/or the Mother, the Grandmother shall give consideration to such views; and

   2.4After the Grandmother has considered the Father and/or the Mother’s comments, she shall make a decision and electronically advise the Mother and the Father of the outcome immediately after making that decision, with her reasons for the decision;

   2.5The Grandmother shall provide the Father and the Mother with all relevant information arising from the decision, including with respect to the Child’s health care, the names and contract telephone numbers of professionals treating him and with respect to education, the name and contact details of the educational institution.

   2.6For the purposes of Order 2.3, if the Father or Mother does not electronically respond as provided by paragraph 2.3, the Grandmother shall be entitled to presume that the Father and/or Mother does not wish to be involved and she may decide the issue without input from the Father and/or Mother.

3. The Grandmother shall communicate to the Father and the Mother by SMS transmission;

   3.1Advise as to hospital, medical, dental or health professional appointments for the Child; and

   3.2Any advice as to medication being administered to the Child.

4. For the purposes of Order 2.1, the

   4.1the Father’s telephone number is: ….

   4.2the Mother’s telephone number is: ….

5. The Child live with the Grandmother.

6. The Child spend time with the Mother as follows  : - 

   6.1For a period of two (2) hours on two occasions per week supervised by Catholic Care City F if such time and frequency can be arranged with Catholic Care;

   6.2For an additional period of three hours (3) hours on a weekend each week supervised by the Paternal Grandmother to occur on a Saturday or a Sunday as agreed between the Grandmother and the Mother at an appropriate child-focused location;

   6.3Subject to the Paternal Grandmother’s agreement, at A Play Centre in City F each Wednesday from 10:30am to 12:30pm with such time to be supervised by the Paternal Grandmother; and

   6.4On Christmas Day between 2:00pm and 4:00pm at McDonalds Suburb B with such time to be supervised by the Paternal Grandmother.

   6.5Other times as agreed between the Grandmother and the Mother.

7. In the event that either the Mother or Paternal Grandmother are unable to attend contact as scheduled that each party is to provide 24 hours’ notice to the other along with suggested alternate arrangements for spend time with.

8. Any time the Father spends with the Child will be supervised at all times by the Paternal Grandmother, Paternal Grandfather or the paternal adult family member until such time that the Father produces six (6) consecutive negative urinalysis test results.

9. The parties sign all documents within 7 days necessary to effect the intake assessment for Catholic Care at City F.

10. Each party is to comply with the following: -

    10.1Appointments made by Catholic Care for supervised time;

    10.2Comply with all reasonable rules of Catholic Care; and

    10.3Comply with all reasonable requests and directions by the staff of Catholic Care.

11. If Catholic Care during the currency of these Orders declines or is unable to continue to provide its services, or the Director of Catholic Care recommends in writing to the parties a variation of these Orders then the Independent Children’s Lawyer may on 7 days written notice to the other and to the Court restore the matter to the list.

12. The period of contact provided in these Orders may vary by reason of the closure of the Catholic Care services during school and public holiday periods and in such event, such contact shall occur when the service can be provided by Catholic Care.

13. The parties be restrained by injunction from denigrating each other or members of each other’s family to the Child or in the presence of the Child or at all.

14. The Mother and Father be restrained by injunction form using any prohibited drugs.

15. The Mother be restrained and an injunction issued restraining the Mother from allowing the Child to have contact with Mr C (“Mr C”) whilst the Child is in the Mother’s care.

16. The Mother and the Father shall continue to attend appointments at the Region D Drug and Alcohol Service and engage in any recommendations made by the service.

17. The Father and the Mother each undertake (by provision of urine screen in accordance with the Australian/NZ standard 4308:2008 or any subsequent approved standard) urinalysis for drug screening within 48 hours of receipt of a request to do so from the Independent Children’s Lawyer, with no more than one request to be made per calendar month, with such request to be communicated by email, SMS communication or facsimile transmission to the Solicitor for the party or the party directly and provide copies of the results of the tests to the other party and the Independent Children’s Lawyer within 48 hours of receipt of same.

18. In the event that either parent fails to provide a drug test or provides a positive drug test, the Orders in relation to each of them for spending time with the children be suspended.

19. Within seven (7) days of these Orders, the Father is to engage with a psychologist or other suitably qualified mental health professional for the purposes of addressing his mental health issues, diagnosis of ADHD, bipolar and schizophrenia and is to engage in any recommendations or treatment plans made by the mental health professional and is to provide all details of the treating professional to the Independent Children’s Lawyer within seven (7) days of engaging with the professional. 

20. The Father is to enrol and participate in an anger management course within six (6) weeks from the date of these Orders and the Father provide a certificate of completion to the Mother’s solicitor and Independent Children’s within 14 days of completing the Course.

THE COURT FURTHER ORDERS THAT:

1. Pursuant to section 62G(2) of the Family Law Act 1975 the parties and the child of the relationship attend upon a Family Consultant nominated by the Manager, Child Dispute Services on a date and at times to be advised for the purposes of the preparation of a Family Report and in particular:

   21.1to consider the factors in sections 60CC and 65DAA of the Family Law Act 1975;

   21.2to consider issues raised in the Family Consultant’s Memorandum to Court;

   21.3 to profile the parents (and other significant adults);

   21.4 to assess the parents interactions (and those of other significant adults);

   21.5 to assess the child’s developmental and emotional state;

   21.6 to assess the relationship of the child to the parents (and other significant persons);

   21.7to ascertain the wishes of the child unless inappropriate by reason of age or other special circumstance;

   21.8to assess the proposed and actual home environments; and

   21.9to assess the proposals of each party as to the children’s future.

2. The Family Consultant is granted leave to inspect all documents produced in response to Subpoena.

3. If the Family Consultant is unable to inspect documents produced in response to Subpoena at the Wollongong Registry of the Commonwealth Law Courts, the Registry Manager upon receiving a request from the Family Consultant, is to forward such documents to the Registry nominated by such consultant to permit such inspection.

4. The Report be released by 27 October 2020, if practicable, and unless otherwise arranged with Chambers.

5. Upon the Report being provided to the Court, the Court will provide a copy to each party (or if represented the party’s lawyer) and to any Independent Children’s Lawyer in the proceedings.

6. Unless a party objects, in writing, within 14 days of the date of releasing the Report, copies of the Report may further be provided to the following, if the Court is requested to do so for a purpose related to the care, welfare or development of the Child to whom these proceedings relate:

   26.1a Children’s Court;

   26.2a child protection authority;

   26.3a State or Territory legal aid authority; and

   26.4a convener of any legal dispute resolution conference.

7. Unless otherwise Ordered, no person shall release the Report, or provide access to the Report to any other person.

8. Following release of the Family Report and prior to the adjourned date, the parties file and serve a minute of final Order sought by each of them as to parenting.

9. The matter be adjourned to 10 November 2020 at 9:30am for Mention (allocated in Chambers). The parents must attend in person with their legal representatives if the Report is available prior to the adjourned date.

10. Liberty is granted to the Independent Children’s Lawyer to re-list the matter on 7 days notice by application to the Court in Chambers in appropriate circumstances.

11. The matter otherwise be adjourned to 11 February 2020 at 9:30am for Mention (allocated in Chambers).

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

FEDERAL CIRCUIT COURT
OF AUSTRALIA
AT WOLLONGONG

WOC 480 of 2019

MS CARDER

Applicant

And

MS KOSTER

First Respondent

MR CARDER

Second Respondent

ORAL REASONS FOR JUDGMENT

1. This case is about a child X who is 2 years old.  It is a dispute between X's Paternal Grandmother, his Mother, and his Father.  The Paternal Grandmother, who is 64 years old, is the Applicant.  X's Mother, who is 44 years old, is the First Respondent.  His Father, who is 37 years old, is the Second Respondent.  This is a complex case and each of the parents in particular face vulnerabilities.  This means that X is also vulnerable.  The Father has mental health issues and has struggled with drug abuse.  The Mother has struggled with drug abuse, has problems with her physical health and has been in a relationship that even she acknowledges was a violent dysfunctional one. The relationship in question was with Mr C and they have three children, in the Mother’s care. The Mother’s relationship with the Father of the older children appears to have ended.  He was charged with common assault, convicted, and sentenced to a two-year bond and an AVO was made to protect the Mother.  The same man was later charged and convicted with a number of family violence offences and sentenced to 12 months suspended imprisonment.

2. X's Mother and Father commenced a relationship in 2016.  This was also a difficult relationship.  The totality of the evidence before the Court suggests that they both struggled with caring for children, drug and alcohol abuse, and family violence.  X was born on … 2017.  Throughout 2017, 2018 and in to 2019 the family consisting of X, and his parents, came to the attention of the authorities including the Department of Family and Community Services and Police, on numerous occasions.

3. The event that eventually led to this matter coming to Court took place on 29 April 2019.  Whilst the details of this will be discussed below, in short the Mother was found unconscious in her home after smoking marijuana in the morning. The three youngest children, X, Y and Z were in the Mother’s care at the time. The Mother was hospitalised and the Paternal Grandmother took X into her care.

4. The present proceedings were commenced by the Paternal Grandmother on 6 May 2019.  On 9 May 2019 Judge Monahan made an Interim Order that the Paternal Grandmother have sole parental responsibility, that X live with the Grandmother and that X spend time with his parents on a supervised basis.  When the matter came before me on 11 June 2019 the Orders were varied slightly with clarification about the Mother’s time with X.  Eventually the matter was listed before me for Interim Hearing on 25 September 2019.  These reasons explain the Orders that I have made.

5. At the Interim Hearing, the Orders sought by the Father, Paternal Grandmother, and Independent Children’s Lawyer were closely aligned, albeit not identical.  In essence, the proposals involved X continuing to live with his Grandmother, and with X spending time with his Mother at a supervised contact centre for two hours each week and for an additional period of three hours on a weekend as agreed between the Grandmother and the Mother, but supervised by the Grandmother.  The Father’s time with X would be as agreed between the Grandmother and himself, but on a supervised basis.  The differences between the proposals were not significant.  The Paternal Grandmother sought the continuation of the existing Order for sole parental responsibility.  The Father supported this.  I did not understand the Independent Children’s Lawyer to oppose it.  The Paternal Grandmother agreed to 2 two-hour visits, supervised, with the Mother but not on weekends, and this would only be pending the availability of a place at a supervised contact centre.  The Father had a concern about Order 19 sought by the Independent Children’s Lawyer, which involved him engaging with a psychologist for the purposes of addressing his mental health needs.  In addition he had concerns about participating in an anger management program.  The resolution of these comparatively minor issues will be dealt with below.

6. By contrast, the Mother’s proposal was that she have sole parental responsibility for X, that X continued to live with the Paternal Grandmother until 14 January 2020, but then live with his Mother.  In the meanwhile X would spend time with his Mother each Tuesday Thursday and Sunday for three hours, and then increasing to 6 hours, and then progressing to overnight such that by January 2020 X will have spent at least five nights out of 14 in his Mother’s care.  The Father’s time with X would be as agreed between the Paternal Grandmother and himself, but would need to be supervised.  Conversely, the Mother’s time with X was at all times unsupervised.

7. The issue in this case is whether, and if so to what extent, the Mother presents a risk of harm to X if she were to have the benefit of unsupervised time.  The case against the Mother raised concerns about the risk of relapse into drug abuse, the possible risk of harm to X arising out of her other physical health problems, and to a lesser extent any risk involved in the Mother resuming her problematic relationship with her former husband.

8. It was an uncontested fact that the Mother has provided 4 clear drug screens since the incident in April 2019.  It is agreed that a Family Report should be Ordered, Hearing dates allocated, and the matter be brought back for mention in six months’ time to review progress.  The impression the Court formed, but it is no higher than that, is that even the Grandmother conceded that if the Mother was able to satisfactorily convince her, and the Court, that there were no risk of harm considerations in her care relating to X, then, in the fullness of time, X could be returned to her care.

The Applicable Law

1. The applicable law is found in Part VII of the Family Law Act 1975 (Cth) (hereafter referred to as ‘the Act’). In determining parenting matters under Part VII of the Act the Court must regard the best interests of the child as the paramount consideration: s.60CA.

2. The objects and principles of Part VII are set out at s.60B:

   60B  Objects of Part and principles underlying it

   (1)     The objects of this Part are to ensure that the best interests of children are met by:

   (a)     ensuring that children have the benefit of both of their parents having a meaningful involvement in their lives, to the maximum extent consistent with the best interests of the child; and

   (b)     protecting children from physical or psychological harm from being subjected to, or exposed to, abuse, neglect or family violence; and

   (c) ensuring that children receive adequate and proper parenting to help them achieve their full potential; and

   (d)     ensuring that parents fulfil their duties, and meet their responsibilities, concerning the care, welfare and development of their children.

   (2)     The principles underlying these objects are that (except when it is or would be contrary to a child’s best interests):

   (a)     children have the right to know and be cared for by both their parents, regardless of whether their parents are married, separated, have never married or have never lived together; and

   (b)     children have a right to spend time on a regular basis with, and communicate on a regular basis with, both their parents and other people significant to their care, welfare and development (such as grandparents and other relatives); and

   (c) parents jointly share duties and responsibilities concerning the care, welfare and development of their children; and

   (d)     parents should agree about the future parenting of their children; and

   (e)     children have a right to enjoy their culture (including the right to enjoy that culture with other people who share that culture).

   (3)     For the purposes of subparagraph (2)(e), an Aboriginal child’s or Torres Strait Islander child’s right to enjoy his or her Aboriginal or Torres Strait Islander culture includes the right:

   (a)     to maintain a connection with that culture; and

   (b)     to have the support, opportunity and encouragement necessary:

   (i) to explore the full extent of that culture, consistent with the child’s age and developmental level and the child’s views; and

   (ii)     to develop a positive appreciation of that culture.

3. At the very core of Part VII of the Act is the creation of a presumption of equal shared parental responsibility in s.61DA. Section 61DA provides:

   61DA  Presumption of equal shared parental responsibility when making parenting orders

   (1)     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.

   (2)     The presumption does not apply if there are reasonable grounds to believe that a parent of the child (or a person who lives with a parent of the child) has engaged in:

   (a)     abuse of the child or another child who, at the time, was a member of the parent’s family (or that other person’s family); or

   (b)     family violence.

   (3)     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.

   (4)     The presumption may be rebutted by evidence that satisfies the court that it would not be in the best interests of the child for the child’s parents to have equal shared parental responsibility for the child.

1. If the presumption applies, the Court is required to consider certain things:

   65DAA Court to consider child spending equal time or substantial and significant time with each parent in certain circumstances

   Equal time

   (1)     If a parenting order provides (or is to provide) that a child’s parents are to have equal shared parental responsibility for the child, the court must:

   (a)     consider whether the child spending equal time with each of the parents would be in the best interests of the child; and

   (b)     consider whether the child spending equal time with each of the parents is reasonably practicable; and

   (c) if it is, consider making an order to provide (or including a provision in the order) for the child to spend equal time with each of the parents.

   Substantial and significant time

   (2)     If:

   (a)     a parenting order provides (or is to provide) that a child’s parents are to have equal shared parental responsibility for the child; and

   (b)     the court does not make an order (or include a provision in the order) for the child to spend equal time with each of the parents; and

   the court must:

   (c) consider whether the child spending substantial and significant time with each of the parents would be in the best interests of the child; and

   (d)     consider whether the child spending substantial and significant time with each of the parents is reasonably practicable; and

   (e)     if it is, consider making an order to provide (or including a provision in the order) for the child to spend substantial and significant time with each of the parents.

   (3) will be taken to spend substantial and significant time with a parent only if:

   (a)     the time the child spends with the parent includes both:

   (i) days that fall on weekends and holidays; and

   (ii)     days that do not fall on weekends or holidays; and

   (b)     the time the child spends with the parent allows the parent to be involved in:

   (i) the child’s daily routine; and

   (ii)     occasions and events that are of particular significance to the child; and

   (c) the time the child spends with the parent allows the child to be involved in occasions and events that are of special significance to the parent.

   (4)     Subsection (3) does not limit the other matters to which a court can have regard in determining whether the time a child spends with a parent would be substantial and significant.

   Reasonable practicality

   (5)     In determining for the purposes of subsections (1) and (2) whether it is reasonably practicable for a child to spend equal time, or substantial and significant time, with each of the child’s parents, the court must have regard to:

   (a)     how far apart the parents live from each other; and

   (b)     the parents’ current and future capacity to implement an arrangement for the child spending equal time, or substantial and significant time, with each of the parents; and

   (c) the parents’ current and future capacity to communicate with each other and resolve difficulties that might arise in implementing an arrangement of that kind; and

   (d)     the impact that an arrangement of that kind would have on the child; and

   (e)     such other matters as the court considers relevant.

2. Because s.65DAA refers to the best interests of the child the Court must then go back to consider s.60CC which specifies how the Court must determine what is in a child’s best interests.

   Determining child's best interests

   (1)  Subject to subsection (5), in determining what is in the child's best interests, the court must consider the matters set out in subsections (2) and (3).

   Primary considerations

   (2)  The primary considerations are:

   (a)  the benefit to the child of having a meaningful relationship with both of the child's parents; and

   (b)  the need to protect the child from physical or psychological harm from being subjected to, or exposed to, abuse, neglect or family violence.

   Note:         Making these considerations the primary ones is consistent with the objects of this Part set out in paragraphs 60B(1)(a) and (b).

   (2A)  In applying the considerations set out in subsection (2), the court is to give greater weight to the consideration set out in paragraph (2)(b).

   Additional considerations

   (3)  Additional considerations are:

   (a)  any views expressed by the child and any factors (such as the child's maturity or level of understanding) that the court thinks are relevant to the weight it should give to the child's views;

   (b)  the nature of the relationship of the child with:

   (i)  each of the child's parents; and

   (ii)  other persons (including any grandparent or other relative of the child);

   (c)  the extent to which each of the child's parents has taken, or failed to take, the opportunity:

   (i)  to participate in making decisions about major long-term issues in relation to the child; and

   (ii)  to spend time with the child; and

   (iii)  to communicate with the child;

   (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;

   (d)  the likely effect of any changes in the child's circumstances, including the likely effect on the child of any separation from:

   (i)  either of his or her parents; or

   (ii)  any other child, or other person (including any grandparent or other relative of the child), with whom he or she has been living;

   (e)  the practical difficulty and expense of a child spending time with and communicating with a 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;

   (f)  the capacity of:

   (i)  each of the child's parents; and

   (ii)  any other person (including any grandparent or other relative of the child);

   to provide for the needs of the child, including emotional and intellectual needs;

   (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;

   (h)  if the child is an Aboriginal child or a Torres Strait Islander child:

   (i)  the child's right to enjoy his or her Aboriginal or Torres Strait Islander culture (including the right to enjoy that culture with other people who share that culture); and

   (ii)  the likely impact any proposed parenting order under this Part will have on that right;

   (i)  the attitude to the child, and to the responsibilities of parenthood, demonstrated by each of the child's parents;

   (j)  any family violence involving the child or a member of the child's family;

   (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:

   (i)  the nature of the order;

   (ii)  the circumstances in which the order was made;

   (iii)  any evidence admitted in proceedings for the order;

   (iv)  any findings made by the court in, or in proceedings for, the order;

   (v)  any other relevant matter;

   (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;

   (m)  any other fact or circumstance that the court thinks is relevant.

The Case Law

1. In MRR v GR [2010] HCA 4, the High Court referred to s.65DAA(1) and said

   9.  Each of sub-ss (1)(b) and (2)(d) of s 65DAA require the Court to consider whether it is reasonably practicable for the child to spend equal time or substantial and significant time with each of the parents.  It is clearly intended that the Court determine that question.  Sub-section (5) provides in that respect that the Court "must have regard" to certain matters, such as how far apart the parents live from each other and their capacity to implement the arrangement in question, and "such other matters as the court considers relevant", "[i]n determining for the purposes of subsections (1) and (2) whether it is reasonably practicable for a child to spend equal time, or substantial and significant time, with each of the child's parents".

2. A little later in the judgment the High Court said:

   13.    Section 65DAA(1) is expressed in imperative terms.  It obliges the Court to consider both the question whether it is in the best interests of the child to spend equal time with each of the parents (par (a)) and the question whether it is reasonably practicable that the child spend equal time with each of them (par (b)).  It is only where both questions are answered in the affirmative that consideration may be given, under par (c), to the making of an order.

3. At [15] the High Court emphasised the need for a practical approach:

   15.    Section 65DAA(1) is concerned with the reality of the situation of the parents and the child, not whether it is desirable that there be equal time spent by the child with each parent. The presumption in s 61DA(1) is not determinative of the questions arising under s 65DAA(1). Section 65DAA(1)(b) requires a practical assessment of whether equal time parenting is feasible.

4. The Full Court’s decision in Goode & Goode [2006] FamCA 1346 provides some guidance about the interpretation of Part VII and the way to proceed in interim hearings.

   68. In our view some of the comments of the Full Court in paragraph 18 are still apposite. For example, the procedure for making interim parenting orders will continue to be an abridged process where the scope of the enquiry is “significantly curtailed”. Where the Court cannot make findings of fact it should not be drawn into issues of fact or matters relating to the merits of the substantive case where findings are not possible. The Court also looks to the less contentious matters, such as the agreed facts and issues not in dispute and would have regard to the care arrangements prior to separation, the current circumstances of the parties and their children, and the parties’ respective proposals for the future.

   …

   72. In our view, it can be fairly said there is a legislative intent evinced in favour of substantial involvement of both parents in their children’s lives, both as to parental responsibility and as to time spent with children, subject to the need to protect children from harm, from abuse and family violence and provided it is in their best interests and reasonably practicable. This means where there is a status quo or well settled environment, instead of simply preserving it, unless there are protective or other significant best interests concerns for the child, the Court must follow the structure of the Act and consider accepting, where applicable, equal or significant involvement by both parents in the care arrangements for the child.

   …

   82. In an interim case that would involve the following:

   (a) identifying the competing proposals of the parties;

   (b) identifying the issues in dispute in the interim hearing;

   (c) identifying any agreed or uncontested relevant facts;

   (d) considering the matters in s 60CC that are relevant and, if possible, making findings about them (in interim proceedings there may be little uncontested evidence to enable more than a limited consideration of these matters to take place);

   (e) deciding whether the presumption in s 61DA that equal shared parental responsibility is in the best interests of the child applies or does not apply because there are reasonable grounds to believe there has been abuse of the child or family violence or, in an interim matter, the Court does not consider it appropriate to apply the presumption;

   (f) if the presumption does apply, deciding whether it is rebutted because application of it would not be in the child’s best interests;

   (g) if the presumption applies and is not rebutted, considering making an order that the child spend equal time with the parents unless it is contrary to the child’s best interests as a result of consideration of one or more of the matters in s 60CC, or impracticable;

   (h) if equal time is found not to be in the child’s best interests, considering making an order that the child spend substantial and significant time as defined in s 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 s 60CC, or impracticable;

   (i) if neither equal time nor substantial and significant time is considered to be in the best interests of the child, then making such orders in the discretion of the Court that are in the best interests of the child, as a result of consideration of one or more of the matters in s 60CC;

   (j) if the presumption is not applied or is rebutted, then making such order as is in the best interests of the child, as a result of consideration of one or more of the matters in s 60CC; and

   (k) even then the Court may need to consider equal time or substantial and significant time, especially if one of the parties has sought it or, even if neither has sought it, if the Court considers after affording procedural fairness to the parties it to be in the best interests of the child.

5. In Insley & Insley [2018] FCCA 438:

   The Challenge of Fact-Finding in this Case 

   [61] This Court is in a very difficult position.  Whilst all the material before the Court can be closely scrutinised, the fact is that the evidence has not been tested and, in reality, cannot be tested for many months, simply because of the demands on the Court’s time from other cases.  The Supplementary Written Submissions proposed by Mr Knox SC highlight the evidentiary issues and emphasise the importance of credit, even in an interim hearing. 

   [62] If the Court believes that there is substance to the Mother’s concerns, it is more likely to accept her proposal to remain in Melbourne, and to thus focus on what is the most appropriate arrangement for X to spend time with his Father and paternal family, but in Melbourne.  If the Court accepts the Mother’s concerns about family violence and abuse, it is unlikely to accede to a proposal that involves the Mother and X to the (omitted), even if all the financial issues are satisfactorily addressed by the Father.  The Court accepts that whether there is an objective basis for the Mother’s fear or not to bring her back to the (omitted) where she would be alone, and completely financially dependent on the Father, is merely likely to re-traumatise her, at least from her perspective.

   [63] In Goode & Goode the Full Court warned against making findings of fact where findings are not possible.  The Court did not rule out making findings of fact and, it must be remembered that findings can be made on the basis of uncontested matters, or admissions.  To the extent, moreover, that findings may be differentiated from inferences, inferences may certainly be drawn from all of the material available before the Court.

   [64] Senior Counsel for the Father quite properly referred the Court to the Full Court’s decision in Goode & Goode.  Of course there have been later Full Court decisions that suggest in that, particularly in cases where there are allegations of family violence, a more nuanced approach is warranted.  For example, the Full Court in SS & AH [2010] FamCA 13 at [100] noted that sometimes judges will have little alternative but 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.  The Full Court stated that 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.  Nonetheless, the Full Court warned, findings must be couched with circumspection. 

   [65] The Full Court in Marvel & Marvel (No.2) [2010] FamCAFC 101, in referring to its earlier decision in SS &AH stated at [120] that decision-making in interim proceedings is difficult, and thus a conservative approach is warranted, or one which is likely to avoid harm to a child.

   [66] In Reece & Reece [2011] FamCAFC 24, the Full Court warned at [76] about the consequences of failing to have regard to expert evidence simply because it was untested in cross-examination.  In that case the evidence was a Family Report.  In this case, of course, it is a Child Dispute Conference Memorandum.

   [67] In Deiter & Deiter [2011] FamCAFC 82, at [54] the Full Court suggested that s.60K (now s.67ZBB) of the Act signalled a clear policy imperative of ensuring that allegations of family violence are treated seriously and dealt with expeditiously.  In an ideal world, these allegations could be dealt with at a discreet issues hearing, or an expedited final hearing.  In reality, in a registry of this court where almost all of the cases involve allegations of family violence, neglect, abuse, drugs or alcohol and mental health, neither a discreet issues hearing, nor expedition is possible.  It is nonetheless imperative that allegations of family violence are treated seriously.

   [68] At [61] in Deiter, the Full Court discussed risk analysis:

   The assessment of risk is one of the many burdens placed on family law decision makers.  Risk assessment comprises two elements – the first requires prediction of the likelihood of the occurrence of harmful events, and the second requires consideration of the severity of the impact caused by those events.  In our view, the assessment of risk in cases involving the welfare of children cannot be postponed until the last piece of evidence is given and tested, and the last submission is made.  We accept, however, that it is always a question of degree depending on the evidence that is before the Court.

   [69] The Full Court at [77] noted that it is not open to a trial judge to simply ignore an allegation because it had not been tested.

   [70] The Full Court in Enmore & Smoothe [2014] FamCAFC 131 at [39] explained that a finding of risk of abuse may be reached on the basis of evidence which falls short of that required for a finding that abuse has occurred.  However, that is not to suggest that evidence aimed at establishing a possible risk of abuse should not be subject to careful scrutiny, since serious consequences can also flow from a finding that a child is at risk of abuse.

   [71] In 2015, the Full Court in Eaby & Speelman [2015] FamCAFC 104 at [18] expressly stated that the comments of the Full Court at [68] in Goode did not mean that merely because the facts are in dispute the evidence on the topic must be disregarded and the case determined solely by reference to the agreed facts.  Moreover, at [21] the Full Court recognised:

   Much of what occurs in families takes place in private, as a consequence of which corroboration is often not available.  It follows that the absence of corroborating evidence does not necessarily undermine a person’s evidence on that topic.

   [72] In Salah & Salah [2016] FamCAFC 100 the Full Court in 2016 focused on s.60CG, which requires a Court when considering what parenting order to make, to ensure that whatever order is made, it does not expose a person to an unacceptable risk of family violence.  Again, trial judges were reminded in that judgment that corroboration or objective support for allegations is not always necessary, especially because family violence often takes place in private in circumstances where no corroboration is available. 

The Evidence before the Court

1. The parties all relied on their Respective Case Outlines and the Child Dispute Conference Memorandum to Court dated 9 September 2019.

2. In the Paternal Grandmother’s case, she relied on the following documents;

   a)    Initiating Application filed 6 May 2019;

   b)   Affidavit of Ms Carder filed 6 May 2019;

   c)   FDR Certificate filed 6 May 2019;

   d)   Affidavit of Service filed 6 May 2019; and

   e)   Affidavit of Ms Carder filed 12 September 2019.

3. In the Mother’s case, she relied on the following documents;

   a)    Affidavit of Ms Koster filed 7 June 2019; and

   b)   Affidavit of Ms Koster filed 12 September 2019.

4. In the Father’s case, he relied on the following documents;

   a)    Affidavit of Mr Carder sworn 14 August 2019; and

   b)   Minute of Order as proposed by the Paternal Grandmother.

5. In the Independent Children’s Lawyer’s case, she relied on the following documents;

   a)    Initiating Application filed 6 May 2019;

   b)   Affidavit of Ms Carder filed 6 May 2019;

   c)   Notice of Risk filed by the Paternal Grandmother on 6 May 2019;

   d)   Affidavit of Ms Koster filed 7 June 2019;

   e)   Response filed by the Mother on 7 June 2019;

   f)    Notice of Risk filed by the Mother on 7 June 2019;

   g)   Affidavit of Ms Koster filed 12 June 2019;

   h)   Response filed by the Father on 15 August 2019;

   i)     Affidavit of Mr Carder filed 15 August 2019; and

   j)     Notice of Risk filed by the Father on 15 August 2019.

1. The following the documents were tendered as evidence during the course of these proceedings;

   a)    Documents produced pursuant to subpoena on Region D Local Health District;

   b)    Documents produced pursuant to subpoena on Suburb E  Medical Centre;

   c)   Documents produced pursuant to subpoena on Suburb G Hospital;

   d)   Mother’s drug test dated May 2019;

   e)   Father’s drug test collected 13 September 2019;

   f)    Child Dispute Memorandum to the Court dated 9 September 2019; and

   g)   Letter from Legal Aid dated 23 September 2019.

2. All of the parties also agreed that the chronology that was very carefully prepared by the Independent Children’s Lawyer and contained in her Case Outline document, which summarise various records produced on subpoena and arrange to them chronologically, could be accepted by the Court as an accurate summary.  This was without prejudice, however, to the Mother’s right to tender further documents as she indeed did.  Moreover, where the summary contained nothing more than an assertion, the Court obviously could not treated as anything more than that without making a specific finding.

Understanding the cases advanced by the parties.

1. In essence, the cases mounted by the Paternal Grandmother, the Father, and the Independent Children’s Lawyer, suggested that the Court needed to move slowly, and cautiously, in circumstances where the Mother remained vulnerable, she had ongoing health issues, there was a risk of relapse into drug abuse, and the end of a problematic past relationship was relatively recent. 

2. The Mother’s case had as its foundation in her historical care of the children and the fact that she has completed so many clean drug tests.  She acknowledged past risk of harm issues, appeared appropriately contrite, but raised concerns about X in the Paternal Grandmother’s care.  On her behalf it was submitted that her proposal be provided adequate opportunity for further evidence to be collected by the Independent Children’s Lawyer before, in effect, X would return to her care.  She wanted sole parental responsibility, even though there would be many months where X would not be living with her.  She wanted unsupervised time, despite the risk of harm issues raised.  Her case emphasised that she was engaged with services to assist her in terms of her mental, and physical health, and drug abuse issues.  She acknowledged the past difficult relationship with the Father of her other younger children, but emphasised that even though they had children together, he was no longer a part of her life.  She seemed concerned that the Orders initially made on 9 May were made in her absence even though she acknowledged that she was struggling with ill-health at the time.  The Mother acknowledged that she has a physical health problem associated with unexplained loss of consciousness.  She submitted that this was being investigated, and was being treated.  In her submissions the inference seemed to be that there was no link between her drug abuse, and loss of consciousness issue.  Despite a very optimistic outlook reflected in the submissions made on her behalf, the Mother also accepted, quite appropriately, that both she and would X were vulnerable.

3. The Court observes that one can only be sympathetic with the Mother in seeking to have the child returned to her care.

4. From the Court’s perspective, this is a risk of harm assessment.  There are many things that are taken into account in cases such as this one.  The subjective impression or perspective of the Mother is one thing to take into account.  What is generally more reliable, however, is the more objective evidence often contained in business records, as well as any independent expert advice, even on a preliminary basis.  Often, it is a comparison of the Mother’s perspective, to the more objective material, that provides a more realistic insight into the risks that are said to exist if X were returned to the Mother’s care.

5. A consideration of the more objective evidence is necessary.  This consideration commences with examining the Child Dispute Conference Memorandum to the Court dated 9 September 2019.  There is a curious dissonance between the case the Mother presented in Court on 25 September 2019, and what she is recorded as having told the Family Consultant on 9 September 2019.  For example the Mother told the Family Consultant that she would like more time with X and agreed that, until the Court determines otherwise, the time could also occur in a contact centre.  It was hard to understand, from the Court’s perspective, how the Mothers position could change so markedly. The Mother’s insight about her own drug use, and its impact on the children in her care, is a significant issue for the Court.  In the Child Dispute Conference Memorandum, the Mother acknowledged ice use over the past two years and marijuana from age 18, on a daily basis.  The Mother denied that she was affected negatively by the drugs but acknowledged that, although she was the only carer of her children, the care may not have been as it should have been due to her drug use.  The Family Consultant recorded the serious allegations made by the Father which are plainly inconsistent with the Mother’s stated assertion.  The Father’s account of the key incident in this case is worth reproducing.  He told the Family Consultant that the Mother’s use of ice and marijuana was such that X was left in his cot and that on his return from work, he would be in his cot still and have a very dirty nappy.  At the time of separation, he came to the house, found the children wandering around uncared for and dirty, the Mother unconscious and he called an ambulance, which took the Mother and X to hospital from where he was collected by the Paternal Grandmother.  Interestingly, the objective account of the incident provided in the business records by the emergency services workers who attended is very similar to that of what the Father told the Family Consultant.

6. The Mother seems to have reflected on her own vulnerability.  The Family Consultant records that she did not report any mental health problems, but appeared very emotional throughout the interview.  The Mother’s deafness and lack of hearing aids during this interview made it difficult for her and also made it difficult to determine how much of her struggle with understanding the questions was due to her not hearing them well enough and how much was due to other difficulties with comprehension and or anxiety.  The Mother described a very high level of stress in her home due to the level of care for two of her children who have developmental disabilities.

7. The Family Consultant recorded the both the Father and Paternal Grandmother describe significant positive changes in X’s behaviour since he came into their care.

8. Under the heading of future directions, the Family Consultant observed that X is safe and comfortable in the current arrangements.  There appeared to be agreements about spending supervised time with the Mother.  The Family Consultant said that safety should be prioritised and that if the Court found that supervised time could increase, it would be helpful for it to take place in a contact centre.  Importantly, the Family Consultant stated:

   ‘Although both parents report having ceased their use of drugs, relapse can occur and presents a high risk for children due to the impact of a drug lifestyle and risks associated with this stop these risks are of particular concern due to X’s young age and the disabilities of two of his siblings.’

9. It must be recorded that the Court is surprised that, in the face of such a clear Child Dispute Conference Memorandum, and in view of what the Mother told the Family Consultant on 9 September 2019, that her case on 25 September 2019 should be so completely different.  With great respect to those representing the Mother, perhaps a more rigorous reality testing exercise might have been undertaken.  Perhaps it might have been best for the Mother not to expose herself to the rigorous forensic scrutiny that often occurs at an Interim Hearing lest it show, for example, the full magnitude of her lack of insight and understanding which, in itself, is linked to the question of risk assessment as regards to relapse.

10. The Chronology and summary of the documents produced on subpoena contained in the Independent Children’s Lawyer’s Case Outline document raises serious issues about risk of harm in the Mother’s care.  For example, as early as 2014 the Mother appeared to be struggling with alcohol abuse, being in a violent relationship, reports of neglect of the children in her care and reports of the Mother being under the influence of drugs. In an August 2016 admission to City F Hospital the Mother’s drug screens tested positive to amphetamines and cannabis.  A Police event in August 2016 raises serious issues about the Mother’s ability to look after her children.  A bong and ice pipe were found next to her bed.  The children were running around shouting incoherently.  The Mother was incoherent when first interviewed.  There was little food in the house.  On 20 August 2016 the Mother had a mental health admission to Suburb G Hospital.  She expressed thoughts of self-harm.  A July 2017 admission to City F Hospital records the Mother disclosing use of methamphetamines, but denying current drug use.  This denial is found to be palpably inaccurate by reference to subsequent independent records.

11. X was born in … 2017.  The first report to the Department about his care appears to be 19 June 2018.  A further report was made in September.  On that occasion the Mother had reported that she had used ice in the past, but not for over a year, and that she will ‘never go back to the drug as it stopped her from properly supervising the children.’  Again, subsequent events show that this statement was palpably false.  In a safety assessment in November 2018 the Mother told a representative of the Department that she did not use marijuana anymore.  A safety assessment on 10 April 2019 records the Mother has having told the caller that she hit X, grabbed him and pushed him, and the record observes concerns for the safety of X.  During the period of April 2019 the Mother admits to continuing to use marijuana.

12. Before even considering the significant events of 29 April 2019, on any objective assessment of the history of this matter it is clear that the Mother was struggling with a range of issues including drug use for a period of years before the event in question.  It is hard to understand her case to the Court that just because she has provided four clear drug screens, that somehow the risk to X is so low that his time with his Mother does not need to be supervised.

13. The focus turns to the events of 29 April 2019.  Here the comparison will be drawn between what the Mother tells the Court in her Affidavits, and the more objective accounts found in the primary records, particularly of City F Hospital.

14. In the Mother’s Affidavit of 7 June 2019 at paragraph 11 she deposes that the Paternal Grandmother took X home from the hospital ‘after I was found unconscious in my home on 29 April 2019.  I did not consent to X going into ‘the Grandmother’s care.’  Putting aside this rather extraordinary statement, at paragraphs 25 – 30 of the same Affidavit of the Mother provides more details of the circumstances leading to X going into the Grandmother’s care.  At paragraph 24 she agrees that on 24 April 2019 she used ice whilst all the children were in bed.  She said she had three or four puffs of the pipe.  At paragraph 27 she says that over the next few days she did not use ice, but did smoke marijuana.  However, on 29 April, on a day when she was looking after X, Z and Y, she had smoked some marijuana in the morning before the children woke up.  Around lunchtime, she says, she was watching television with X and had laid down with him to watch the show.  She says the next thing she remembers is the paramedics waking her up.  She understood that she had fallen unconscious, and that the Father found her and called an ambulance.  She was taken to hospital with X, and discharged on 2 May 2019.

15. In the Mother’s affidavit of 12 September 2019 at paragraph 29 she acknowledges that the Court would be worried that she had passed out when X was in her care and accepted that when she passed out she could not properly respond to X.  At paragraph 33 she explains that before 29 April 2019, she was not eating very well, had not been taking iron tablets or other medication, and had used cannabis earlier that day.  She knows that she had tested positive for cannabis and amphetamine.

16. What the Court finds significant about the Mother’s account of the events of 29 April 2019 is her minimisation of what took place.  For example, in her Affidavit she says nothing about the time that had elapsed between the time that she lost consciousness, and when the paramedics woke her up.  Thus, she does not tell the Court how many hours X was left unattended.  She does not say anything about Z and Y during this time.  She offers no explanation as to how she tested positive to amphetamines, even though, according to her, her last ice use was five days earlier.

17. When the hospital records are considered carefully, a more fulsome picture emerges.  The Mother agreed to those attending her that she had been smoking marijuana in the morning and that in fact she had three children in her care.  She explained that she had been lying on the floor, watching the ABC, and that her family had been trying to wake up for two hours, and she was woken up by the ambulance.  She explained that she uses marijuana when she can not sleep, once a month, and that she gets cramps in her legs. She explained she has tried to stop recreational drug use in the past.  In a progress note she stated that she couldn’t remember why she was in hospital, other than that she had collapsed, but didn’t know the reasons for this.

18. In the context of another progress note and under the heading for diagnosis, it states: ‘likely combination cannabis use and anaemia.’  When the Mother was assessed by a nurse in the Emergency Department she admitted to smoking marijuana this morning but denied meth use and said last used ‘months ago’.  There is a clear inconsistency here.  This was a denial of meth use given in the context where the person seeking the information was trying to assist the Mother.  It is hard to understand why, in this context, the Mother would have the presence of mind to disclose the marijuana use that day, but not the methamphetamine use just a few days ago, especially in what one would considered to be the distressing circumstances of loss of consciousness.

19. Later in the progress notes there is a record of the Mother stating that she could recall seeing the ambulance crew around 5 PM, and that her sister had last seen her around 11 AM.  There is also a note about the Mother suffering multiple episodes of passing out and that her cannabis/amphetamine use complicates this.

20. The progress notes seem to record an exchange between the Mother and a social worker.  There is a record of the Mother saying: ‘drugs and alcohol are not a problem for me.’  The record states: ‘minimal engagement in discussion about stages of change or current motivation for drug and alcohol support.’  She also told the person who created the record that she used to use crystal meth once a week but that she hasn’t used for months.  She said she uses crystal meth to provide energy to be able to complete tasks.  The Mother said she smoked cannabis daily 2 cones at night, but the record observes that likely underreporting as admission notes indicate the Mother was smoking cannabis at home in presence of children prior to loss of consciousness.

21. Finally, there is a case description which seems to be based on a record prepared by New South Wales ambulance.  The record states that the call was about an unconscious female.  On arrival they were met by a male out the front who said that he was the Father of the 20 month old boy.  He said he had come to check on them today and has heard three children, 11-year-old female autistic non-verbal, 13-year-old male autistic and 20 month old male crying inside house.  Male has forced entry and found 20-month-old and 11-year-old both covered in faeces and urine and 20-month-old covered in bong water and had ingested same.  Male states he attempted to wake patient for two hours prior to calling ambulance.  Patient was last spoken to at 11 AM.  15 year old female arrived home from work at McDonald’s during same. Patient initially denied any drug use however stated she smoked marijuana last night and this morning. House messy.  Faeces found around holes in walls, backyard overgrown and unsafe. X, 20-month-old transported to ED for observation due to Ingestion of bong water.

22. What is the significance of this objective evidence in the context of the Mother’s case?  One could be kind to the Mother and simply say she is a poor historian.  Of course that does not necessarily explain inconsistencies in her evidence.  There was some evidence in the Mother’s medical records of her reporting a poor memory.  That, of course, is itself a factor of risk to be taken into account.  The more likely explanation is that the Mother’s account of what was the critical incident in this case, that led to X going into the Paternal Grandmother’s care, was a sanitised, minimalised, account of the incident.  A strong impression is formed that the Mother was not truthful even to those who were simply trying to help her.  That is a real concern in terms of assessing risk of relapse.  The issue, moreover, is that the Mother may be seeking to delude others, as well as herself.  The Mothers insight into past events, and the risk that it presents it to X, let alone to other children, seems to be limited.

23. It must be said that the Mother’s case was almost unbelievable in the light of the objective evidence before the Court.  The inevitable inference to be drawn is that she is nowhere near having obtained the requisite insight so that the Court could be comfortable about her having unsupervised time with her son.  The Mother’s case was, with the greatest of respect, naïve and reflects poorly on her.

24. What are the Orders in X’s best interests, in the circumstances?  The minute of Order proposed by the Grandmother best reflects the Orders the Court considers to be in X’s best interests.  Orders 1 to 16 are appropriate.  In addition, however, there should be the Order proposed by the Independent Children’s Lawyer for supervised contact.  Thus Orders 3 to 7 inclusive should be made and on the basis that any time at the supervised contact Centre, would be in addition to that which the Grandmother offers in her minute.  One of the issues raised by the Mother was the difficulty for her in providing monthly drug tests as proposed by the Independent Children’s Lawyer.  Given the Mothers lack of insight, discussed above, but having regard to the random and discretionary nature of the drug testing audit, the Court will make the Order as proposed by the Independent Children’s Lawyer.  The Mother resisted the Order for sole parental responsibility for the Paternal Grandmother.  Once again, the Court expresses its surprise that this should that her proposal should be that sole parental responsibility be vested in her.  It was an extraordinary proposal to make having regard to the evidence before the Court.  In addition the Court will make Orders 19 and 20 of the Independent Children’s Lawyer’s minute relating to the Father.  There is evidence to suggest that he would benefit from doing the matters referred to therein.

25. This is a matter that would benefit from an Expert Report.  I will Order a Family Report so that the matter can take its place on the queue but hope that the Legal Aid Commission will fund an appropriate Expert Report.  I intend to bring the matter back for mention in the New Year to review progress in this matter.  The Independent Children’s Lawyer will have leave to relist on 7 days’ notice.

I certify that the preceding fifty (50) paragraphs are a true copy of the reasons for judgment of Judge Altobelli

Date:  11 November 2019