CLIFF & KAHMANN - [2018] FamCA 717

FAMILY COURT OF AUSTRALIA

CLIFF & KAHMANN

[2018] FamCA 717

FAMILY LAW – CHILDREN – Parenting – whether time should be supervised or unsupervised – basis for risk requiring supervision – allegations of alcohol and other drug abuse – allegations of family violence – question of party’s mental health – where injunctions sought requiring treatment – basis for injunctions generally – where insufficient evidence provided to allow granting of injunctions.

Family Law Act 1975 (Cth) ss 65D, 65DAC, 68B, 114 Mental Health Act 2007 (NSW)
Sampson v Hartnett (No 10) (2007) 38 Fam LR 315 White (as case guardian for Ms White) v Green and Others (No 2) (2009) 41 Fam LR 185

APPLICANT:

Mr Cliff

RESPONDENT:

Ms Kahmann

FILE NUMBER:

SYC

1323

2015

DATE DELIVERED:

31 August 2018

PLACE DELIVERED:

Sydney

PLACE HEARD:

Sydney

JUDGMENT OF:

Gill J

HEARING DATE:

28-29 August 2018

REPRESENTATION

COUNSEL FOR THE APPLICANT:

Ms Otrebski

SOLICITOR FOR THE APPLICANT:

Horowitz & Bilinsky

COUNSEL FOR THE RESPONDENT:

Ms Saw

SOLICITOR FOR THE RESPONDENT:

Coppertree Family Law

COUNSEL FOR THE INDEPENDENT CHILDREN’S LAWYER:

Mr C Cook

SOLICITOR FOR THE INDEPENDENT CHILDREN’S LAWYER:

Kd Holmes Solicitors

Orders

All previous parenting orders are discharged.
The child, X, born … 2011 (the child), live with the Mother.
The parents shall have equal shared parental responsibility for the child.
Unless otherwise agreed between the Mother and the Father, the child spend time with the Father as follows:
(a)For a period of two months, the child shall spend time with the Father each Saturday, alternating between Sydney in one weekend and the Region A in each alternate weekend, for a period of five hours by agreement, but failing agreement from 9:30am and that such time and the time in the subsequent orders shall be unsupervised;
(b)Thereafter and for a further period of two months, the child shall spend time with the Father on the Saturday and Sunday of every second weekend for a period of five hours by agreement, but failing agreement commencing at 9:30am on Saturday in Sydney and on Sunday on the Region A;
(c)Thereafter, and for a further period of two months, each alternate weekend from 9:30am Saturday until 4pm Sunday and for half of all school holiday periods being the first half in odd-numbered years and the second half in even-numbered years; and
(d)Thereafter, every second weekend from after school Friday until 4pm Sunday and for half of all school holiday periods being the first half in odd-numbered years and the second half in even-numbered years.
For the purposes of change over, and unless otherwise agreed, the Mother shall deliver and collect the child to and from the Father's residence at the commencement and conclusion of time that occurs in Sydney and the Father shall deliver and collect the child to and from the maternal uncle's residence in B Town at the commencement and conclusion of time that occurs on the Region A.
That the Mother be restrained from discussing with the child any of her allegations of sexual abuse by either the Father or the paternal grandfather.
That within seven days of the date of these orders, the parties shall do all acts to cause the child to engage with C Group at D Town.
That the parties be granted leave to provide a copy of the Family Report to the child's counsellor.
The parent with whom the child is not otherwise living or spending time with shall be at liberty to communicate with the child via Skype or telephone each day between 4pm and 5pm with this order to be suspended on days that changeover occurs.
The Father be restrained from being under the influence of illicit substances or having consumed alcohol to excess when spending time with the child.
For the purposes of Order 10 consuming alcohol to excess is defined as having a blood alcohol reading over the legal driving limit.
Each parent is to notify the other, as soon as is practicable and in any event within two hours, in the event that the child suffers from a serious illness, injury or requires hospitalisation at any time when the child is in their care, spending time or living with them.
That these orders be sufficient authority for each parent to contact any treating health professional, the child's school or any other organisation that the child may attend from time to time to obtain any and all information in relation to the child as that parent may require.
The parents are at liberty to attend any schooling, extracurricular, sporting or other function that the child might participate or otherwise be involved in from time to time.
Both the Mother and Father be restrained from discussing any proceedings or denigrating the other parent in the child's hearing and each parent is to ensure that no other person be allowed to do so in the presence or hearing of the child.
Each parent shall inform the other within three days of any change in residential address or contact details.
I discharge the Independent Children’s Lawyer from his appointment.

IT IS FURTHER ORDERED THAT

The application for costs made by the Independent Children’s Lawyer is refused.

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 Cliff & Kahmann 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 SYDNEY

FILE NUMBER: SYC 1323 of 2015

Mr Cliff

Applicant

And

Ms Kahmann

Respondent

REASONS FOR JUDGMENT

The background of the proceedings are that until the start of the trial the Mother was running a case based on unacceptable risk on the assertion that the Father presented an unacceptable risk of sexual abuse to their child X.
She ultimately conceded, following the commencement of the proceedings, that the evidence was insufficient to support that idea, that is, that the Father constituted an unacceptable risk of sexual harm to the child.
The further background to the case is that the Father has had an extended period of time in which all of his time with the child has been supervised under the spectre of that allegation.
By day two of the trial, following a full day of negotiation between the parties, the parties had agreed to core matters concerning the orders that should be made in the child's best interests, but there were still a number of matters that were not agreed which required further litigation.
Regarding those agreed terms, they were core arrangements for the benefit of the child. They provided for equal shared parental responsibility and provided general arrangements for the child living with the Mother and spending substantial and significant time with the Father. They also agreed that the child should be provided with counselling support.
The question arises as to whether or not those agreed orders should be made. The answer to that is dictated by whether or not the orders are in the child's best interests.
Two general points are to be made before turning to the specifics as to the best interests’ question. The first, is that it is strongly supportive that these orders are in the child's best interests because there is agreement between the parties that they are and agreement by the Independent Children’s Lawyer (“ICL”) that they are. The second observation to be made is of the state of the evidence as it came before the Court. That evidence was consistent with the concession made by the Mother that there was not an unacceptable risk of sexual abuse on the part of the Father. For example, by examining features of the timing of the alleged disclosures by the child, their content and the indications that the child had been involved (by the Mother) in the litigation process.
Turning to the specifics of the agreed terms, the parties together seek an order for equal shared parental responsibility. There is generally a presumption in favour of equal shared parental responsibility, although in these proceedings, it would appear that that presumption would not apply.
The Mother's evidence, not rejected absent testing and partly accepted by the Father, sets out reasonable grounds to believe that a parent, being the Father, has engaged in family violence. That does not need to go so far as to establish that family violence has occurred, simply that there are reasonable grounds upon which it could be accepted that it occurred. Hence, in this case, the presumption does not have application.
However, the parties’ agreements speaks strongly to the making of such an order. It may be observed that here the parents will struggle to comply with the obligations that are placed upon them by such an order, by the operation of s65DAC of the Family Law Act 1975, that obliges the parents to consult with each other and to make a genuine effort to come to a joint decision. That is not going to be an easy task for them. Sometimes the difficulty of that task will mean that it is not appropriate to make an order for equal shared parental responsibility.
However, there are some other factors in this case that mean that that is not so here. It is not appropriate to assign sole parental responsibility to the Father in this case, as he will be the minority carer for the child nor, however, is it appropriate to give the Mother sole parental responsibility, given the concerns that are raised about important decision-making by her in the past.
Whether rightly or wrongly, or with or without justification, the Mother declined to follow strong medical advice in the past in relation to a life or death matter regarding her treatment and declined to follow that advice to the point of being scheduled under the Mental Health Act.
This means that equal shared parental responsibility will mean, rather than the child being subject to potentially idiosyncratic decision-making by the Mother, that decision-making will be subject to a counterweight because the Mother and Father will share equal shared parental responsibility.
There is a protection for the child in the parents sharing that decision-making despite the difficulties that they will encounter. It is in her best interests that such an order be made.
That brings into play the statutory pathway, it is necessary to consider making an order for equal time. The parties’ agreement that it should not be equal time is strongly indicative that an order for equal time is not appropriate and sufficient in this case to dispose of the idea that an equal time arrangement would be in the child's best interests.
Once past the sexual abuse issue the parties both accepted that there should be a transition to a substantial and significant arrangement of time with the Father, while the child lives with the Mother. That general scheme is supportive of meaningful relationship for the child with each of her parents. It is supported by the Family Report at [99], which noted that absent a sexual abuse risk the child may benefit a great deal from meaningful relationship and substantial and significant time with her Father.
That means that it is an appropriate general scheme that has been agreed to by the parents, absent the sexual abuse risk, that supports substantial and significant time and the benefits of meaningful relationship between the child and her Father. Orders should be made in accordance with the parties’ agreed orders for the child spending time with her Father.
The parties have also reached a joint agreement for the child to attend counselling; it is clearly in her best interest that that occurs, hence orders will be made in accordance with those terms that have been agreed by the parties.
That, however, leaves four sets of divergent matters. The first relates to drug and alcohol and family violence, testing and counselling and psychological support for the Father. The second relates to mental health supports for the Mother. The third relates to whether there should be supervision at the commencement of the transition of the child's time with her Father and relates to the frequency of the time that she should spend with her Father as it transitions to the ultimately agreed position, which will ultimately be alternate weekends and half of school holidays. The fourth matter relates to whether or not the child Inclusive Conference memorandum should be provided to the child’s counsellor, in addition to the Family Report.
Dealing firstly with the Mother's application in respect of drug and alcohol testing and psychological intervention for the Father in relation to drug and alcohol and family violence matters. Before turning to the details of that it is important to note that in relation to the contested matters, the parties sought that the matter be determined on the papers, and subject to submissions, and indicated to me that cross-examination would be unlikely to assist me to resolve contested matters.
The Mother alleges that the Father has pushed her hard in anger, has punched her on one occasion causing bruising, has thrown objects at her, has angrily grabbed at the child and alleges that he assaulted her by grabbing her by the arm when asking her to sign a separation agreement.
The Father denies these incidents, other than one episode of pushing the Mother. The Father also accepts that on one occasion he sent highly abusive text messages to the Mother, which were annexed to the Mother’s material. The context of those, as they followed the making of the sex abuse allegation by the child at the child Inclusive Conference, is an allegation which the parties now accept cannot adequately be supported, that is, those highly abusive text messages were made in the most extreme circumstances. Those circumstances mean that they should not be seen to be a marker of how the Father might generally conduct himself towards the Mother, particularly where I note that there are no other such examples in the material.
The Mother also alleges generally hostile outbursts of anger during the relationship by the Father.
In relation to the drug and alcohol issue, the Father says that he has irregularly previously used drugs, mostly before the child's birth. This leaves open the question, even on his own admission, as to more current drug use. The Mother alleges that while she was pregnant with the child the Father drank and took drugs including cocaine, amphetamines, ecstasy and cannabis. The Mother also accepts that both she and the Father used party drugs and were drunk at the start of their relationship. The Father accepts that on one occasion he attended to collect the child while hungover. He has undertaken testing on one occasion following compulsion by Court order that he do so. That test showed him to be negative in relation to a number of substances that he was tested for, but positive in relation to benzodiazepines, although there is no evidence as to the significance of that finding and there is no explanation by the Father as to that finding. Nothing in particular can be drawn accordingly from that finding.
The extent of the drug and alcohol use, even accepting the Mother's description, is insufficient to require the proposed onerous testing on the part of the Mother, or even the ad hoc testing suggested by the ICL in the short-term. Even if such were conducted it is difficult to see that they will have a positive long-term impact on the Father's parenting capacity.
Further, while there is reason to consider on the Mother's account, and on the Father's concession, that he has experienced and acted in anger towards the Mother, that he has been violent on occasion to the Mother, there is insufficient evidence to show that the proposed course of action to deal with that is likely to be effective to ameliorate or would be necessary to do so.
The second matter involves the seeking on the part of the Father that the Mother be referred for mental health support. In order to support that application the Father relied upon interactions between the Mother and the mental health system, in particular resistance on her part to particular chemotherapy treatment in February 2014. At that time the Mother refused to accept particular chemotherapy treatment that was said to provide a 30 per cent better cure rate than the treatment she was undertaking. She was scheduled under the mental health legislation. Again in April 2014 there was further interaction between the Mother and the mental health system in relation to resistance to treatment. The Mother was again admitted under the mental health legislation for what was described at the time as psychotic or delusional beliefs. On the state of the evidence I am not in a position to drill into the evidence to establish whether or not the Mother in fact suffered a psychotic episode, whether the Mother's position in relation to her treatment was a product of mental health issues, whether it was simply idiosyncratic decision-making, or whether it was well justified decision-making on the part of the Mother.
I note that the mental health material is generally supportive of the notion that the Mother is oppositional and rigid in her approach to conflict and stress.
I note from the Family Report at [98] that it is quite possible that the Mother's mental health is compromised and potentially impacted significantly by symptoms of anxiety. She has certainly expressed symptoms of anxiety in relation to the child spending time with the Father. The Family Report writer suggested that the Mother may benefit from psychiatric assessment and information regarding treatment and pharmacological management of anxiety. It may be assumed that there would be significant benefits to the child if the Mother was to have less experience of anxiety.
The Father's application is predicated on the benefits to the Mother of the mental health intervention that he proposes. Against this the Mother notes, at annexure MC10 of her affidavit, that she has previously attended a psychologist on five occasions. The psychologist producing a report in September 2015 saying that the Mother did not suffer from a mental health disorder. Noting the limited disclosure of the information that the psychologist relied upon and the hearsay nature of that report, it should be accorded little, if any, weight.
In relation to the injunctive relief sought by either of the parties the following observations must be made. In this case each party sought to compel the other by injunction to obtain a mental health plan from his or her general practitioner and thereafter engage with a mental health professional directed to particular ends, on the part of the Mother to be directed to her experience of child sexual abuse and the issues relating to the child in these proceedings, and for the Father to address issues in relation to anger management, drug and alcohol use and the issues relating to the child in these proceedings.
Neither party identified the source of the injunctive power relied upon. The sources of injunctive power in support of a child’s welfare are various and include as follows:
Firstly, a source is provided by s65D of the Act, which provides that:
(1)In proceedings for a parenting order, the court may, subject to sections 61DA (presumption of equal shared parental responsibility when making parenting orders) and 65DAB (parenting plans) and this Division, make such parenting order as it thinks proper.
In Sampson v Hartnett (No 10) (2007) 38 Fam LR 315 Chief Justice Bryant and Justice Warnick identified the Court's ability to make coercive orders under s65D and identified that s65D should be read alongside the objects and principles contained in s60B, noting that at [46]:
These and other provisions support the notion that, the parties having surrendered the resolution of dispute about parental arrangements to the court, the court has the function of crafting orders that ensure the best parenting arrangement is put in place and that parents “fulfil their duties, and meet their responsibilities …”. It is entirely consistent with that function that parenting orders, and orders that support those orders, such as injunctions, be directed to the parents and place obligations upon them.

The notion expressed here is that the injunctions are to support the parenting orders. That is, if this power is relied upon the power is conditioned upon the injunction being proper and, given the power’s location in Part VII of the Act, the discretion is subject to the paramountcy of the best interests of the child.
Secondly, a source for injunctive relief is provided by s68B which provides that:
If proceedings are instituted in a court having jurisdiction under this Part [which I note is Part VII as it relates to children] for an injunction in relation to a child, the court may make such order or grant such injunction as it considers appropriate for the welfare of the child, including … [and thereafter an exhaustive list is attached].
The power under s68B is conditioned upon the orders or injunctions being appropriate for the welfare of the child and given its location, again being in Part VII, is subject to the paramountcy of the best interests of the child.
Thirdly, sources are contained in s114(1) and s114(3) of the Act.
Section 114 deals generally with the granting of injunctions. Section 114(1) applies to proceedings between the parties to a marriage for an order or injunction in circumstances arising out of the marital relationship. Section 114(3) applies to proceedings that do not constitute proceedings under s114(1). The basis upon which the Court may grant an injunction differs between the two subsections.
Section 114(1) empowers the Court to make such order or grant such injunction as it considers proper with respect to the matter to which the proceedings relate.
Section 114(3) empowers the Court to grant an injunction where it is just or convenient to do so in.
In Sampson v Hartnett(No 10) in relation to s114(3) the Full Court noted:
The justice or convenience of an injunction is likely to be closely connected with the parenting orders made and the findings that underpin those orders.[1]
[1]Sampson v Hartnett (No 10) (2007) 38 Fam LR 315 at [40].
It follows that a determination of whether an injunction is just, or convenient, or proper requires a consideration and therefore an identification of how the injunction is related to the subject matter and purpose of the proceedings, and how it aids in effecting any other orders made.
These particular proceedings are proceedings in relation to a child under Part VII of the Act. While in general terms an injunction obtained under s114 is not directly subject to the best interests principle, a consideration of what is meant by proper with respect to the matter to which the proceedings relate, means that in child-related proceedings the justification for such an injunction is intrinsically linked to the consideration of what is in the best interests of the child.
Similarly, if an injunction is to be made under s114(3) and the subject matter is concerned with what is in the best interest of the child, then so too must the injunction be concerned with best interests. This reflects the proposition expressed by Justice Cronin in his analysis of the operation of s114(3) in White (as case guardian for Ms White) v Green and Others (No 2) (2009) 41 Fam LR 185 that the injunctive power is to be exercised in contemplation of whether it is proper with respect to the proceedings to which the order relates.
It may therefore be seen that in these child related proceedings, whichever source of injunctive power is relied upon the basis for making the order is reliant upon the best interests of the child. That is the case whether the order is to be made because it is proper under s65D, appropriate for the welfare of the child under s68B, appropriate under s114(1) or just or convenient under s114(3).
Here the justifications for the injunctive orders are that they benefit the child by either improving the Mother's mental state, and so improving her parenting of the child, or improve the Father's capacity to deal with anger, alcohol and other drugs and hence improve his parenting of the child.
On the assumption, without determining it, that these ends are appropriately directed to the child's welfare, such as to enliven any of these sources of power, it will be necessary to consider a further matter identified by Justice Cronin in White, where it was asked “but is there sufficient evidence to then apply the other considerations required for the making of an injunction under s114?”. In that case the question related to the purported end to be achieved by the injunction to which Justice Cronin observed:
To put it another way, it is necessary to establish that the husband’s father is able to positively influence the implementation of the parenting order. If the evidence does not reach that standard, the injunctive order has no connection with the matter between the parents and must be seen to be outside of the power of the court. That is so because the Act only permits orders to be made which are appropriate. The language of s 114(3) is very wide and the court must have the powers necessary to enable it to act effectively within its jurisdiction but there must be some connection with the orders.[2]
[2]White (as case guardian for Ms White) v Green and Others (No 2) (2009) 41 Fam LR 185 at [156].
That is, as applied to this case, it is necessary that there is demonstrated by the evidence in the case that there is sufficient likelihood that the injunction will bring about the proposed objective that is supportive of the best interests of the child in order to render the making of the injunction, either proper, s65D, appropriate for the welfare of the child, s68B, appropriate, s114(1), or just or convenient, s114(3).
The critical matter in respect of the injunctions sought by either of the parties, and focusing for the moment in relation to those sought against the Mother, is that while the Mother may well benefit regarding her anxiety if she was to submit to the injunction and therefore benefit the child, here the evidence does not establish any likelihood that the injunction sought by the Father would have such a beneficial effect. The same observation can be made of the injunction sought against the Father. Those factors mean that the applications for injunction must fail.
The third divergent matter between the parties related to the issue of supervision at the commencement of the operation of the orders following this hearing and the frequency of the time that the child is to spend with her Father, and the identity of supervisors. I note that no evidence was presented that goes specifically to the question of frequency. I observed that this is a case in which the Father has had supervised time for an extended period. Most recently, that has been supervised by his relatives. The Mother now proposes that she and the maternal grandfather, who it may be observed dislikes the Father intensely, should supervise.
A justification put forward for that is that it might ease the Mother's mind and that it might also demonstrate cooperation between the parents in front of the child. The matters contained in the Family Report are indicative that such an event would be likely to be a breeding ground for conflict in front of the child. It is much more likely to have an adverse consequence to the child.
There is now no sufficient reason to continue supervision any longer, particularly absent a finding of unacceptable risk in respect of sexual abuse, and given the limitations in the other assertions of risk made by the Mother in relation to alcohol and drugs or anger. There is no warrant for supervision to continue as being in the child's best interests.
Turning to the question of frequency, to date from August 2017 the Father has had weekly supervised daytime periods. The parties have agreed that they will transition towards each second weekend from Friday to Sunday and half of school holidays. The Mother has this transition occurring over 12 months, the Father has it occurring over six months, with higher frequency of visits in the meantime.
The Father's proposal in terms of frequency marks an appropriate graduated process, whereas the Mother's initial steps would involve a step backwards. However, apart from this first step, the frequencies are agreed between the parties, although not the spacing of the transitions. To the extent that there is a difference between the parties on the question of frequency the Father's regime should be adopted, as it does not involve the backward step involved with the Mother’s proposal.
As to the timing of the transitions there are a few observations that can be made about those, insofar as they benefit the child. The first is that the transition towards having less handovers of the child is achieved earlier on the Father's part. Likewise, the transition to less travel for the child between the Region A and Sydney is also achieved earlier on the Father's proposal. Those are both advantages for the child, and as no advantage is demonstrated in the slower process proposed by the Mother, the Father's proposal should be adopted.
The final contentious matter related to whether or not the child Inclusive Conference (the CIC) Memorandum, as well as the Family Report should be provided to the child's counsellor under these orders. I was told that the parties agreed to the Family Report being provided. The Mother seeks the CIC report to be included, the Father opposes it.
The subject matter contained in the CIC report is dealt with in the Family Report which places it into its more proper context. In a case where the Mother has made concessions that there is no unacceptable risk of sexual abuse the Family Report far better represents the factual underpinnings of the case as compared to the CIC report. That report is apt to cause a de-contextualising of the disclosures contained therein and remove it from the context of the hearing where such a concession has been made by the Mother. There are corresponding increased risks that a counsellor may be misled in relation to those matters and so I refuse permission for the CIC report to be included.
It was also sought that I make a notation, I decline to make the notation sought, as the matters to which the notation are directed are contained within this judgment.
An application was made by the ICL for costs in these proceedings, being the payment of half of the Independent Children’s Lawyer’s costs by the Father. No sufficient matters were identified to depart from the usual position or the starting position set out in s117.

I certify that the preceding sixty (60) paragraphs are a true copy of the reasons for judgment of the Honourable Justice Gill delivered on 31 August 2018.

Associate:

Date: 13 September 2018