CLEAREY & PENNA

[2018] FCCA 3839

FEDERAL CIRCUIT COURT OF AUSTRALIA

CLEAREY & PENNA [2018] FCCA 3839

Catchwords:
FAMILY LAW – Parenting – mother estranged from child – child with medical and developmental needs – best interests of the child – aboriginal heritage – cultural considerations – considerations pending trial – parental responsibility – supervised time – neuropsychological assessment of the mother – family consultant’s evidence – family report ordered – independent children’s lawyer appointed – injunctions – mutual restraints enjoining denigration – restraints enjoining mother from consumption of alcohol, use of illicit substances and attendance upon the child’s school and the respondent’s home and place of employment.

Legislation:

Family Law Act 1975, s.60CC

Applicant: MS CLEAREY

Respondent: MS PENNA

File Number: MLC 11386 of 2018

Judgment of: His Honour Judge Wilson

Hearing date: 18 December 2018

Date of Last Submission: 18 December 2018

Delivered at: Melbourne

Delivered on: 21 December 2018

REPRESENTATION

Counsel for the Applicant: Ms J Cohen

Solicitors for the Applicant: Victorian Aboriginal Legal Service

Counsel for the Respondent: Ms R Read

Solicitors for the Respondent: Angela Ferdinandy

Counsel for the Interested Party: Ms K Cullen

Solicitors for the Interested Party: Department of Health and Human Services

ORDER

1. Pursuant to s 68L(2) of the Family Law Act (“Act”) the child [X] born on …2013 (“[X]”) be independently represented AND I REQUEST that Victoria Legal Aid arrange such separate representation and –

   (a)forthwith upon appointment by the said Victoria Legal Aid or otherwise the independent children’s lawyer do file a notice of address for service;

   (b)within 48 hours of notification of such appointment the solicitors for the respective parties do provide to the independent children’s lawyer copies of all relevant documents relied upon;

   (c)the independent children’s lawyer fulfil the requirements set out in ‘Guidelines for the Child’s Representative’ as published on the website of the Family Court of Australia, and in particular carry out the tasks set out in clauses 5, 6.2, 6.3, 6.5 and 6.7; and

   (d)the independent children’s lawyer prepare a minute of the orders reflecting their preliminary view of what orders they will recommend be made as final orders.

ORDERS BY CONSENT

1. Pursuant to s 62G(2) of the Act the parties and [X] attend upon a family consultant nominated by the regional coordinator of child dispute services in the Melbourne registry on a date and at a time to be advised for the purposes of the preparation of a family report on an urgent basis.

2. The family consultant is to file with the court his or her written report prepared pursuant to order 2 of these orders on or before 21 March 2019.

3. The executive summary of the family report prepared pursuant to order 2 hereof must not exceed a total of seven pages and must address the matters set out in s 60CC(3) of the Act.

4. The parties are to send copies of all of their court documents to the family consultant within seven days of being requested to do so by the family consultant. 

5. The family consultant has leave to inspect the court file and all documents produced under subpoena once permission to inspect has been granted to at least one party or the independent children’s lawyer in this proceeding.

6. If either party proposes to have the family consultant available for cross‑examination purposes at the trial then such party will (if applicable authorise their legal representatives to) notify in advance (by 14 days) the family consultant of his or her need to attend court.

ORDERS UNTIL FURTHER ORDER

1. The respondent has sole parental responsibility for [X] in respect of health and education.

2. The mother is restrained from attending or remaining in the vicinity of 100 metres of [X]’s school.

3. The mother is restrained from attending or remaining in the vicinity of 100 metres of the respondent’s home and place of work.

4. The applicant and respondent and their servants and agents are restrained from abusing, insulting, belittling, rebuking or otherwise denigrating each other to or in the presence or hearing of [X] and from permitting any other person so to do.

5. [X] spends supervised time with her mother at Contact Centre on two occasions per week when the mother is in Melbourne, with the respondent to pay the costs of such supervised time.

ORDERS

1. For 24 hours immediately prior to the commencement of any period of time during which [X] is to be with her, the mother is restrained from ingesting, consuming or using, or otherwise being under the influence of, alcohol or any legal or illegal drug or substance, save and except for –

   (a)any legal medication prescribed for the mother by a registered medical practitioner, and taken or used by the mother strictly in accordance with the prescription; and

   (b)any over‑the‑counter legal medication or pharmaceutical substance ordinarily sold in supermarkets, and taken or used by the mother strictly in accordance with the directions appearing on the packaging of that medication or pharmaceutical substance.

2. The mother undergo a neuropsychological assessment and report, with the mother to pay the costs of the same if any.

3. The mother undergo hair follicle testing with the respondent to pay the costs of the same AND for the purposes of the testing the mother is restrained from cutting her hair.

4. The respondent has leave to issue four additional subpoena to –

   (a)the …Land council;

   (b)the Central Australian Aboriginal Congress;

   (c)the Department for Child Protection in Western Australia; and

   (d)the Territory Families agency of the Northern Territory.

5. This proceeding is fixed for trial on 2 and 3 May 2019 commencing 10:15am.

6. By 4pm on 4 April 2019 the applicant must (if the applicant so chooses) file and serve any affidavit on which the applicant intends to rely at the trial of this proceeding.

7. By 4pm on 18 April 2019 the respondent must (if the respondent so chooses) file and serve any affidavit on which the respondent intends to rely at the trial of this proceeding.

8. By 4pm on 25 April 2019 the independent children’s lawyer must (if the independent children’s lawyer so chooses) file and serve any affidavit on which the independent children’s lawyer intends to rely at the trial of this proceeding.

9. By 4pm on 29 April 2019 the legal representatives for the applicant and the respondent and the independent children’s lawyer must –

   (a)confer over evidentiary objections and, in respect of those objections not agreed, prepare a table of remaining objections setting out the relevant sentence the subject of the objection and the evidentiary basis of the objection;

   (b)confer with a view to formulating an agreed list of issues to be determined at trial; and

   (c)file and serve his or her case outline.

10. The case outline must include –

    (a)a chronology;

    (b)the applicant’s, the respondent’s or the independent children’s lawyer’s (as the case may be) contentions about the matters addressed in ss 61DA, 65DAA, 60CC(3) and, where relevant, the matters addressed in ss 60CG, 61F, 65DAB, 65DAC of the Act; and

    (c)the precise orders as are sought.

DIRECTIONS

1. To the extent that it is or may be practicable to do so, a compliance check is to be carried out by an associate or deputy associate of the trial judge, or by another appropriate court officer, shortly prior to the trial date.

2. In the event of non‑compliance by any party with the orders, directions, rules or regulations applying in this court relating to –

   (a)the filing of documents; or

   (b)any other procedural issues,

   the application may be struck out, the proceeding may proceed undefended or the trial may be vacated and a further date not fixed until all parties have complied with the said orders, directions, rules and regulations.

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

FEDERAL CIRCUIT COURT
OF AUSTRALIA
AT MELBOURNE

MLC 11386 of 2018

MS CLEAREY

Applicant

And

MS PENNA

Respondent

REASONS FOR JUDGMENT

Introduction

1. On 18 December 2018, I heard the fifth return of an application to this court in relation to [X] born on …2013 (“[X]”), the young daughter of the applicant.  The respondent has been the carer of [X] for a substantial part of [X]’s life.  On 18 December 2018, it was necessary to decide with whom [X] will live between the date of the hearing and the date on which this proceeding can be heard at trial.

Short factual narration

1. As often is the case when an urgent application of the sort as is made in this case comes before the court, the evidence is in an untested state so it becomes difficult to do more than proceed on factual matters that are agreed, those that are not disputed or in respect of events that appear on the balance of probabilities to have likely occurred in the manner said that they occurred by one party or the other.  I recognise that in this case a large number of issues will require detailed examination before it is possible to express a view about them.  For example, no medical evidence has yet been obtained on important medical matters relating to [X].  Nor has it been possible to resolve conflicting evidence about events that led to [X] being separated from the applicant and when.  Certain factual matters that will be explored at trial had been subsumed by the need to get to the heart of the question of the person with whom [X] will live in the short term and where, given that the mother lives in the Town A community in Western Australia and the respondent lives in suburban Melbourne.

Preliminary observations

1. In making those preliminary observations, it is also relevant to point out that a variety of allegations have been made.  As against the mother, they include allegations of child neglect, family violence, substance abuse and mental health issues.  As against the respondent allegations have been laid concerning cultural alienation.  The respondent says that the applicant is highly volatile and verbally abusive towards her other three children.  Most if not all of the allegations and counter allegations have been denied by the person against whom the allegation is made.  Those issues must be tried.

2. The respondent gave evidence that the family of [X]’s father requested the respondent to care for [X] so as to nurse her back to health and, after a period of six months, to return [X] to her community.  The respondent and her partner have continued to care for [X] at the request of or in the acquiescence of the community and the father of [X].

3. It is plain enough that the prospects of the parties to jointly care for [X] are very limited, a point made by family consultant Ms E when she gave evidence on 28 November 2018. 

4. The respondent has sought orders for sole parental responsibility of [X].  The applicant has sought the return of [X] to her care.

Evidence of the family consultant

1. Ms E has conducted conferences with [X], with the respondent and with the applicant.  By reason of language issues and the risks associated with the applicant’s words not being properly communicated, Ms E and in turn, Ms E’s communications to the applicant on 28 November 2018, I ordered a further conference to be convened between Ms E and the applicant through an interpreter fluent in the English and …languages to be held earlier in the day on 18 December 2018. 

2. Ms E made a collection of key observations and recommendations on 28 November 2018.  They included the following –

   a)the applicant was entirely focused on having [X] returned to the applicant’s care;

   b)the applicant had little to no understanding of the medical and developmental needs of [X];

   c)the applicant had no understanding of speech and language therapy or occupational therapy that [X] will need on an ongoing basis nor how she will travel to Town B for speech and language therapy on a regular basis;

   d)the respondent was meeting [X]’s developmental and medical needs;

   e)the respondent has significant involvement with [X]’s father’s family and their culture and that the respondent seemed to have fostered [X]’s aboriginal heritage, recognising that [X] must have a relationship with the applicant;

   f)[X] has a very close relationship with the respondent;

   g)[X] shut down very quickly, and in a way Ms E regarded as quite concerning, when the applicant and [X] interacted for only a short time; and

   h)Ms E recommended [X] remains solely with the respondent spending time with the applicant under supervision.

3. Orders were made for the place, duration and frequency of the mother’s time with [X]. 

4. On 18 December 2018, Ms E told me that she maintained the views she had previously expressed.  She said she had enjoyed the benefit of a conversation with the applicant that was the subject of careful interpretation.  I am satisfied that no residual linguistic obstacles presented problems in this case.  For that matter, on 18 December 2018, an interpreter sat next to the applicant and I observed the interpreter communicating faithfully most, if not all, of the words spoken in court as well as those by video link.

Issues for preliminary determination

1. Cooperation remains a very big issue between the respondent and the applicant.  That has a very real impact upon considerations I am required to undertake in determining this application. 

2. Section 60CC(3) of the Family Law Act provides guidance in any determination, whether interim or final, of issues concerning the person with whom a child will live and who is to have sole parental responsibility for a child, as the respondent seeks in this case.  Counsel for the applicant placed heavy reliance upon [X]’s cultural needs contending that the mother, not the respondent, can best provide for the advancement and enhancement of [X]’s aboriginal cultural needs.  While I accept the force of that argument, that issue is but one of several issues that weigh in the balance when assessing [X]’s best interests.  By no means is it determinative.  No one suggested otherwise. 

3. It seemed to me that the issues that weighed most persuasively with me were the following –

   a)Ms E’s evidence of the applicant was entirely focused on having [X] returned her care;

   b)Ms E’s evidence of the applicant having little to no understanding about [X]’s medical and developmental needs or her speech, language and occupational therapy needs;

   c)[X] has a developed bond with the respondent that the applicant does not yet enjoy;

   d)the respondent being focused on [X]’s medical, developmental and therapy needs with demonstrated performance meeting those needs; and

   e)the respondent’s meeting, albeit not perfectly, many of [X]’s cultural needs.

4. It must not be forgotten that the applicant recently emerged on [X]’s life after a significant period of absence.  Any introduction of the applicant must be gradual if it is to have any prospect of forming the foundation for a sound and enduring bond. 

5. I recognise the applicant and those supporting the applicant will probably express their disagreement with the outcome for the respondent having sole parental responsibility for [X] until further order.  But I have grave doubts about the applicant’s present insight into her role and responsibilities as a parent.  In saying that I mean no disrespect.  It seemed to me that the respondent presented as a person who, while not a blood relative of [X], will act protectively in [X]’s best interests.  I am persuaded that the respondent will advance [X]’s cultural needs.  This case is, after all, about [X] – her future, her safety, giving her the best opportunities that can be given and setting her up for life that she can live to the fullest. 

6. Between now and the trial of this proceeding, I order that the respondent have sole parental responsibility in respect of health and education of [X].  I am not persuaded that equal shared parental responsibility will work in circumstances where cooperation is impossible.  In the foreseeable future, it is likely that urgent decisions must be made in respect of medical issues.  I was not persuaded that the applicant has the necessary skills at this stage to make urgent medical decisions in respect of [X].

7. After debate, counsel for the parties agreed that the respondent will make the payments necessary for testing in the nature of hair follicle testing to be undertaken in respect of the applicant.  The parties informed me that a consent order to that effect can be made.

8. The parties also informed me that free neuropsychological testing is available.  It seemed to me appropriate in the circumstances of this case that the mother should be requested to attend for free neuropsychological testing between now and the date for trial.

9. Ms E recommended that the respondent and her partner be provided with certain counselling.  Counsel for the respondent did not press the need for that.  I decline to make any order in that regard. 

10. Ms E recommended that the applicant participate in family violence counselling.  The precise details of that counselling, especially when, where and before whom it will be undertaken were not explored by the parties.  I am willing to make an order in that regard once details are finalised.  That said, it seemed to me to be borderline impractical between the date of the hearing in late December and the date of the trial in May 2019 to organise any such counselling.  If any can be organised then it should be undertaken. 

11. Ms E recommended a family report be obtained to address police, child protection material and other relevant information.  I make such an order.

12. On behalf of the respondent, Ms R Read of counsel sought orders for the issue of four additional subpoenae.  I make such an order.  

13. Having regard to any issue in this case about the mother’s substance abuse, counsel for the respondent urged me to make an order restraining the mother from ingesting alcohol or any form of illicit substance while [X] is in the mother’s care.  That seemed to me to be an appropriate order even though the evidence about substance abuse by the mother is contested and I recognise that none of it is yet proven.  Self‑evidently, any parent with a child in his or her care should not be ingesting alcohol or illicit substances.  The ingestion of illicit substances is illegal and the consuming of alcohol while a child is in a parent’s care is foolhardy to say the least.  No persuasion is required to make that order.

14. The respondent informed me through her counsel that she is willing to pay for the mother’s time with [X] to be facilitated at an institution called Contact Centre and that the mother should enjoy time with [X] on two occasions per week when the mother is in Melbourne.  I make that order. 

15. The respondent sought an order restraining the mother from attending at [X]’s school and at the respondent’s place of work and home pending the hearing and determination of this proceeding at trial.  In relation to [X], those orders seemed perfectly sensible if for no other reason than the destabilising influence that any such visits might occasion.  So far as the restraint on the applicant visiting the respondent at her place of work or home, I am willing to make such an order on the basis that the applicant would have no business visiting the respondent’s place of work or her residence having regard to the hostility that pervades their relationship.

Conclusion

1. Finally, I have given consideration to the fact that these orders place a restraint of sorts on the mother’s exercise of the ordinary entitlements of a mother to spend time with her child.  That said, having regard to the history of this proceeding, the mother’s time with [X] must be structured and ordered to say nothing of it being wholly free from risk to [X].  As against that, it has been necessary to recognise the need for the complicated and extensive allegations that have been levelled between the applicant and the respondent to be determined as quickly as possible in all the circumstances.  With those competing imperatives in mind, I have fixed this proceeding for trial on 2 and 3 May 2019.  The parties will need to apply themselves so as to ensure that their evidence is in order so as to meet that trial date.  Naturally, if they encounter complications along the way, they always have liberty to apply and I will sit as required on an urgent basis if needs arise between now and the commencement of the trial.

I certify that the preceding twenty-six (26) paragraphs are a true copy of the reasons for judgment of his Honour Judge Wilson

Date:     21 December 2018