Dansford & Cooper
[2022] FedCFamC2F 1332
Federal Circuit and Family Court of Australia
(DIVISION 2)
Dansford & Cooper [2022] FedCFamC2F 1332
File number(s): MLC 3186 of 2021 Judgment of: JUDGE O'SHANNESSY Date of judgment: 12 September 2022 Catchwords: FAMILY LAW – transfer to division 1 – dispute as to fetal alcohol spectrum disorder of the child – dispute as to authenticity of a hair follicle test – dispute as to neglect or abuse of child – discharge of reserved decision Legislation: Family Law Act 10975 (Cth) ss 60CA, 60CC Cases cited: Eaby & Speelman (2015) FLC 93-654.
Goode & Goode [2006] FamCA 1346.
Division: Division 2 Family Law Number of paragraphs: 77 Date of hearing: 12 September 2022 Place: Melbourne Counsel for the Applicant: Mr G Thistleton Solicitor for the Applicant: Marcou And Associates Pty Ltd Solicitor for the Respondent: Ressan Lawyers Solicitor for the Independent Children's Lawyer: Clark Family Lawyers ORDERS
MLC 3186 of 2021 FEDERAL CIRCUIT AND FAMILY COURT OF AUSTRALIA (DIVISION 2)
BETWEEN: MR DANSFORD
Applicant
AND: MS COOPER
Respondent
INDEPENDENT CHILDREN'S LAWYER
order made by:
JUDGE O'SHANNESSY
DATE OF ORDER:
12 SEPTEMBER 2022
THE COURT ORDERS THAT:
Mother’s Time with child
1.The Mother spend time with the child X born in 2015 (‘the child’) unsupervised as follows:
(a)Each Saturday from 10:00am until 1:00pm for a period of 8 weeks, and thereafter;
(b)each Saturday from 10:00am until 4:00pm.
2.The parties do all acts and things necessary to make application to B Contact Centre for the purpose of changeover.
3.Changeover occur at B Contact Centre and the costs be equally shared by the Mother and the Father.
Transfer to Division 1
4.The matter is referred to the National Assessment Team for consideration of transfer to Division 1 AND IT IS NOTED THAT the parties will be contacted directly by the National Assessment Team confirming the transfer of proceedings and the next listing date.
5.This matter is to be considered for transfer to Division 1 of the Federal Circuit and Family Court of Australia, noting that the following criteria are identified:
(a)Due to the complexity of the matter and the number of potential expert witnesses involved, the final hearing is likely to take longer than 4-5 days.
Procedural
6.The subpoena material be electronically released to the parties’ legal practitioners and the Independent Children’s Lawyer upon the following manner and terms:
(a)Upon the parties’ legal representatives and the Independent Children’s Lawyer giving a written undertaking to the court, in the form set out in the notation to this order, the parties’ legal representatives and the Independent Children’s Lawyer be provided with an electronic copy of the documents produced under subpoenas by C Hospital and D Hospital (“the subpoenaed documents”).
(b)The legal representatives and the Independent Children’s Lawyer be restrained from creating, disseminating or otherwise distributing copies of the subpoenaed documents (either electronically, in printed format, or otherwise) to their client or any other person, save for an agent, or such other person directed by the legal representative to complete the inspection on their behalf.
(c)Upon the completion of the final hearing, they are to be destroyed and permanently deleted from any storage or retrieval system within 29 days (howsoever held by the lawyer including by email, cloud storage or otherwise) of final orders, or in the event of an appeal, the finalisation of the appeal.
7.Order 1 of the orders made on 17 June 2022 reserving interim judgment in the matter be and is hereby discharged.
AND THE COURT NOTES THAT:
A.These orders were made following an all-day Interim Defended Hearing.
B.The information contained in the documents referred to in this order is confidential and cannot be disclosed to any other person without an order of this Court and can only be used for the purpose of the litigation of this matter.
C.Penalties may apply pursuant to s.112AD and s.121 of the Family Law Act 1975 (Cth) if the information is disseminated other than as ordered in these proceedings.
D.The terms of the undertaking referred to in order 6 are as follows:
I, [Full Name], Australian Legal Practitioner at [name and address of firm], undertake to the Court that:
(a)I will not provide, disseminate or otherwise distribute electronic copies of the subpoenaed documents produced by [INSET SUBPOENA DOCUMENTS] (either electronically, in printed format, or otherwise) to my client or any other person, save for my agent [INSERT NAME] or such other person [INSERT NAME] directed by me to complete the inspection on my behalf; and
(b)Upon completion of the final hearing, I will ensure that they are destroyed and permanently deleted from any storage or retrieval system (whether held by email, cloud storage or otherwise) within 29 days of final orders, or in the event of an appeal, the finalisation of the appeal.
(c)In the event I fail to comply (or reasonably suspect that I have failed to comply) with this undertaking (even as a result of circumstances entirely beyond my control), I will immediately notify the Registrar of the Court in writing.
I acknowledge that this undertaking has the same effect as an order of the Court. I acknowledge that if I breach this undertaking I may be guilty of contempt of court and punished by a fine or imprisonment.
E.Pursuant to ss.65DA(2) and 62B of the Family Law Act1975 the particulars of the obligations these orders create and the particulars of the consequences that may follow if a person contravenes these orders are set out in Annexure A and these particulars are included in these orders.
F.If in any proceedings there are allegations of family violence and the provisions of section 102NA of the Family Law Act 1975 apply (see attached Family Violence Information Sheet), any unrepresented party will not be permitted to personally cross-examine the other party/parties.
G.Affected unrepresented parties may apply to the Commonwealth Family Violence and Cross-Examination of Parties Scheme (“the Scheme”) for representation but any such application must be made at least 12 weeks prior to the final hearing.
H.Further information about the legislation and the Scheme can be found at Part 4 of the attached Family Violence Information Sheet.
I.If s102NA applies and a party becomes unrepresented after trial directions have been made, that party is required to promptly advise the Court.
Note: The form of the order is subject to the entry in the Court’s records.
Note: This copy of the Court’s Reasons for judgment may be subject to review to remedy minor typographical or grammatical errors (r 10.14(b) Federal Circuit and Family Court of Australia (Family Law) Rules 2021 (Cth)), or to record a variation to the order pursuant to r 10.13 Federal Circuit and Family Court of Australia (Family Law) Rules 2021 (Cth).
Section 121 of the Family Law Act 1975 (Cth) makes it an offence, except in very limited circumstances, to publish proceedings that identify persons, associated persons, or witnesses involved in family law proceedings.
IT IS NOTED that publication of this judgment by this Court under a pseudonym Dansford & Cooper has been approved pursuant to s 121(9)(g) of the Family Law Act 1975 (Cth).
EX TEMPORE REASONS FOR JUDGMENT
JUDGE O’SHANNESSY
This matter comes before me after a fairly complicated hearing path of a number of mentions and interim hearings. The matter involves Mr Dansford (‘the Father)’ and Ms Cooper (‘the Mother’) regarding the parenting arrangements of X (‘the child’), now aged 6.
The matter is listed today and has proceeded as an all-day interim defended hearing. At very short notice, the parties and their lawyers were able to organise themselves to undertake that interim defended hearing.
It had been contemplated in June that I would make a decision in this matter after further evidence was tendered and written submissions were made in an effort to reduce expense and trouble and stress of further litigation.
The Father complied with those directions. Some of the further intended evidence came to pass, including the very important hair follicle test, and some of it didn't. The Father's lawyers filed persuasive and detailed written submissions that literally stopped me in my tracks from dealing with the matter further. The Mother and the Independent Children’s Lawyer (‘the ICL’) had not responded to those written submissions, though they were at liberty not to.
In all of those circumstances, on 2 September 2022 I listed the matter for a mention hearing today with the intention that if the parties were able to conduct an interim defended hearing it would proceed this day. The parties pressed that a hearing proceed and it did.
The Father is aged 41. Until some time in about 2015, he was known as Mr E. He had changed his name following a dispute with a previous partner that made it difficult for him to obtain registration for a motor car whilst known as Mr E, and hence he has been known as Mr Dansford.
The Father by occupation is a carer. He cares for his father. He has a partner, Ms L, who has two children, one of whom is said to have autism spectrum disorder.
The Father has two other children by a previous relationship born in 2009 and 2013, and the Father has not seen those children since 2015 when an intervention order was taken out and also a Family Law Act 1975 (Cth) (‘the Act’) order was taken out. The Father says that one of the conditions of both of those orders were that those older children not be brought into contact with the Mother. One inference is that the Mother's behaviour and circumstances were such that the older children’s mother was worried about her being in contact with them.
The Mother has been on and off in employment, supports herself as a single mother and also has equal time care of a child from a subsequent relationship, born in 2018 and now aged about 4 ½ years old.
Parents’ relationship
The factual circumstances of the relationship between the Father and the Mother is complex and mostly disputed. It would appear from hospital records that the Mother had told hospital authorities of a previous suicide attempt in about 2004, and had attended the D Hospital in about mid 2013 relating to at least suicidal ideation, which the Father characterised as a suicide attempt and the Mother denies that characterisation.
The parents met in 2014 and that appears common ground. Thereafter, most events are disputed. The Father alleges that in the middle of 2014, the parents separated and he moved to Darwin for work, then the Mother followed him to Darwin the following August or September and they resumed a troubled relationship. The Mother's account is that there was no separation in mid-2014, and that it was always intended that she would travel to Darwin.
The section 67Z response indicates that in January 2015 there was substantial conflict between the Father and the mother and maternal grandfather of his older children. The allegations recorded are that the Father had threatened to take one of his older children from their mother's care and when those children’s maternal grandfather had attended the scene, the Father had punched him in the face. This was an occasion when the Father was meant to be visiting his older children, having travelled from Darwin to Melbourne. The end result was a final intervention order taken out that remained in place until 2016. I am told that there were then court orders to which I have referred between the Father and the mother of his older children.
The Father deposes that in early 2015 the Mother travelled to Melbourne and following her return to Darwin, told him that she had slept with another man on that trip. When she later told him that she was pregnant with the child, the Father alleges that the Mother told him that she was unsure who was the father of the unborn child, and in his mind he being the father was questionable. The Mother has an entirely different and detailed account whereby she sets out that she travelled to Melbourne in early 2015 and had menstruated following that trip, pointing to physical circumstances that meant that the child could not have been conceived in the Melbourne trip as the Father alleges.
The Mother has deposed to significant violence at the hands of the Father, and he has not responded to those allegations yet, given the spread out nature of the litigation.
A significant issue in this case is the Mother's alcohol consumption whilst pregnant with the child. The Mother says, and has sworn, that she did not consume alcohol to excess at all during the pregnancy. The Father asserts that the Mother's alcohol consumption was a significant issue in their relationship, that she did consume alcohol to excess during the pregnancy and that he was very worried at the time.
The Mother's account of being careful and concerned about the welfare of the child she was pregnant with is corroborated by exhibit M3. Exhibit M3 shows that the Mother, having suffered miscarriages in the past, was concerned about the extent of the anxiety and depression medication that she was then taking and was referred to the C Hospital by Dr G on 18 May 2015. That concern for the child in utero is said by the Mother's solicitor to be inconsistent with the reckless heavy drinking while knowing she was pregnant alleged by the Father.
The circumstances of the breakdown of that relationship are most complicated. The Mother alleges that during the currency of that relationship, the Father had travelled by himself to Country H and had returned married but was untruthful about the nature of that alleged marriage and perhaps another possible relationship. Those allegations and counter-allegations have not yet been engaged in reply and counter-reply, and may never be. However, on either party's account, this was far from an ordinary peaceful relationship.
No time until five years old
The child was born in 2015, and is now six. It is common ground that the child was born four weeks premature. The parents then separated in or about February 2016 and it is common ground that the Father did not see the child again until late in 2020, shortly before the child turned five, after the Mother had contacted him and had sought to see if he wished to be involved in the child’s life. The Father's explanation for his absence from the child’s life is that he was told that he was not the child’s father, which the Mother denies.
It has been necessary to look very carefully at any independent or incontestable evidence relating to the child’s care, because when Ms J sees the child and the Father for the purpose of preparing a psychological evaluation report, she opines at paragraph 104 that the child has been undoubtedly subject to severe neglect over the years in the Mother's care.
104 FASD has undoubtedly contributed to emotional and behavioural difficulties exhibited by [the child] from a young age, as have exposure to instability, disrupted attachment, severe neglect, family violence, and maternal mental health issues, during [the child’s] formative years.
105 [The child] exhibits a number of cognitive difficulties that increase the likelihood of impulsive actions, poor decision-making, and a failure to link an initial act to subsequent consequences and harm. She struggles with interpersonal relationships and personal boundaries and experiences difficulties regulating emotions and behaviour.
106 A diagnosis of FASD does not indicate that a mother has poor parenting skills, but it may indicate an alcohol problem, particularly if the mother was unable to stop drinking once becoming aware of the pregnancy. However, a diagnosis of Disinhibited Engagement Disorder strongly suggests [the child] experienced severe neglect and disrupted attachment in the mother’s care. In addition, concerns have been raised about [the child] being exposed to the mother’s mental health issues and perhaps copying the mother’s associated behaviour, as it has been reported that both [the child] and the mother engaged in purging, restricted eating, self-harming, and lying.
Record of medical care
It is common ground that shortly after the birth of the child or shortly after separation, the Mother relocated back to Victoria. The Mother's affidavit shows that on 28 June 2016, she took the child to the maternal health nurse for her six month check. On 15 September 2016, she took the child to the child maternal health nurse for the nine month check. On 12 December 2016, she took the child to the child maternal health nurse for the 12 month check. Those checks (as are in evidence) indicate that the observations of the Child and Maternal Health Nurse (‘the CMHN’) was that the child’s presentation following examination was age-appropriate.
The other matter that needs to be noted at this point is that it is not disputed that in the detailed medical records of the C Hospital subpoenaed to the court, and despite the child being born four weeks premature, there is no reference to fetal alcohol spectrum disorder (‘FASD’) or any concern about the Mother's alcohol abuse. However, it is in evidence that after the birth of the child, in 2015, the Father stated to the doctor who he rang as follows:
Phone call received from [the Father], [the Mother’s] partner, he reported that he 'was a little confused to why he was calling, [the Mother] just told him to call the number'.
Author could see through the notes that [the Mother] had her baby 2/52 ago and that there had been some relationship issues for some time and had been identified to CATT [crisis assessment and treatment team].
[The Father] reported that [the Mother] seemed ok tonight, not drinking and taking good care of baby [the child], she was going to go for a drive and author asked for her to call me back on her return, as there had been contact, author aware of 10:30am appt tomorrow with CATT
[The Father] described relationship as having difficulty for at least 10 months, and that he's 'had enough', he 'feels trapped', and reports her as' not reasonable'
The couple fight quite a lot according to [the Father] and mainly about [the Mother’s] drinking, [the Father] reported that on Sunday [the Mother] got in the car and drove under the influence with baby on board, having said that, [the Father] reports that the baby is clean, well fed and she looks after her.
[The Father] offered to pay for flight to Melbourne so that [the Mother] could spend time with her Father for a couple of weeks [the Father] struggling with stress and his own words, 'his own mental health' and is planning to see a counselor from K Counsellors and will organise an appointment for [the Mother].
[The Father] reported that he resents [the Mother], is more of a 'father figure' than an equal and is angry that, in his own words, 'poor financial decisions were made at the beginning of the year.
Author suggested that:
•[the Father] ask [the Mother] to call CATT upon return, especially in crisis, and attend tomorrow's appt
•As [the Father] is ambivalent about relationship, author suggested support through this neo nate period is essential, but not to promise, say anything that is misleading to [the Mother]
Despite the Father complaining of the Mother's alcohol abuse, there is no other record of any concern with either symptoms of FASD or neglect on the Mother's part. Indeed, the Father told the doctor who he rang that, notwithstanding his concerns about the Mother's drinking, the baby is clean, well-fed, and the Mother looks after her.
The subpoenaed records of Ms L, a psychologist who first saw the Mother on 24 January 2017, show that when the Mother attended for psychological support, she took the child with her. The psychologist described the Mother and baby as:
32 years old female. Dressed appropriately and casually. Neat and clean. Presented with baby ([the child], 15m old). Baby appears well and happy.
The Mother told Ms L of a history of significant violence, alcohol abuse and manipulative behaviour by the Father when she attended on that occasion. It is unlikely that that account was given (in 2017) to reinforce any legal proceedings relating to or concerning the Father in any way, it being common ground that he had not sought to see the child at all at that time.
On 2 February 2017, the Mother also saw Ms L again and set out in detail her perception of her upbringing. It is unlikely that that account of her upbringing was in any way given by Ms L for the purposes of reinforcing any potential litigation regarding her parents or the Father. Records from that session include the following:
As I got into teenage years, I got worse. Started questioning things, being more challenging. I was still a good kid. I wasn’t running round the streets, doing drugs or anything, I was still getting A grades at school, but I had more of my own opinions. On my way home from school, I’d see my dad’s girlfriend, picking up her kids from school, started talking to her, getting to know her. Mum never knew. It got [to] a point where I couldn’t take it anymore at mums, her abuse and how she was, so one day I got on my bike and rode to my dads and asked if I could live there. Mum wouldn’t let me take many of my things, said my dad could buy them. She did petty things, like ripped up all my posters and stuff. Don’t really remember seeing her much after that. She moved to Melbourne with my sister, but wouldn’t tell me where or anything. [Didn’t] want my dad to know, so phone calls with my sister and things, she’d always listen to make sure my sister didn’t say anything. Was sad leaving [the Mother’s sister]. I know she still blames me for leaving. She became the focal point for my mum’s abuse. But she was a difficult teenager. She did do drugs, steal cars, all the bad things teenagers do. Then she went to live with my dad when she was about 17. I was out of home by then.
Hence, consistent with the Mother's affidavit material, the Mother was telling Ms L of a troubled childhood with a lack of appropriate parenting and parental support. This is significant to me because in 2021, without notice to the Mother or her having the opportunity to respond, and apparently introduced by the Father, Ms J speaks a number of times to the Mother's father (the maternal grandfather) who on the face of it would appear to have reinforced Ms J’s impression of a history of neglect by the Mother of the child.
However, it is not clear to me how the maternal grandfather had the opportunity to observe the Mother’s care of the child at any time, notwithstanding the weight that it appears Ms J had given to that. Further, it is not clear what the maternal grandfather told Ms J, as he is not a witness, has not made a statement, and there is no recorded evidence of what he had said.
On 18 May 2017, the Mother attended the child maternal health nurse for the 18th month check with the child who was described (by the CMHN) as age appropriate. On 12 December 2017, when the child was two years, the Mother attended the CMHN for the two year check. Again, there were no observations in evidence of anything concerning relating to the Mother's care of the child or the child’s development.
On 8 May 2018, there were reports about the Father's current partner, Ms F, being severe in discipline with her own children, but it appears that the child protection authorities were not concerned about her parenting at that time.
Annexure 2 to the first affidavit from February 2017 to April 2017, shows emails backwards and forwards between the Mother and the Father relating to the Mother seeking to retrieve her washing machine, refrigerator, and vacuum cleaner from the Father. However, it appears that the items he had stored in a self-storage facility had become damaged due to water getting in. It is significant that despite the Mother referring to needing these items for the child, there was no inquiry on the Father's behalf as to the child’s welfare. Of course, that may well be understandable if he in fact had been told that the child was not his child.
2018 concludes without any further contact between the Mother and the Father.
On 24 April 2019, the Mother attended with the child at a GP, and it is reported that the GP had no concerns. On 1 May 2019, the Mother attended an optometrist for examination of the child’s eyesight. Again, that calendar year came and went without any contact between the Mother and the Father.
Reconnection
On 17 June 2020 the Mother attended Ms L and had a discussion about making a connection with the child’s biological father (the Father). The notes conclude with the Mother saying that she would reach out to the Father to make contact, and see if he would like to develop a relationship with the child. Ms L’s notes include the following:
She stated that [the child] had been asking questions about her father, who he is and why she doesn’t see him. [the Mother] said she has become aware of [the younger child’s] relationship with his dad [[Mr M]], and that [[Mr M]] does not have the same relationship with her (and never has). She is also becoming more aware of other children having “Daddy’s” at childcare/kinder and talking about their fathers and being picked up by them.
Had a conversation about [the child’s] biological father. [The Mother] stated that he had no interest in seeing [the child] as a baby or being involved in her upbringing. She was aware that her parents had contacted him the year before with “complaints” about [the child’s] wellbeing, but he had taken no action and not enquired about her so she was sceptical he would be interested in contact. We discussed the merits of his wishes compared with what is important to [the child], and her entitlement to understand who both her parents are, and for [the child] to ideally have relationships with both parents if it is possible.
[The Mother] said that she would reach out to him to make contact to see if he’d like to develop a relationship with [the child]
Soon after that, on 28 June 2020, the Mother sent a text message to the Father, and that text message is in evidence, reading:
Hi [the Father],
I know it’s been a while, but hopefully you at least read this message.
Firstly, I wanted to say I understand your decision to not see [the child] after I went back to [[Mr M]]. I’m sorry I put you in that position. You were right, things did not change, or [get] better. However I did leave eventually and into my own place about a year and a half ago. We have a son together so unfortunately still see him for changeovers.
The reason I am getting in contact with you is about [the child]. I need to have a conversation with her about [[Mr M]] not being her father in an age appropriate way, as she doesn’t understand why her brother goes but not her. It’s been a while and she still is confused. I need to explain that you’re her father, but I need to know what you want me to tell her about you.
I’m not asking you to be in her life if you don’t want to.
If you don’t want anything to do with her, then I will explain that. If you do want to see her at some point, then I will explain that.
I’m trying to do what is best for her. At least if I know what you want, then I’ll know what to say and how to explain it all.
Let me know soon please
[The Mother]
Thereafter, for the balance of 2020, though interrupted by COVID, the Mother and the Father's partner, Ms F, send text messages to each other in courteous and mature communications about how to go about the child being involved with the Father and his life and his family life which then was himself, Ms F and her two children.
Those discussions were fruitful and starting in late 2020, shortly before the child turned five, the child met her father and spent time with him. Regular time was then arranged between the child and her father between that visit in late 2020 and January 2021.
On or about 14 January 2021, the Mother and the Father were exchanging text messages about the child’s welfare. The Father raised the issue of the child needing a lot of help, and the Mother's response included a reference that the Mother had a doctor's appointment for the purpose of obtaining a referral to a paediatrician regarding toileting, reading:
I understand what you’re saying, and we can discuss it further
She has a drs apt next week to get a referral to a paed re toileting, and her next optometrist apt is in a few weeks
She wears nappies at night and underwear during the day but obviously still has accidents. I put her in a nappy for the car trip to yours so she doesn’t have any accidents in your car.
I understand your concerns and we can discuss everything further in person as I agree it’s difficult to discuss over text.
The child went to the Father's care on 16 January 2021 and the parents continued to communicate in courteous text messages. On 17 January, the Father again observed that the child needed a lot of help and claimed the child had “large live lice and eggs in her hair”.
The parties continued to communicate but on 17 January 2021, the Father then told the Mother by text message:
As discussed in our conversation today I will not bring [the child] home [until] there are court orders in place. I have lodged a report to child protection and the police with the advice to not return [the child] [until] appropriate orders in place. We urgently need to attend to the medical needs of [the child] and these are serious. I am happy for you to video call with [the child] and any access to her will need to be supervised through an agency. I will make contact with [N Counsellors] to arrange mediation and a family court lawyer. [I’m] sorry but [the child’s] welfare is important.
The Father obviously was concerned about the child’s welfare. On 20 January 2021, he had arranged a referral from a GP close to where he lives, Dr Q, (instead of the GP that the Mother had told him she had an appointment with) and the Father took the child without the Mother's knowledge to a paediatrician, Dr R. Dr R’s report back to Dr Q in regard to the child contains the following:
[The child] is a 5 year old girl who presented to me today with her father and stepmother. There is little information regarding her part medical history, as she has been living with her mother until recently. It is my understanding that [the child] was exposed to alcohol antenatally.
[The child] is described as being an unsettled little girl with language and social skills delayed for her age. She is not toilet trained, and she has severe constipation. She has difficulties with emotional regulation, as she will lash out at her step-siblings. She is anxious about having her hair washed. Initially, [the child] ate very little, but this is now improving.
On examination, [the child] presents as a quiet, small girl who is able to follow simple instructions. She relates well to her father and stepmother. She has [several medical conditions]. Her gait is characterized by marked intoeing due to inset hips, with apparent leg length discrepancy. Abdominal examination reveals faecal loading.
[The child’s] clinical presentation is consistent with Fetal Alcohol Disorder. She has a number of significant medical and developmental issues which will require further medical investigation and treatment. She also needs ongoing developmental assessment and monitoring. It is vital that she has a caring, secure, supportive home environment to foster her developmental progress, and to ensure that she receives regular medical care.
[Emphasis added]
There is no evidence that the Mother became aware of this observation of Dr R until she received and was served with the Father's affidavit of 23 March 2021. There is communication between the parents as to how the child was doing with her father and that the child was only crying at the times the Mother spoke to her on the telephone.
No time with the Mother for most of 2021
It is common ground that from 16 January 2021 when the Mother handed her over to the Father for a short visit that the child did not see her mother again until about 19 December 2021.
The other significant matter is, on or about 5 March 2021, on a basis that is not clear to me, the Father obtained an ex parte intervention order against the Mother for the protection of the Father and the child. What the Mother was alleged to have had done to justify that is not in evidence before me.
Shortly after that intervention order, on 12 March 2021, child protection received a report that the Father's partner, Ms F, had the responsibility to care for the child and was overwhelmed by and unable to manage the child’s behaviours.
The Father issued proceedings on 23 March 202 and the affidavit supporting those proceedings had attached Dr R's report. The Mother did not respond in those proceedings until 10 June 2021, with the assistance of her previous solicitors. It is apparent that those solicitors were privately retained. Orders were ultimately made that two specialists; Ms J, a psychologist with expertise in FASD amongst a wide range of other expertise, and a paediatrician, Dr S, would prepare reports. Those orders were as such:
THE COURT ORDERS THAT:
1.All extant Applications be adjourned to 5 November 2021 at 9.30am for mention.
2.Pursuant to section 68L(2) of the Family Law Act 1975 the child…, born [in] 2015 (“[the child]”) be independently represented AND IT IS REQUESTED that Victoria Legal Aid arrange such separate representation and such arrangement be as soon as possible AND THAT:
(a)Forthwith upon appointment by Victoria Legal Aid, the Independent Children’s Lawyer file a Notice of Address for Service; and
(b)Upon notification of such appointment, the parties (by their solicitors if represented) shall provide to the Independent Children’s Lawyer copies of all relevant documents.
3.Pursuant to section 11F of the Family Law Act 1975, the parties and the child…, born [in] 2015 attend upon a Family Consultant of the Federal Circuit Court of Australia (“the Family Consultant”) for the purposes of a Child Inclusive Conference on 27 October 2021. Interviews will be conducted at Melbourne Registry (Level 5) unless advised otherwise by Child Dispute Services.
(a)the father and the child will be interviewed at 9.00 am;
(b)the mother will be interviewed at 10.00am; and
(c)The Family Consultant shall have leave to inspect any subpoenaed documents.
4.Pursuant to section 69ZW of the Family Law Act 1975 is it requested the Department of Families, Fairness and Housing (“DFFH”) provide to the Court the following documents and information:
(a)any notifications to DFFH of suspected abuse of the child …, born [in] 2015 to whom the proceedings relate or of suspected family violence affecting the child including but not limited to any intake reports;
(b)any assessments of DFFH of investigations into notifications of that kind or the findings or outcomes of these investigations including but not limited to copies of investigation and assessment outcomes, any grounds of substantiations, case plans and case closure summaries;
(c)any reports commissioned by DFFH in the course of investigating a notification, including but not limited to any reports prepared for proceedings in the Children’s Court; and
(d)in the event that DFFH have an ongoing investigation in relation to the child to whom the proceedings relate, any recommendations for the future arrangements of the child taking into account the orders sought by the parties in these proceedings.
AND THE COURT ORDERS BY CONSENT UNTIL FURTHER ORDER THAT:
5. [The child] live with the Father.
6. [The child] spend time and communicate with the Mother:
(a)supervised at a supervised Contact Service not more frequently than twice per week, at such time/s as may be accommodated by the Contact Service;
(b)by Facetime each Wednesday and Sunday at 4.30pm for up to half an hour (if time is not occurring on such days pursuant to Order 6(a) hereof), with such communication to be child focused; and
(c)otherwise as agreed between the parties.
7.Supervised time pursuant to Order 6(a) hereof occur at [B Contact Centre] [suburb 1] or such other children’s contact service agreed between the parties or nominated by the Independent Children’s Lawyer and each of the Mother and Father do all such acts and things necessary to facilitate such supervised time (it being note that the Mother and Father are already on the waiting list at [B Contact Centre] [suburb 1]), and the Contact Service be requested to provide a written report to the parties prior to the adjourned date.
8.The Mother and the Father do all such acts and things necessary for [the child] to be independently medically assessed and for a report to be provided by a paediatrician agreed between the parties (and in default of agreement nominated by the Independent Children’s Lawyer) with such report to address those matters identified in the correspondence/report of [Dr R] dated 20 January 2021 (being Annexure “-2”) to the Father’s Affidavit filed 24 March 2021, and to specifically address whether [the child] suffers from Fetal Alcohol Disorder.
9.The Mother and the Father forthwith do all acts and things and sign all necessary documents to engage and complete a:
(a)Parenting Orders Program; and
(b)Tuning into Kids Course at [N Counsellors] or such other accredited organisation as nominated by the Independent Children’s Lawyer.
10.For 24 hours immediately prior to the commencement of any time spent with [the child], and during all such time spent, the Mother be restrained by injunction from ingesting, consuming, using, or otherwise being under the influence of, alcohol or any legal or illegal drug or substance, save and except for:
(a)any legal medication prescribed for the Mother by a registered medical practitioner, and taken or used by the Mother strictly in accordance with such prescriptions; and
(b)any over-the-counter medication or pharmaceutical substance, and taken or used by the Mother strictly in accordance with the directions appearing on such medication or pharmaceutical substance.
11.At the request of the Independent Children’s Lawyer, the Mother make an appointment and attend for hair collection at an appropriately qualified Clinic or the Clinic's nominee for hair drug testing purposes within 48 hours of a request being made by the Independent Children’s Lawyer. To give effect to this Order:
(a)collection is to be conducted by a qualified and certified collector;
(b)Chain-of-Custody procedure is to be applied to the sample;
(c)testing is to be conducted at an approved laboratory, accredited to conduct hair drug testing to the recognised International Standard ISO/IEC 17025:2005 by the relevant national accreditation body for that laboratory;
(d)either head or body hair may be collected for testing.
12. Further:
(a)the Mother grow her hair then maintain her head hair at a length of not less than four (4) centimetres; neither head hair nor body is to be cut, bleached or dyed between the date of this Order and the time of collection of hair;
(b)each party or their legal representatives is at liberty to provide the Clinic with a copy of these Orders;
(c)the Mother provide the collector with photographic identification to be recorded before each hair collection and authority, with this Order also hereby authorising the Clinic to provide the results of each test to the Father, the Mother, their respective legal representatives if applicable, and the Independent Children's Lawyer if applicable upon receipt of such test results;
(d)the hair test shall screen for alcohol EtG and drugs of abuse including amphetamine type substances (including but not limited to methamphetamines such as ICE) and metabolites, cannabis and metabolites, cocaine and metabolites, opioids and metabolites and any other drug specified in this Order as required;
(e)the Clinic shall utilise the testing services of an appropriate laboratory accredited to conduct hair drug testing to the recognised International Society of Hair Testing (SoHT) guidelines, cost, and time required for results to be made available; and
(f)the cost of the hair tests is to be met by the Mother, and Victoria Legal Aid is requested to meet such costs.
13.At the request of the Independent Children’s Lawyer, the Mother undertake supervised drug screen testing and that:
(a)the Testing do occur at a pathology centre or other appropriate place, as approved by the solicitors for the other party and /or the Independent Children’s Lawyer from time to time;
(b)the Testing do occur randomly (but not more frequently than 3 times in any 4 week period), and within 24 hours of the solicitors for the other party and/or the Independent Children’s Lawyer making a request for the Testing to occur;
(c)the results of the Testing, on each occasion, be forwarded – as soon as possible – to the solicitors for the other party and/or the Independent Children’s Lawyer; and
(d)the cost of the testing is to be met by the Mother, and Victoria Legal Aid is requested to meet such costs.
14.At the request of the Independent Children’s Lawyer, the Mother undertake a carbohydrate-deficient transferrin test (CDT) and a gamma-glutamyl tranasferase test (GGT) by an accredited collection and pathology service that complies with the Australian Standard AS/NZS4308:2008 and provide the result by email to the Mother’s solicitors as soon as it becomes available, with the costs of the same to be met by the Mother, and Victoria Legal Aid is requested to meet such costs.
15.The Mother and the Father, by themselves, their servants and/or their agents be and are hereby restrained by injunction from:
(a)abusing, insulting, belittling, rebuking or otherwise denigrating the other parent; and/or
(b)discussing these proceedings,
to or in the presence or hearing of [the child] and/or from permitting any other person so to do.
16.Pursuant to ss.65DA(2) and 62B of the Family Law Act 1975 the particulars of the obligation these Orders create and the particulars of the consequences that may follow if a person contravenes these Orders are set out in Annexure A and these particulars are included in these Orders.
AND THE COURT NOTES THAT:
A.The Mother and Father agree to these Orders without prejudice to their right to seek the Orders set out in the Applications before the Court on the adjourned date.
B.The report from the Department of Families, Fairness and Housing will be released to the practitioners as soon as practical after it has been received.
C.If in any proceedings there are allegations of family violence and the provisions of section 102NA of the Family Law Act 1975 apply (see attached Family Violence Information Sheet), any unrepresented party will not be permitted to personally cross-examine the other party/parties.
D.Affected unrepresented parties may apply to the Commonwealth Family Violence and Cross-Examination of Parties Scheme (“the Scheme”) for representation but any such application must be made at least 12 weeks prior to the final hearing.
E.Further information about the legislation and the Scheme can be found at Part 4 of the attached Family Violence Information Sheet.
F.If s102NA applies and a party becomes unrepresented after trial directions have been made, that party is required to promptly advise the Court.
The paediatrician, Dr S, has not yet prepared a report, supposedly because the Mother had not provided to him a questionnaire. It is the Mother's assertion to me that she posted as requested that questionnaire to the doctor in July 2022, which, assuming she did, is many, many months after she was requested to do so. However, that questionnaire has now been produced. The ICL has it, and I am confident that that will now make its way to Dr S's office whether or not he already has it. It is still hoped that Dr S will prepare a report. The Father has paid considerable fees for that report.
Child Protection recommends shared care
On 12 August 2021, after a fairly detailed investigation and what is known as a section 69ZW order, child protection did not observe that the Mother or the Father were a risk to the child. The observations include:
[The child] deserves parents who can prioritise her needs. [The child] is a child who will benefit from positive relationships with [the Father], [Ms F], and [the Mother]. [The child] feels comfortable voicing her feelings and needs with [the Father] and Child Protection are not concerned for her safety or wellbeing in his care. It would be recommended that shared care that is consistent and supportive of [the child’s] needs be worked towards
Supervised time eventually starts
From 15 August to 24 October 2021, there had been six attempts at supervised time at a children's contact service, which had not occurred during the COVID-19 related lockdowns. It is apparent from an affidavit of Ms T, the supervision service supervisor, that the Father cancelled supervised visits on 21 November and 5 December 2021. The 5 December 2021 supervised visit was cancelled because the Father was "out of town". The visit on 19 December 2021 occurred and the observations of the supervised service included:
[The Mother] entered the room, [the child] jumped up and quickly went to [the Mother] and they hugged each other. [The Mother] said “I missed you. I love you. I am so happy to see you.” [The Mother] quietly cried and told [the child] that she was so happy to see her. [The child] showed [the Mother] her panda teddy.
[The Mother] shared that she had brought gifts for [the child] as it was [the child’s] birthday recently. The family sat on the couch, opened some Barbies and pyjamas, and chatted about the gifts. [The Mother] gave [the child] a small gift and told her that it was special. [the child] opened it to find a necklace. [The Mother] said “When you wear it, you can think of me” as she put it on [the child]. [The Mother] asked [the child] if she could take a photo of her opening the gifts and [the child]said yes. The worker observed that [the Mother’s] phone was taking a video and asked [the Mother] to take photos only, [the Mother] said ok.
The family laughed and chatted as they played with the gifts. [The Mother] complimented [the child’s] dress and ran her hands through [the child’s] hair. [The Mother] told [the child] that she was a beautiful girl. [The child] lay against [the Mother]as they chatted about [the Mother’s] pets. The family spoke about a pet that had died, [the Mother] said he is now a star in the sky and [the child] said, “Like baby [[…]]”?
[The Mother] showed [the child] short videos of her cats playing and the family laughed. The family spoke about [the younger child] and how he hurt himself. [The Mother] hugged [the child] and said, “I Love you so much.” [The child] said, “I am waiting for my Daddy.” The family discussed different toys that [the child] did not have, and [the Mother] shared that they were at [the Mother’s] home. [The child] lay against [the Mother] as they chatted.
[The child] asked [the Mother] to assist her to play with the Barbie slime and the family laughed as they played together. The family discussed a previous trip to the beach and [the Mother] showed [the child] a picture of them from that trip on her phone. [The Mother] hugged [the child] and lifted her on to [the Mother’s] lap. [The child] lay on [the Mother], and they hugged. [The Mother] said, “You give the best cuddles. I miss them.” [The child] said,” I love you” and [the Mother] said, “I love you so much” and began to cry. They hugged and [the Mother] told [the child] that her tears were tears of joy. [The child] lay across [the Mother] as they chatted.
[The Mother] told [the child] that [the younger child] was starting kinder in January at the same kinder as [the child’s]. [The child] said [the younger child] could have her lunchbox. The family discussed the gifts [the child] received last Christmas, including a scooter. [The child] told a story, and in it she referred to, “my Mum” and [the Mother] confirmed that [the child] was talking about [[…]]. [The Mother] suggested that [the child] could finish playing with the slime at home and that “Daddy and Mummy [[…]] could help.” [The child] packed up the slime and her other gifts and the family continued to play.
At the end of the visit, the worker took a couple of photos of the family together. The family hugged each other, [the Mother] said she loved [the child] and [the child] replied, “Me too” as they continued to hug. [The Mother] told [the child] that she had the necklace to remind her of [the Mother]. The family hugged again, said goodbye and [the child] left the room with worker.
Supervised time stops
Thereafter, the Mother had supervised time on 19 December 2021, 2 January 2022, 13 March 2022, 20 March 2022, 27 March 2022, 10 April 2022 and 24 April 2022. Thereafter, no further supervised visits were available from that service provider to this family. Hence, time for the child with her mother has ground to a halt. It is clear from Ms T's affidavit that the time between the child and her mother was very successful and a very close relationship was observed.
I need to qualify that as in the Father's case, due to the FASD and the neglect that the child is said to have suffered, she suffers social engagement disorder. Hence, if that is correct, that may explain at least in part the very close affectionate and tender interaction between the Mother and the child that was observed. The Mother’s case includes that in the Father’s care the child was literally tearing her hair out.
Ms J’s report and interviews
Ms J prepared a psychological evaluation report on 7 February 2022 and as I understand it, has been paid for with substantial fees by the Father. It is significant to me that Ms J's sources of information include C Hospital medical and birth records which the Father had obtained under FOI request. It appears these records provided to Ms J by the Father never made it to the Mother, whether or not they were provided to her former solicitors.
It is clear that Ms J interviewed the Father and his partner, observed the child with the Father on 17 November 2021 and on 24 January 2022, spoke to the Father in phone calls on a number of occasions, spoke to the maternal grandfather and the mother's stepmother on 4 February 2021, and then spoke to the maternal grandfather again on 7 February 2022. Ms J did not speak to the Mother and opines in her report that she did not need to because she had read the affidavit of the Mother filed 10 June 2021.
The Father's case relies heavily on Ms J's observations, expertise, and recommendations. The very detailed report of Ms J includes the following recommendations:
7. Federal Circuit and Family Court Recommendations:
•FaceTime calls are recorded or independently supervised due to concerns raised about the mother’s comments and behaviour when unsupervised
•the mother undergoes psychological assessment including personality testing
•the mother returns a clear hair follicle drug screen that includes alcohol testing prior to unsupervised time with [the child] commencing
•childcare/medical/kindergarten records are subpoenaed in relation to [the child]
•psychiatric/psychological records are subpoenaed in relation to the mother
•this report is provided to professionals involved with
One of those dot points was that any time with the Mother and the child be supervised until the Mother returns a clear hair follicle drug and alcohol test.
I might add that it is the ICL’s case that throughout the time the child was in the Mother's care attending childcare and kindergarten, that no childcare or kindergarten record observed anything untoward or suggesting either FASD or neglect by the Mother. The Mother also has a younger child, who is now four, and there are no allegations of neglect of that child in evidence.
The Mother deposed that her younger child has lived week about with his father, Mr M, for some time. The younger child was in the Mother's care during the time of significant child protection investigation and involvement during 2021. Nothing untoward in regard to the younger child’s care has been observed or suggested, although in an affidavit filed this day, the Father asserts that the younger child is now in his father's fulltime care. The Mother asserts in reply that the week about arrangement has been interrupted temporarily while she relocates, and while she does so, the younger child is with his father.
A passage in the 67Z response indicates that in the period April to May 2021 that the Mother agreed to and did complete three supervised drug/urine drug screens for child protection on 30 April 2021, 3 May 2021, and 5 May 2021, and no illicit substances were detected.
Risk of unsupervised time
The Father's case is that the only time the child should spend with the Mother should be supervised, such is the degree of risk. The degree of risk is said to arise from the observations of Ms J and in particular, the opinion of Ms J of the child suffering from FASD, and the issue of the child being disinhibited in her attachment or what is known as social engagement disorder, which is said to arise directly from her neglect. It is said the risk to the child is significant because the Mother minimises or disbelieves Ms J's observations and has a lack of insight into that. On the face of it, Ms J's report is careful and detailed and cannot be dismissed, save for the fact that the Mother was never spoken to and that members of the Mother's family were spoken to who have a history of a very poor relationship with the Mother (on her account). Ms J has significant expertise in FASD. It is clear that Ms J had the paediatrician Dr R's report. However, given the number of professionals who have observed the child as a baby, a toddler, a young child, at childcare, at kindergarten and not observed any neglect or indication of FASD, and in the circumstances where the Mother was not consulted by Dr R or by Ms J, it is unsurprising that the Mother does not accept that report.
Of course, if the Mother in fact did drink heavily whilst pregnant and the child does suffer FASD, the reality of admitting that to herself and the community would be a very heavy burden for the Mother and would provide a motivation for denial. It is alleged by the Father that there is an unacceptable risk because of the question mark about the Mother's mental health and that her attendances upon Ms L are too sporadic, too infrequent and not sufficient to dispel a concern about her mental health.
On an interim hearing, I cannot require the Mother to disprove each and every allegation that is made against her. I will also not be requiring the Father to disprove each and every allegation or question mark that is made against him or that is raised against him. However, I now have evidence that after some bumbling around about what services were or were not available, the Mother has now made a firm reconnection with Ms L with a path of frequent consultations and support, stretching out to the end of 2023.
It is also said by the Father that the Mother's drug testing was entirely unsuccessful, and the Mother's failure to provide urine and drug screens pursuant to court orders as has been set out in the ICL's outline of case of 9 September 2022 at paragraph 12, suggesting that the Mother was not providing these drug screens because she would know that they would test positive. The Mother's account is that these were costing $150 a throw and that she simply could not afford to do them.
When the hearing came on in June 2022, the hair follicle test was still not available. The Mother said that it had taken her some time to save up the money, as she had only recently reengaged in employment. It is clear enough to me that the Mother has been in difficult financial circumstances, in and out of employment, and without any capital resources to fall back on. However, it needs to be noted that the period from 2 February to 11 May 2022, where the Mother did not provide urine samples as requested, is now covered by a hair follicle test that shows the Mother clear of drugs. That hair follicle test was not available until after the June 2022 hearing.
The Father’s solicitors, in persuasive written submissions filed in July 2022, provided substantial arguments why that test, without a chain of custody, should be discounted. Ordinarily, in my experience, hair follicle tests are simply presented as the hair follicle test and the chain of custody is rarely produced to us or annexed to an affidavit. In any event, I now have what purports to be a chain of custody document of 9 May 2022. I also now have the analysis of the same hair follicle test received on 16 May 2022 consistent with the chain of custody test, a hair follicle examination covering three months that shows that no alcohol abuse or excessive consumption was observed in the Mother. It is put that the inconsistencies in the Mother's account of how she came to obtain that hair follicle test mean that no significant weight should be attached to it. The ICL tells me, and I accept, that she has made direct communications of the actual person who cut the Mother's hair for the purpose of the test, and from a supervisor in that facility, and she is satisfied of the reliability of that test.
Despite that, the Father still doubts the hair follicle test and raises the possibility that this is a fake test. That possibility is raised by inference. Quite frankly, the Mother's haphazard conduct of the litigation when conducting it on her own behalf demonstrates to me that (although not impossible) it would be highly unlikely that the Mother would be able to organise a fake hair follicle test in all of the circumstances. In any event, I accept the ICL's inquiries in regard to the very person who cut that hair out of the Mother's head, identifying her by her driver's license which carries a photograph on it. In all of the circumstances, I am quite satisfied for this interim hearing that the hair follicle test, late though it was produced, is in fact a genuine and accurate document.
The Father then raises the issue of the uncertainty of the Mother's residence, that she has moved from or between suburbs in the far-eastern suburbs area, and argues that given the vulnerability of the child, that residential uncertainty should mean that the Mother should not see the child unsupervised, and in daytime only.
The orders sought by the ICL at the hearing in June were:
1. Upon the results that are negative for the detection of illict substances and alcohol the Mother spend time with the child [X] born [in] 2015 (“the child”) unsupervised as follows;
a. each Saturday from 10am until 1pm for a period of 8 weeks, and thereafter
b. each Saturday from 10am until 4pm
2. In the event the Mother appears alcohol effected then time spent is to be suspended.
3. The parties do all acts and things necessary to make application to [B Contact Centre] for the purpose of changeover.
4. Changeover occur at [B Contact Centre] and the costs be equally shared by the Mother and the Father.
In June, the Mother, representing herself, supported those orders of the ICL. The ICL presses the same orders in the hearing before me today, and the Mother's solicitor supports those orders. I need to note that whilst the Mother had the support of a solicitor this day, the hearing has been protracted as documents have been emailed backwards and forth, mainly because the Mother’s solicitor only received instructions on Friday, 9 September 2022. That solicitor has managed to achieve a grant of legal aid, written submissions, and a relevant affidavit all filed by the following Monday morning. I am grateful to the solicitor and his firm for having the skill and ability to rustle up all of that in a very short time. Nonetheless, the Mother's solicitor has not had the familiarity with all of the materials that you would ordinarily expect a solicitor to have.
I am confident that the expertise of the Mother's solicitor is more than adequate to put before me any necessary information and submissions that I will need.
Part VII of the Act, including in particular sections 60CA and 60CC(1)-(3), sets out the criterion for a parenting order (notations omitted) as follows:
60CA:Child's best interests paramount consideration in making a parenting order
In deciding whether to make a particular parenting order in relation to a child, a court must regard the best interests of the child as the paramount consideration.
…
60CC How a court determines what is in a child's best interests
Determining child's best interests
(1)Subject to subsection (5), in determining what is in the child's best interests, the court must consider the matters set out in subsections (2) and (3).
Primary considerations
(2)The primary considerations are:
(a)the benefit to the child of having a meaningful relationship with both of the child's parents; and
(b)the need to protect the child from physical or psychological harm from being subjected to, or exposed to, abuse, neglect or family violence.
(2A)In applying the considerations set out in subsection (2), the court is to give greater weight to the consideration set out in paragraph (2)(b).
Additional considerations
(3)Additional considerations are:
(a) 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;
(b) 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);
(c)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;
(ca)the extent to which each of the child's parents has fulfilled, or failed to fulfil, the parent's obligations to maintain the child;
(d)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;
(e)the practical difficulty and expense of a child spending time with and communicating with a parent and whether that difficulty or expense will substantially affect the child's right to maintain personal relations and direct contact with both parents on a regular basis;
(f) 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;
(g)the maturity, sex, lifestyle and background (including lifestyle, culture and traditions) of the child and of either of the child's parents, and any other characteristics of the child that the court thinks are relevant;
(h)if the child is an Aboriginal child or a Torres Strait Islander child:
(i)the child's right to enjoy his or her Aboriginal or Torres Strait Islander culture (including the right to enjoy that culture with other people who share that culture); and
(ii)the likely impact any proposed parenting order under this Part will have on that right;
(i)the attitude to the child, and to the responsibilities of parenthood, demonstrated by each of the child's parents;
(j)any family violence involving the child or a member of the child's family;
(k)if a family violence order applies, or has applied, to the child or a member of the child's family--any relevant inferences that can be drawn from the order, taking into account the following:
(i) the nature of the order;
(ii) the circumstances in which the order was made;
(iii) any evidence admitted in proceedings for the order;
(iv)any findings made by the court in, or in proceedings for, the order;
(v) any other relevant matter;
(l)whether it would be preferable to make the order that would be least likely to lead to the institution of further proceedings in relation to the child;
(m) any other fact or circumstance that the court thinks is relevant.
The procedure applicable to an interim parenting orders hearing is set out in Goode & Goode [2006] FamCA 1346 at [72], [81] and [82]:
72.In our view, it can be fairly said there is a legislative intent evinced in favour of substantial involvement of both parents in their children's lives, both as to parental responsibility and as to time spent with children, subject to the need to protect children from harm, from abuse and family violence and provided it is in their best interests and reasonably practicable. This means where there is a status quo or well settled environment, instead of simply preserving it, unless there are protective or other significant best interests concerns for the child, the Court must follow the structure of the Act and consider accepting, where applicable, equal or significant involvement by both parents in the care arrangements for the child.
…
81.In making interim decisions the Court will still often be faced with conflicting facts, little helpful evidence and disputes between the parents as to what constitutes the best interests of the child. However, the legislative pathway must be followed.
82. In an interim case that would involve the following:
(a)identifying the competing proposals of the parties;
(b)identifying the issues in dispute in the interim hearing;
(c)identifying any agreed or uncontested relevant facts;
(d)considering the matters in s 60CC that are relevant and, if possible, making findings about them (in interim proceedings there may be little uncontested evidence to enable more than a limited consideration of these matters to take place);
(e)deciding whether the presumption in s 61DA that equal shared parental responsibility is in the best interests of the child applies or does not apply because there are reasonable grounds to believe there has been abuse of the child or family violence or, in an interim matter, the Court does not consider it appropriate to apply the presumption;
(f)if the presumption does apply, deciding whether it is rebutted because application of it would not be in the child’s best interests;
(g)if the presumption applies and is not rebutted, considering making an order that the child spend equal time with the parents unless it is contrary to the child’s best interests as a result of consideration of one or more of the matters in s 60CC, or impracticable;
(h)if equal time is found not to be in the child’s best interests, considering making an order that the child spend substantial and significant time as defined in s 65DAA(3) with the parents, unless contrary to the child’s best interests as a result of consideration of one or more of the matters in s 60CC, or impracticable;
(i)if neither equal time nor substantial and significant time is considered to be in the best interests of the child, then making such orders in the discretion of the Court that are in the best interests of the child, as a result of consideration of one or more of the matters in s 60CC;
(j)if the presumption is not applied or is rebutted, then making such order as is in the best interests of the child, as a result of consideration of one or more of the matters in s 60CC; and
(k)even then the Court may need to consider equal time or substantial and significant time, especially if one of the parties has sought it or, even if neither has sought it, if the Court considers after affording procedural fairness to the parties it to be in the best interests of the child.
Those principles are qualified by the observation of the Full Court in Eaby & Speelman (2015) FLC 93-654 at [18] as follows:
18.…It is true that in Goode & Goode, at [68], the Full Court said that the circumscribed nature of interim hearings means that the court should not be drawn into issues of fact or matters relating to the merits of the substantive case where findings are not possible. However, that does not mean that merely because the facts are in dispute the evidence on the topic must be disregarded, and the case determined solely by reference to the agreed facts. Rather, the proper approach to contentious matters of fact in the determination of interim hearings is as explained in Marvel v Marvel, at [122] and [123], as follows:
[122] In SS v AH [2010] FamCAFC 13 the majority (Boland and Thackray JJ) discussed at [88] of their reasons the care necessary to be exercised in making findings in interim parenting proceedings. Their Honours said:
[88] In our view, findings made at an interim hearing should be couched with great circumspection, no matter how firmly a judge’s intuition may suggest that the finding will be borne out after a full testing of the evidence.
[123] Later, at [100] their Honours amplified their comments and said:
[100] The intuition involved in decision-making concerning children is arguably of even greater importance when a judge is obliged to make interim decisions following a hearing at which time constraints prevent the evidence being tested. Apart from relying upon the uncontroversial or agreed facts, a judge will sometimes have little alternative than to weigh the probabilities of competing claims and the likely impact on children in the event that a controversial assertion is acted upon or rejected. It is not always feasible when dealing with the immediate welfare of children simply to ignore an assertion because its accuracy has been put in issue.
The Father's submissions point to section 60CC(2A) and the authorities that deal with risk. In powerful and pithy terms, the Father's counsel observed that in the balance of all of the section 60CC factors, given this child's vulnerabilities, "safety wins". Notwithstanding the force of that observation, in all of the circumstances and considering all of Part VII of the Act, I am satisfied that the modest orders that the ICL and the Mother seeks for unsupervised time with a child supervision centre changeover is adequate to protect the child in the circumstances.
I am not satisfied that there is an unacceptable risk of harm or neglect to the child by the orders that the ICL and the Mother seeks. I acknowledge the Father's anxiety about the care of the child, and I acknowledge the significant hard yards that he is putting to the child in in his care. However, I am very concerned at the interruption of the child’s relationship with her primary carer from birth to five years old. That is also a risk to the child’s welfare.
Further, assuming the child does suffer FASD as the Father alleges, I do not accept the Mother’s alcohol consumption at that time and her failure to acknowledge the condition informs the risk of day time only unsupervised time with changeover at a contact centre on a weekend.
In all of the circumstances, I will make the orders sought by the ICL.
In addition to those orders, I will discharge the order for reserving judgment made on 17 June 2022 and I next will add a notation to the orders that these orders were made following an all-day interim defended hearing on 12 September 2022.
The orders will also include an order for the transfer of this matter to Division 1 of this Court, as I am certain that this matter will exceed the three day estimate for which it was booked in for originally. The ICL's estimate of time is four to five days and I am concerned that that is a conservative estimate given the factual density and the range of disputes in the matter.
I certify that the preceding seventy-seven (77) numbered paragraphs are a true copy of the Ex Tempore Reasons for Judgment of Judge O'Shannessy. Associate:
Dated: 5 October 2022
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