Chard and Yong

[2019] FamCA 26

FAMILY COURT OF AUSTRALIA

CHARD & YONG [2019] FamCA 26

FAMILY LAW – CHILDREN – Parenting – best interests of the child – parental responsibility – time spent with the Father – whether there should be supervised or unsupervised time – allegations of family violence raised by both parties

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

Morgan v Miles (2007) FLC 93-343
SS v AH [2010] FamCAFC 13
U & U (2002) 211 CLR 238

APPLICANT: Mr Chard

RESPONDENT: Ms Yong

INDEPENDENT CHILDREN’S LAWYER: Strong Law Pty Ltd

FILE NUMBER: CAC 1638 of 2016

DATE DELIVERED: 25 January 2019

PLACE DELIVERED: Canberra

PLACE HEARD: Canberra

JUDGMENT OF: Gill J

HEARING DATE: 23 January 2019

REPRESENTATION

SOLICITOR FOR THE APPLICANT: Self-representing

SOLICITOR FOR THE RESPONDENT: Legal Aid, ACT

SOLICITOR FOR THE INDEPENDENT CHILDREN’S LAWYER: Ms L Strong

Orders

Until further order

1. All previous parenting orders are discharged. 

2. That X, born … 2015, (“the child”) live with the Mother.

3. That the child spend time with her Father as follows:

   a.        Each Wednesday from 9am until 12 noon;

   b.        Each Saturday and Sunday from 9am until 12 noon;

   c.        Such additional or alternative times as agreed between the parties.

4. That the Father’s time that occurs pursuant to Order 3 above shall be supervised by a person to be agreed between the parties, and failing agreement a professional supervision agency.

5. It is a condition for a person who is not a member of a professional supervision agency to be approved as a supervisor that they provide to each party a signed document stating:

   I understand

   (a)      that I am to supervise the father’s time with X (the child);

   (b)      that the supervision is to ensure the child’s safety;

   (c)       that the supervision is to ensure that the child is not exposed to neglect;

   (d)that the supervision is to ensure that the child is not exposed to distressing behaviour

   and that if any of the above occur I am to terminate the visit and ensure the child is immediately returned to the Mother. 

   I understand this document may be presented to the Court.

   I understand that supervising may result in me becoming a witness in court proceedings as to what I have seen and heard. 

6. The matter is listed for further interim hearing, for a period of two hours at 10am on 18 April 2019. 

7. If a party seeks to change the orders at that hearing then he or she is directed to file and serve any application and further material she or he intends to rely upon for the purpose of that determination by no later than 4 April 2019.

8. If a party intends to oppose such change then he or she is directed to file and serve any further material she or he intends to rely upon for the purpose of that hearing by no later than 11 April 2019.

Note: The form of the order is subject to the entry of the order in the Court’s records.

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

Note: This copy of the Court’s Reasons for Judgment may be subject to review to remedy minor typographical or grammatical errors (r 17.02A(b) of the Family Law Rules 2004 (Cth)), or to record a variation to the order pursuant to r 17.02 Family Law Rules 2004 (Cth).

FAMILY COURT OF AUSTRALIA AT CANBERRA

FILE NUMBER: CAC 1638 of 2016

Mr Chard

Applicant

And

Ms Yong

Respondent

REASONS FOR JUDGMENT

Introduction    

1. The Applicant is the Father, Mr Chard, and the Respondent is the Mother, Ms Yong. They have one child, X born in 2015 (the child).  The parties married in 2014 and separated on 9 October 2016.

2. Interim orders were made in the Federal Circuit Court providing for the child to live with her Mother and have supervised time with the Father.  However, the Father has not been spending time with the child since May 2018.  He now seeks unsupervised time.

Orders Sought

1. The Father sought:[1]

   [1] Minute of Orders Sought by the Applicant Father, dated 12 November 2018.

   1.That the parents have equal shared parental responsibility of the child [X] born … 2015.

   2.That the child live with the mother.

   3.That for one month commencing on the first Wednesday after the date of these Interim Orders, that the child spend time with the father as follows:

   3.1Each Wednesday from 9am until 6pm;

   3.2Each Saturday from 9am until 6pm; and

   3.3Each Sunday from 9am until 6pm.

   4.That upon completion of Orders 1, that the child spend time with the father as follows:

   4.1 Each Tuesday from 9am until Thursday 6pm; and

   4.2 Each alternate weekend from Saturday 9am until Sunday 6pm.

   5.That the parent who has care of the child on the child's birthday shall make the child available to the other parent from 3pm until 7pm

   6.That the parent who has care of the child on Christmas Day shall make the child available to the other parent from 3pm Christmas Day until 3pm Boxing Day.

   7.That nothing in these Orders prevents the parents from making other and alternative arrangements for the child as agreed in writing between the parents.

   8.That on two occasions each year the child shall spend five days with the father from 9am Saturday until 9am Thursday; and this shall occur upon the father providing the mother with 28 days’ notice of his intention to spend such time with the child.

   9.That in the event of a serious illness or medical emergency involving the child, the parent who has care of the child at such time shall immediately notify the other parent and provide that parent with details of the illness or injury including the names of any treating medical professionals and the location of any medical facility where the child is being treated.

   10.That leave be granted for the Applicant father to amend his application for Final Orders pending the outcome of Interim Proceedings.

   AND IT IS NOTED:

   A.That the father intends seeking Final Orders that the child live with the parents in a shared care arrangement on a week-about basis.

   B.That in seeking the Interim Orders the Applicant Father seeks to rely on the evidence contained in his following affidavit materials:

   ·Affidavit filed on 5 January 2018

   ·Affidavit sworn 01121 February 2018

   ·Affidavit sworn 011 8 March 20 I 8

   ·Affidavit sworn on 9 March 2018

   ·Affidavit sworn on 19 April 2018

2. The Mother sought:[2]

   [2] Outline of Case Document for Respondent Mother, filed 18 January 2019.

   1.That [X] born … 2015 (“the child”) live with the Mother.

   2.That the child spend time with her Father as follows:

   a.        Each Wednesday from 9am until 12 noon;

   b.Each Saturday and Sunday from 9am until 12 noon;

   c.Such additional or alternative times as agreed between the parties.

   3.That the Father’s time that occurs pursuant to Order 2 above shall be supervised by a person to be agreed between the parties, and failing agreement a professional supervision agency.

   4.That any person appointed a supervisor pursuant to Order 3 is to provide to the Court within 7 days an undertaking that they understand the requirements of supervision.

   3.That the matter be listed for Final Hearing at a date convenient to the Court.

3. The Independent Children’s Lawyer (‘ICL’) did not seek particular orders. Instead, the ICL gave oral recommendations during the Interim Hearing on 23 January 2019. The ICL’s recommendations can be summarised as follows:

   a)The Father have supervised time with the child;

   b)Time should be supervised, either by [B Group], or privately by agreement between the parties; and

   c)The matter be brought back to the Family Court of Australia following a fixed period of time.

Material relied upon

1. The Father relied upon the following:

   a)Affidavit of Mr C, filed 2 February 2017;

   b)Report prepared by Dr D, dated 28 September 2017;

   c)Minute of Orders Sought by the Applicant Father, dated 12 November 2018;

   d)Affidavit of the Father, filed 7 December 2018;

   e)Affidavit of Mr E, filed 7 November 2016 (Annexure A to the Affidavit of the Father, filed 7 December 2018);

   Exhibits:

   f)Email and Good Behaviour Order (Exhibit F1);

   g)Australian Federal Police Reports (Exhibit F2); and

   h)Correspondence between B Group and Mr Chard (Exhibit F3).

1. The Mother relied upon the following:

   a)Report prepared by Dr D, dated 28 September 2017;

   b)Affidavit of the Mother, filed 7 January 2019;

   c)Outline of Case Document for Respondent Mother, filed 18 January 2019;

   Exhibits:

   d)Video Evidence of Behaviour (Exhibit M1); and

   e)Tender Bundle (Exhibit M2).

2. The ICL relied upon the following:

   a)Report prepared by Dr D, dated 28 September 2017.

Principles

1. The paramount consideration in determining what order should be made is, pursuant to s 60CA, the best interests of the child. What is in the best interests of the child is to be determined by a consideration of the matters set out at s 60CC of the Family Law Act1975, and in accordance with the objects and principles set out at s 60B and the reasoning process set out at s 65DAA.

2. When considering what is in the best interests of the child, the Court is obliged to take proper account of the positions of the parties, the evidence led and the arguments pursued. However, the Court is to remember that these do not set the boundaries for making a decision as to what is in a child’s best interests, as those boundaries are set by the objects and considerations set out in the legislation.[3]

   [3]U & U (2002) 211 CLR 238

3. These are interim proceedings conducted within the context of multiple interim resolutions as to the arrangements for the child.

4. In interim proceedings the Court is limited, by the nature of the proceedings themselves, in the manner of consideration of the factual matters that underpin a decision as to what is in a child’s best interests.  It is necessary to:[4]

   keep in mind the statements in Goode and Goode that at an interim hearing it is important to identify the agreed/uncontested facts and that consideration of the s 60CC factors is likely to be limited, given that there may be little uncontested evidence on which findings can be made

   [4]SS v AH [2010] FamCAFC 13 at [81]

5. Despite this limitation:[5]

   Apart from relying upon the uncontroversial or agreed facts, a judge will sometimes have little alternative than to weigh the probabilities of competing claims and the likely impact on children in the event that a controversial assertion is acted upon or rejected. It is not always feasible when dealing with the immediate welfare of children simply to ignore an assertion because its accuracy has been put in issue.

   [5]SS v AH [2010] FamCAFC 13 at [100]

Parental responsibility

1. The Court is also required, pursuant to s 61DA, to presume that it is in the best interests of the child for the parents to have equal shared parental responsibility unless the presumption is rendered inapplicable, inappropriate (in interim proceedings) or is rebutted.

2. If an order is to be made for equal shared parental responsibility then the Court is to follow the reasoning process set out in s 65DAA and described by Boland J in Morgan v Miles as “the careful exercise of a structured discretion to determine the appropriate order to be made”.[6]  That process calls for the sequential consideration of orders for equal time with parents, followed by orders providing for substantial and significant time with a parent prior to a consideration of other options.

   [6] (2007) FLC 93-343.

3. As yet there appears to have been no order made in relation to parental responsibility. The current position is therefore one where each of the parties holds parental responsibility.

4. Although the Father sought an order for equal shared parental responsibility, neither party made submissions on the issue of parental responsibility. 

5. On the Father’s case, the Mother has perpetrated family violence upon him.  This position is corroborated by his witness, Mr E.  On the Mother’s case, the Father has perpetrated family violence upon her.  This is supported by a video recording of an exchange at the time of separation where the Father was abusive to, and made threats against, the Mother.  Each of these mean that, even without forming a conclusion as to whether there has been family violence, there are reasonable grounds to believe that a parent of the child has engaged in family violence.  This renders the presumption that it is in the best interests of the child for the parents to have shared parental responsibility as inapplicable.

6. The allocation of parental responsibility falls to be determined on the basis of what, in the interim, is in the child’s best interests, without reliance upon a presumption.

The child’s best interests

1. The applicant Father has not had unsupervised time with his daughter the child since orders were made by consent by Judge Hughes in the Federal Circuit Court in March 2017. It is within this context that the Father seeks unsupervised time with his daughter. Since March 2017, an Expert Report has been prepared by the Single Expert, Dr D, which it may be accepted is controversial between the parties, but which recommends unsupervised time for the Father with the child during the day.  The Father saw the child after the preparation of the Report but has ceased seeing her since May 2018.  At that time the Father was seeing the child, and the time was supervised by B Group.  While there was a dispute between the parties as to whether the Father had cancelled the B Group visits, this is practically resolved by Exhibit M2 at 3(d) which contains correspondence from the Father to the Mother’s lawyer on 4 May 2018 saying that he would no longer attend B Group for time with the child.  Given the position of the parties, whether or not the Father was responsible for the ending of the availability of B Group is of no consequence.

2. There is no contest between the parties that the Father's time and relationship should be reinstated.  The contest is whether it should be supervised and at what frequency.  Both the Mother and the ICL sought that the time be supervised, while the Father opposes supervision.

3. The s 60CC considerations that were dominant and significant during the Interim Hearing on 23 January 2019 were:

   a)Section 60CC(2)(a) the benefit of a meaningful relationship with the Father;

   b)Section 60CC(2)(b) the need to protect the child from psychological harm flowing from neglect, being a risk posed by the Father;

   c)Section 60CC(3)(b) the nature of the relationship between the child and her Father, especially given the gap in time since she has been spending time with him; and

   d)Section 60CC(3)(f) the capacity of the Father to provide for the emotional needs of the child.

4. For the Mother it was said that despite there being no evidence that the Father has directly harmed or threatened harm to the child, supervision is justified.  The justification is to protect the child from any harm that may be occasioned by neglect, in the sense of the Father failing to care for her adequately. 

5. The concern that the Father may fail to care properly for the child is prompted by concerns about his mental health, and a concern that his interaction with third parties may prevent or remove him from being able to care for the child.  There were three examples given of police involvement with the Father following his interaction with third parties.  This was said to evidence the taking of risks on the part of the Father and a lack of insight into his behaviour.

6. The Father disputes that these three examples demonstrated a risk to his care of the child.  Exhibit F2 contained Police Reports for incidents occurring on 12 December 2015, 20 December 2015 and 21 June 2016.  In each, the Father was the claimed victim of an assault.  In the third of these the assailant was criminally convicted.  In each there was suggestion that the Father had involved himself in an altercation with a third party immediately prior to being assaulted.

7. Accepting that the circumstances of each incident remain uncertain, the Police Reports do not particularly detract from the concern that the Father may involve himself in conduct that removes himself as a carer.  At the same time, they do not establish such a proposition.

8. The Mother further expressed concern about what the child may be exposed to in the Father's care.  To support this she referenced an instance of alleged family violence which was the subject of a video recording (or perhaps three recordings) that constituted Exhibit M1.  These three video recordings are of an incident occurring in October 2016 (being an incident that immediately preceded the end of the relationship) in which the Father was angrily and abusively shouting at the Mother in the child’s presence. 

9. For the ICL, supervision was warranted for a number of reasons:

   a)While the Father asserted that he had never been violent physically or verbally or in any manner to the Mother, the ICL noted that Exhibit M1 conflicted with this assertion and did so in a manner that demonstrated that the child was present while the Father engaged in such behaviour.  As discussed above, in that video the Father swore and was abusive to the Mother.  He threatened to send the Mother to China without the child. 

   b)Although there was not a physical risk flowing from the Father, there was a concern as to an emotional risk which was illustrated by exhibit M1.  The ICL said that this was reinforced by the Father’s incapacity to accept his mental health issues as illustrated by the Single Expert's report at paragraphs 82 through to 87 which showed a number of denials by the Father of his mental health history. 

   c)Given the gap since the Father has spent time with the child, and the underlying questions about his mental health, a period of supervision would be of assistance in catering for and potentially answering these unknown areas.

10. In relation to the Father's mental health history reference was made to Exhibit M2 and items 2(a) through to (h).  They are as follows:

    a)Item 2a, which occurs shortly post the date of separation of the parties in October 2016, is of an interaction with the CATT (Crisis and Triage Team) in November 2016 in which they indicated that a previous assessment in 2016 did not indicate that the Father had a pervasive mental illness;

    b)Item 2b showed an interaction with ACT Mental Health in October 2016 in which the Father was seeking a referral to a psychiatrist. During this interaction, the Father described thoughts of self-harm, thoughts of harm to others, that he was thinking of burning down his house and noting that he had contacted immigration to withdraw sponsorship of the Mother.  This entry also included material from September 2016 (pre-separation) indicating that the Father was on medication including the antidepressant Pristiq.  The Father was at that stage claiming that he would divorce from the Mother.  An entry from August 2016 again shows the Father taking Pristiq.  An entry from July 2016 references the Father having litigation guardian.  A reference from June 2016 indicates the Father having thoughts of self-harm;

    c)Item 2c was an attendance upon a consultant psychiatrist at the F Hospital, Dr G in July 2016.  In that, the Father was described as being distressed and suicidal when weaning off Pristiq.  Importantly the Father said that he sometimes forgets to eat and to feed his daughter and for that reason CYPS (the relevant child welfare department) had become involved.  The report referred to a February 2016 psychiatric admission at the F Hospital in which the Father was described as having disorganised behaviour and selective mutism.  A psychiatric admission in 2007 was also referenced.  No psychotic phenomenon was reported.  Dr G found there was no significant mood, anxiety or psychotic order at that time and, while the Father was mildly elevated as a risk of self-harm, such was not acute;

    d)Item 2d was a letter from the Father's psychologist, Mr H, from April 2016.  Mr H described major depressive and post-concussion syndrome that would severely impact the Father’s short and long-term executive function, mood, emotional states and well-being and his capacity to care for the child;

    e)Item 2f (noting 2e was not significant) was a document from the ACT Civil and Administrative Tribunal from 28 November 2017 noting that the Father no longer had impaired decision-making capacity. 

1. Reference was also made to the Single Expert's Report (noting that the various findings by the Single Expert are highly contentious).  The Father has previously criticised the Single Expert for taking into account material that he was not permitted to and for not having a full set of material in the preparation of his report.  At this stage I am not able to determine whether or not the Single Expert is right in his findings or recommendations.  As noted above, that inability does not mean that the matters raised by the Single Expert are to simply be disregarded. 

2. At paragraph 119 of the Report, the Single Expert found that the Father had no treatable psychiatric illness but had a factitious disorder and malingering.  The Single Expert thought that the Father was possibly vulnerable to future emotional and behavioural disturbances. 

3. At paragraphs 121 and 122 the Single Expert noted impaired parenting capacity, in particular in the capacity to consistently prioritise the child.  The Single Expert thought that it was unlikely that the Father posed a physical risk. 

4. The Single Expert's Report culminated in a recommendation that the Father have daytime periods with the child on an unsupervised basis.  He did note that the Father had impaired capacity to consider the child's experience when preoccupied with an issue of concern to himself.

Conclusion

1. An order for equal shared parental responsibility could benefit the child by having both of her parents involved in long-term decision-making. However, during this interim period, the current position where there is no order in relation to parental responsibility, and thereby both parents hold parental responsibility, is preferable. 

2. It is preferable because for a large part of her life the child has had limited interaction with her Father, and has lived solely with the Mother.  Maintenance of the current position enables important decisions to be made by the Mother who primarily cares for the child.  The matters raised about the Father, in particular his interaction with mental health services, leave open significant questions about either his capacity to parent or manner of parenting.  A requirement, as would be imposed by s 65DAC, for cooperation in major decision-making is not an  appropriate obligation to place upon the parties in that context.

3. Noting the operative s 60CC considerations, and the positions adopted by each of the parties, it is important that the child have the opportunity of spending time with her father again. Each party supports that this should occur. The remaining issue relates primarily to whether or not it should be supervised.

4. The position taken by the ICL, that there should be a period of supervision along with an allocated date for the matter to return to court so the arrangements may be evaluated, is the preferable approach.

5. As noted above, the lengthy break in time since the Father has seen the child, when coupled with his interaction with mental health services, leaves significant unanswered questions about how his time and interaction with the child might unfold.  Hopefully the interactions with the child during a relatively short period of supervision will demonstrate what the Father has urged upon the Court, and what has been previously seen by various witnesses, that he is a dedicated and involved Father.  Again, hopefully, it will also demonstrate the now dated observations made by the Single Expert of a warm and easy relationship between Father and daughter.  Hopefully such an arrangement will also demonstrate that the concerns about the Father’s behaviour and mental state, and how they impact on his interactions with the child were misplaced and that, despite his threats of self and other harm, reported to mental health practitioners, the assessment of the Single Expert that he does not suffer from a treatable psychiatric illness will be what is reflected in his time with his daughter.

6. As observed by the ICL, a period of supervision is apt to answer a number of areas of uncertainty that have been posed by these interim proceedings.

7. Whether this may then lead to unsupervised time, as sought by the Father, will be a matter to be assessed on the matter’s return to the Court.

8. As to the nature of the supervision, the circumstances do not necessitate professional supervision. It appears in the past that the Mother has been open to non-professional supervision,[7] and that there is scope for agreement on such matters if appropriate persons can be identified. The ICL also indicated that it appeared that B Group may be available to supervise again. Orders will facilitate both approaches.

   [7] See the affidavit of Reverend C.

I certify that the preceding thirty-nine (39) paragraphs are a true copy of the reasons for judgment of the Honourable Justice Gill delivered on 25 January 2019.

Judge:

Date:  25 January 2019