CONTI & ROLLINS
[2019] FCCA 1895
•19 July 2019
FEDERAL CIRCUIT COURT OF AUSTRALIA
| CONTI & ROLLINS | [2019] FCCA 1895 |
| Catchwords: FAMILY LAW – Interim parenting proceedings – equal shared parental responsibility – whether the mother poses an unacceptable risk of harm to the child – whether substantial and significant time is reasonably practicable. |
| Legislation: Family Law Act 1975 (Cth), ss.11F, 60B, 60CA, 60CC, 60I, 61C, 61DA, 65DAA, 67N, 68L Evidence Act 1995 (Cth), s.140 Mental Health Act 2007 (NSW), s.19 |
| Cases cited: Briginshaw v Briginshaw (1938) 60 CLR 336 M & M(1988) FLC 91-979 N v S (1996) FLC 92-655 A & A & The Child Representative (1998) 22 Fam LR 756 Re W; Sex Abuse (Standard of Proof) (2004) 32 Fam LR 249 Goode & Goode (2006) FLC 93-286 Napier & Hepburn(2006) FLC 93-303 Mazorski & Albright [2007] FamCA 520 Godfrey & Sanders [2007] FamCA 102 Johnson & Page (2007) FLC 93-344 M & S (formerly E) (2007) FLC 93-313 Tait & Densmore [2007] FamCA 1383 McCall & Clark [2009] FamCAFC 92 Harridge & Anor & Harridge[2010] FamCA 445 SS & AH [2010] FamCAFC 13 Deiter & Deiter [2011] FamCAFC 82 Eaby & Speelman [2015] FLC 93-654 Banks & Banks [2015] FamCAFC 36 |
| Applicant: | MR CONTI |
| Respondent: | MS ROLLINS |
| File Number: | SYC 7617 of 2017 |
| Judgment of: | Judge Morley |
| Hearing date: | 26 April 2019 |
| Date of Last Submission: | 26 April 2019 |
| Delivered at: | Sydney |
| Delivered on: | 19 July 2019 |
REPRESENTATION
| Counsel for the Applicant: | Ms McIntosh |
| Solicitors for the Applicant: | JNT Legal Solicitors and Conveyancers |
| Counsel for the Respondent: | Mr Apelbaum |
| Solicitors for the Respondent: | Symmetry Legal |
| Counsel for the Independent Children’s Lawyer: Solicitors for the Independent Children's Lawyer: | Ms Reynolds Kathryn Renshall Lawyers |
ORDERS
The parents have equal shared parental responsibility for the child [X], born … 2009.
That [X] live with her mother.
That [X] spend time with her father as follows:
(a)On alternate weekends commencing on the first weekend of the first school term from after school on Friday until 5pm on Sunday.
(b)For one half of each school holiday at the end of terms 1, 2 and 3, being for the first half in even numbered years and the second half in odd numbered years, commencing at 12 noon on Saturday and concluding at 12 noon on the following Saturday.
(c)During the Christmas school holidays at the end of the term 4, for the first half of those holidays in even numbered years and for the second half of those holidays in odd numbered years, but such that the father’s time, whilst still being one half of that holiday period, will conclude with three clear days before [X] returns to school attendance.
(d)On the Father’s Day weekend, if the father is not otherwise spending time with [X], from 4pm on the Saturday before Father’s Day until 5pm on Father’s Day.
(e)In the event that [X] is spending time with her father on the Mother’s Day weekend, then the father’s time with [X] on that weekend will conclude at 5pm on the Saturday before Mother’s Day.
(f)The father’s time with [X] is suspended in odd numbered years from 4pm on 24 December until 4pm on 25 December.
(g)The mother’s time with [X] will cease and [X] will be in the father’s care in even numbered years from 4pm on 24 December until 4pm on 25 December.
That all change overs that do not occur at [X]’s school are to occur at the McDonald’s Family Restaurant at Suburb C.
That the mother is to arrange and undergo a hair follicle test on a date no later than six weeks and three days from the date of these orders and is to supply to the father and to the Independent Child’s Lawyer the result of such test promptly after it has been received by her.
That the father may request that the mother undertake urinalysis drug testing no more than twice in any calendar month and the mother is to undertake such test within 48 hours of receiving such a request from the father and is to supply the urinalysis drug test report to the father and to the Independent Child’s Lawyer within 48 hours of receipt of such report.
That the mother is to continue to engage with her psychologist, Ms D, as recommended by that psychologist and is to supply the father and the Independent Child’s Lawyer with a letter each four weeks confirming that the mother is continuing to engage with Ms D and to follow her recommendations and that the mother continues to be capable of caring competently for the child.
That the parents are to take all steps required to re-enrol [X] for attendance at Suburb E Primary School.
That the mother is to facilitate phone calls between the father and [X] on Tuesdays and Thursdays each week and on any Saturday, when [X] is not in the father’s care, at 6.30 pm or at such other time as may be agreed between the parents.
That the mother is to remain compliant with the medication regime as prescribed for her from time to time.
Each of the parents is restrained from denigrating the other parent, or any member of the other parent’s family, or any member of the other parent’s household, in the presence or within the hearing of the child [X].
Each of the parents is further restrained from allowing the child [X] to remain in the presence of, or within [X]’s hearing of, any other person who is denigrating the other parent, any member of the other parent’s family or any member of the other parent’s household.
Grant leave to the Independent Child's Lawyer to relist the matter on giving two days’ notice to the Court, and to the other parties, of the reason for the relisting.
Grant leave to the Independent Child's Lawyer to, after consultation between the parties and the Independent Child's Lawyer, submit a consent order to chambers in relation to an Expert’s Report or a Family Report in this matter.
Adjourn the matter for further mention and directions at 9.30am on 3 September 2019.
THE COURT NOTES:
A. The Court has determined in this matter that, in the circumstances of this case, that it is appropriate to make an order in relation to parental responsibility and has made an order for equal shared parental responsibility and, in then going on to make the orders as made above, the Court has given consideration to whether or not an order for shared care between the parents would be appropriate, on the triple basis as set out in the legislation, and then has gone on to consider whether an order for substantial and significant time is appropriate, on the triple basis as set out in the legislation and as explained by the High Court in MRR.
B. In making the interim orders above, the Court has given full consideration to all of the material relied upon by each of the parties and by the Independent Children's Lawyer in this matter and to the submissions made by Counsel on behalf of each of the parties and the Independent Child's Lawyer in the interim hearing today.
IT IS NOTED that publication of this judgment under the pseudonym Conti & Rollins is approved pursuant to s.121(9)(g) of the Family Law Act 1975 (Cth).
| FEDERAL CIRCUIT COURT OF AUSTRALIA AT SYDNEY |
SYC 7617 of 2017
| MR CONTI |
Applicant
And
| MS ROLLINS |
Respondent
REASONS FOR JUDGMENT
Introduction and Background
The Applicant father, Mr Conti (“the father”), and the Respondent mother, Ms Rollins (“the mother”), are the parents of [X], born … 2009 (“[X]”).
The parties met in 2001 and began living together shortly after. They married on … 2007 and separated on 14 February 2010. The father was born in 1971 and the mother in 1978.
Following separation for a period of about sixteen months, the father spent time with [X] on most alternate weekends. Thereafter the father’s occasions of time with [X] became less frequent, which caused the mother to complain to the father by text messages, on occasions, about the irregularity of his time with [X].
The mother says that the last time the father spent time with [X] prior to December 2018 was on 2 September 2012. The mother asserts, in paragraph 13 of her affidavit sworn to April 2019, that this was due to the fact that the father:
Simply stopped seeing her and I stopped chasing him.
The father asserts, in paragraph 6 of his affidavit affirmed 10 April 2019, that the last time he spent with [X] prior to December 2018 was in mid-2013.
Accordingly, from when [X] was between three and a half to four years of age, until when she was nine years and seven months of age, that being more than half of her young life, [X] was cared for solely by her mother, without having any contact with her father.
The father asserts that he had great difficulty making contact with the mother or getting a response from the mother between when he stopped spending time with [X] and his commencement of these proceedings in November 2017.
In consequence of various issues affecting the mother in late 2018 and early 2019, [X] passed into the care of her father on 20 February 2019, and remained in his care until shortly after the making of orders following the interim hearing of this matter on 26 April 2019.
These are the reasons for the orders so made.
These Proceedings
The father filed an Initiating Application on 16 November 2017 seeking final and interim parenting orders.
By way of final orders, the father sought that the parents “have joint parental decision-making in relation to the care, welfare and development” of [X], presumably meaning that the parents have equal shared parental responsibility or shared parental responsibility along some lines of division. As from the moment of [X]’s birth, the parties have each had parental responsibility for [X] pursuant to section 61C of the Family Law Act 1975 ("the Act”).
The father also sought that [X] live with her mother, and that [X] spend time with him on a graduating basis, so that after twelve months from the time orders were made, the time would be each fourth weekend from 4pm on Friday to 4pm on Sunday with telephone communication between 5pm and 6pm each Tuesday and Thursday.
By way of interim orders the father sought a Commonwealth Information order pursuant to section 67N(2) of the Act, addressed to both the Department of Human Services and Centrelink, an Airport Watchlist order, an order that the parents engage in Family Counselling with the intention of re-establishing the father’s relationship with [X], and a waiver of the requirement that he file a certificate under section 60I of the Act, relating to Family Dispute Resolution mediation.
The mother filed her Response on 30 January 2018 seeking final orders that she have sole parental responsibility “in relation to” [X], that [X] live with her and that any orders sought by her in relation to [X] spending time with her father be specified after she had received advice from [X]’s psychologist, as to the best means of reintroducing [X] to her father.
The mother sought interim orders that she have sole parental responsibility, that [X] live with her, that the Application for interim orders as to Commonwealth Information Order and Airport Watchlist order sought by the father be dismissed, and that the mother be permitted to travel with [X] to Country Y from … to … April 2018 after providing certain information in relation to the trip to the father twenty-eight days prior to the proposed date of departure.
The matter was before the Court for a first return date on 31 January 2018. An order was made by Judge Harper (as His Honour then was) pursuant to section 11F of the Act, that the parties attend a Child Dispute Conference on 2 March 2018, and the matter be adjourned for a further mention to 13 March 2018. Notation was made that the Applicant father had not seen [X] for five years.
The parties attended the Child Dispute Conference on 2 March 2018 with Family Consultant H, and a Child Dispute Conference Memorandum to Court was issued that day.
The memorandum noted that the issues in dispute were parental responsibility and the time that [X] should spend with her father. The parents agreed that there had been no apprehended violence orders made for police involvements, though the mother asserted that the father had been verbally and, at times, physically abusive towards her. She made it clear that she did not want the father to know where she lived as she considered his attempts, and his partner’s attempts, to track her down as intrusive. The father denied that there had ever been any physical altercations between the parents. No drug or alcohol misuse issues were identified.
Other matters in the memorandum are outlined later in these reasons when reviewing the evidence before the Court on the interim hearing.
The matter was again before the Court on 13 March 2018, and the parties entered into consent orders pursuant to which the mother was permitted to travel with [X] to Country Y for a holiday between … and … 2018. An order appointing an Independent Child’s Lawyer pursuant to section 68L was made and the matter was adjourned to 14 June 2018 for mention.
The father filed an Amended Initiating Application on 26 March 2018 in which he changed some of the detail of the graduating basis for him spending time with [X] so as to reduce some of those periods of time. In his Amended Initiating Application, the father also removed his interim application for a Commonwealth Information Order and an Airport Watchlist order, added interim orders in relation to spending time with [X] on a graduated basis, and for the surrender of [X]’s passport to be held by the Registrar of the Court.
On mention of the matter before the Court on 14 June 2018, it was noted that the parties were:
Exploring engaging a Single Expert for a Family Report
And:
Also exploring the possibility of Family Counselling
The matter was adjourned to 6 September 2018.
On 6 September 2018, consent orders were made in relation to the parties continuing family therapy with Ms J, and that upon the Independent Child’s Lawyer receiving a recommendation from Ms J that the father’s time with [X] was to commence, it was agreed that such time would be supervised by a professional supervision service, with the father to meet the costs of the supervision and preparation of any report.
It was noted in the consent document that the father had not spent any time with [X]:
In at least 5 years and the purpose of such family therapy is to reunite the child with her father
The matter was adjourned to 28 February 2019.
On 25 December 2018, the mother contacted the father by text message asking if he would like to meet [X] and an arrangement was made for the parties to meet at Suburb C McDonalds’s restaurant that day for a changeover, just for the day.
Later that day, following a telephone call between [X] and her mother, and between the father and the mother, it was arranged that [X] would remain in the father’s care until 28 December 2018. That was again extended until 5 January 2019 when, by arrangement, [X] went back into her mother’s care.
[X] spent further time with her father from 13 to 19 January 2019, though the arrangement had originally been for [X] to spend time with her father from 13 to 15 January, but the time was again extended by agreement.
On 18 January 2019, the mother was voluntarily admitted to Suburb G Hospital Centre for Mental Health in relation to mental health issues. She remained an inpatient there until she was discharged on 21 January 2019.
[X] had been collected from her father on 19 January 2019 by her maternal grandmother.
On 20 February 2019, the mother telephoned the father and indicated that she was having difficulties and needed help with [X]’s care. Arrangements were made for [X] to again be in the father’s care and the father collected [X] from the mother’s place of residence that day.
[X] remained in her father’s care from 20 February 2019 until the interim hearing. During that time the father enrolled [X] at Suburb F Public School. Up until that time, [X] had been attending Suburb E Public School.
When the matter was next before the Court on 28 February 2019, His Honour Judge Harper made an order that the mother file and serve an affidavit detailing the nature of any mental health or other medical issues currently suffered by her, or suffered by her in the recent past, and details of any ongoing treatment for such condition, by close of Registry on 7 April 2019.
The Court noted that there were, to that time, no operative orders for [X] to live with a parent or spend time with a parent, that [X] had lived with her mother for the majority of her life, that until recently [X] had no contact with her father since 2012 or 2013, that in February 2019 the mother had admitted herself voluntarily to hospital in relation to mental health issues, and that as from 20 February 2019, [X] had been living with her father.
By arrangement between the parties, the mother spent some time with [X] supervised by Family Services, a commercial supervision agency, on 6 April 2019.
The Parties Proposals on Interim Hearing
On 3 April 2019 the mother filed an Application in a Case seeking orders that are paraphrased as follows:
a)The leave be granted for short service and that the matter be listed on 12 April 2019.
b)That the mother collect [X] from the father at 5pm on Sunday, 14 April 2019, together with all of [X]’s possessions that the mother delivered to the father on 20 February 2019.
c)That [X] live with her mother.
d)That [X] spent time with her father each alternate weekend from after-school or 3pm on Friday until 4pm on Sunday, for time as agreed between the parents during the Term 1, 2 and 3 school holiday periods, and failing agreement from the end of school on the last day of school term until 5pm on Saturday in the middle weekend, during the Christmas school holidays at the end of 2019 from the last day of school until noon on Christmas Day and from 6pm on 12 January 2020 until 6pm on 25 January 2020, and as specified or agreed in relation to Father’s Day and [X]’s birthday, with any changeovers not occurring at [X]’s school to occur at the Suburb C McDonalds’s restaurant.
The mother sought an order that [X] be unenrolled from Suburb F Public School and be re-enrolled at Suburb E Public School.
In support of her Application in a Case, the mother filed an affidavit affirmed 1 April 2019 by Ms D, a registered clinical psychologist, an affidavit by the mother affirmed 2 April 2019, an affidavit by Ms K, a tenant in the same apartment block as the mother, affirmed 23 March 2019, and a further affidavit by the mother, affirmed 9 April 2019.
The father filed his Response to Application in a Case on 10 April 2019 seeking orders paraphrased as follows:
a)That the parents have shared parental responsibility for [X].
b)That [X] live with her father.
c)That [X] spent time with her mother supervised at a contact centre on dates and times available to the centre and that the mother pay the costs of the contact centre.
d)That [X] continued to attend Suburb F Public School.
e)That the mother undertake supervised hair follicle testing within seven days of orders, and again ninety days after the date of orders, for illicit drugs pursuant to the recognised international standard, with a copy of the results to be provided to the father’s solicitor within seven days of receipt of such results, and with the mother to pay the costs of that testing.
In support of his Response to Application in a Case, the father filed an affidavit affirmed by him on 10 April 2019, and an affidavit affirmed by Ms L, the father’s partner, on 10 April 2019.
The Mention Prior to Interim Hearing
On 12 April 2019, the matter came before me for mention and directions and as the first return date of the mother’s Application in a Case and the father’s Response to Application in a Case.
The mother was represented by Mr Apelbaum of Counsel, the father was represented by Ms McIntosh of Counsel and Ms Reynolds of Counsel appeared for the Independent Child’s Lawyer. The matter was not able to be dealt with by way of interim hearing on that day and was adjourned to 26 April 2019 for an interim hearing, being accommodated on an urgent basis.
The parties entered into consent orders providing for parenting arrangements for [X] only until orders following interim hearing, as follows:
a)The child, [X], born … 2009 (“the child”) is to live with the father.
b)The child is to spend time with the mother:
i)During school holiday time 4pm Wednesday to 4pm Saturday in the first and second weeks of the holidays;
ii)During term time, from the end of school on Fridays until the commencement of school on Monday on alternate weekends, and from 5pm 11 May until before school Monday 13 May;
iii)On 7, 8 or 9 May from after school until 7pm.
c)The child is to have telephone time with the mother each day at 6.30pm to conclude by 7.30pm, and the child is to have privacy for such phone calls.
d)Changeovers are to occur at Suburb C McDonalds whenever they do not occur at the child’s school.
e)The mother is to supply a urinalysis test result on request from the father within 24 hours of such request, and the father is to make such requests twice per week.
f)The mother have leave to issue a subpoena for the father’s work roster, the subpoena to be filed no later than 15 April 2019 and to be made returnable on 25 April 2019.
Certain documents were tendered on behalf of each of the parties and marked as exhibits. Exhibit A1 was tendered on behalf of the father and Exhibits R1, R2 and R3 were tendered on behalf of the mother as evidence in the interim hearing.
The Mother’s Evidence
Mr Apelbaum provided an Outline of Case Document for the mother indicating that the interim orders sought by the mother were as follows:
a)[X] be returned to the mother’s care;
b)[X] be re-enrolled at Suburb E Public School;
c)[X] spend time with her father from Friday after school until Sunday 4pm each alternate weekend, for half of the school holidays and on “special occasions”.
In making interim parenting orders at the conclusion of the interim hearing, I took into account all of the evidence contained in:
a)The mother’s affidavits affirmed by her on 2 April 2019 and 9 April 2019;
b)All of the evidence contained in the affidavit of Ms K affirmed 23 March 2019;
c)All of the evidence in the affidavit of Ms D affirmed 1 April 2019; and
d)The exhibits entered into evidence on behalf of the mother.
The evidence in the mother’s case particularly relevant to the issues on interim hearing was as follows.
The mother deposed that:
Until 20 February 2019, my daughter, [X] … has lived only with me from the age of 9 months old. On 20 February 2019, I suffered a mental health crises and asked my ex-husband, the Applicant, Mr Conti …to take care of [X]
The mother had suffered from mild depression for most of her life and had been prescribed a number of medications since 1997. Her mental health crisis on 20 February 2019 was caused and contributed to by a number of factors, being her antidepressant medication failing to be effective at the relevant time, the stress of the Court proceedings, her intense workload at her full-time employment, the breakdown of her relationship with her former de facto partner Mr M, his behaviour after that relationship breakdown, and her frustrations in dealing with Centrelink and consequential financial hardship.
The mother consulted Suburb A Community Mental Health Service and had an appointment with a psychiatrist for a medication review as soon as she was able, being 4 January 2019. The psychiatrist confirmed that her current medication was not working as well as it should and instructed her to reduce the dosage. The mother was weaned off her then medication over a two week period. The mother asserted that the short “wean-off period” was faster than usual and that she had adverse side-effects upon her which led to heightened levels of depression and anxiety.
The mother started a new antidepressant medication, ‘Citalopram’, on 19 February 2019. This medication did not take immediate effect.
The mother self-referred herself to Ms N, a registered clinical psychologist, with a first consultation on 22 January 2019 and subsequent consultations on 25 January 2019, 1, 5 and 12 February 2019, and 12, 15 and 20 March 2019.
The mother is employed as a professional for [O] and her workload increased during 2018 such that she was attending her employment for 50 hours a week, and then doing and additional 3 to 5 hours of work every night after putting [X] to bed.
The mother went on a break from work on 18 December 2019, and up to the time of the interim hearing had not returned to work, but had been using up her sick leave, before taking leave without pay.
The mother’s de facto relationship with Mr M ended in June 2018 on the basis of the mother’s assertions of his infidelity and use of the drug Ice.
The mother deposed the breakdown of the relationship and its aftermath:
…hit me very hard.
The mother also deposed that she was:
Devastated at the loss of the future I thought I had.
In late 2018, it came to the mother’s attention that her solicitors had received correspondence from the father’s solicitors asserting that an “anonymous source” had contacted the father and told him that the mother routinely used cannabis and had “consumed some of [X]’s prescription Ritalin”. The mother suspected that the “anonymous source” was Mr M.
On Christmas Day 2018, the mother was becoming very depressed. She was mentally and physically exhausted, she came into conflict verbally with her mother and they had a falling out. On that day, the mother asked [X] if she would like to see her father. When [X] said she would, the mother sent a text message to the father and subsequently made the arrangement to have him spend time with [X] on Christmas Day, meeting at Suburb C McDonalds’s at 12pm.
The mother deposed that:
This initial meeting and reintroduction was extended because [X] was having a good time. With [X]’s input, Mr Conti and I agreed to let [X] stay with him until the next day, and then until 28 December, and in the end she stayed until 5 January. A further visit was scheduled between 13-15 January, which I extended to 19 January so that they could enjoy school holiday time…..We were able to make an agreement that going forward, he would have [X] every second fortnight and for half the holidays.
On about 18 February 2019, the mother found out that a close friend of hers was terminally ill and about to die.
At her General Practitioner’s suggestion, the mother applied for sickness benefits from Centrelink as she was on extended unpaid leave from her employment. The mother made the application and on 20 February 2019 she received a phone call from a Centrelink representative at 4:14pm and was advised that her application for sickness benefits had been denied due to the wording on the medical practitioner’s certificate. This caused the mother to become “quite distraught” and to feel “inadequate and hopeless”. The mother deposed that she made a “split second decision to ask Mr Conti for help with [X].”
The mother deposed that she contacted the father by telephone and that they made an arrangement for the father to collect [X] from her the following day, but that at 5:33pm the father telephoned the mother and a further arrangement was made for the father to collect [X] that same day.
The father attended the mother’s place of residence and collected [X]. The mother asserts that the father collected some of [X]’s belongings, whereas the father in his evidence asserts that he collected all of [X]’s belongings.
On the same evening, 20 February 2019, the mother was informed of the death of her friend and former co-worker. The mother referred to this being the second death of someone close to her of recent times. It is in the father’s evidence that the mother’s father died in 2017.
On 21 February 2019, at the father’s request, the mother contacted Suburb E Public School, where [X] had been attending school, and advised them that:
[X] had gone to stay with her biological father for a time and that she would need to attend school over there.
Also on 21 February 2019, the maternal grandmother was attempting to contact the mother and was not receiving any response to her messages. The Suburb A healthcare service was also attempting to contact the mother and was not receiving any response.
A police welfare check was arranged and the police arrived at the mother’s place of residence accompanied by the maternal grandmother. The mother was taken by ambulance to Suburb G Hospital and was an inpatient scheduled under the Mental Health Act until 25 February 2019, when she became a voluntary inpatient.
Whilst an inpatient at Suburb G Hospital, the mother disclosed to the staff that in late December or early January 2019 that she had “tried ice". In her evidence, the mother deposes that she had used Ice with Mr M “on 2 occasions (when [X] was not in my care)”. The mother asserted that she used Ice in late December or early January 2019 because:
I was also looking to see its effects and see if I could look back at Mr M’s behaviour and if I had missed any of the signs. I was not doing it for an escape or in order try to get high, but to try to find answers to questions I still had
The mother also deposed that she and the father had used Ice together in around 2005 or 2006, asserting that she had not wanted to but that the father had pressured her into it.
After [X] went into her father’s care on 20 February 2019, the mother had telephone calls with [X] “almost every day”. The mother deposes that after she was discharged from Suburb G Hospital on 5 March 2019 she made a request of the father to spend time with [X] every weekend but, other than an occasion on 17 March 2019, the father refused. By arrangement, the mother spent two hours with [X] on Sunday, 17 March 2019.
On the day the mother discharged herself from Suburb G Hospital, being 5 March 2019, she had several telephone calls with [X]. At 8:20pm she attended, accompanied by her mother, the maternal grandmother, at the home of the father and his partner, Ms L. The mother knocked on the door and when it was opened by Ms L the mother asked to see [X]. The mother indicated to Ms L that the scene was being video recorded by the maternal grandmother on her camera. Ms L said “no” and closed the door.
The mother remained with the maternal grandmother at the premises and ultimately the police attended after a three and a half hour wait. During that time, [X]’s paternal grandmother, Ms B, arrived and left, and the father arrived at about 9pm. When the police arrived they indicated to the mother that they would do a welfare check on [X]. Police attended at the father’s home for the welfare check and then advised the mother that, in essence, all was well with [X] and advised her to leave the area of the father’s home and not return.
The affidavit of Ms K sworn 23 March 2019 contains evidence corroborative of the mother’s version of events when the father attended her residence on 20 February 2019 to collect [X] pursuant to the arrangement between the parents, and conflicts with the father’s version of events as he was leaving those premises on that day, as contained in his affidavit evidence.
The affidavit of Ms D sworn 1 April 2019 annexes her curriculum vitae as a clinical psychologist and a “Confidential Psychological Report” dated 21 March 2019 on the mother, prepared at the request of the mother’s solicitors. The report was based upon ongoing assessment and treatment sessions between Ms D and the mother and the dates referred to earlier in these reasons.
Ms D reported that:
In my professional opinion Ms Rollins reported psychiatric history and current symptoms are consistent with the DSM-V criteria for a diagnosis of Persistent Depressive Disorder (Dysthymia), with intermittent major depressive episodes (current severe episode), accompanied by anxious distress.
Also:
It is noteworthy that Ms Rollins self-referred and initiated treatment with me, and she has continued to show motivation to attend for regular appointments. Ms Rollins has been receptive to suggestions I have made to her in the course of our sessions. In short, these have included discussions around connecting with her support network, keeping up her activity levels, and watching and challenging her negative/critical self-talk. We have also identified the factors contributing to her recent hospital admissions and agreed on safeguards against this recurring.
Ms Rollins has good insight into the factors impacting on her psychological well-being. Given Ms Rollins long-standing mental health history, she has also demonstrated a good pattern of prior help-seeking.
Psychological treatment will continue to address Ms Rollins mood and factors contributing to her well-being. We will continue to discuss and apply evidence-based strategies to manage her mood both now and in the future.
Ms Rollins has also attended and continues to attend regular appointments with other important allied health professionals involved in her ongoing care and treatment (e.g., GP, Psychiatrist).
While the prognosis must be guarded and the factors influencing this prognosis are many and varied, (and beyond the scope of this report) Ms Rollins is receiving an evidence-based psychological intervention, combined with an antidepressant medication. Given both treatments have been shown to be efficacious in the treatment of depression, this improves the prognosis.
In my opinion, if Ms Rollins continues to receive regular psychological and pharmacological treatments for her depression, then her risk of relapse and further hospital admissions are likely to be reduced. Further, given Ms Rollins has a number of mental health professionals overseeing her care, and will be closely monitored, any emerging changes in her mental state can be addressed immediately.
As established in the body of this report, Ms Rollins experienced significant and prolonged psychosocial stressors prior to her two hospital admissions. Ms Rollins’s mood is now stable and she continues to show significant clinical improvement. Ms Rollins is a motivated client, with good patterns of prior and current help-seeking behaviour. Ms Rollins has agreed to engage in ongoing follow-up and relapse-prevention focused treatments. Risk of self-harm is low and safeguards are in place to ensure this reduced risk is maintained. Ms Rollins is a capable and competent parent and I have no concerns about her capacity as a mother. I do not believe [X] is at risk in her care.
On 6 April 2019 the mother spent time with [X] at Suburb C City Gardens supervised by a worker from Family Services, a commercial supervision agency. The occasion had been arranged between the parties and was not pursuant to a Court order.
The Contact Report prepared by the worker from the agency was tendered on behalf of the mother and entered as Exhibit R1. The contents of the Report, which was tendered into evidence during the mention on 12 April 2019, were described at the time of tender by Ms Reynolds as Counsel for the Independent Child’s Lawyer, and by Ms McIntosh as Counsel for the father, both very experienced Counsel in parenting matters before the Court, as a very distressing report in relation to its description of events when [X] had to leave her mother at the end of the occasion.
The Report indicates that the interaction between mother and child during the visit was affectionate and loving and that [X] enjoyed the visit immensely.
The following are extracts relating to events when the visit was ending;
When it was two minutes to go I would have to go soon and [X] burst into tears which made Ms Rollins cry. [X] repeatedly asked if she had to go and Ms Rollins patiently repeated that she did.
After a little more coaxing from me, we walked towards the meeting spot where we saw Mr Conti waiting. [X] burst into tears and clutched Ms Rollins and repeatedly told her that she didn’t want to go and that she didn’t want to leave Ms Rollins.
Ms Rollins encouraged her to go to her Dad and at one point looked at me and said “… I don’t know what to do” I rubbed [X]’s back and said she could have one last hug, but then she’d really have to come with me.
This caused [X] to cry harder and to cling to Ms Rollins tighter for another minute. I asked [X] to take my hand and she only cried harder and said she didn’t want to.
[X] asked Ms Rollins to promise that should see her again next week and through her tears, Ms Rollins told [X] that she couldn’t make that promise just yet.
I asked [X] to take my hand and [X] vigorously nodded no. I told her that I had no intention of pulling her off her mum and I would prefer that she came to me willingly.
[X] did so very reluctantly and then grabbed onto her mum again who had tried to walk away. I repeated the process again and asked her to come with me, letting her know that dad was waiting nearby with a very big cuddle for her.
After much resistance, [X] gave me her hand and I led her to her dad who hugged her. She kept repeating that she wanted to see her mum next week and Mr Conti said there was no guarantee that could happen but that she would be seeing her mum again.
This made [X] call out to her mum and cry out for one last hug. Mr Conti and I told her that she had already had three last hugs and it was really time to go and [X] threw herself away from her dad and tried to push past me and run back to her mum while crying “PLEASE! Just one more hug!”
We tried to soothe her and Ms Rollins came back and said [X] could have one more hug which comforted [X] as they held each other close. Ms Rollins kept repeating that she loved [X] more than anything in the world and that walking away from her was the hardest thing she has ever done and that it was important for Ms Rollins that [X] knew that it didn’t mean that Ms Rollins did not love her.
Ms Rollins repeated this several times and [X] and nodded as Ms Rollins said she was now going to walk away. [X] kept saying “bye mum” and Ms Rollins would turn and wave. [X] asked her dad if they could wave to mum as she drove off as she didn’t want to leave without doing that and Mr Conti agreed that this was fine.
Tendered on behalf of the mother and marked as Exhibit R2 were urinalysis drug screening test results for the mother for 3 April 2019, 8 April 2019 and 10 April 2019. The test results for 3 April and 8 April 2019 are negative for all drugs tested for except benzodiazepines.
Following that test on 3 April 2019, the urine sample was referred to Pathology for further testing and a Report dated 4 April 2019 for benzodiazepines returned negative results.
Also tendered with the urinalysis test result sheets was a copy of a prescription dated 19 December 2018 issued by Dr P, the mother’s General Practitioner, to the mother for Valium 5mg Tablet, and the same prescription issued on 12 February 2019. The urinalysis test results sheet for 10 April 2019 returned a negative result for all drugs tested for, including benzodiazepines.
Exhibit R4 for the mother was a urinalysis drug testing results sheet for a test on 24 April 2019 showing a negative result for all drugs tested for.
In a Tender Bundle for the mother, provided by Mr Apelbaum at the interim hearing, document 15 was a urine analysis test results sheet for the mother dated 16 April 2019 indicating a negative result for all drugs tested for.
The final document tendered on behalf of the mother and entered as Exhibit R5, and was a printout of the father’s work hours for the period from 24 December 2018 to 16 April 2019. This document was referred to by Mr Apelbaum in submissions on behalf of the mother as indicating that the father worked an average of 30 to 40 hours per week, including shift-work requiring him to attend work early, including as early as 3:59am on Thursday, 17 January 2019, and often around 4am or 5am. He often attended work late, including as late as 11:32pm on 21 January 2019, often finishing work at about 11:30pm, and to work on both weekdays and weekends, leaving [X] to be cared for at these times by either the father’s partner or the paternal grandmother.
The Father’s Evidence
Ms McIntosh of Counsel provided a Case Management Document and indicated in her submissions on behalf of the father some alterations to the orders sought by him in his Response to Application in a Case consequent upon the Minute of Orders tendered on behalf of the Independent Child’s Lawyer.
In making interim parenting orders at the conclusion of the interim hearing I took into account all of the evidence contained in:
a)The father’s affidavit affirmed by him on 10 April 2019;
b)The affidavit of the father’s partner, Ms L, affirmed 10 April 2019; and
c)The Exhibits entered into evidence on behalf of the father.
The father’s affidavit affirmed 10 April 2019 was styled in the manner of an affidavit in reply to the mother’s affidavit affirmed by her on 2 April 2019.
The evidence in the father’s case particularly relevant to the issues on interim hearing was as follows.
The father deposed that he did not see or have any contact with [X] between mid-2013 and 25 December 2018 (noting that he had commenced these proceedings by filing his Initiating Application on 16 November 2017, initially seeking an Information Order to assist in locating the mother for the purpose of service of the initiating documents, but that did not need to be proceeded with as the father’s solicitors were contacted by solicitors on behalf of the mother prior to the first return date).
The father denied the mother’s evidence that he had been abusive and violent during the relationship, and deposed that he had never been charged nor investigated for any incident or ever involved in any ADVO.
In relation to the mothers evidence that [X] has been diagnosed as suffering from ADHD, the father indicated that he had completed an ADHD course through the Parenting ADHD & Autism Academy so as to be able to cope with any associated behaviour by [X] when in his care.
The father was contacted by the mother’s former partner, Mr M, in early November 2018 and asserts that he was informed by Mr M that the mother was taking [X]'s Ritalin prescription medication, that [X] did not have ADHD, that the mother was abusive, smokes cannabis mainly in the form of a joint, drinks alcohol and that the maternal grandmother cares for [X] on a regular basis.
I note the assertion that the mother “drinks alcohol” does not denote a risk, as in this part of the father’s evidence there is no indication that he was informed by Mr M that the mother’s consumption of alcohol was excessive or of any manner representing a risk in her care of [X]. Further, the father’s evidence in this regard does not contain any detail of a factual nature relayed to him by Mr M and substantiation of his allegations against the mother and, accordingly, the hearsay assertions by Mr M can have no weight.
A letter was sent by the father’s solicitors to the mother’s solicitors reiterating the assertions made to the father by Mr M and seeking response.
On 27 November 2018, the mother’s solicitors responded to the father’s solicitors advising that the mother had accidentally taken one of [X]'s Ritalin pills in about August 2018 and indicated that:
She was willing to perform sampling.
The father deposed that he:
…did not request Ms Rollins undertake sampling because Ritalin would still be in her system and show up in a hair follicle test.
The father further deposed:
I also believed that what Ms Rollins was telling her solicitor was the truth.
The father notes that the inspection of the documents subpoenaed from Suburb G Hospital in relation to the mother indicates that she had admitted to the health professionals that she used the drug Ice in January 2019 on two occasions, that she admitted to using cannabis and that she “consumes ½ bourbon per day”, and that in her affidavit filed in the proceedings she admitted that she used the drug Ice when in a relationship with Mr M.
The father relates the events of 25 December 2018 when, at the mother’s invitation, he was able to spend time with [X] for the first time since mid-2013 (on the father’s evidence) and that at [X]’s request, related by him to the mother, the parents arranged for [X] to remain with him until 5 January 2019 when he dropped [X] back to the mother’s home, the mother having given the father her address after initially seeking to keep her address confidential in the proceedings.
The father proposes that on 6 January 2019, after [X] was back in the mother’s care, he received a text message from the mother saying:
[X] is going to call to say good night from mums phone, She’s with her this week as I’m back to work and vacation care not open yet.
To which the father replied:
Yeh she just rang me.
In the father’s tendered documents is a print copy of these asserted text messages, though the print copies do not show the telephone numbers the said messages were sent from and to, but the context of the messages and another part message shown on the page raised a very clear inference that the messages are as described by the father.
The significance of this evidence is that as at 6 January 2019, the mother’s evidence is that she was not attending her employment and had not done so since 18 December 2019, per the mother’s affidavit affirmed 2 April 2019 at paragraphs 18 and 19.
On 13 January 2019 the parents met at Suburb C McDonalds and [X] passed into the father’s care to spend more time with him, and stayed with him until 19 January 2019.
On 19 January 2019, by arrangement between the parents, the maternal grandmother attended changeover at Suburb C Railway Station to effect the changeover of [X] passing back into the mother’s care. The father deposes that throughout this period he was not aware that the mother was an inpatient at Suburb G Hospital mental health ward.
On 19 January 2019 the mother was still a voluntary inpatient at Suburb G Hospital for mental health issues, having been admitted on 18 January 2019, and discharged on 21 January 2019, per Exhibit ICL1, being Suburb G Hospital records for the mother.
The father deposes that at some time between 23 January 2019 and 18 February 2019, an agreement was reached between the parents that the father would collect [X] from Suburb E Public School every second Friday and return [X] to her mother at 4pm on Sundays at Suburb C McDonalds’s. An occasion under the agreement took place between Friday, 8 February 2019, by collection of [X] from her school and Sunday, 10 February 2019 at 4pm, with changeover at Suburb C McDonalds’.
On 20 February 2019 the father attended [X]’s swimming Carnival and after returning home received a telephone call from [X] who said words to the effect:
Mummy wants me to live with you
During a conversation between the parents, the mother asked the father to come and take [X]. The father went immediately to the mother’s home and, when the mother had packed “all of [X]’s belongings”. There is conflicting evidence between the parties in relation to an asserted verbal exchange between them when the father was leaving the mother’s residence with [X], and it is in relation to this part of the evidence that the evidence contained in the affidavit of Ms K is relevant, as it supports the mother’s version of the event.
The father attended his local family Doctor on 21 February 2019 to enquire about [X]'s ADHD medication. He received a referral to [X]’s paediatrician, relevant details of [X]’s paediatrician having been provided to him at his request by the mother.
On 22 February 2019, the father attended Dr Q, the paediatrician, and received advice in relation to [X]'s ADHD. That day the father also began the process of enrolling [X] at Suburb F Public School.
On 25 February 2019, the father and [X] attended at Suburb F Public School and met with the Deputy Principal and completed the enrolment process, during which he deposes that he was told by the Deputy Principal that the school had contacted the mother and that she had consented to [X] being enrolled at Suburb F Public School.
On 5 March 2019, the father received a text message from the mother advising that she was:
…home and recovering now.
The text message from the mother also stated:
I would like [X] to come back home as soon as possible, and at the very least to spend this weekend with her.
The father left to attend his employment at 2pm on that day and thereafter on the evening of that day occurred the events when the mother attended at the father’s home and spoke to the father’s partner, Ms L about collecting [X] and, on Ms L’s refusal, called the police. The father deposes that he arrived at home at 9:20pm in response to a telephone call received from Ms L at 8:20pm, and that the police arrived at 11:30pm.
As the father deposes, and as the records forming Exhibit ICL1 from Suburb G Hospital show, the mother was still an inpatient on a voluntary basis at that hospital throughout 5 March 2019, and until discharge on 8 March 2019.
The response to the assertion in the mother’s evidence that she and the father had used the drug ice during their relationship in about 2005 or 2006, as deposed by the father is:
I deny ever having used ice.
The father is employed on a shift roster at “the workplace” and his hours vary between 25-35 hours per week. He said that he has some flexibility to swap shifts and that he is able to either take [X] to school, or pick [X] up from school, depending on what shift he has. He deposes that on Mondays he both drops [X] off to school and picks her up from school, here referring to the period of time between 20 February 2019 and the interim hearing, when [X] was in his sole care as between the parents. This indicates that the father is able to supply a shift roster, that his shifts can change, and that from time to time he swaps shifts. On occasions when the father is not able to take [X] to school his mother assists him.
The father describes the room furniture and toys provided for [X] in his home. In his tender bundle, the father includes some photographs of [X]’s room and belongings.
In the final paragraph of his affidavit the father says:
Whilst I am disappointed that Ms Rollins was not truthful about her drug use and mental health problems, I am pleased that Ms Rollins put [X]’s interest first and asked her to live with me.
The father’s partner, Ms L, gives evidence that she has two adult children and two minor children. The minor children, Courtney, aged twelve years, and Kory, aged seventeen years, live with her and the father.
Ms L is employed full-time at [AA] as a professional. The father and Ms L commenced a relationship in about … 2015. She first met [X] on 25 December 2018.
Ms L deposes that the father either dropped [X] off to school or picked her up, and that if the father was working then the paternal grandmother generally assists.
Ms L deposes that:
I am available if required to collect or drop [X] off to school however that is not often.
Ms L deposes that she:
…felt scared at Ms Rollins and Ms BB [the maternal grandmother] turning up at my doorstep on the evening of 5 March 2019 and Police subsequently attending. This whole incident frightened my children as well.
There is no reason at all to doubt the truth of this, as on either parent’s telling the incident would have been disturbing and frightening for Ms L and her children who live with her. That incident is to be regretted and, once again on either parent’s telling, Ms L would seem to have dealt with the situation in a very appropriate manner.
The father included in his tender bundle certain pages extracted by photocopying from the mother’s medical records relating to her inpatient admissions during January and February 2019 at Suburb G Hospital. The whole of those records were produced on subpoena issued at the request of the father, tendered by the Independent Child’s Lawyer and entered into evidence as Exhibit ICL1.
I carefully read and considered all of the pages referred to by the father in his tender bundle, being the documents referred to in, and accompanying, the email from the father’s solicitors to Chambers (with simultaneous copies to the solicitors for the wife and Counsel for the Independent Child’s Lawyer) and corresponding with the tabs marked “AF1” to “AF18” in the bundle of documents produced on subpoena by the Hospital. I perused and considered the balance of the said bundle of documents produced on subpoena.
In relation to the mothers’ voluntary admission to the Hospital in its mental health facility from 18 to 21 January 2019, mother was noted on 18 January 2019 as being an inpatient:
Voluntarily for assessment due to worsening depressive symptoms and suicidal ideation.
Current stressors: attended funeral for ex-co-worker from suicide yesterday.
Work-related stressors. Daughter [X] has ADHD and currently on treatment. Recently came into contact with ex-husband after 7 years.
Reports ongoing suicidal ideations – “I have thought about how to do it” – did not want to discuss further…
States she was in a relationship until June 2018 which then broke down, states he was dishonest and manipulative (was using ICE during relationship without her knowledge).
States tried ICE with her ex-partner, Ms Rollins states that she used ICE in part to escape from her reality and in part to understand why someone would use it (in an effort to understand the actions of her ex-partner).
Ms Rollins states that she does have a suicide plan “of course I have a plan, I’ve been depressed for 20 years” However Ms Rollins states that she would not go through with her plan nor does she want to commit suicide…
Ms Rollins presented as future focused keen to go home.
Ms Rollins states that she would like to return home and be with her daughter.
Help seeking, fair insight and judgement, states that she made an appointment with a psychologist today which has been cancelled due to hospitalisation; she wants to have her medication changed during her hospital stay this time.
Increased ETOH intake over the last 6 months [ETOH being an indicator in the hospital records of alcohol consumption].
Has tried ICE twice over the last two weeks.
Pervasive and worsening suicidal thoughts since Christmas.
Does not want to live.
Wants to die.
Stated that she started to arrange things for her daughter so she would be taking care of after her death.
Initially did not for [X]’s biological father to be involved, but now sees it as a good option.
On 21 January 2019, at the time of her discharge from the hospital it was noted:
Ms Rollins presented as future focused and keen to go home. Ms Rollins states that she would like to return home and be with her daughter.
At the time of discharge Ms Rollins was logical, calm and could assure her safety.
Part of the discharge plan was:
Follow-up with GP in 3 – 5 days of discharge – recommend mental health care plan to see a psychologist.
I note here that the mother did commence seeing a psychologist, Ms D, by her own arrangement of appointment on 22 January 2019, the day after she was discharged from hospital.
In relation to the mother’s second admission to Suburb G Hospital mental health facility between 21 February 2019 and 8 March 2019, Hospital records indicate that she arrived at the hospital by ambulance and she was scheduled under section 19 of the Mental Health Act 2007.
The mother was found to have a badly infected leg with a staph infection which was treated during her hospital stay. The hospital records note:
Ms Rollins was made a voluntary patient upon her first review by a Consultant Psychiatrist, Dr R, and embraced her ongoing treatment in Hospital to help with her mood.
On discharge it was noted:
On recurrent reviews Ms Rollins’ affect and thought content had improved and at the time of discharge she was no longer deemed a risk of harm to herself. She continued to have ongoing distress at being separated from her daughter, but this was not attributable to her well-treated mental illness.
Also in the father’s tender bundle was a results sheet for a ‘Hair 5 Drug Panel Test Result’ in relation to a hair sample collected from the mother on 3 April 2019, showing a positive result for methamphetamine. The “Quantitative Result” being shown as 752pg/mg from a hair sample 3.81cm in length of head hair.
A positive result was to be expected given the mothers admission of use of ice during January 2019.
Position of the Independent Child’s Lawyer
The Independent Child’s Lawyer was represented by Ms Reynolds of Counsel. Ms Reynolds provided a Case Outline document and a minute of the orders sought by the Independent Child’s Lawyer in the following terms:
a)The child [X] born … 2009 (“child”) live with the mother.
b)The child is to spend time with the father as follows:
i)On alternate weekends commencing on the first weekend of term, from after school on Friday until before school on Monday, or 5pm Sunday, as the father elects;
ii)For half of each short school holidays, being the first time in even-numbered years in the second half in odd-numbered years, from midday Saturday to midday Saturday;
iii)During the Christmas school holidays, for the first half in even-numbered years in the second half in odd-numbered years;
iv)On the Father’s Day weekend from 4pm Saturday until 5pm Sunday, unless the child is already to spend time with the father pursuant these orders;
v)The father’s time be suspended on the Mother’s Day weekend, from 5pm Saturday until before school on Monday.
vi)The father’s time be suspended in odd-numbered years from 4pm Christmas Eve until 4pm Christmas Day;
vii)The mother’s time be suspended in even-numbered years from 4pm Christmas Eve until 4pm Christmas Day.
c)Changeovers which do not occur at the child’s school are to occur at McDonald’s at Suburb C.
d)The mother is to arrange for a hair follicle test to be undertaken 6 weeks from the date of these orders, and is to supply the father and the Independent Child’s Lawyer within 48 hours of receipt of such report.
e)The mother is to continue to engage with her psychologist, Ms D, as recommended by her, and is to supply the father and the Independent Child’s Lawyer with a letter each 4 weeks confirming that she is continuing to engage with her and follow her recommendations, and is capable of caring competently for the child.
f)The child is to be re-enrolled to attend Suburb E Primary School.
g)The mother is to facilitate phone calls between the father and the child on Tuesday and Thursday each week at 6:30pm, or such other time as the parents agree.
h)Each of the parents is restrained from denigrating the other parent or any relative or friend of him or her, in the presence or hearing of the child, and is to use their best endeavours to prevent any other party doing so.
Exhibit ICL2 is a document contained in documents produced on subpoena by Dr S of Street T Medical Centre, being a letter dated 24 August 2018 from Ms U, Clinical Psychologist, to Dr P in relation to both the child, [X], and the mother. Ms U had seen [X] on six occasions during 2018, between 12 February 2018 and 17 July 2018.
Included in the letter is the following:
I am pleased to inform you that because of [X]’s attention and concentration difficulties reportedly now being better managed using the stimulant medication, she has started to thrive at school with her overall learning and with her much improved behaviour compared to previous years. Her self-esteem and confidence relating to her schoolwork has, therefore, also reportedly improved markedly…
[X]’s peer-relationships have also improved in that she has reportedly made a few close friends. However, her social skills are still developing.
A review of [X]’s most recent (Year 3, Semester 1) School Report, revealed that she is making sounds [sic] academic progress.
Ms U had seen the mother on seven occasions from February to July 2018, and in relation thereto the letter recites the following:
Treatment initially included further parenting advice relating to better managing [X]’s ongoing (yet improved) challenging behaviours and “grief therapy” relating to the loss of her father [in context the reference to “her father” is a reference to the mother’s late father], as well as, the break-up of her relationship with Mr M and the impact of this on both her and [X].
As part of further therapy, Ms Rollins will be provided with ongoing strategies to better adjust to her new family circumstances and further parenting advice as to how to best continue to support [X] within her home and school environments.
Submissions
Helpful and comprehensive submissions were made by each of the Counsel appearing in the interim hearing.
Mr Apelbaum for the mother submitted that he was relying on the evidence that [X] had been in her mother’s sole care for almost the whole of her life, that her father had been absent from her life for a period of about six years, and that her principal attachment could only be to her mother.
He noted that the risks for [X] asserted to be presented by her mother were in relation to her mental health issues and substance abuse of both alcohol and illicit drugs, in particular cannabis and Ice. In relation to those asserted risks, Mr Apelbaum submitted that the mother’s history, and in particular her history during the period from December 2018 to March 2019, showed clearly that the mother was a person who was conscious of her own mental health issues and sought appropriate help at times of acute need.
Mr Apelbaum enumerated the stress factors that had been at play in the mother’s life through late 2018 and early 2019 leading to a deterioration in her mental health by an increase in the acuteness of her chronic depressive illness. He referred to the evidence and indicated that such stressors had been dealt with by the mother and were no longer present and weighing upon her.
In relation to the risk associated with the mother’s use of drugs, Mr Apelbaum submitted that the evidence did not show that the mother had a “drug problem”. He submitted that the mother’s lapses to use of Ice in December 2018 and January 2019 were associated with her worsening mental health condition at that time and were situational to that crisis. Though the hair follicle test returned a positive result, it was indicative of her admitted use as above and not indicative of habitual, long term or recent to time of testing use, and he referred to her clear urinalysis test result in relation to both amphetamine and cannabis substances.
Mr Apelbaum submitted on behalf of the mother that there was no evidence before the Court that she had exposed [X] to drug use. He also submitted that the fact that the father’s Application proposed that [X] spend unsupervised time with her mother was also relevant to the assessment of risk asserted to be presented by [X] being in the mother’s care.
Mr Apelbaum indicated in submissions that the mother agreed in principle with the Minute of Orders sought by the Independent Child’s Lawyer, with some adjustments proposed by her to relevant times for [X] to spend with her father, and to include any concern as to the mother’s ability to sustain the cost of undertaking further urine analysis tests at the rate of “no more than twice in any calendar month.” This is a counter proposal to that where the mother is to pay the cost of urine analysis testing for herself, at the rate of more than twice per month for a period of six months, then at the rate of no more than once per month for a further six months, with a cessation of the requirement for random analysis thereafter.
In submissions on behalf of the father, Ms McIntosh asserted that it was a case of there being an unacceptable risk of harm to [X] if she were returned to her mother’s care.
Ms McIntosh submitted that the mother’s case, as presented to the Court in her affidavit evidence, concentrated on matters relating to the father, the father’s partner and their household, with scant material addressing her mental health decline during the latter half of 2018, and the stresses that brought about that decline. Ms McIntosh submitted that that lack of evidence exacerbated the risk.
In relation to the stresses experienced by the mother and, on her case, leading to the deterioration in her mental health in late 2018, Ms McIntosh submitted that all of the stated stress factors were still present in the mother’s life, other than the proximity to the breakup of her relationship with Mr M.
In relation to the mother’s engagement with health professionals in late 2018 and early 2019, and in relation to her new medication regime, McIntosh submitted that it was “early days” and that more time needs to pass to ascertain whether the mother’s mental health situation has stabilised sufficiently for the Court to conclude that she does not present an unacceptable risk to [X] if [X] is in her full-time care, by reason of her current mental state, or by reason of the risk of relapse.
Ms Reynolds for the Independent Child’s Lawyer submitted that the major issue for consideration at interim hearing was whether or not the mother’s mental health presented a risk, and if so, an unacceptable risk to [X] if [X] is placed in the mother’s full-time care.
Ms Reynolds noted that on the basis of the evidence before the court on the interim hearing, the mother’s depressive illness was of long-standing, going back at least to when the mother was sixteen years of age and that in all that time there had been only one other incident of a rapid degeneration in her mental health requiring her to seek some intensive medical assistance, that incident occurring when the mother was pregnant with [X], and when she obtained assistance for her mental health from the Hospital.
Ms Reynolds further submitted that the evidence before the Court, and in particular the medical records of the mother, indicate that in late 2018 she had difficulties with her medication and that those difficulties were exacerbated by the process of changing her medication to a more appropriate prescription with, what medical evidence indicates, was an over-fast weaning-off process from her old medication to her new medication. Ms Reynolds submitted that the evidence supported a conclusion that the risk of relapse on the mother’s part was considerably lessened by the resolution of her difficulties with her medication.
Ms Reynolds referred to the contents of the letter from Ms U entered as Exhibit ICL2, referred to above.
Importantly, Ms Reynolds submitted that the mother had acted in an appropriate and child focused manner by sending [X] to the care of her father when the mother realised that she was becoming so unwell that she may not be able to properly care for [X]. Ms Reynolds submitted that this was an example of the mother promoting [X]’s well-being to the best of her ability in difficult circumstances.
In relation to the report provided by Family Services, as supervisors of the occasion of time between the mother and [X], Ms Reynolds submitted that the mother had behaved in a most appropriate manner throughout what would have been a very distressing occasion for her, once again showing her child focused approach.
Ms Reynolds expressed some concern from the viewpoint of the Independent Child’s Lawyer in relation to the father’s approach to facilitating time between [X] and her mother when [X] was in his full-time care. Ms Reynolds submitted that the father could have done more than he did to have [X] spend time with her mother, noting that such time had been limited to the occasions on 17 March 2018 and 6 April 2018, as the separation of [X] from her mother was obviously difficult for [X].
In relation to the risk elements presented by the mother’s drug use, Ms Reynolds submitted that one more hair follicle test could well clear up that issue.
In relation to the risk element presented by the mother’s mental health issues, Ms Reynolds submitted that it could never be said that there was no risk of relapse, but that on the evidence available to the Court, the risk of relapse at the time of interim hearing was not an unacceptable risk.
Parental Responsibility
Towards the end of the interim hearing, I indicated that having received all of the evidence and submissions I intended to make an order that the parents have equal shared parental responsibility for [X]. I noted that it was not an issue that had been addressed in submissions and I asked if either of the parents, or the Independent Child’s Lawyer, wished to make submissions on the issue. Ms McIntosh and Ms Reynolds indicated that they did not wish to make submissions on the issue and, after a brief adjournment to provide advice to the mother, Mr Apelbaum indicated that he did not wish to make submissions on the issue.
The Law and Discussion
In Goode & Goode[1] the Full Court suggested that in an interim application relating to parenting issues, the Court should follow the framework set out in paragraphs 81 and 82 of that judgment:
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.
[1] Goode & Goode (2006) FLC 93-286.
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.
Section 60B of the Act sets out the objects of and principles underlying Part VII of the Family Law Act 1975, and in considering each of the primary and additional considerations in section 60CC of the Act, I have been guided by those objects and principles.
Section 60CA of the Act provides that in deciding whether to make a particular parenting order in relation to children, the Court must regard the best interests of the children as the paramount consideration.
Section 60CC of the Act provides that in determining what is in the children's best interests, the Court must consider the matters set out in subsections (2) and (3), and must note the weighting requirement in subsection (2A)
The Full Court said in Banks & Banks,[2] at paragraphs 47 to 50:
47. As the Full Court pointed out in Goode, the fact there will often be little uncontested evidence in interim proceedings means that only limited consideration may be able to be given to the relevant s 60CC factors.
48. It should also be said that in parenting proceedings, as in all civil litigation, it will be the issues that are joined that will dictate which s 60CC factors are relevant. By their nature, interim parenting proceedings should be confined to those issues which, in the best interests of the child, require determination prior to a proper determination at a trial. The fact such disputes are commonly dealt with in overcrowded court lists makes it even more desirable to identify with precision those issues which can, or should, be resolved on an interim basis.
49. Although the primary judge discussed all the potentially relevant factors in her ex tempore reasons, that luxury will not always be available. Furthermore, there is a risk that in discussing every s 60CC factor, the judicial officer may lose sight of the forest for the trees. It is also important to stress here that the requirement to “consider” each factor does not mean each must be discussed, especially where the evidence leads inexorably to a particular conclusion: SCVG & KLD (2014) FLC 93-582.
50. When it is obvious that the findings made as to some of the s 60CC factors will be determinative of the child’s best interests on an interim basis, it is a sterile and unnecessary exercise to address other factors. Moreover, it will be a sterile exercise to determine whether or not particular facts are disputed if they are relevant only to one of the non-determinative s 60CC considerations. Properly understood, we do not interpret what was said in Goode as meaning that in an interim case, each and every fact must be characterised as disputed or not; and that each s 60CC factor must be traversed where it is obvious on the facts and issues joined that there are only one or two decisive factors.
See also Vanzin & Vanzin [2014] Fam CAFC 247 at [22]; Goode & Goode (2006) FLC 93-286 at [68]; Sun Alliance Insurance Ltd –v- Massoud [1989] VR 8 at 19 (lines 36 to 43).
[2] Banks & Banks (2015) FamCAFC 36.
I will consider the relevant section 60CC considerations, then give attention to the requirements of section 61DA in relation to parental responsibility and what may flow from that on the legislative pathway, both in the light of my considerations of section 60CC.
Section 60CC (2) and (2A)
Sub-section 60CC(2) sets out the primary considerations the Court must consider when determining what is in a child’s best interests.
The first consideration is the benefit to the child of having a meaningful relationship with both of the child’s parents, and the second is the need to protect the child from physical or psychological harm from being subjected to, or exposed to, abuse, neglect or family violence.
Sub-section 60CC(2A) mandates that in applying the primary considerations the Court is to give greater weight to the need to protect the child over the benefit of the child of having a meaningful relationship with both of the child’s parents.
What is meant by a “meaningful relationship” in section 60CC(2)(a) has been the subject of a number of leading cases.
In Mazorski & Albright[3] Brown J considered ordinary definitions of the term “meaningful” and observed:
26.What these definitions convey is that “meaningful”, when used in the context of “meaningful relationship”, is synonymous with “significant” which, in turn, is generally used as a synonym for “important” or “of consequence”. I proceed on the basis that when considering the primary considerations and the application of the object and principles, a meaningful relationship or a meaningful involvement is one which is important, significant and valuable to the child. It is a qualitative adjective, not a strictly quantitive one. Quantitive concepts may be addressed as part of the process of considering the consequences of the application of the presumption of equally shared parental responsibility and the requirement for time with children to be, where possible and in their best interests, substantial and significant.
[3] Mazorski & Albright [2007] FamCA 520.
Kay J sitting in the appellate jurisdiction of the Court as a single judge in Godfrey & Sanders[4] (an appeal involving an application by a mother to relocate) agreed with Dessau J’s in M & S (formerly E)[5] and said at paragraph 33:
The Act sets out in s 60CC several matters for the Court to consider in determining what is in the child’s best interests but does not seek to mandate that any one or other matter becomes determinative in any particular case. For the purposes of this case the legislation requires that there be a primary consideration given to the benefit of the child of having a meaningful relationship with both of the child’s parents but it does not purport to prescribe how that meaningful relationship is best promoted in the circumstances of any one case.
[4] Godfrey & Sanders [2007] FamCA 102.
[5] M & S (formerly E) (2007) FLC 93-313.
And later, at paragraph 36 said:
It seems to me that the final conclusion reached by the Federal Magistrate that the proposed relocation would jeopardise the relationship between the children and their father to an unacceptable extent was not at all consistent with the evidence that was before the Federal Magistrate. Even if the move results in a diminution of quality of the relationship, what the legislation aspires to promote is a meaningful relationship, not an optimal relationship.
In Tait & Densmore,[6] Cronin J considered the distinction made by Kay J in Godfrey and Sanders between an ‘optimal relationship’ and a ‘meaningful relationship’ and said at paragraph 17:
Kay J distinguish between the optimal relationship and the meaningful relationship. The distinction is clear. An optimal relationship is one which is second to none, unmatched and unequalled. That cannot be what the legislation intended. To be a meaningful relationship, it must be healthy, worthwhile and advantageous to the child. Those adjectives mean that the children need their parents to lead by example about self-discipline. Children need to learn to develop the ability to relate to others. They need to learn about the privileges and responsibility which will devolve upon them as parents. Those are fundamental parts of the meaningful relationship.
[6] Tait & Densmore [2007] FamCA 1383.
In McCall & Clark,[7] after referring to the matters quoted above from Kay J in Godfrey & Sanders, the Court said:
[7] McCall & Clark [2009] FamCAFC 92.
118. It appears to us that there are three possible interpretations of s 60CC(2)(a):
(a) one interpretation is that the legislation requires a court to consider the benefit to the child of having a meaningful relationship with both of the child’s parents by examination of evidence of the nature of the child’s relationship at the date of the hearing, to make findings based on that evidence, which findings will be reflected in the orders ultimately made (“the present relationship approach”);
(b)a second interpretation is that the legislature intended that a court should assume that there is a benefit to all children in having a meaningful relationship with both of their parents (“the presumption approach”); and
(c)the third interpretation is that the court should consider and weigh the evidence at the date of the hearing and determine how, if it is in a child’s best interests, orders can be framed to ensure the particular child has a meaningful relationship with both parents (“the prospective approach”).
119. We conclude that the preferred interpretation of benefit to a child of a meaningful relationship in s 60CC(2)(a) is “the prospective approach” although, depending upon factual circumstances, the present relationship approach may also be relevant. We note however that s 60CC(3)(b) requires a court to explore existing relationships between a child and his or her parents and other persons, including grandparents. If the interpretation we have set out in (a) above were exclusively applied, that interpretation would limit a court making appropriate orders in circumstances where a significant relationship had not been established between a child and a parent at the date of trial.
120. We reject the interpretation in sub-paragraph (b). In our view if the legislature intended to elevate the benefit to a child of a meaningful relationship to a presumption it would have said so in clear and unambiguous language.
121. In coming to our conclusions we accept as appropriate the interpretation of “meaningful relationship” set out by Brown J in Mazsorski. Consistently with our conclusions we also agree with the reasoning of Bennett J in G & C.
122. In reaching these conclusions, we also consider the legislation requires a court to focus on the benefit to the child of a meaningful or significant relationship. No doubt in the majority of cases there will be a positive benefit to a child of having a significant relationship with both parents, but there will also be some cases where there will be no positive benefit to be derived by a child by a court attempting to craft orders to foster a relationship with one parent if this would not be in the child’s best interests.
It is not in contest, and on the evidence before the Court, could not be in contest, that [X] has a meaningful relationship with her mother. [X] has been in her mother’s full-time care since birth. Inevitably, the mother is [X]’s primary attachment figure. [X]’s father was absent from her life for either five years and six months (on the father’s telling) or six years (on the mothers telling). On the father’s evidence he had no contact with [X] between mid-2013 and 25 December 2018. [X] was in her father’s care on a full-time basis from 25 December 2018 until 5 January 2019, from 13 January 2019 until 19 January 2019 and from 21 February 2019 up to the time of the interim hearing.
On the evidence before the Court, and notwithstanding the evidence contained in the mother’s affidavit of 9 April 2019 in relation to a certain conversations between herself and [X] while [X] was in the father’s care, I find that a meaningful relationship has developed between [X] and her father, though inevitably that meaningful relationship cannot be to the same strength and depth as the meaningful relationship [X] has with her mother, and must be in the course of development given the long period of estrangement between them and the short period of time they have had together since 25 December 2018.
I find that the meaningful relationship between [X] and her mother is of great benefit to [X] and needs to be safeguarded from any deterioration by a resumption of the mother’s day-to-day care of [X] in the manner [X] has known throughout her life until 21 February 2019, subject to any risk factors that may be found.
I further find that a meaningful relationship between [X] and her father is of great benefit to [X], and [X] will benefit from opportunity to deepen and develop that meaningful relationship by spending time in her father’s care.
On the evidence as examined above, there are risks to [X] in her mother’s full-time care, risk presented by her mother’s long-term mental health issues with depression and the risk of a relapse by the mother into a state of acute depression, as occurred in late 2018 or early 2019, risk presented by the mother’s use of illegal drugs, and in particular the drug Ice, the potential effects of which I venture to state as a matter of judicial notice can be life-threatening for both the mother and [X], given the unpredictable range of reactions that can occur to users (all users being abusers) of that evil and insidious substance.
In this matter, unlike many similar parenting interim hearings, the areas of disputed evidence are less relevant to the task of assessing the risks and the potential harm arising as a result of those risks, and what steps need to be taken if those risks are assessed as unacceptable, than the uncontested relevant facts, which go to the mother’s mental health issues and the mother’s use of illegal drugs.
In relation to the concept of risk in parenting proceedings and the task of assessing risk, the Court has guidance from the following authorities.
In M & M[8] at paragraphs 24 and 25 the High Court said, when dealing with the concept of risk in parenting proceedings:
24.In resolving the wider issue the court must determine whether on the evidence there is a risk of sexual abuse occurring if custody or access be granted and assessing the magnitude of that risk. After all, in deciding what is in the best interests of a child, the Family Court is frequently called upon to assess and evaluate the likelihood or possibility of events or occurrences which, if they come about, will have a detrimental impact on the child's welfare. The existence and magnitude of the risk of sexual abuse, as with other risks of harm to the welfare of a child, is a fundamental matter to be taken into account in deciding issues of custody and access. In access cases, the magnitude of the risk may be less if the order in contemplation is supervised access. Even in such a case, however, there may be a risk of disturbance to a child who is compulsorily brought into contact with a parent who has sexually abused her or whom the child believes to have sexually abused her. But that is not the issue in this case.
25.Efforts to define with greater precision the magnitude of the risk which will justify a court in denying a parent access to a child have resulted in a variety of formulations. The degree of risk has been described as a "risk of serious harm" (v A [1976] VR 298 at 300, "an element of risk" or "an appreciable risk" (In the Marriage of M (1987) 11 Fam LR 765 at 770 respectively), "a real possibility" (B v B (Access) [1986] FLC 91-758 at 75,545), a "real risk" (Leveque v Leveque (1983) 54 BCLR 164 at 167), and an "unacceptable risk" (Re G (a minor) [1987] 1 WLR 1461 at 1469). This imposing array indicates that the courts are striving for a greater degree of definition than the subject is capable of yielding. In devising these tests the courts have endeavoured, in their efforts to protect the child's paramount interests, to achieve a balance between the risk of detriment to the child from sexual abuse and the possibility of benefit to the child from parental access. To achieve a proper balance, the test is best expressed by saying that a court will not grant custody or access to a parent if that custody or access would expose the child to an unacceptable risk of sexual abuse.
[8] M & M(1988) FLC 91-979.
The Full Court in A & A & The Child Representative[9] said at paragraphs 3.23 to 3.25:
3.23The task which his Honour was required to perform was to determine whether the evidence was such as to establish that there would be an unacceptable risk to the children if they were to have contact or supervised contact with the husband. The basis of that is that if there were an apprehension that the husband was the perpetrator of this violent assault that, together with the profile of such an assailant referred to in Dr Waters' evidence, to which we will refer later, may cause the Court to conclude that future contact by the father to these young children, at least unless strictly supervised, will carry with it a risk that he may act in a similarly irrational and violent way towards them. This is aside altogether from the question of its effect upon the wife. The concentration here is upon the welfare and safety of the children. In reaching a conclusion on that issue, it is necessary for the Court to form some opinion about the connection between the assault and the husband. It would not be necessary in this exercise to reach a positive conclusion that he was the assailant. On the other hand, if the Court reached a comfortable conclusion that the husband was not the assailant, that would be likely to have a profound effect upon the approach to the question of contact.
3.24In cases of this sort often it is not possible for the Court to form a positive view at one end or the other end of this scale of persuasion and it is not necessary for it to do so: see the discussion in N and S (1996) FLC 92-655. The term identified by the High Court in M and M of "unacceptable risk" provides the touchstone for such an enquiry. Usually they are sexual abuse or similar cases, but this approach includes cases of the type identified here which involve the assessment of the risk of future physical and/or emotional harm: see M and M, supra, CLR at 77 referred to above.
3.25Here the primary question which his Honour should have addressed was, looking at the whole of the evidence, whether contact (or at least contact which was not strictly supervised) might expose the children to an unacceptable risk because, although it is almost impossible to quantify in any precise way, it may place those children in circumstances of potential jeopardy in the future in their father's care.
[9] A & A & The Child Representative (1998) 22 Fam LR 756.
Murphy J in Harridge & Anor & Harridge[10] at paragraph 73 quoted an article by B. Mahendra,[11] a British psychiatrist and barrister, and provided a helpful list for trial judges for determining matters where unacceptable risk is raised:
a)What harmful outcome is potentially present in this situation?
b)What is the probability of this outcome coming about?
c)What risks are probable in this situation in the short, medium and long term?
d)What are the factors that could increase or decrease the risk that is probable?
e)What measures are available whose deployment could instigate the risks that are probable?
[10] Harridge & Anor & Harridge[2010] FamCA 445.
[11] Psychiatric Risk Assessment in Family and Child Law' (2008) 38 Family Law 569.
The Full Court in Napier & Hepburn[12] referred extensively at paragraph 56 to the judgment of Fogerty J in N v S[13] at 82,713, and emphasised that it is not for the Court to find a solution which will eliminate any chance of serious harm. Rather, it is to balance the harm that will follow if the risk is not minimised or removed, as against a normal, healthy relationship between a parent and a child not being permitted to prosper.
[12] Napier & Hepburn(2006) FLC 93-303.
[13] N v S (1996) FLC 92-655.
To go forward from an assessment of unacceptable risk to a finding that certain conduct giving rise to the assertion of unacceptable risk has actually occurred places the onus on the party asserting that the conduct has occurred to establish, on the balance of probabilities, that the assertion is correct.
As pointed out by the Full Court in Re W; Sex Abuse (Standard of Proof),[14] the standard of proof the Court is required to apply must be towards the strictest end of the civil spectrum as set out in Briginshaw v Briginshaw,[15] noting that the appropriate reference is now to section 140 of the Evidence Act 1995 (Cth) and in particular section 140(2)(c), per Johnson & Page[16] at paragraph 72. Inexact proofs, indefinite testimony, or indirect inferences are insufficient to ground a finding of abuse.
[14] Re W; Sex Abuse (Standard of Proof) (2004) 32 Fam LR 249.
[15] Briginshaw v Briginshaw (1938) 60 CLR 336.
[16] Johnson & Page (2007) FLC 93-344.
In Johnson & Page at paragraphs 62 to 72, the Full Court (May, Boland & Stevenson JJ) set out a detailed summary of the relevant law relating to unacceptable risk up to that time, and I have had regard to the whole of those paragraphs of that judgment. In particular at paragraphs 68 and 71:
68.In his recent paper entitled ‘Unacceptable risk – A return to basics’ the Hon. John Fogarty A.M. set out his summary of the principles emerging from M and M as follows:
1. The decisive issue is and always remains the best interests of that child. All other issues are subservient.
2. The nature of the risk is best expressed by the term ‘unacceptable risk’. It is an evaluation of the nature and degree of the risk and whether, with or without safeguards, it is acceptable.
3. Where past abuse of a child is alleged it is usually neither necessary nor desirable to reach a definitive conclusion on that issue. Where, however, that is done the Briginshaw civil standard of proof applies.
4. The circumstance, if it be so, that the allegation of past abuse is not proved in accordance with Briginshaw, does not impede reliance upon those circumstances in determining whether there is an unacceptable risk.
5. The concentration in these cases should normally be upon the question whether there is an unacceptable risk to the child.
6. The onus of proof in reaching that conclusion is the ordinary civil standard.
7. But the components which go to make up that conclusion need not each be established on the balance of probabilities. The court may reach a conclusion of unacceptable risk from the accumulation of factors, none or some only of which, are proved to that standard.
…
71.We generally agree with Mr. Fogarty’s seven point summary (see paragraph 68). We assume point seven of that summary is directed to the requisite standard of proof. We think a Judge may be cautious in coming to a finding of unacceptable risk if none, rather than some only, of the accumulation of factors considered, satisfy the standard of proof (but see Malec v J C Hutton Proprietary Limited (1990) 169 CLR 638).
In Deiter & Deiter[17] at paragraph 61, the Full Court said as follows:
61.The assessment of risk is one of the many burdens placed on family law decision makers. Risk assessment comprises two elements – the first requires prediction of the likelihood of the occurrence of harmful events, and the second requires consideration of the severity of the impact caused by those events. In our view, the assessment of risk in cases involving the welfare of children cannot be postponed until the last piece of evidence is given and tested, and the last submission is made. We accept, however, that it is always a question of degree depending on the evidence that is before the Court.
[17] Deiter & Deiter [2011] FamCAFC 82.
In SS & AH[18] at paragraph 100, the Full Court indicated, in the context of discussing the obligations of the Court whilst conducting interim children’s proceedings in circumstances where the evidence available was contradictory in nature, but nonetheless raised significant welfare concerns for the children concerned as follows:
100. 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.
[18] SS & AH [2010] FamCAFC 13.
In Eaby & Speelman[19] at 80,332 [19] the Full Court endorsed this approach as enabling:
…the Court to appropriately and carefully deal with contentious issues relevant to the welfare of the child, and for those issues to not be ignored.
What are the potentially harmful outcomes for [X] presented by the risks referred to above if she returns to the full-time care of her mother?
[19] Eaby & Speelman (2015) FLC 93-654.
In the event that the mother again enters a period of acute depression through a deterioration in her mental health, then the risk is that she may once again be unable to provide appropriate day-to-day care for [X] with the result that either [X] will potentially be to some extent neglected or, if the mother again recognises her circumstances and acts, as she did before in an appropriate and child focused manner, [X] may once again pass into the care of her father on a full-time basis, causing further serious disruption, uncertainty and emotional distress for [X].
In the event that the mother again lapses into use of illegal drugs, possibly including the drug Ice, [X] will be at risk in a range running from casual neglect through to serious physical harm.
What is the probability of the outcomes presented above by the risks coming about?
In relation to the mother’s mental health issues, I find that the mother was self-aware of her need to seek out and engage with appropriate health professionals to obtain the care she needed to address her relapse into acute depression. The mother has been engaging with those health professionals through 2019 and if she continues to stay engaged, it is far less likely that another episode of relapse into acute depression will occur without the mother receiving the assistance she would need to identify that impending relapse and address the issues of causation so as to avoid the relapse.
The evidence does not depict the mother as being a habitual abuser of illegal drugs, but as a person who has fallen into the use of illegal drugs on some isolated occasions. In the context of December 2018 and January 2019, the mother is a person who fell into use of illegal drugs as part of a change of circumstances connected with the deterioration in her mental health. The mother is acutely aware of the serious consequences that a relapse into use of illegal drugs will have for her position as primary carer for [X] and must be acutely aware that any relapse of that nature can be found out through random hair follicle and urinalysis testing.
What are the factors that would increase or decrease the risk presented by the mother’s relapse into more acute mental health difficulties or into use of illegal drugs?
I find that on the evidence, the factors that would increase those risks include:
a)The mother ceasing her engagement with her mental health professionals so that her mental health condition is unmonitored from time to time; and
b)The mother resorting to “escape” from personal difficulties through the use of illegal drugs in circumstances where she has no immediate fear of detection and its consequent effect on her position as primary carer for [X].
Factors that would decrease the risks are the opposite of those just stated in relation to increase:
a)Continued engagement with her mental health professionals; and
b)For an appropriate period of time, random drug testing.
What measures are available whose deployment could mitigate the identified risks?
As already indicated, the measures available to mitigate the identified risks are orders requiring the mother to remain engaged with her mental health professionals and orders that can require the mother to undergo further drug use testing including urinalysis drug testing on a random request basis.
Accordingly, though I find as stated above, that there are risks for [X] in the full-time care of her mother, I find that those risks are capable of being addressed with appropriate orders. In such circumstances, the risks are not unacceptable.
Inherent in those findings is a need to protect [X] from physical or psychological harm, but appropriate orders can so protect [X] and enable her to enjoy the benefits of a meaningful relationship with her mother as a full-time carer, and the further development of a meaningful relationship with her father, through spending appropriate time with him.
Section 60CC(3) – The Additional Considerations
Any views expressed by the child and any factors (such as the child’s maturity or level of understanding) that the Court thinks are relevant to the weight it should give to the child’s views
[X] is ten years of age. While she is old enough to express a wish, have it considered by the Court and given such weight as is appropriate in the circumstances, there is no direct evidence before the Court as to [X]’s wishes.
A fairly good indication of [X]’s wishes can be found in the Family Services Report from 6 April 2019. On the basis of that Report and the rest of the evidence before the Court, I find that a return to her mother’s full-time care would not be contrary to [X]’s wish.
The nature of the relationship of the child with: (i) each of the child’s parents; and (ii) other persons (including any grandparent or other relative of the child)
The nature of [X]’s relationship with each of her parents has been referred to above in the discussion on meaningful relationship. [X] has, indisputably, a close and loving relationship with her mother and, subject to addressing the risk factors as referred to above, I consider that [X]’s best interests are best served by a return to her mother’s full-time care.
I find that [X] has a meaningful relationship with her father and there is no reason to doubt that her relationship with her father is developing as, if it has not already developed into, a loving relationship between parent and child with an increasing closeness. I also find it is essential in [X]’s best interest that she have the opportunity to continue to develop, and even closer relationship with her father by spending time with him, including weekly overnight time and block school holiday time.
The extent to which each of the child’s parents has taken, or failed to take, the opportunity: (i) to participate in making decisions about major long-term issues in relation to the child; and (ii) to spend time with the child; and (iii) to communicate with the child
The extent to which each of [X]’s mother and father have taken, or failed to take, the opportunity to participate in making major long-term decisions for her, to spend time with her and to communicate with her is not an additional consideration that bears heavily on my current consideration of what parenting orders should be made with [X]’s best interest as the paramount consideration.
This is an area of some disputed and conflicting evidence between the parties as to why there was the 5 to 6 year hiatus in [X]’s relationship with her father, during which there was no participation by the father in her life by way of spending time, communicating or participation in decision-making, short or long-term.
The extent to which each of the child’s parents has fulfilled, or failed to fulfil, the parent’s obligations to maintain the child
The mother has fulfilled her obligation to maintain [X] as she has throughout most of [X]’s life provided all the necessities for her.
The father did not have opportunity to contribute to [X]’s maintenance for a long period of time and it is not open to the Court, on the basis of the current state of the disputed evidence, to make a finding of fault in that regard. Nevertheless, the father has shown beyond dispute that he was prepared to step in and maintain [X] by providing all of life’s necessities, and more, when [X] passed into his care at the request of the mother in 2019.
There is nothing to show that the father is unwilling to contribute to [X]’s maintenance, whether by payment of child support as assessed, or more.
The likely effect of any changes in the child’s circumstances, including the likely effect on the child of any separation from: (i) either of his or her parents; or (ii) any other child, or other person (including any grandparent or other relative of the child), with whom he or she has been living
The making of orders for [X] to leave her father’s care and return to her mother’s full-time care will be a change of circumstances for her as the circumstances have prevailed since 21 February 2019, a period of slightly over two months to the interim hearing.
On the evidence, I find that the likely effect on [X] of such a change of circumstances will be beneficial, by returning to the circumstances she has known throughout her life other than for that two month period, and back to living with the parent with whom she has the closest relationship.
[X] will be enabled, by appropriate orders, to spend time with her father and pursue a strengthening and development of that relationship.
In the course of the interim hearing the mother’s capacity to provide for [X]’s needs was called into question and doubted by the father. The Court must say that this was understandably so, given the circumstances of the mother’s deterioration into acute depression and its potential serious consequences for [X], and given the mother’s admitted and proven use of illegal drugs.
However, I find that when the mother found herself in dire personal circumstances by reason of her mental health deterioration she acted promptly, in both January and February 2019, to place [X] in safety, by placing her in the care of firstly her father, and then her maternal grandmother in January, and then back into the care of her father in February.
The mother took this action without being under a compulsion, and in that regard I find that she acted in an appropriate and child focused manner in difficult circumstances. There is nothing in the evidence against the finding that from the time of [X]’s birth until 21 February 2019 the mother has done anything but show entirely adequate capacity to provide for [X]’s needs, except in the event that a finding on tested evidence is made that the separation of [X] and her father for five or six years was entirely at the mother’s design and fault.
The evidence contained in the mother’s affidavit sworn 9 April 2019 attempts to show that there is a lack of parenting capacity on the part of the father, and a lack of capacity on the part of the father’s partner, Ms L, who appropriately assisted the father in parenting [X].
In the course of the interim hearing it was apparent that the tenor of the evidence put by the mother in that affidavit on that subject is contested by the father and by Ms L, and I will not at this stage of the matter make a finding in relation to the father’s parenting capacity based on that evidence.
The capacity of: (i) each of the child’s parents; and (ii) any other person (including any grandparent or other relative of the child); to provide for the needs of the child, including emotional and intellectual needs
On the uncontested evidence I can find that the father has shown an appropriate capacity as a parent to provide for [X]’s needs, including her emotional needs, given that [X] passed into the care of a virtual stranger for a couple of short periods in late December 2018 and during January 2019, and then full-time from 21 February 2019.
There is no evidence of her suffering any great distress in those circumstances other than when she had to part from her mother after spending time with her supervised by an operative from Family Services on 6 April 2019.
I do not consider that there is a need in all the circumstances of this matter on interim hearing to address any of the other considerations in section 60CC(3).
After considering the primary considerations and the appropriate additional considerations in section 60CC, I find that it is in [X]’s best interest to return to the full-time care of her mother and to spend time with her father each alternative weekend from after school Friday until late Sunday afternoon, and for half of her school holidays.
To be in [X]’s best interests, orders for a return to her mother’s full-time care must be accompanied by orders addressing ongoing drug testing on a random basis for the mother and orders ensuring that the mother continues to engage with her treating psychologist, Ms D.
In consequence of [X] returning to her mother’s full-time care, it is also in her best interest that an order be made that [X] resume her attendance at Suburb E Primary School.
Parental Responsibility – section 61DA
In this matter I will make parenting orders. Accordingly, I am required by section 61DA of the Act to find a presumption that it is in the best interests of [X] for her parents to have equal shared parental responsibility for her, unless I find that presumption does not apply, or that on this interim basis I consider that it would not be appropriate in the circumstances for this presumption to apply, or if the presumption applies, but is rebutted by evidence that satisfies me that it would not be in the best interests of [X] for her parents to have equal shared parental responsibility for her.
Pursuant to section 61DA(2) the presumption does not apply if there are reasonable grounds to believe that one of [X]’s parents (or a person who lives with one of [X]’s parents) has engaged in abuse of [X] or family violence.
On my review of all the evidence before the Court on the interim hearing I find that there are no reasonable grounds to believe that either of [X]’s parents has engaged in abuse of [X] or family violence, nor to find that Ms L, the father’s de facto partner, has engaged in abuse of [X], or family violence. Accordingly, I find that the presumption that it is in the best interests of [X] for her parents to have equal shared parental responsibility for her does apply and I find that it is appropriate in the circumstances to make such an order on an interim basis.
In view of the finding that it is in [X]’s interest for her parents to have equal shared parental responsibility for her, I must consider the matters referred to in section 65DAA of the Act. I have summarised the effect of that section earlier in these reasons.
I must first consider whether [X] spending equal time with each of her parents would be in her best interests and also consider whether [X] spending equal time with each of her parents is reasonably practicable and, if it is, I must consider making an order, or include a provision in an order, for [X] to spend equal time with each of her parents. I must consider those matters in the light of my consideration of the primary and additional considerations under section 60CC detailed earlier in these reasons.
Neither parent sought orders to the effect that [X] spend equal time with each of her parents, nor did the Independent Child’s Lawyer. That, of course, is not an end of the matter. The matter must be properly considered under the three-step process in section 65DAA(1) as outlined above.
[X] has been in her mother’s care for the whole of her life, subject to her father being a participant in her life in the same household from the time of her birth, until … 2010 when [X] was nine months old, and then having time with her on an infrequent basis (and in saying that I do not ascribe fault to either parent as I am not in a position to make any finding in that regard on the evidence at interim hearing) until, on the father’s evidence, mid-2013.
There was no contact between [X] and her father from mid-2013 until 25 December 2018.
As outlined above, in considering the primary and additional considerations under section 60CC, the relationship between [X] and her father is, necessarily, still developing, though the evidence would indicate that for a parent and child who experienced a five and a half year separation, the relationship re-established and began further developing remarkably quickly in late December 2018, January 2019 and from 21 February 2019 when [X] went into her father’s care, up to the time of the interim hearing.
Nevertheless, given the realities of the history to date of the relationship between [X] and her father, and her extreme distress at having to separate from her mother after the Family Services supervised occasion on 6 April 2019, I find that it is not currently in [X]’s best interest to spend equal time with each of her parents.
The father resides in Suburb F, a suburb of Sydney in the Region W, and the mother resides at Suburb G in the suburbs of Sydney.
[X] is attending primary school. Until going into the father’s care on 21 February 2019 she was attending Suburb E Primary School and after going into his care, and with the mother’s assistance and consent, she was enrolled at Suburb F Primary School. In the event that [X] were to spend equal time with each of her parents, it would necessarily entail an onerous amount of travel for her depending on which school she attended. It is not currently reasonably practicable for [X] to spend equal time with each of her parents.
I will not be making an order that [X] spend equal time with each of her parents, and accordingly, I must consider [X] spending substantial and significant time with the parent with whom she does not live the greater part of the time. I must consider if [X] spending substantial and significant time with each of her parents would be in her best interest and consider whether [X] spending substantial and significant time with each of her parents is reasonably practicable and, if it is, consider making an order to provide, or include a provision in an order, for [X] to spend substantial and significant time with each of her parents.
What is meant by substantial and significant time is, in effect, defined in section 65DAA as time with each of her parents to include days that fall on weekends and holidays, and days that do not fall on weekends or holidays, this being time which allows each of the parents to be involved in [X]’s daily routine and occasions and events that are of particular significance to [X]. It also allows [X] to be involved in occasions and events that are of special significance to each of her parents.
In all the evidence considered by me in the interim hearing, and in the light of my consideration of the primary and additional considerations in section 60CC, I find that it is in [X]’s best interest to spend substantial and significant time with each of the parents, but that the reasonable practicality of [X] getting to and from school each day means that there is some practical limit on the involvement that the “non-live-with parent” can have with [X] on days that do not fall on weekends or holidays.
I will make an interim order that [X] live with her mother. To provide her father with some opportunity to be involved with [X] in connection with her school, I will make an order that the father’s alternate weekend time with [X] commence at the end of school on Fridays. I will make an order that [X] be re-enrolled at Suburb E Primary School.
The events of February, March and April 2019 show that the relationship between [X] and her father is now well capable of supporting an order that [X] spend half of each school holiday in the care of her father.
As to an appropriate place and manner for changeovers between the parents to take place, I find that a continuation of the circumstances agreed between the parents today of changeover occurring at the McDonald’s Family Restaurant at Suburb C is appropriate in all circumstances.
As referred to earlier in these reasons I will make orders for further hair follicle testing and random urinalysis testing at the request of the Independent Child’s Lawyer so as to monitor the mother’s ongoing abstention from use of illegal drugs. I will make orders in relation to the mother’s continued engagement with her psychologist in relation to her continued compliance with her prescribed medication regime.
There was some interchange between bar table and bench at the interim hearing about the desirability of obtaining an Experts Report in the matter given the mother’s mental health issues, but, as is often the case, the practical difficulties relating to the high expense of obtaining such a report may mitigate against an order. In such a case, a Family Report pursuant to section 62G of the Act will need to be ordered.
I will grant leave to the Independent Child’s Lawyer to submit a consent order to Chambers in that regard after consultation between the parties and the Independent Child’s Lawyer.
In consequence of the foregoing I made the interim orders on 26 April 2019, as outlined at the start of this judgment.
I certify that the preceding two hundred and fifty-three (253) paragraphs are a true copy of the reasons for judgment of Judge Morley
Date: 19 July 2019
Key Legal Topics
Areas of Law
-
Family Law
Legal Concepts
-
Procedural Fairness
0
9
5