Damani & Lacombe

[2021] FCCA 1960

FEDERAL CIRCUIT COURT OF AUSTRALIA

Damani & Lacombe [2021] FCCA 1960

File number(s):

DUC 163 of 2021

Judgment of:

JUDGE NEWBRUN

Date of judgment:

28 May 2021

Catchwords:

FAMILY LAW –interim parenting - best interests of children - orders made

Legislation:

Family Law Act 1975 (Cth), ss 69ZL, 60B, 60CA, 60CC, 67U, 67V, 68L

Cases cited:

Goode & Goode [2006] FamCA 1346;

Marvel & Marvel(No 2) [2010] FamCAFC 101

Eaby & Speelman [2015] FamCAFC 104

Banks & Banks [2015] FamCAFC 36

Number of paragraphs:

35

Date of last submission/s:

28 May 2021

Date of hearing:

28 May 2021

Place:

Parramatta

Solicitor for the Applicant:

Mr Cesta

Solicitor for the Respondent:

Ms Gaui

ORDERS

DUC 163 of 2021

BETWEEN:

MS DAMANI

Applicant

AND:

MR LACOMBE

Respondent

ORDER MADE BY:	JUDGE NEWBRUN
DATE OF ORDER:	28 MAY 2021

PENDING FURTHER ORDER THE COURT ORDERS THAT:

1.The Father shall cause the Child to be returned to the Mother’s primary care at 6pm today 28 May 2021 in the foyer of the Suburb B Police Station.

2.Should the Father fail to comply with the above Order, then a Recovery Order shall issue against the Father and in this regard this recovery order is made pursuant to section 67U of the Family Law Act 1975 and is addressed to the Marshal of the Court, all officers of the Australian Federal Police and all officers of the State and Territory police services.

3.That the persons to whom this recovery order is addressed are authorised and directed to find and recover the Child X to the Mother Ms Damani, and for that purpose to stop and search any vehicle, vessel or aircraft and to enter and search any premises or place in which there is or was reasonable cause to believe that the child may be found.

4.That the Respondent Father, Mr Lacombe and his servants or agents be and are hereby restrained from again removing or causing the removal of the child form the care of the Applicant Mother, upon any breach of which injunction the persons to whom this recovery order is addressed are authorised and directed to arrest the Respondent Father without a warrant.

5.That this recovery order remain in force for a period of twelve (12) months.

6.The Child shall live with the Mother.

7.The Mother is restrained from permitting Mr C to be in the presence or near presence of the child.

8.The Mother is restrained from taking illicit drugs 24 hours prior to or whilst the child is in her care.

9.The Mother is to submit to a random urinalysis (under supervision and chain of custody) on one occasion each month upon request of the Father’s Lawyer and such urinalysis to be conducted in accordance with the Australian/New Zealand Standard 4308:2008 -Procedure for the collection, detection and quantification of drugs of abuse in urine and be verified by a certificate which includes a temperature endorsement, with the,

(a)The Father’s Lawyer communicate the request for urinalysis to the Mother’ solicitor in writing, (or the Mother if unrepresented) via an email address provided by the Mother, with the test to be completed within 24 hours of receipt of the request.

(b)The Mother forward the drug test results to the Father’s Lawyer immediately upon receipt.

(c)That the costs of the test be borne by the Father.

10.That anytime spent between the child and the Father shall be under the supervision of the Mother. Should the Father choose not to spend time with the child under the supervision of the Mother, then he should be permitted to spend supervised time with the child by either D Families, E Families or F Centre and as otherwise set out in the Mother’s proposed Order 23 in her Amended Initiating Application filed 26 May 2021.

11.That each of the parties is restrained from denigrating the other parent, any member of the other parent’s family or any member of the other parent’s household in the presence or hearing of the child and each parent is further restrained from allowing the child to remain in the presence of, or within the child’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.

12.The parents are each restrained by injunction from discussing these proceedings with or in the presence of X.

13.Pursuant to Section 68L of the Family Law Act 1975 (Cth) the child X born in 2017 shall be independently represented and the Court requests that the Legal Aid Commission provide that representation.

14.The solicitors for the parties are to forward copies of all applications, responses, affidavits and any other relevant documents to Legal Aid NSW for the attention and use of the Independent Children’s Lawyer when appointed.

15.Leave to the parties and Independent Children’s Lawyer to issue more than five Subpoenas for production of documents.

16.The proceedings are adjourned to 4 August 2021 at 9:30am for mention. The ICL is requested to attend this mention.

Section 121 of the Family Law Act 1975 (Cth) makes it an offence, except in very limited circumstances, to publish proceedings that identify persons, associated persons, or witnesses involved in family law proceedings.

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

REASONS FOR JUDGMENT

JUDGE NEWBRUN

INTRODUCTION

1. These reasons for judgment were delivered orally and have been corrected from the transcript. Grammatical errors have been corrected and an attempt has been made to render the orally delivered reasons amenable to being read.

2. In this matter of Damani & Lacombe, yesterday the Court held a short Interim Hearing. These are short form reasons pursuant to section 69ZL of the Family Law Act1975 (Cth) (“the Act”) in relation to the Court’s determination of an urgent Recovery Order application made by the Mother in relation to the child, X, born in 2017. The Father resists the making of the Recovery Order sought by the Mother. The Mother also seeks Interim Parenting Orders, inter alia, that any time spent between the child and the Father be under the supervision of the Mother. The Father seeks certain Interim Parenting Orders as set out in his Response filed 25 May 2021. In particular, the Father seeks Interim Parenting Orders, inter alia, that he have sole parental responsibility for the child, that the child live with him and that the child spend supervised time with the Mother.

3. The Mother relied upon her Amended Initiating Application filed 26 May 2021, her Affidavits filed 12 May 2021 and 26 May 2021, and she also relied upon her Case Outline dated 27 May 2021.

4. The Father relied upon his Response filed 25 May 2021, his Affidavit filed 25 May 2021, and the Affidavit of the paternal grandmother filed 26 May 2021.

5. The Father alleges certain matters.

6. He alleges that he is 36 years of age. He alleged the Mother is aged 26 years of age.

7. He alleges the parties commenced living together in February 2016. He alleges that the parties separated in October 2016 on a final basis when the Mother moved to Town G. He alleges that he lives in Suburb H.

8. He alleges that in January 2021, the Mother commenced living with Mr C in Town G. The Father alleges that he has spent time with the child each alternate weekend usually from Friday to Sunday after the child’s birth and up to January 2021. He alleges that when he spends time with the child, the time has occurred either at his home or at the Mother’s home in Town G. He alleges that during the time he did not require the Mother’s assistance and she did not stay at his home in Suburb H to look after the child.

9. The Father alleges that after the child reached 8 months of age, he attended day care four days each week and that the child is presently enrolled in day care in Town G. The Father alleges he lives in a two bedroom apartment by himself. He alleges that when he is unable to care for the child, his Mother lives close by and would be able to assist the Father as she does not work.

10. The Father alleges that he pays child support.

11. The Father alleges that for the period of January 2021 to May 2021, he only saw the child on two occasions for a short amount of time.

12. The Father alleges that on about 16 April 2021, arising out of the stress of not seeing the child, he sent text messages to the Mother expressing suicidal ideation.

13. On about 5 May 2021 the Mother agreed that the child spend overnight time with the Father from 6 May 2021 until 10 May 2021.

14. The Father alleges that when the child came into his care on 6 May 2021, the child told him, “Daddy, the man, Mr C hit me in the head” and he pointed to a bruise on his right ear.

15. On 10 May 2021, the Father alleges that he called the Mother informing her that he would not be returning the child to her as he was concerned for his well being, there being a bruise on the side of his face. On this date, there is a suggestion that the Father sent the Mother a text message stating, “He is finally safe and will be forever. Clean yourself up and you can see him. Mr C will never see him again.” In response, by way of text message, it appears the Mother replied to the Father stating, “I am his Mother and his primary carer. Mr Lacombe we had an agreement for you to return him today 10 May at 4 pm. When do you plan to return him, I miss him”.

16. On 14 May 2021, the Father attended Suburb B police station concerning the child’s alleged injury and sought to make a report. The Father alleges the police deemed it necessary to issue an ADVO against Mr C, listing the child as a protected person. He alleges the matter is listed to be heard on 3 June 2021 at the Town G Local Court. The provisional ADVO attached to the Father’s Affidavit refers to the provisional Order against Mr C made on 15 May 2021 for the benefit of the child. The “Grounds of the Application” in relation to the Application for the ADVO states, inter alia, that the police undertook an audiovisual child interview with the child in which he allegedly disclosed, “A crazy man hit me on my ear.” It alleges that when questioned further about this, specifically the name of the male who had hit him, the child repeatedly said “Mr C”. It states that a subsequent Statement of Claim from the Father provided the defendant’s name as Mr C. It states that the police, the child, and the Father hold concerns for the safety of the child. It states that the Defendant Mr C has engaged in conduct that, in the opinion of the police and the Applicant, necessitates the period of time being sought to ensure the safety and protection of the protected person. It states the child has a very young age, and the police seek for the child to be of an age where he is able to better respond to offending.

17. As to the relevant legal principle in relation to this interim hearing the Court refers to the decision of Goode & Goode [2006] FamCA 1346; (2006) FLC 93-286. The Court also refers to the decision of the Full Court of the Family Court of Australia in Marvel & Marvel(No 2) [2010] FamCAFC 101 where the Full Court discussed the problems associated with making findings on disputed evidence and in this regard the Court refers to paragraphs 120, 122, and 123 of the decision in Marvel & Marvel.

18. The Court refers to the decision of the Full Court of the Family Court of Australia in Eaby & Speelman [2015] FamCAFC 104 where the Court stated at [19]:

    As it will be immediately apparent this approach enables the Court to appropriately and carefully deal with contentious issues relevant to the welfare of the child and for those issues not to be ignored.

19. The Court also refers to the decision of the Full Court of the Family Court of Australia in Banks & Banks [2015] FamCAFC 36 especially at paragraphs 48 to 52. In that decision the Full Court stated, inter alia, that (paragraph 49):

    It is also important to stress here that the requirements to “consider” each factor (under section 60CC of the Act) does not mean each much be discussed, especially where the evidence leads inexorably to a particular conclusion: SCVG & KLV (2014) FLC 93 – 582.

20. Further it stated at paragraph 50:

    When it is obvious that the findings made as to some of the section 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.

21. The Court also refers to section 60B of the said Act which sets out the objects of part 7 of the Act relating to children that inform the making of parenting Orders. The Court also refers to section 60CA of the Act which provides that in deciding whether to make a particular parenting Order in relation to a child, the Court must regard the best interests of the child as a paramount consideration. The Court refers to section 60CC of the said Act which provides that in determining Orders in the child’s best interests, the Court must consider the matters set out in subsections (2) and (3), with the Court noting the above discussion in Banks & Banks.

22. Section 67U of the said Act provides that in proceedings for a Recovery Order, the Court may, subject to section 67V, make such Recovery Order as it thinks proper. Section 67V of the Act provides that in deciding whether to make a Recovery Order in relation to the child, the Court must regard the best interests of the child as the paramount consideration.

23. There is a significant suggestion on the material before the Court that the child has a meaningful relationship with the Mother and would benefit from the continuance of that relationship. There is a significant suggestion on the material before the Court that the child has, at least, a positive relationship with the Father.

24. On the material before the Court, there is a significant suggestion that the child would benefit from a continuance of the above relationships, provided it is safe for him to do so.

25. There is a significant suggestion on the material before the Court that the Mother has been the child’s primary carer from birth until very recently, when the child was retained by the Father.

26. On the material before the Court, the Court has a significant concern that should the child not be presently returned to the Mother’s primary care, that the child’s meaningful relationship with the Mother will be detrimentally affected, and that the child may suffer emotional harm.

27. The parties are in dispute at this interim stage as to whether the Father’s usual time spent with the child prior to January 2021 was usually supervised by the Mother. The Mother contends and alleges that that time spent by the child with the Father was usually supervised by her. The Father concedes that between January 2021 and May 2021, he only saw the child on two occasions for a short amount of time. The Court does have a concern, whilst acknowledging the parties’ above dispute, that the Father may lack sufficient parenting capacity to care for the child on a primary basis at this interim stage.

28. The Court also has a concern in relation to the child remaining in the Father’s primary care by reference to the significant suggestion on the material before the Court, in particular, the contents of the text messages sent by the Father to the Mother on about 16 April 2021 with the Father expressing suicidal ideation, that the Father’s mental health may be fragile and vulnerable. The Court, in this context, has not overlooked that the Mother was prepared to have the child spend overnight time with the Father in early May 2021 for a short period; nevertheless, the Court’s concerns remain in relation to the Father’s mental health.

29. The Father alleges that there is an unacceptable risk of harm posed to the child in being returned to the Mother’s primary care, because of the allegation made that the Mother is neglecting the child and that she leaves the child home alone most nights and takes illicit drugs in his presence. These allegations are denied by the Mother.

30. In this regard, the Father refers to an alleged communication to him by the Mother’s close friend, Ms J on 1 May 2021, in which the Father alleges that Ms J told him that the Mother was leaving the child home alone most nights and taking drugs in his presence. The Father also referred to an alleged call made to him from the Department of Communities and Justice. On 17 May 2021, the Department of Communities and Justice had received an anonymous report concerning the Mother’s care of the child, and asked if he was going to return the child into her care. He alleges that:

    I explained the situation to them and confirmed that there were now proceedings on foot in the Federal Circuit Court. They confirmed they would close the case in the circumstances.

31. Whilst the Court takes into account the above alleged anonymous report to the Department of Communities and Justice, and the Father’s alleged communications with Department of Communities and Justice in that regard, the Father’s allegations in this regard lack particularity as to what were the anonymously reported concerns regarding the Mother’s care of the child.

32. Further, it is not without relevance that despite Ms J’s alleged communications with the Father about the Mother on 1 May 2021, when the Father told the Mother on 10 May 2021 that he was not returning the child to the Mother, he did not tell the Mother that he was retaining the child by reason of the Mother’s alleged illicit drug use, but rather by reason of the bruises on the side of the child’s face. Further, in this context, it is not without relevance that despite the Father’s allegations that he was spending every second weekend overnight with the child for a significant period of time, he makes no allegations of the Mother’s alleged drug use during this period.

33. In the view of the Court, there should be no unacceptable risk of harm posed to the child in now being returned to the Mother’s primary care, provided the following interim protective Orders are made with the Court acting cautiously and conservatively:

    (a)The Mother be restrained from permitting Mr C to be in the presence or near presence of the child;

    (In the view of the Court, there is a significant prospect that the above proposed restraint against the Mother, being a solemn Court Order, will be obeyed by the Mother, and taking into account the provisional ADVO against Mr C.)

    (b)The Mother is restrained from taking illicit drugs 24 hours prior to, or whilst the child is in her care;

    (c)The Mother submits a random urinalysis (under supervision and chain of custody) on one occasion each month, upon request of the Father’s lawyer, however, the cost of the test to be borne by the Father.

34. In the view of the Court, having had regard to the above discussions, pending further Order, any time spent between the child and the Father should be under the supervision of the Mother. Should the Father choose not to spend time with the child under the supervision of the Mother, then he should be permitted to spend supervised time with the child by either D Families, E Families or F Centre, and as otherwise set out in the Mother’s Proposed Interim Order 23 in her Amended Initiating Application filed 26 May 2021.

35. Evaluating the above discussed relevant considerations under section 60CC of the said Act, it will be in the best interests of the child to make the following Interim Parenting Orders, and the Court makes the following Interim Parenting Orders:

    1.The Father shall cause the child to be returned to the Mother’s primary care at 6 pm today, 28 May 2021 in the foyer of the Suburb B Police Station.

    2.Should the Father fail to comply with the above Order, then a Recovery Order shall issue against the Father, and in this regard the Court makes the Mother’s Proposed Interim Orders (3), (4), (5) and (8) set out in her Amended Initiating Application filed 26 May 2021.

    3.The child shall live with the Mother.

    4.The Mother is restrained from permitting Mr C to be in the presence or near presence of the child.

    5.The Mother is restrained from taking illicit drugs 24 hours prior to or whilst the child is in her care.

    6.The Court makes the Father’s Proposed Interim Order (10), however the costs of such random urinalysis shall be borne by the Father and not the Mother.

    7.Any time spend between the child and the Father should be under the supervision of the Mother. Should the Father choose not to spend time with the child under the supervision of the Mother, then he should be permitted to spend supervised time with the child by either D Families, E Families, or F Centre, and as otherwise set out in the Mother’s Proposed Interim Order (23) referred to in her Amended Initiating Application filed 26 May

    2021.

    8.The Court make the Father’s Proposed Interim Orders (13) and (14).

    9.The Court appoints an Independent Children’s Lawyer (“ICL”) to represent the child of the relationship, leave to the parties and ICL to produce more than five subpoenas for production of documents.

    10.The proceedings are adjourned for mention to 4 August 2021, 9.30am. The ICL is requested to attend this mention.

I certify that the preceding thirty-five (35) numbered paragraphs are a true copy of the Reasons for Judgment of Judge Newbrun.

Associate:

Dated:       24 August 2021