Colless & Lovell
[2022] FedCFamC2F 1449
Federal Circuit and Family Court of Australia
(DIVISION 2)
Colless & Lovell [2022] FedCFamC2F 1449
File number: MLC 13259 of 2021 Judgment of: JUDGE O'SHANNESY Date of judgment: 7 September 2022 Catchwords: FAMILY LAW – listed for an interim defended hearing – interim parenting orders – risk assessment to be undertaken – Senior Judicial Registrar changed residence - family report writer’s concerns of risk to the child – balance of risks to the child. Legislation: Family Law Act 1975 (Cth) s 69ZL Cases cited: Goode & Goode [2006] FamCA 1346
Eaby & Speelman (2015) FLC 93-654
SS v AH [2010] FamCAFC 13
Division: Division 2 Family Law Number of paragraphs: 32 Date of hearing: 7 September 2022 Place: Town D (via Microsoft Teams) Counsel for the Applicant: Mr Higgins Solicitor for the Applicant: Higgins Legal Counsel for the Respondent: Ms Athanasopoulos Solicitor for the Respondent: Family Centred Law Pty Ltd Counsel for the Independent Children's Lawyer: Mr Nicholson Solicitor for the Independent Children's Lawyer: Medson Legal Pty Ltd ORDERS
MLC 13259 of 2021 FEDERAL CIRCUIT AND FAMILY COURT OF AUSTRALIA (DIVISION 2)
BETWEEN: MS COLLESS
Applicant
AND: MR LOVELL
Respondent
INDEPENDENT CHILDREN'S LAWYER
order made by:
JUDGE O'SHANNESY
DATE OF ORDER:
7 SEPTEMBER 2022
THE COURT ORDERS THAT:
1.The Father’s oral Application to vary the Orders made on 10 August 2022 is dismissed.
AND THE COURT ORDERS BY CONSENT THAT:
2.The Mother and the Father attend upon Dr B (or such other psychologist as nominated by the Independent Children’s Lawyer), for the purpose of a psychological risk assessment at such date and time as directed by the Independent Children’s Lawyer, with the cost of the assessments and Reports to be paid by the Mother and the Father, and IT IS REQUESTED that Victoria Legal Aid provide funding for the costs of the Mother and the Father’s costs of the assessments and Reports.
3.For the purposes of the risk assessment the parties provide to the psychologist preparing a report pursuant to these Orders copies of all documents filed on their behalf in this proceeding (save for financial statements).
4.For the purposes of the risk assessment the Mother and the Father provide to the psychologist preparing a report pursuant to these Orders an authority permitting the psychologist and his and/or her treating psychologist or counsellor to exchange relevant information regarding him.
5.For the purposes of the risk assessment, the Independent Children's Lawyer provide to the psychologist preparing a report pursuant to these Orders a copy of:-
5.1these Orders;
5.2the settled reasons from the hearing this day (when they are published);
5.3the section 67Z Report dated 21 February 2022;
5.4the Family Report of Mr C dated 3 August 2022;
5.5the Mother’s affidavit filed 24 August 2022; and
5.6the Father’s affidavit filed 31 August 2022.
6.The Independent Children's Lawyer shall be at liberty to photocopy (or otherwise duplicate) any subpoenaed material (save for any file produced by the Department of Families Fairness & Housing) and provide copies to the psychologist preparing a report pursuant to these Orders.
7.The Mother, the Father and Independent Children’s Lawyer shall be at liberty to provide a copy of
7.1these Orders;
7.2the settled reasons from the hearing this day (when they are published);
7.3the section 67Z Report dated 21 February 2022; and
7.4the Family Report of Mr C dated 3 August 2022;
to any psychologist, counsellor or Medical Practitioner attending upon any one or more of the Mother or the Father.
8The matter be adjourned for Final Defended hearing in the Town D Circuit on 15 November 2022 at 10.00am.
AND THE COURT NOTES THAT:
A.Pursuant to ss.65DA(2) and 62B of the Family Law Act1975 the particulars of the obligations these orders create and the particulars of the consequences that may follow if a person contravenes these orders are set out in Annexure A and these particulars are included in these orders.
B.If in any proceedings there are allegations of family violence and the provisions of section 102NA of the Family Law Act 1975 apply (see attached Family Violence Information Sheet), any unrepresented party will not be permitted to personally cross-examine the other party/parties.
C.Affected unrepresented parties may apply to the court and then to the Commonwealth Family Violence and Cross-Examination of Parties Scheme (“the Scheme”) for representation but any such application must be made at least 12 weeks prior to the final hearing.
D.Further information about the legislation and the Scheme can be found at Part 4 of the attached Family Violence Information Sheet.
E.If s102NA applies and a party becomes unrepresented after trial directions have been made, that party is required to promptly advise the Court.
Note: The form of the order is subject to the entry in the Court’s records.
Note: This copy of the Court’s Reasons for judgment may be subject to review to remedy minor typographical or grammatical errors (r 10.14(b) Federal Circuit and Family Court of Australia (Family Law) Rules 2021 (Cth)), or to record a variation to the order pursuant to r 10.13 Federal Circuit and Family Court of Australia (Family Law) Rules 2021 (Cth).
Section 121 of the Family Law Act 1975 (Cth) makes it an offence, except in very limited circumstances, to publish proceedings that identify persons, associated persons, or witnesses involved in family law proceedings.
IT IS NOTED that publication of this judgment by this Court under a pseudonym Colless & Lovell has been approved pursuant to s 121(9)(g) of the Family Law Act 1975 (Cth).
EX TEMPORE REASONS FOR JUDGMENT
JUDGE O’SHANNESSY
These are the settled reasons of a judgment delivered ex tempore pursuant to section 69ZL of the Family Law Act 1975 (Cth) (‘the Act’).
This matter comes before me originally listed for Final Hearing in the September Circuit of the Town D sittings of Division 2 of Federal Circuit and Family Court of Australia. The parties had provided and filed their trial material, there was a Family Report dated 3 August 2022, the family consultant available for cross examination, and a Compliance Check shortly before the Circuit confirmed that it was expected the matter would be able to proceed.
The proceedings concern the living arrangements for the child who is now 2 years old and will be 3 years old next year. The Mother is 36 years old and is employed as an administration officer. The Father is 40 and is not working at the moment. There is an Independent Children’s Lawyer (‘ICL’) appointed in the case.
The parents only lived together for a quite short period and that of itself is controversial, but it is common ground that separation occurred after 2020, when the child was 1 month old. The events between separation and about July 2021, if I can use that as a timeframe, are significantly in dispute.
From very early on, the Father expressed serious concerns and allegations about the risk of the baby’s welfare in the Mother’s care. In July 2021, serious allegations were made by the Father against the Mother. Thereafter, from July 2021 until February 2022, very little time was able to be spent by the Mother with the child by agreement between the parents. It does not appear disputed that at a time the Father either became the carer of the child and was determining what time the Mother should have, or the child was unilaterally removed from the Mother’s care. The child was breastfed up to that time.
There is a dispute between the parents as to who should be regarded as the primary carer of the child when he was a baby. The Mother issued proceedings on 29 November 2021 and the matter came before a Judicial Registrar of the Court on 2 February 2022. A Judicial Registrar does not have the jurisdiction to determine any immediate or even interim living or time arrangements for a child, but has the power to make procedural orders. In those circumstances, the parents made consent orders for the child to spend supervised time with the Mother at a contact centre each fortnight and otherwise time during the week of some couple of hour’s duration but supervised by the Father.
The Father’s case is that these were Orders made by consent and hence considerable weight should be given to them and their underlying dynamics. The Mother’s case is that this was a “pig in a poke” that she had little alternative, and no power in the negotiations, and hence had to take such time as she could. The alternative being little or no time at all, and that by agreeing to supervision by the Father she claims that she was exposing herself to the risk of family violence by such supervision.
Before the matter came before the Court, the parties had the common sense to agree to have a Family Report undertaken by Mr E. Mr E saw the family on 11 February 2022. Shortly thereafter The Department of Families, Fairness and Housing (‘DFFH’) practitioners observed the child in the Father’s care and also spoke to the Mother on 15 February 2022 and 18 February 2022. The DFFH provided what is known as a 67Z response on 21 February 2022. That document was not available to Mr E at the time he interviewed the family on 11 February 2022, and from his report it is apparent that it was not referred to him and he has not referred to it in his report.
The matter came before the Court on 29 March 2022 and although the parties had intended that Mr E’s report would be available to them for that hearing, it was not. Mr E, I understand, had travelled to Western Australia and it is easy to forget that at that time the country was in the grip of a COVID-19 pandemic. The effect is, I am told, that Mr E effectively became marooned in Western Australia for some time and was unable to complete that report and a number of others. The Orders of 29 March 2022 provided for the Mother to have alternate weekend time as well as each Wednesday evening with the child, and for the children to remain in the care of and living with the Father. Also on that date, the matter was listed for Final Hearing in this September Town D circuit.
Following significant agitation by the ICL directly to him, Mr E produced a report on 3 August 2022, five months after interviewing the parties.
I need to recite the circumstances of how the current application comes about. When the matter was first called on the day that it was first listed, being Monday, 5 September 2022, the ICL’s position was that both parties needed to be examined for the purpose of a risk report and that an eminently qualified professor was available to undertake that assessment which would be available for the Court for the coming November circuit. It was in that context that the parents acquiesced in the ICL’s position that the matter be adjourned to the November Circuit and that they undertake the risk assessment. However, the Father’s position was, in acquiescing to that deferral of the Final Hearing, that there needed to be a further interim hearing, in the circumstances that I will turn to now.
Mr E’s report was released in early August 2022 but released only to the ICL together with liberty for the ICL to make an urgent Application to the Court. The practice of the Court is that Family Reports are not released to parents or parties willy-nilly, but following the production of the report, it is provided to a Judicial Officer who has the burden of reading it and determining how that report should be released. In the great bulk of reports after reading it, the report is immediately or as soon as practical thereafter, by Court Order, released to all of the parties. In this case, there was a departure from that by the Senior Judicial Registrar. The report of Mr E made significant observations that called into question the child’s immediate welfare. I refer to the following paragraphs of the Family Report:
[87]In interview [the Father] reported; ‘If [the child] goes back he will be murdered.’
[88]He provided the writer with a narrative about [the Mother] lacking capacity as a parent and of his concerns about her other children. He provided house photos of [the Mother] property and identified asbestos, poor workmanship, unfinished repairs and general deterioration of the property. He provided photos indicating what he saw as evidence of filth’ such as photos of the inside of her fridge.
…
[93]The writer gathered a clear impression that [the Father] was intent on remaining [the child’s primary carer and needed to protect [the child from [the Mother] and his half siblings. It also appeared that he was fixated on this to a significant degree and may be reactive to change being imposed upon him should the Court determine that change is required.
…
[110][The Mother] provided the writer with a narrative about [the Father] being controlling and being coercive and strategic in his desire to have [the child] in his primary care. When asked directly, she could not guarantee that [the Father] would not be reactive if the Court determined that [the child] should return to her care and was not sure about his safety in such a situation. This view concerned the writer.
…
[114]The writer recognised [the Mother] preference that [the child] return to her primary care. The writer also questioned what might occur should [the child] remain in [the Father]’s primary care and observed [the Mother] indication that she considered that she would be limited in her relationship with [the child] and his relationship with his half siblings would also be limited. [The Mother] gave every indication that she wants [the Father] to be part of [the child]’s life but she was unclear as to how he would react and what risk this may pose her or [the child].
[115]The writer gathered a clear impression that [the Mother] was intent on remaining [the child]’s primary carer and needed to protect [the child] from [the Father]. It also appeared that she was significantly concerned as to how [the Father] would react to change being forced upon him should the Court determine that such change is required.
…
[125]The writer noted that early warning signs where, during arguments, [the child] was withheld by [the Father] and there was a sense of ‘ownership’ of [the child]. It is theorised that [the Father] was anxious/fearful that he would be ‘separated’ from [the child] if the parents separated and information supplied suggests he was reactive to the point of refusing [the child] being taken or withholding him by [the Father]. Alarmingly, there is evidence provided that this occurred when [the child] was as young as four weeks old. Withholding a child of this age when he is being breastfed suggests to the writer that there was more focus on the adult need than the need of the child at such time.
…
[128]The writer noted the rather strange situation of a child of [the child]’s age being removed by his then primary carer. The writer also grew concerned that [the child] would be unlikely to have a meaningful relationship with his mother if left in the care of the father. It appeared that, the evidence provided shows that [the Mother] on the other hand was open to [the Father] having a meaningful relationship with [the child] and did so by dropping [the child] to [the Father] for weekends at a very young age.
[129]Discussions with [the Father] left the writer anxious about [the child]’s lived experience if he remains with [the Father]. The writer was also left most concerned about how [the Father] may react to such change being imposed upon him and what this might mean for [the child] and his safety in the immediacy of [the Father]’s distress about change which would be seen and being imposed upon himself.
[130][The child] should be returned to [the Mother]’s care immediately. The writer had considered a transition which would be kinder on [the child] but does not think that [the Father] would manage well. The writer urges the Court to view such change as potentially placing [the child] at heightened risk and asks that should such change be determined [the child]’s transfer be well managed by the Court. This is, in the writer’s view the primary task at this point in time.
In those circumstances, the matter came on before the same Senior Judicial Registrar for an urgent hearing on 10 August 2022. The Senior Judicial Registrar had ordered that the parties make the child available to the family court counselling section during the hearing to take place that day. The Father deposes that as a result of that order, he was alerted to, at least, the possibility that there was going to be a change of residence but nonetheless he complied with that order.
The events of the morning of 10 August 2022 are more complicated than the usual hearing. On the morning, the Father advised the Court that he and the child had tested positive for COVID and hence could not attend the Court. The Senior Judicial Registrar made an order in chambers that the Father and the child complete a rapid antigen test, known as a RAT test, by 11.30am that day. That order noted that the Father and the child had been ordered to complete a RAT test where he had alleged that they had tested positive for COVID on 3 August 2022, and 5 August 2022, but could not provide proof of the tests. The matter, ultimately, came before the Court with the child being made available to the Court counselling section.
The Senior Judicial Registrar ordered that the child live with the Mother and that the Father have supervised time at a contact centre. It is common ground between the parties that the maximum time available for such supervised time is on a fortnightly basis. As I understand it, the centre makes limited time available to ensure that it can support as many families in crisis as possible.
Ordinarily, consistent with the welfare of a child of the child’s age, it would be important for the child to have regular time with each parent ideally two or three times a week, or at least weekly, for any child to be able to preserve a parental relationship. Hence, the Senior Judicial Registrar’s order of 10 August 2022 was a very serious change in the child’s immediate living arrangement and a very serious restriction on his relationship with his Father with whom, rightly or wrongly, he had been living for some time.
On the application that the Father made before me in the context of the matter being adjourned, it is his case that little weight should be placed on Mr E’s report. This is because of the extent to which it is contradicted by and clashes with the observations of the 67Z report of 21 February 2022 that Mr E did not know of or have regard to. In particular, his Counsel points to the last paragraph of that report:
The allegations as identified in the report are not able to be substantiated through the process completed by Child Protection. Child Protection have assessed that [the child] is not at risk in the care of [the Mother] or [the Father]. It is vital for [the child]’s emotional development and his sense of identity that he can see both his parents and build positive relationships with both of them, and his siblings. It would be in [the child]’s best interest to have equal time with both his parents where they both have the opportunity to be primary carers through a shared care arrangement. For this to be successful and focused on what is best for [the child], it will require the parents to communicate, negotiate and share information in an amicable manner.
Given that the investigation has not identified any ongoing concerns for [the child] in the primary care of either parent there is no further role for Child Protection at this time.
The solicitor for the Mother points to what is said to be a very significant risk of the Father being reactive to the situation forced upon him where the child is not living with him but with the Mother. Whilst it is clear that they are denied, it is not yet clear to me whether it is said that the Father’s allegations about the Mother are genuinely held but wrong or whether they are exaggerated out of animus towards the Mother. However, it is common ground that the Father has made very strong allegations about the risk to the child in the Mother’s care. The Father says at paragraph 10(a) and 10(c) of his Affidavit filed 30 August 2022 page 4 of 26:
10(a)[Mr [E]] mentions at paragraph 130 that [the child] would be at ‘heightened risk’ if [the child] was ordered to be returned to [the Mother]’s care, as [Mr [E]] stated he did ‘not think that [the Father] would manage this well’.
10(c)The report recommends significant and substantial time between [the child] and I, unless the Court found that I needed to be supervised to manage the transition. There was no evidence before the Court that I would not manage the transition well.
At paragraph 87 of the Family Report:
[87]In interview [the Father] reported; ‘If [the child] goes back he will be murdered.’
Counsel for the ICL did not make any particular allegation in regard to the risk but pointed to the concern of Mr E and the concern of the ICL that there would be a continuation of trouble, conflict, turmoil, and a significant risk that he would not return [the child] to the Mother. This is in the context of the Father’s strong views and the alleged likelihood of he being reactive to the situation forced upon him. Implicit in those submissions was the impact of the anxiety of the Mother in those circumstances as well, although significant weight was not put on that concern. The ICL’s position was that the delay by Mr E was not to the point in the case. The ICL’s position was that Mr E pointed to a serious risk to the child in the circumstances of there being a court ordered change of the living arrangements, the Father’s time with the child was no longer more or less on his own terms. The ICL pointed to and is concerned about a risk that in his grief and distress at the change of circumstances thrust upon him, the Father may abscond with the child or may harm the child rather than give him over. The ICL points to the observations in the 67Z response, putting aside the opinion of the last paragraph, as being entirely consistent with Mr E’s observations and conclusions, notwithstanding, that Mr E was not aware of those events. The concern of the ICL and the Mother is that something bad, that cannot be precisely identified, may happen.
Hence, in this case, I have to balance the risk to the child’s welfare of his regular unsupervised time with the Father being seriously impeded by the continuation of the supervision time, against the risks as put forward by the ICL and the Mother. Regular time with a father would ordinarily promote and maintain that relationship with a child. I might add that it’s the ICL’s case that the risk assessment to be shortly undertaken may demonstrate that there is no risk to the child in the Father’s care at all, or a very different risk than the current concerns. If there is substance in the risks identified and alleged by the Mother and the ICL, the consequences for the child would be very serious or catastrophic.
The Father’s case proceeded on the basis that supervised time would not be available for many weeks. Exhibit A indicates that the usual delay is some four to six weeks on the waitlist from the initial assessment, which only occurred on 5 September 2022. It was the Father’s case that he would be notified by telephone on this coming Friday, 9 September 2022 of when that time would commence, and it was likely to be some weeks or even a month or so until that could occur. The contact centre was closed yesterday, but the matter continued before me until about 5.30pm yesterday evening. This morning the ICL was able to provide further information from Counsel that the Father’s time would commence this Friday, and hence it was likely to be each alternative weekend thereafter. It is common ground between the parties that implicit in the order of the Senior Judicial Registrar is that the parties should take advantage of the maximum time that the contact centre is able to provide. The competence and expertise of the contact centre was not in question in the proceedings, and I acknowledge that expertise.
I also acknowledge that this decision, like the decision of 10 August 2022, may turn out to be very unfair to the Father and to his family.
Hence, balancing those matters, my decision is that there should be the continuation of the supervised time at the contact centre. I make that decision with the knowledge that when the matter comes before me in November 2022 for Final Hearing I will have the further information of the risk assessment and likely have information from the Mother being cross-examined and asked questions in the witness box, as will the Father.
So in all of those circumstances, I will not grant the application made in fairly persuasive and forceful terms by the Father’s Counsel. I should also add that I have not referred to the issue of the cultural heritage of the child, his Father and Paternal Grandmother, and he being a child of [cultural heritage A]. I acknowledge the importance of that matter, however it is not to the point on the serious balancing of those two risks that I have to balance in this case today.
It may be of some difficulty for the Father to understand these reasons, so I will explain the legal tests and consequences that I have utilised.
The procedure applicable to an interim parenting orders hearing is set out in Goode & Goode [2006] FamCA 1346 at [72] and [82]:
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.
…
81.In making interim decisions the Court will still often be faced with conflicting facts, little helpful evidence and disputes between the parents as to what constitutes the best interests of the child. However, the legislative pathway must be followed.
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.
Those principles are qualified by the observation of the Full Court in Eaby & Speelman (2015) FLC 93-654 at [18] as follows:
18.…It is true that in Goode & Goode, at [68], the Full Court said that the circumscribed nature of interim hearings means that the court should not be drawn into issues of fact or matters relating to the merits of the substantive case where findings are not possible. However, that does 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. Rather, the proper approach to contentious matters of fact in the determination of interim hearings is as explained in Marvel v Marvel, at [122] and [123], as follows:
In SS v AH [2010] FamCAFC 13 the majority (Boland and Thackray JJ) discussed at [88] of their reasons the care necessary to be exercised in making findings in interim parenting proceedings. Their Honours said:
[88] In our view, findings made at an interim hearing should be couched with great circumspection, no matter how firmly a judge’s intuition may suggest that the finding will be borne out after a full testing of the evidence.
Later, at [100] their Honours amplified their comments and said:
[100] The intuition involved in decision-making concerning children is arguably of even greater importance when a judge is obliged to make interim decisions following a hearing at which time constraints prevent the evidence being tested. 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.
I will make an Order that both parties are entitled to provide a copy of these Reasons for Judgment, the Family Report and the 67Z response to any therapist that they consult. Either party is at liberty to themselves provide those documents to any therapist they see rather than waiting for the ICL to do so.
I will also make a Notation that the matter should have priority as is appropriate with the other matters in the list in the November Circuit.
I certify that the preceding thirty-two (32) numbered paragraphs are a true copy of the ex tempore Reasons for Judgment of Judge O'Shannesy. Associate:
Dated: 28 October 2022
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