DAVENPORT & SHAW
[2016] FCCA 2171
•12 September 2016
FEDERAL CIRCUIT COURT OF AUSTRALIA
| DAVENPORT & SHAW | [2016] FCCA 2171 |
| Catchwords: FAMILY LAW – Interim parenting – whether young child should continue to live with mother who has anxiety condition – whether child’s time with father should continue to be supervised where serious family violence allegations against father – child should continue to live with mother – child’s time with father should remain supervised but should be reviewed in December 2016 following completion of anger management course and urinalysis drug screening. |
| Legislation: Family Law Act 1975, ss.60B, 60CA, 60CC, 61BA, 61DA(3), 65D, 65DAA(3) |
| Cases cited: Banks & Banks [2015] FamCAFC 36 Goode & Goode (2006) FLC 93-286 Marvel & Marvel [2010] FamCAFC 101; (2010) 43 Fam LR 348 |
| Applicant: | MR DAVENPORT |
| Respondent: | MS SHAW |
| File Number: | PAC 5584 of 2015 |
| Judgment of: | Judge Newbrun |
| Hearing date: | 18 August 2016 |
| Date of Last Submission: | 18 August 2016 |
| Delivered at: | Parramatta |
| Delivered on: | 12 September 2016 |
REPRESENTATION
| Solicitors for the Applicant: | Mr Grooby |
| Solicitors for the Respondent: | Ms Morrison |
| Counsel for the Independent Children’s Lawyer: | Mr Gardiner |
| Solicitors for the Independent Children’s Lawyer: | Kathryn Renshall |
ORDERS, PENDING FURTHER ORDER
The child X born (omitted) 2015 (“the child”) shall live the mother.
Order 3 of the Orders made by consent on 23 June 2016 shall continue up and until 8 December 2016, subject to a time variation, namely the child shall spend such supervised time with the father from 4:00pm to 6:00pm each Monday. Order 3, as varied above, shall be reviewed on 8 December 2016 (it is noted that by this time the father should have completed an anger management course and complied with urine analysis drug screening testing). The Court notes the parties’ agreement that the father will feed the child his evening meal during the course of the child’s supervised time with him.
The mother shall be authorised to travel to (country omitted) with the child for the following period:
(a)From 20 December 2016 until 10 January 2017; or
(b)In the alternative to order 3(a) above, the mother shall be authorised to travel to (country omitted) with the child from 1 January 2017 until 21 January 2017.
The name of the child X born (omitted) 2015 (male) (“the child”) shall be removed from the Airport Watch List also known as the Pace Alert System for the period from 20 December 2016 to 21 January 2017 (inclusive), and thereafter, the name of the child shall be reinstated on the Airport Watch List, pending further order.
The father shall forthwith and by no later than close of business on 20 September 2016, cause the child’s passport to be delivered to the mother’s solicitor.
The mother shall provide to the father a full itinerary relating to the overseas travel proposed by her, including details of air travel, destination and accommodation and contact details for the mother and the child as soon as practicable before departure and in any event, not less than 14 days before departure.
In the event of the child suffering a medical emergency requiring medical attention while spending time with or living with either parent:
(a)The other parent is to be notified as soon as practicable;
(b)That the other parent is to be provided with the full details of the practitioner or medical facility upon which the child attends, as soon as practicable; and
(c)That the medical practitioner or medical facility be advised that the other parent has access to the child’s medical records and the information obtained with them, upon request
Neither party shall denigrate the other party in the presence or hearing of the child and each party shall ensure that no third party so denigrates either party in the presence or hearing of the child.
The father is restrained by injunction from consuming any illegal substance, including steroids, to excess when the child is in his care and for 24 hours prior to the child coming into his care.
The mother shall, within 7 days, enrol in and subsequently complete in accordance with the course provider’s requirements, the “Parenting after Separation” course facilitated by Relationships Australia or such other parenting course as may be recommended by Relationships Australia, whether facilitated by Relationships Australia or another service.
The mother shall, within 7 days of enrolment in such parenting course as proposed above, cause enrolment confirmation to be provided to the father’s solicitor and the Independent Children’s Lawyer.
The mother shall, within 7 days of being provided with a completion certificate for such parenting course as proposed above, forward it to the father’s solicitor and the Independent Children’s Lawyer.
The father shall, within 7 days, enrol in and subsequently shall complete in accordance with the course provider’s requirements, the “Taking Responsibility” course facilitated by Relationships Australia or such other anger management course as may be recommended by Relationships Australia, whether facilitated by Relationships Australia or another service.
The father shall, within 7 days of enrolment in such anger management course as proposed above, cause enrolment confirmation to be provided to the mother’s solicitor and the Independent Children’s Lawyer.
The father shall, within 7 days of being provided with a completion certificate for such anger management course as proposed above, forward it to the mother’s solicitor and the Independent Children’s Lawyer.
The father shall submit to supervised urinalysis drug screening at his own cost, not less than once each calendar month and with each consecutive test to be no less than 21 days apart as follows:
(a)Such test to be a chain of custody urinalysis conducted in accordance with the Australian/New Zealand Standard 4308:2008: procedure for the collection, detection and quantitation of drugs of abuse in urine.
(b)Such test to be undertaken within 48 hours of the mother’s solicitor providing the father a written request to undertake the test.
(c)The father is to cause results of such test to be provided to the mother’s solicitor within 24 hours of receipt by the father.
(d)In the event of the production of a drug screening report that requires further testing then the father shall sign all documents and do all things to ensure that this sample is further tested and a copy of that result is provided to the mother’s solicitor within 24 hours of receipt by the father.
By consent, the mother shall be restrained from allowing the child to be alone in the presence of the maternal grandfather
The mother shall remain engaged with the (omitted) Mission, or similar referred service, including that she allow home visits and consult with that service’s psychologist or healthcare professional as directed (this order was also agreed to by the mother).
The proceedings are adjourned for mention to 8 December 2016 at 9:30am.
IT IS NOTED that publication of this judgment under the pseudonym Davenport & Shaw is approved pursuant to s.121(9)(g) of the Family Law Act 1975 (Cth).
| FEDERAL CIRCUIT COURT OF AUSTRALIA AT PARRAMATTA |
PAC 5584 of 2015
| MR DAVENPORT |
Applicant
And
| MS SHAW |
Respondent
REASONS FOR JUDGMENT
Introduction
This was an interim hearing relating to the child of the relationship, a baby boy X, date of birth (omitted) 2015.
The father seeks an interim order that the Court remove the child from the mother’s primary care and that the child live with him. He contends that there is an unacceptable risk of harm posed to the child if he remains living with the mother. It is common ground that the mother suffers from an anxiety condition. The father contends that the mother has been and remains unable to cope caring for the child by reason of this condition.
The father opposes the mother’s application that she be permitted to travel with the child to (country omitted) to spend three weeks’ vacation time with her extended family in (country omitted); he contends that there is a risk that the child’s welfare will not be attended to in (country omitted); there is a real concern that the maternal grandfather poses a risk of harm to the child, and moreover he contends there is a real risk that the mother may not return with the child from (country omitted) to Australia after the vacation.
The father’s specific proposed interim orders are set out in his Application in Case filed 1 July 2016. Again, he seeks, inter alia, orders that the child live with him; that the previous interim order of 23 June 2016 that the child spend time with him under the supervision of Connecting Families be discharged; that the previous interim order that the parties be restrained by injunction from removing the child from Australia for a period of 2 years continue; and that the mother spend time with the child at the (omitted) contact centre for such times as agreed or failing agreement for not less than 2 hours per fortnight.
The mother, opposing the father’s proposed interim orders, contends that whilst she acknowledges the difficulties she has had (and continues to have) at times in coping with her care of the child, she has, inter alia, sought and engaged with (and continues to engage with) external assistance through health professional treatment providers such as her General Practitioner (“GP”) and referred psychologist, community health bodies, friends and family such that the Court should find, at this interim hearing, that there is no such unacceptable risk of harm to the child should the child remained living in her primary care.
The mother also contends that the child should, at this interim stage, continue to spend time with the father on a supervised basis because there is an unacceptable risk of harm to the child should he spend unsupervised time with the father. In this context, the mother alleges (denied by the father) that the father perpetrated family violence against her including in the presence of a child during the relationship and after the child was born.
The mother, accordingly, seeks interim orders that the child live with her and that the previous interim parenting orders of 23 June 2016 providing for the child to spend supervised time with the father through Connecting Families continue.
The precise interim orders that the mother seeks are set out in Exhibit C (except that in relation to proposed order 13, in light of the father having already completed the Parenting After Separation course, proposed order 13 should only apply to the mother, that is, she should attend such course).
The father is aged 29 years and the mother is aged 39 years.
The parties lived in a de facto relationship from August 2014 to the date of final separation on 6 October 2015, when the father left the family home. From the time of the child’s birth to date the mother has been the primary carer of the child. She is still breastfeeding the child at night.
On 19 February 2016, being the first return date of the father’s proceedings seeking, inter alia, interim parenting orders that the child live with himself and that the child spend time with the mother each Sunday from 9:00am until 5:00pm, and that her time with the child gradually increase pending mental health assessment outcome the parties agreed, inter alia, to “interim-interim orders” that the child live with the mother, that the child spend no time with the father, that the parties submit to DNA parentage testing to determine if the Applicant father was the father of the said child and an Airport Watchlist order.
On 23 June 2016, the parties agreed to further interim orders, whereby the father was to spend time with the child for two (2) hours each Monday under the supervision of Connecting Families.
The Independent Children’s Lawyer essentially supported the mother’s proposed interim orders set out in Exhibit C and additionally sought the following two (2) orders:
a)That the mother be restrained from allowing the child to be alone in the presence of the maternal grandfather (this was agreed to by the mother); and
b)That the mother remain engaged with the (omitted) Mission, or similar referred service, including that she allow home visits and consult with that service’s psychologist or healthcare professional as directed (this was also agreed to by the mother).
In relation to Exhibit C, the Independent Children’s Lawyer submitted that the mother should be able to travel to (country omitted) with the child and in this context, the Airport Watchlist order should be suspended for the duration of that proposed three (3) week trip. The Independent Children’s Lawyer submitted that the mother should provide a relevant itinerary to the father in relation to this proposed trip to (country omitted).
Counsel for the Independent Children’s Lawyer submitted, inter alia, that there was no unacceptable risk of harm to the child in remaining in the mother’s primary care, and in this context noted that the Department of Family and Community Services (“FACS”) had previously determined that the child was safe in the mother’s care and in particular noted the mother’s engagement with various support services including (omitted) Mission, her GP and other persons.
Material Relied Upon by the Parties
The father relied upon his Application in a Case filed 1 July 2016 and his affidavits filed 17 November 2015, 10 June 2016 and 1 July 2016. He also relied upon the affidavit of the paternal grandmother filed 1 July 2016.
The father relied upon certain subpoenaed material summarised and referred to in Exhibit B.
The father also relied upon the Connecting Families Contact Reports in Exhibit A.
The mother relied upon her Response to the father’s Application in a Case filed 6 July 2016, her affidavit filed 6 July 2016, the Notice of Risk filed 11 February 2016, her Case Outline and proposed Minute of Order (Exhibit C), and the subpoenaed documents summarised and referred to in Exhibit D.
The Independent Children’s Lawyer relied upon the subpoenaed documents referred to in Exhibit H.
The Court has considered all this material of the parties, including the subpoenaed material tendered by the parties and the Independent Children’s Lawyer and all submissions of the parties and ICL.
Agreed or Undisputed Relevant Facts
The mother has been the primary carer of the child since birth. The father states that he has cared for the child alone at times when living with the mother whilst the mother rested but noting the father worked from 6:30am to 3:00pm, Mondays to Fridays.
The parties separated in early October 2015. The father left their rented premises in (omitted).
Since separation the father on 21 December 2015, located the mother at her new address in (omitted). The father came to the address and held the child for about five (5) minutes before leaving the home.
The father’s Initiating Application was filed on 17 November 2015. The return date was 19 February 2016. On 19 February 2016, the parties entered into consent interim parenting orders which included an order that the child live with the mother, the child spend no time with the father and that the parties submit to DNA parentage testing to determine if the father was indeed the father of the child. On 23 June 2016, the parties entered into consent interim parenting orders that the child spend supervised time with the father through Connecting Families each Monday from 3:30pm to 5:30pm.
The father is a (occupation omitted), his working hours being between 6:30am and 3:30pm, Monday to Friday. In his affidavit filed 1 July 2016, the father at paragraph 5 states that if an interim parenting order is made for the child to live with him, then he is:
… prepared to leave my job and look for a part-time job to enable me to care for [the child], if necessary. However, I have the support of my family to assist me with the care of the child while I am at work.
He then states that the paternal grandmother who currently resides in (omitted) is able to stay at his residence during the week to assist him with the care of the child while he is at work.
The Court has had regard to the affidavit of the paternal grandmother, including her asserted preparedness to provide care for the child whilst the father is at work.
The mother was born in (country omitted) and is an Australian permanent resident, having moved to Australia about 18 years ago. The child has been issued with a (country omitted) passport. The maternal grandmother, stepfather, father and one brother live in (country omitted). During 2014/2015 Christmas and New Year period, the parties travelled to (country omitted) and stayed with the maternal grandmother. The maternal grandmother visited and stayed with the parties in mid-July 2015, noting the child’s birth on (omitted) 2015.
Relevant Legal Principles
The relevant principles in relation to parenting proceedings, including interim proceedings, are well settled: see Goode & Goode (2006) FLC 93-286.
In Marvel & Marvel (2010) 43 FamLR 348, the Full Court of the Family Court of Australia discussed the problems associated with making findings on disputed evidence as follows:
[120]. As has frequently been emphasised interim parenting proceedings, and orders made as a consequence, are a necessary but temporary measure until all the evidence can be tested, evaluated and weighed at a final hearing by the making of final parenting orders. Decisions judicial officers have to make in interim proceedings are difficult and, often for very good reason, a conservative approach, or one which is likely to avoid harm to a child is adopted. This is often to the understandable distress of a party who may not achieve the outcome he or she desires, or thinks to be in the best interests of their child or children. Interim parenting orders are frequently modified or changed after a final hearing, and any allocation of parental responsibility made at an interim hearing is disregarded at the final hearing (s 61DB).
[122]. In SS & AH [2010] FamCAFC 13 the majority (Boland and Thackray JJ) discussed at paragraph 88 of their reasons the care necessary to be exercised in making findings in interim parenting proceedings. Their Honours said:
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 paragraph 100 their Honours amplified their comments and said:
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 Court also refers to the recent decision of the Full Court of the Family Court of Australia in Banks & Banks [2015] FamCAFC 36, especially at paragraphs 46 to 52:
Consideration of the s 60CC factors that are relevant
[46]. In order to determine whether it is in the child’s best interests to remain in Thailand pending trial, we must consider matters arising under s 60CC.
[47]. As the Full Court pointed out in Goode, the fact there will often be little uncontested evidence in interim proceedings means that only limited consideration may be able to be given to the relevant s 60CC factors.
[48]. It should also be said that in parenting proceedings, as in all civil litigation, it will be the issues that are joined that will dictate which s 60CC factors are relevant. By their nature, interim parenting proceedings should be confined to those issues which, in the best interests of the child, require determination prior to a proper determination at a trial. The fact such disputes are commonly dealt with in overcrowded court lists makes it even more desirable to identify with precision those issues which can, or should, be resolved on an interim basis.
[49]. Although the primary judge discussed all the potentially relevant factors in her ex tempore reasons, that luxury will not always be available. Furthermore, there is a risk that in discussing every s 60CC factor, the judicial officer may lose sight of the forest for the trees. It is also important to stress here that the requirement to “consider” each factor does not mean each must be discussed, especially where the evidence leads inexorably to a particular conclusion: SCVG & KLD (2014) FLC 93-582.
[50.] When it is obvious that the findings made as to some of the s 60CC factors will be determinative of the child’s best interests on an interim basis, it is a sterile and unnecessary exercise to address other factors. Moreover, it will be a sterile exercise to determine whether or not particular facts are disputed if they are relevant only to one of the non-determinative s 60CC considerations. Properly understood, we do not interpret what was said in Goode as meaning that in an interim case, each and every fact must be characterised as disputed or not; and that each s 60CC factor must be traversed where it is obvious on the facts and issues joined that there are only one or two decisive factors.
[51]. In our view, the undisputed facts here lead inexorably to the conclusion that it would not be in the child’s interests to be required to move to Australia pending the trial. In arriving at this conclusion we ought to record, without condescending to particulars, that it is arguable the primary judge was led into error in coming to a different conclusion by the way in which the case was presented to her.
[52]. In the following discussion, we will detail the most significant s 60CC factors we have taken into account in reaching our decision. The absence of discussion of any particular s 60CC factor does not reflect any failure to consider it. Rather, it reflects our assessment that such factor has no sufficient relevance in the circumstances of this case to displace the determinative significance of those factors we specifically address.
Section 60B of the Family Law Act 1975 (Cth) (“the Act”) sets out the objects of Part 7 of the Act relating to children that inform the making of parenting orders.
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 the paramount consideration: section 60CA of the Act.
Section 60CC of the Act provides that in determining what is in the child’s best interests, the Court must consider the matters set out in subsections (2) and (3).
When making a parenting order in relation to a child, the Court must apply a presumption that it is in the best interests of the child for the child’s parents to have equal shared parental responsibility for the child: section 61DA of the Act. When the Court is making an interim order, the presumption applies unless the Court considers that it would not be appropriate in the circumstances for the presumption to be applied when making that order: section 61DA(3).
If the presumption of equal shared parental responsibility in relation to the child applies and is not rebutted, the Court must firstly consider whether the child spending equal time with each of the parents would be in the best interests of the child and reasonably practicable.
If equal time is found not to be in the child’s best interests, or impracticable, as a result of consideration of one or more of the matters in section 60CC, the Court must consider making an order that the child spends substantial and significant time (as defined in section 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 section 60CC, or impracticable.
If neither equal time nor substantial and significant time is considered to be in the best interests of the child, or impracticable, then the Court may make such orders in the discretion of the Court that it thinks proper, being orders that are in the best interests of the child, as a result of consideration of one or more of the matters in section 60CC: sections 60CA, 60CC and 65D.
The Best Interests of the Children
Section 60CC Considerations
Subsection (2a) - the benefit to the child of having a meaningful relationship with both of the child’s parents: a primary consideration.
The child has a meaningful relationship with the mother and would benefit from a continuance of that relationship.
The child would appear to have a positive relationship with the father and would benefit from a continuance of that relationship. The Connecting Families Contact Reports, relating to the child’s supervised time with the father spanning the period from early July 2016 to mid-August 2016, indicate positive time spent by the child with the father; there appears to be a real attachment between the child and the father; the father’s engagement with the child was age-appropriate; there was positive communication between the child the father; and there were positive physical interactions between the child and the father.
Should the child continue to spend time with the father supervised through Connecting Families for a significant period, there is a risk that the child’s meaningful relationship with the father will not further develop and be enhanced.
Should the Court make an interim order that the above supervision through Connecting Families continue, it proposes to revisit the issue of supervision of the child’s time of the father in December 2016, in particular after the father has completed an anger management course and urine analysis drug screening testing. The court is of the view that the child’s meaningful relationship with the father will probably not be detrimentally affected should the father continue to spend supervised time with the child through Connecting Families presently and up to and including December 2016, noting in particular the positive supervision reports of Connecting Families to date.
Subsection (2b) - the need to protect the child from physical or psychological harm from being subjected to, or exposed to, abuse, neglect or family violence.
Again, the father contended (disputed by the mother) that there was an unacceptable risk of harm to the child should he remain in the mother’s primary care by reason of the mother’s anxiety condition and her inability to cope in caring for the child.
The mother contended that the child should remain living in her primary care and any time spent by the child with the father should be supervised by reason of, inter alia, past domestic violence perpetrated by the father towards the mother including on occasions in the presence of the child (disputed by the father).
The Court notes that the father contends, whether the child is living with him (the primary interim order that the father seeks) or spending time with him, the paternal grandmother can assist him in the care of the child or provide an appropriate supervisory role respectively.
The Court has carefully considered the parties’ affidavits and other evidence in relation to these issues including all the subpoenaed material tendered on their behalf including the subpoenaed records relied upon by the Independent Children’s Lawyer.
The Court does not propose to separately refer to each subpoenaed document relied upon by the parties and the Independent Children’s Lawyer; nevertheless it will refer to certain relevant documents as follows:
The Department of Family and Community Services Subpoena - Sleeve 1
Tab F2 notes a report on 30 June 2015 wherein the mother disclosed in a domestic violence incident in which the father was intimidating and verbally abusive. It was reported that the father was physically abusive, pushing the mother’s head against the slats of banisters.
Tab M1.2 - On 25 March 2015 an assessment record noted the mother has been experiencing domestic violence; the mother stated that her partner grabbed her and was “thrashing her around.” The mother stated that there was a lot of verbal aggression in the home
Tab M1.20 - 2 August 1994 relating to an assessment in respect to the father and the paternal grandmother wherein the father advised that the paternal grandmother had hit him with branches, a broomstick in the past and that she now uses her hand. The father also advised that the paternal grandmother pulled his ear and makes him kneel on rice. The paternal grandmother signed an undertaking agreeing to not physically discipline the children using implements.
Tab M1.3, F3: 9 October 2015; a FACS assessment was reported in relation to a call from the mother stating that she was not managing, the child wasn’t feeding and she really needed help. She reported that she needed to walk out of the room when the child was crying. The mother stated she was really angry, she didn’t know what else to do, so she shut the door and left the child crying because she could have thrown him she was so angry. The mother stated she yelled at the baby to shut up and she squeezed his cheeks when she was frustrated. The mother stated she locked him in the room and the child cried himself to sleep. The mother stated she couldn’t go back into his room. The mother referred to some difficulty she was experiencing in expressing breastmilk to. She reported problems in successfully bottle feeding the baby. It was reported the mother was persisting with breastfeeding and the child had had a small breastfeed. The mother reported that she was on the telephone to the early childhood nurse relating to the child’s limited wet nappies and soiled nappies.
(In this context, the Court notes that paragraph 68 of the mother’s affidavit, wherein she states that she had shut the child in his bedroom while he was crying as a way of try to manage the situation before it escalated. She acknowledges that this was not the most appropriate course of action in hindsight; however at the time she felt that she had no other option. She states that following her making contact with support workers to ask for assistance, FACS case workers attended her home and conducted an assessment. She was referred to attend Karitane with the child to establish his feeding and sleeping routine which she attended successfully and the child became much more settled in a routine following this).
TAB M1.4 notes the FACS officers’ attendance upon the mother on 9 October 2015 at 9:30pm; the child was sighted, an assessment was made of the mother and the child’s attachment with no concerns noted. A discussion occurred with the mother regarding concerns about her ability to cope and meet the needs of the child with no concerns noted. A safety assessment was completed. There were no concerns for the care of the child. The mother was reported as being appropriate with the child. The mother admits that she is very tired and wasn’t coping well. The mother stated she is going into Karitane on Monday.
TAB M1.7; 30 June 2015, just before birth of child, report that the father had yelled at the mother, getting very close to her face, the mother stating that the father spat in her face and was swearing at her. The mother attempted to go up the stairs, the father grabbed her head and pushed her head against the slats of the banisters. She alleged that the father grabbed her in a headlock. The mother alleged that the father had indicated that he wanted nothing to do with the mother or the baby. The contact record notes that the mother has done the right thing by calling the police and acted protectively in reducing the risk for the child once he/she is born.
TAB M1.8, F5: Contact Record on about 2 June 2016; the mother spoke about the baby stating that he was demanding, he was aggressive (the way he is screaming for her attention), her tolerance was very low, asking how long she has to keep making up formula and carrying it everywhere with her, asking just how much attention to give the child, how much does she have to play with him.
The Contact Record states, inter alia, that the mother disclosed that she was highly exhausted, never gets a break and has no family here to help. She has yelled and screamed at the baby recently. She disclosed that she had hit the child once. She expressed not wanting to have done that. She said it was recently. The mother stated it didn’t leave a lasting mark. (See paragraph 69 of the mother’s affidavit; she states that she recalls that she explained to the early childhood nurse in June 2016 during a home visit that she had tapped the child on the inner thigh when he was being restless while she was trying to change his nappy and that she regretted doing this).
It was noted, inter-alia, that the child sat on the mother’s lap and cuddled her, the child was calm and smiling during the appointment. The mother was asked whether she was having thoughts about physically harming the child and the mother stated “no”. It was noted that in the past the mother has struggled with depression and anxiety and she saw a psychologist previously. It was noted that today the mother completed a postnatal depression checklist. “The caller isn’t concerned that the mother has postnatal depression.” The mother said she was going to go to a playgroup. It was noted that the child wasn’t walking yet. The child was noted to seem fine developmentally today. He has a reasonable appetite.
(Further, in relation to the above subpoenaed entry and referring to paragraph 69 of the mother’s affidavit, again the mother states, inter alia, that in June 2016 she reached out to the child’s early childhood nurse explaining to her the difficulties that she was having with caring for him. The mother stated that she feels that it is important for her to be open with her support system about her struggles that she is having in order for them to identify how best to support her in caring for the child. The mother stated that it was for this reason that she explained her feelings of stress and anxiety to the nurse and described the difficulties that she had in providing solely for the child’s care at all times).
Wesley Mission Subpoena – Sleeve 14
TAB ICL 4: On 24 December 2015, the mother is visited by staff of Wesley Mission. They noted, inter alia, that the child was present and was carried by the mother then placed on his play mat, reached for toys and had tummy time on the floor. The mother reported needing to take the child to the paediatrician in relation to his bowel movements. The mother stated that she was okay. The mother stated that she was interested in being referred to another family support service. She stated that she wanted to connect again with counsellor Ms M at the hospital, for someone to talk to and attend at playgroups and meet other mothers in similar situations. The mother was told that Wesley Mission would refer her to (omitted) Family Support program and could arrange a joint home visit to introduce one another.
TAB ICL 5: The Wesley Mission Brighter Futures Narrative-Risk Assessment dated 9 July 2015, states, inter-alia:
History of domestic violence between parents. Current standard AVO in place. (Mother) reports no current physical violence but emotional abuse is present. (Mother) reported physical violence historically often resulting in bruising. On the 30 June 2015 a CP report was made regarding a breach of the current AVO, including a physical domestic violence incident.
30 June 2015 - the Wesley Mission Brighter Futures Narrative-Safety Assessment report notes, inter-alia:
CW spoke with (mother) on 30 June 2015 and she disclosed that there was an incident of physical and verbal domestic violence the night before, despite a standard AVO being in place. (The mother) stated that her partner, started shouting at her when she asked him a question, and swore at her. He was very close to her face whilst shouting, and (the mother) describes accidentally spitting at him when she was shouting back at him. (The mother) stated that (the father) then spat at her, grabbed her, slamming her head into the stair banister. (The mother) stated that she tried to walk up the stairs but (the father) passed her and got her in a headlock at the top of the stairs. She described her brother, running in from the back garden to find out what was happening, and this is when (the father) let go of (the mother). CW and TL hold concerns for (the mother’s) safety and that of her unborn child.
9 July 2015 - Wesley Mission Brighter Futures Narrative-Risk Assessment, notes:
Current anxiety and depression for (the mother). (The mother) present at the hospital 30 times during her pregnancy, often due to anxiety related conditions and engaged with Perinatal psychiatry at (omitted).
TAB ICL 7: A Child Protection Report of 30 June 2015 states, inter-alia:
Domestic violence… Mother disclosed to CW on initial visit that domestic violence was originally physical and emotional, but (the father) had stopped any physical violence since this AVO was put in place. (The mother) stated that the emotional violence felt worse to her. (The mother) describes ongoing swearing from (the father) towards her calling her a “fuck wit”, “slut” et cetera.” It is noted that the mother expresses concerns about her brother using drugs. In their previous home she found a syringe and ice pipe. However brother had stated that the syringe was due to hormone injections and the pipe was a friends..
(omitted) Public Hospital Subpoena – Sleeve 8
A clinical note in relation to a medical consultation for the child on 23 December 2015 states that “the baby looks well, alert and active, smiling, no distress. The impression is one of constipation but child is clinically stable. The child appeared happy and interactive.”
(omitted) Health Centre Subpoena – Sleeve 7
TAB M7.1 - On 4 September 2015 a surgery consultation recorded by Dr P, is noted stating:
Relationship has begun to deteriorate with (father). (The father) beginning to become verbally and physically abusive towards her and also verbally abusive towards baby ... Continues regular visits from Ms O (Brighter Futures).
TAB M 7.4 - On 29 February 2016, the GP’s Surgery Consultation Notes record, inter alia, that
… [the mother] is awaiting referral to a new psychologist as Ms M ((omitted Hospital) overloaded with cases. Ms S’s organising free counselling for [the mother]. The mother is noted to be keen to do some postnatal physiotherapy which will assist with her mental health.
TAB M 7.5 - character reference from the mother’s GP, Dr P of 1 December 2015 stating, inter-alia, that
… the mother has been a regular patient in the (omitted) Health Centre over the last 12 months, and to support her application for emergency tenancy for both herself and her infant son X.
The letter notes that sadly the mother has been the victim of domestic violence and as a consequence has now become a single parent caring for a 4-month-old infant. The letter states that the mother has a lot of support services arranged for her around the (omitted) area which she attends regularly. The mother is also keen to return to her former employment with (employer omitted) when circumstances improve/the child is older.
The letter notes that the mother has always been punctual with her medical appointments and has always been polite and courteous to staff and the other allied health professionals involved in her care. The letter states that at present the mother is dealing with her current problems with an impressive sense of optimism and inner strength.
The Court notes paragraph 89 on the mother’s affidavit relating to her previous employment with (employer omitted). She states that although she had previously intended to return to work in August 2016, her GP, Dr P has recommended that they reassess this employment situation once the mother has been on her current medication for longer and following her proposed attendance with the psychiatrist Dr B.
Exhibit E: Letter dated 5 July 2016 from Ms S, Family and Community Worker, (omitted) Mission Women and Children Services; the letter states, inter alia,
I am Family and Community Worker from (omitted) Mission Women and Children Services, I facilitate the program Early Intervention Placement Program, a program that offers support, interventions with outreach case management to local families in the (omitted) area. This support is provided by home visits, referrals to appropriate services, accompanying clients to appointments and advocacy. (The mother) was referred to our service on 12 January 2016 by Brighter Futures. I began working with the family on 19 January 2016 providing support to the family, assisting (the mother) with her current post separation situation.
Throughout my time working with (the mother) I have conducted fortnightly home visits at her residence at (omitted). During my home visits I have observed that (the mother) was meeting her son’s need by providing housing that was physically safe and child appropriate, was nurturing and attentive to her son’s needs by providing physical and emotional support each time her son cried. (The mother) provided her son basic needs by providing him with food and water by hearing his cues. I observe that (the mother) was able to respond to her son’s needs immediately during a home visit, and they display a positive attachment.
[The mother] has disclosed that she has issues regarding her anxiety, and has been compliant with attending some counselling appointments with psychologist. [The mother] provided me with consent to speak with her general practitioner in order to receive a handover of her personal medical and mental health care plan to address these issues, and so they do not have much of an impact on her ability to care for her son.
[The mother] has shown that she displays protective capabilities of recognising and acknowledging problems, and feels confident accessing resources and services for the necessary support. Furthermore, (the mother) provides protective factors to her son by providing him with healthy relationships and environments including playgroups, sing and grow, and other age-appropriate groups.
From my observations [the mother] has stated on many occasions that she needs some supporting in regards to caring for her son; however from time spend with the family I have seen (the mother) attend to her son in a very capable manner as a sole parent providing for her son financially, emotionally and physically.
In the context of the mother’s assertions that she has engaged external support mechanisms and persons, the Court refers to, inter alia, paragraphs 124 to 126 of the mother’s affidavit in which the mother refers to various persons and staff from (omitted) Mission and playgroups.
The father alleges that during the relationship the mother physically assaulted him by slapping, kicking and punching and scratching his arms and chest. The mother denies these allegations, although she states that she may have scratched the father in self-defence. The father did not report these alleged assaults to the police. The Court has considered the father’s allegations against the mother of yelling and swearing at him; the mother admits to yelling at the father on occasions as she was feeling very stressed out and unsupported through her pregnancy.
The father asserts that on 19 July 2015 the mother threw and smashed food and household items in the kitchen which is not denied by the mother.
The father annexes to his affidavit filed 10 June 2016 a text message from the mother to him after 24 November 2015 (Annexure E) in which the mother stated, inter alia, that she had reached her bottom and didn’t want to live; the mother stated that the text message was sent in a time of desperation but when she was seeking the father’s help with caring for the child so that she could seek medical help as required. The mother states the father did not offer to help the mother with the children on that on this occasion.
The father refers to the mother’s weekly panic attacks, heart palpitations and hyperventilation experienced by the mother during the relationship; the mother states in her 6 July 2016 affidavit, that while she does experience panic attacks as a symptom of her anxiety, they are well managed at present with a combination of techniques learnt through her psychology lessons and medication she is now prescribed. She states that during the relationship she was expressing high levels the HCG hormone caused by her pregnancy that she was then not aware of; she also asserts that she had taken medications which caused her panic attacks to worsen.
The father alleges the mother from mid-2014 to May 2015, told him that she was hearing voices and things; the mother denies these allegations.
The father alleges that the mother’s feeding of the child did not follow Karitane’s recommendation, for example the mother introduced solid foods too early; the mother denies these assertions and states that she appropriately took the child for medical treatment in this context.
In about September 2015 the child fell off the bed. The father alleges that the mother was hesitant to have the child medically checked following this fall. The mother denies this allegation. The child was taken to a GP and then the hospital and found to be in good health. (The (omitted) Public Hospital Subpoena, Sleeve 8, clinical note entry for 15 August 2015, notes the child being presented to the hospital following a fall from a bed; the medical examination was unremarkable. The child was noted to have been breastfed normally since the fall. The child was noted to be alert, appears well with nil signs of neglect).
The father annexes to his affidavit filed 10 June 2016 certain text messages sent by the mother to him in about October and November 2015. In those messages the mother indicates, inter-alia, her difficulties in caring for the child at a time when the child had been crying for two (2) hours and in circumstances where the mother was exhausted. In one (1) message the mother indicates that she has left the child crying to sleep and requests help from the father including the father come and help her.
The mother responds to the above text messages in her affidavit and generally in relation to the difficulties she has faced caring for the child during her pregnancy and since separation by, inter-alia, explaining the assistance she sought from external persons and bodies at the time of her difficulties. She states under the heading “Engagement with the Department of Family and Community Services (FACS) and other support services” at paragraphs 64 to 73, the various steps that she has taken. She refers to her engagement with the organisation Brighter Futures during her pregnancy and following the child’s birth.
She refers to engaging with Brighter Futures voluntarily whilst noting that she was referred to Brighter Futures through (omitted) Hospital following her attendance there when presenting with anxiety and also after disclosing that she was the victim of family violence perpetrated by the father.
The mother refers to the fact that there have been times since the child was born that she has struggled to cope with the demands of solely caring for a young baby on her own. She states that during these times she has made contact with Brighter Futures, the support worker Ms S at (omitted) Mission, Dr P, GP and the early childhood nurse and has told them that she was having difficulty coping and needed assistance.
The mother acknowledges that she has made comments to support workers that have attended the home indicating that she may not be coping with the child’s care. The mother states that these comments were made in the context of being desperate for some assistance and that she would never cause harm to the child (the Court notes in this context, paragraph 66 of the mother’s affidavit). The mother states that she has appropriately sought assistance whenever she felt that she was not coping with the child and that this was provided. She states she is committed to continuing to seek support and in future to seek the support before the situation escalates to the point where she feels that she cannot cope at all. She states that she has insight into her anxiety and can identify when she needs assistance in managing this or some respite or assistance in the child’s care.
She refers to an incident in October 2015, being 2 days after the separation after an incident of family violence. She refers to shutting the child in his bedroom while he was crying as a way of trying to manage the situation before it escalated. She states that this was not the most appropriate course of action in hindsight; however at the time she felt she had no other option. She states that following her making contact with support workers to ask for assistance, FACS case workers attended the home and conducted an assessment. She was referred to attend Karitane with the child to establish his feeding and sleeping routine which she attended successfully and the child became much more settled in a routine following this. The mother states that seeing the child settled and in a routine also greatly assisted her to manage her own anxiety as her worries about the child were greatly exacerbating her stress and anxiety. She states that she was advised by FACS that they did not have further concerns in relation to the child’s safety in her care and she thereafter continued her engagement with Brighter Futures.
The mother (see paragraph 69 of her affidavit) states that in June 2016 she reached out to the child’s early childhood nurse and explained to her the difficulties that she was having with caring for the child. She states that at this time she was exhausted, under financial strain, the child and herself had both been unwell for a number of weeks and the mother felt that she had little support from family or friends. She states that she explained her feelings of stress and anxiety to the nurse and described the difficulties that she was having in providing solely for the child’s care at all times. She states that on this occasion she was venting in an effort to relieve her stress and the comments that she made were not indicative of the way that she felt about caring for the child all the time. The mother states that she does at times like any parent struggle with adjusting to the parenting of a young baby, particularly as she does suffer from anxiety. However, she states that this does not mean that she is not prepared to do everything that is necessary to provide for the child’s care and well-being and this is why she is so proactive in seeking assistance from support workers.
The mother states (paragraph 70) that on each occasion that FACS have undertaken assessments of the child’s safety in her care, the child has been deemed to be safe in her care
At the end of 2015 and early 2016 the mother states (paragraphs 71-73 of the mother’s affidavit) that she was transitioned out of the Brighter Futures program and referred to (omitted) Mission. At (omitted) Mission she is engaged with her social worker Ms S. The mother states that from about January 2016 until mid-June 2016, she met with Ms S on a regular basis and she would visit at her home weekly. Ms S would provide her with resources on the child’s development, appropriate diets, referrals to Woman’s Support Groups and from time to time helped her to assess the suitability of different day-care centres. The mother states that since moving, she has remained engaged with Ms S but it will now be scaled back to fortnightly visits.
The father states that in about mid-2015, a GP prescribed the mother medication for anxiety and depression. The mother states that she was prescribed this medication in relation to which she had adverse side-effects which caused her panic attacks to worsen.
The mother acknowledges that in 2015, when she was pregnant with the child, she spent a few days at (omitted) Public Hospital in their psychiatric facilities; see paragraph 50 of her affidavit. She had been admitted to the emergency ward of the hospital due to low blood pressure and complications with her pregnancy. She had disclosed to the midwife and ambulance officers that the father had been violent towards her and also that she was feeling very stressed in relation to this. A social worker interviewed the mother. The mother states that at this time she was at a low point and feeling exhausted and stressed from dealing with the father’s constant abuse and violence as well as worried about her pregnancy. In relation to questions asked of her by the social worker in relation to self-harm, the mother states that while she had had on occasions thoughts in these respects she stated that she would actually never do it and she just needed a break. After the admission to the psychiatric facility, the mother states that she felt refreshed and much calmer. She was discharged by Dr B, the Head on the psychiatric ward, who stated that the mother just needed to go home, to look after herself and get as much support and rest as possible.
(omitted) Counselling Subpoena – Sleeve 13 and 16
There is a letter from Dr P, GP, to a psychologist at (omitted) Psychology stating, inter alia, “essentially (the mother) is a single parent caring for a 6-month-old infant who has been the victim of domestic violence throughout her pregnancy.”
The doctor refers to a past medical history of the mother of, inter-alia, anxiety disorder, adjustment disorder with mixed anxiety and depressed mood (1 September 2015).
There are clinical notes dated 10 March 2016 relating to the psychologist’s consultation with the mother; inter-alia, the psychologist takes a history from the mother of domestic violence in her relationship with the father; it refers to continuing emotional abuse, including calling the mother a whore and accusing her of sleeping around.
The clinical notes refer to consultations with the mother also on 24 March 2016, 21 April 2016, 28 April 2016 and 5 May 2016. Inter-alia, the psychologist counsels the mother as to breathing techniques to calm down and regular exercise.
On 21 April 2016, the psychologist observes that the child appears a happy and contented child with good attachment to the mother and the child played quietly with toys on the floor during the session. At this time the mother reported she has been going to the gym and found it helpful in reducing stress levels.
On 30 May 2016, a psychologist met with the mother. The clinical notes of the session refer to the mother’s domestic violence background right through the pregnancy. The mother refers to an assault upon her when she called the police. She had bruises on her body. The mother stated that the abuse only began when she fell pregnant. The notes refer to a new appointment being made for 8 June 2016 and the fact that the mother has a social worker supporting her.
On 8 June 2016, the clinical notes state, inter alia, that the mother is very tired and had a “breakdown” and feeling like she cannot go on on her own. She expresses a wish for her mother to come and help her look after the baby. The mother refers to the fact that the baby is presently sick with the flu. The mother was counselled as to support mechanisms to help her. The counsellor observes that the baby is well looked after and looks like a happy baby. The child was not crying and explored the room. The counsellor states the mother is very stressed looking after her son. She states that the mother is trying to do the right thing and talking to the social worker and seeing her. Relaxation techniques were discussed and self-care.
In the mother’s affidavit, at paragraphs 53 to 57, she states inter alia, that following the Court appearance on 23 June 2016, she attended upon Dr P in relation to her mental health. She did this because she wanted to make sure she was doing all that she could to manage her anxiety. This doctor developed an updated Mental Health Care Plan, which included additional sessions with her psychologist and a referral for an assessment with Dr B at (omitted) Hospital. The doctor also prescribed further medication which the mother commenced taking this last week. The medication was prescribed on a trial basis to assist the mother with her anxiety, to help her sleep better and feel more relaxed. The mother states that she is willing to comply with all recommendations in relation to her anxiety and engagement with supports.
The mother refers to her engagement with the psychologists at (omitted) Counselling on a fortnightly basis, being part of her Mental Health Care Plan.
The mother states that her anxiety was significantly exacerbated by her relationship with the father and the family violence that she experienced. She states that when she has contact with the father it causes her to feel stressed, overwhelmed and anxious.
The mother states that she acknowledges that she still has a long way to go in managing her anxiety, however she is doing all that she can to achieve this through complying with her mental health care plan, arranging to be assessed by a psychiatrist and engaging with appropriate supports. She feels that on a day-to-day basis her anxiety is manageable and does not impact upon her ability to care for the child. She states that when her anxious symptoms begin to escalate she is able to identify this and seek assistance from her support network.
(omitted) Public Hospital Subpoena - Sleeve 3
The Court notes the mental health assessment of the mother of 13 February 2015, noting, inter alia, the mother’s admission for anxiety. The clinical notes refer, inter alia, to some domestic violence. They refer to the mother’s acknowledgement of intrusive thoughts of abortion and suicidal ideation “but would not act on it.” The mother states that she is looking forward to the baby and she has waited a long time. It is noted that the mother feels alone and unsupported. Discussions ensued with the mother for a plan to explore possible referral options for individual support, including relationship support, parenting and family networks. The mother is stated to be a voluntary patient.
The clinical notes on 14 February 2015 refer to the mother disclosing to nursing staff that her partner is being emotionally abusive towards her “because of the pregnancy.” The mother states she wanted to have a break from the partner.
On 26 February 2015, the mother discloses that her brother who shares the home with her and the father she suspects is using drugs. (The mother in her affidavit at paragraph 77, acknowledges that she has previously made reports to health professionals and social workers that she was concerned about her brother using the drug ice. She states that she confronted her brother about this issue and he advised her that he is not using drugs. The mother states that she made it clear to her brother that she would not condone any drug use in her home).
On 24 March 2015, the mother discloses to hospital staff that there had been recent domestic violence and stated that she had bruises under her cardigan.
On 30 June 2015, the mother states to hospital staff that she is experiencing conflict with the father and there has been a decision between them to separate. She refers to the father making derogatory comments to her. The mother is advised, inter alia, to speak with a Domestic Violence Liaison Officer. The mother states that she is due to see a woman from Brighter Futures tomorrow.
In a clinical note of 5 September 2014, the mother when giving a family history states, “can’t remember before age of 7 years”, “dad fondled me, no penetration.” (In this context, the Court notes paragraph 103 of the mother’s affidavit in which she states that she was never molested by her biological father when she was a child and she has never disclosed this to the father. However she does refer to an incident when a babysitter tried to touch her inappropriately in the bath when she was about 7 years of age which she had disclosed to the father early in the relationship).
(omitted) Medical Centre subpoena - Sleeve 5:
The clinical notes from this medical centre reveal the mother’s attendances upon doctors for treatment in relation to her anxiety condition dating from September 2014. It refers to the mother’s attendance at a hospital, the carrying out of mental health assessments, the prescription of medication. They note, for example, on 6 September 2014, the mother herself presenting to the emergency Department with increasing anxiety with the hospital discharge summary noting that the mother attends a psychologist monthly. The notes record the mother works at (employer omitted), does not drink alcohol and denies recreational drug use.
On 6 January 2015, the report of Dr P, psychiatrist addressed to the mother’s GP, reports the mother’s, inter alia, long history of trauma from domestic violence growing up in (country omitted). The report notes the mother’s refusal to take any medication “at this time and she denies any thoughts of harm to herself or others.”
The Discharge Summary of 24 January 2015 states, inter-alia, that she lives with her partner and brother; the mother states that her partner has been abusing her recently pulling her hair and throwing her on the bed.
The mother submitted that there was an unacceptable risk of harm posed to the child if the child was to spend unsupervised time with the father. In this context, the mother placed reliance upon the subpoenaed material before the Court relating to alleged family violence perpetrated by the father against the mother, material relating to the mother’s complaints of domestic violence made to her health treatment professionals and the police, the mother’s allegations of family violence made in her affidavit, including Annexure D to her affidavit being the Brighter Futures Safety Plans of 1 July 2015 and 30 June 2015. The mother submitted that the above material revealed a consistent description of the mother’s experience of domestic violence perpetrated against her by the father.
The mother referred to paragraph 15 of her affidavit stating, inter alia,
[The father] was often in an angry mood when he returned home from work and this would cause [the child] to be unsettled. [The father] would hold him while swearing and yelling loudly and (the child) would then start to cry. I would say to [the father] words to the effect of “you need to calm down, be quieter, this is stressful for him as he is so little.” When I would say words to this effect to [the father] this often caused him to be angrier and he would respond to me aggressively, including by being physically violent. I have explained this further below under the heading “Family Violence.”
The mother refers, in her affidavit, under the heading “Family Violence”, inter-alia, at paragraph 33 to the father holding the child whilst being aggressive and abusive to the mother. His yelling and swearing at the mother at this time caused the child to scream and cry. She states the father came towards the mother while still holding the child and grabbed and pulled the mother’s hair.
In paragraph 34 of the mother’s affidavit she alleges that there were a number of times that the father pushed her with force including when she was holding the child in her arms.
In paragraph 36 of her affidavit, she refers to the incident of 6 October 2015. The mother states, inter-alia, that when she went upstairs with the child and was changing his nappy the father approached her from behind and grabbed her hair and pulled her onto the floor, facedown and then further assaulted her.
The Court notes that the father seeks an interim order that the child live with him. The father submitted that he does not pose an unacceptable risk of harm to the child whether the child lives with him which is the primary interim order that he seeks, or should the child spend time with him on an unsupervised basis (in the event that the Court makes an interim order that the child remain living with the mother).
The father referred to the previous interim consent parenting orders of 23 June 2016. He referred to the Connecting Families Contact Reports which indicated positive time spent by the child and the father together. He submitted that those reports showed the child and the father in very close physical contact with each other with no problems reported. The father submitted that no supervision was necessary for the child’s protection when spending time with him.
The Court notes the father’s affidavit filed 17 November 2015, Annexure C, being a copy of the Apprehended Violence Order relating to the incident of 6 October 2015, which states, inter-alia, that the police discontinued the arrest of the father, that the police have the opinion that the victim being the mother, instigated the incident and they were unable to determine which party initiated the assault.
The Court notes the father’s further affidavit filed 10 June 2016 in which he alleges that the mother perpetrated family violence against him during the relationship being allegations significantly denied by the mother.
The father referred to the subpoenaed records from the NSW Police Force, sleeve 9, which contained an entry for the incident of 6 October 2015 and which confirmed the contents of Annexure C to his affidavit filed 17 November 2015 referred to above.
The father submitted that the NSW Police Force subpoenaed records indicate that the mother’s assertions of being assaulted by the father are without substance.
In TAB F9 of the NSW Police Force subpoenaed material Sleeve 9, the father referred to the incident reported to police of 25 April 2015 at a time when the mother was 28 weeks pregnant. Inter-alia, the incident report states that the father claimed to the police that he had grabbed the mother on various parts of her arms; however he claimed that this was in self-defence. The police noted that the mother refused to provide the police with a statement in regards to the matter and openly stated that she did not hold any fears. The police noted there were conflicting versions. The report stated that the father was open and honest in his account of what occurred and the bruising to the mother was consistent with his story. The report noted that the mother had an inconsistent story and had made several claims which turned out to be false. One such claim was that she was seriously assaulted by a former partner who spent time in prison.
In the mother’s affidavit under the heading “Drug and Alcohol Issues”, she alleges that the father told her when she first met him that he used to be a drug dealer and smoke ice. She alleges that when the parties were first in a relationship, the father worked out in the home gym on a regular basis and took the steroid which he called “Clen”. The mother states that she observed the father to be very angry and aggressive when taking this steroid which the mother understood was Clenbuterol. The mother states that shortly after the child’s birth the father told her that he wanted to get back into the gym and do another cycle of “Clen”. The mother states that she responded by telling the father that she could not raise the child around him as he was too angry when he was on steroids. The father, for his part, denies these allegations.
The Court notes the father has tendered an affidavit from the paternal grandmother, in which she states her willingness to assist the father in caring for the child whilst the father is at work. The Court has considered the potential role of the paternal grandmother in this context, including her possible role in providing a supervisory presence if the child was spending time with the father other than through Connecting Families.
In considering these matters, the Court notes the mother’s affidavit evidence at paragraphs 94 to 97 relating to her concerns about the paternal family relating, inter alia, to the paternal grandmother and her family having come to the attention of FACS during the years 1988 to 1994. The mother refers to the subpoenaed material in FACS, sleeve 1, TAB M1.2 and M1, referring, inter alia, to allegations of inadequate supervision and neglect including corporal punishment on the part of the paternal grandmother during that period. The Court notes that the paternal grandmother addresses these matters in her affidavit by stating, inter alia, that she had in the past physically corrected her children but she understands that physical correction is not an appropriate form of discipline and does not use such physical correction any longer. The mother submitted that the subpoenaed material from FACS raised serious concerns in relation to the parenting capabilities of the paternal grandmother.
In view of the Court at this interim stage there is no unacceptable risk of harm posed the child should the child remain living with the mother, provided the proposed additional orders sought by the Independent Children’s Lawyer are made by the Court. (In this context, the Court has considered carefully the submissions and material relied upon by the father discussed above in support of his contention that such a risk of harm is posed to the child should the child remain living with the mother).
The Court is comfortably satisfied at this interim stage that whilst the mother has had serious difficulties at times in coping with her care of the child in the context, in particular, of her pre-existing and continuing anxiety condition, she has possessing appropriate insight into her own difficulties and needs in relation to caring for the child (in this context the Court notes, for example, paragraphs 57 and 66 of the mother’s affidavit), sought external assistance (and continues so to do) through, inter-alia, health treatment professionals, hospital admissions, Brighter Futures and has readily taken up referrals to and sought treatment and/or assistance from early childhood nurses and treating psychologists. She has been assessed by officers from FACS and their reports have been previously discussed. The evidence before the Court indicates that the child remains well. The mother has sought to establish appropriate support networks to assist her in her care of the child including prospective support in times of difficulty. The Court notes the child continues to be breastfed by the mother in the evening.
The mother submits in the event that the child remains living in her primary care at this interim stage that the Court acting cautiously, would be concerned to make an interim order that the child spend unsupervised time with the father. The Court notes the competing allegations of family violence between the parties at this interim hearing. The mother, inter alia, submits that there is ample material before the Court to indicate that the father has perpetrated family violence towards the mother, including in the presence of the child. The father disputes these allegations and indeed submits that it was the mother who instigated relevant family violence against him. Nevertheless, the Court is bound to consider the competing allegations and cannot ignore them.
By reference to the material discussed above relating to the alleged family violence perpetrated by the father against the mother, occasionally in the presence of the child, the mother’s allegations that the father both before and after the birth of the child ingested steroids causing anger and aggression, such allegations being disputed by the father and noting the mother’s primary care of the child since his birth and the father’s limited care of the child post separation (but noting the fathers positive time spent with the child through Connecting Families, albeit exercised only from the period from 23 June 2016 to date), the Court is of the view, acting cautiously, that there is an unacceptable risk of harm posed to the child in spending unsupervised time with the father on an interim basis.
In this context, the Court has considered whether the paternal grandmother could provide a supervisory presence so that the child could spend time with the father other than through Connecting Families. However, the Court notes the mother’s affidavit evidence at paragraphs 94 to 97, including the FACS subpoenaed material relating to the paternal grandmother’s previous care of her own family whilst noting the antiquity of the material which the Court acknowledges has been sought to be addressed by the father through the affidavit from the paternal grandmother. However the Court is unable to resolve this contested issue relating to the paternal grandmother at this interim hearing. The Court at this interim stage acting cautiously and in the above circumstances, is unable to be satisfied that the paternal grandmother could provide an appropriate supervisory presence when the child was spending time with the father.
However, as raised with the parties and Independent Children’s Lawyer at the interim hearing, the Court is of the view that any interim order that the child spend supervised time with the father continuing through Connecting Families, should be reviewed by the Court in December 2016, in particular after the father has participated in an anger management course and complied with urine analysis drug screening testing.
The Court gives significant weight to this “need to protect” primary consideration.
Section 60CC(3) - Additional Considerations
(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
Not applicable.
(b) - The nature of the relationship of the child with each of the child’s parents; and other persons (including any grandparent or other relative of the child)
The Court refers to the meaningful relationship primary consideration discussion above.
(c) - The extent to which each of the child’s parents has taken or failed to take the opportunity; to participate in making decisions about major long-term issues in relation to the child; and to spend time with the child; and to communicate with the child
Both parents appear to have taken such opportunities although there is disputation between the parties as to the father’s visitation of the child post separation at certain times.
(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
Both parents would appear to have fulfilled such obligations.
(d) - The likely effect of any changes in the child’s circumstances, including the likely effect on the child of any separation from either of his or her parents; or any other child, or other person (including any grandparent or other relative of the child), with whom he or she has been living
The Court refers to its discussions above under the meaningful relationship primary consideration. The court is of the view that should the child go to (country omitted) with the mother for 3 weeks in December 2016 or January 2017 that the child’s meaningful relationship with the father should not be detrimentally affected. In this context the court is comfortably satisfied that the mother, if permitted to travel to (country omitted) with the child for three weeks, either in December 2016 or January 2017, will return to Australia with the child noting, inter alia, her significant ties to Australia, the length of time previously spent in Australia, her employment, her permanent residency status within Australia, her legitimate reasons to want to travel to (country omitted) for this period as outlined in her affidavit, and the fact that (country omitted) is a party to the Hague Convention.
(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
Not applicable.
3(f) - The capacity of each of the child’s parents; and 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
Both parties would appear to have such capacities however, the Court refers to its discussions above under the “need to protect” primary consideration.
(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
The Court refers to its discussions above under the “need to protect” primary consideration.
(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.
Not applicable.
(i) - The attitude to the child, and to the responsibilities of parenthood, demonstrated by each of the child's parents
The Court refers to its discussions above under the “need to protect” primary consideration.
(j) - Any family violence involving the child or a member of the child's family.
The Court refers to its discussions above under the “need to protect” primary consideration.
(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: the nature of the order; the circumstances in which the order was made; any findings made by the court in, or in proceedings for, the order; any other relevant matter.
A provisional AVO was made against the father on about 25 April 2015 following an altercation between the parties. The father states the AVO had standard conditions. The father asserts that the mother was violent and abusive to him after which he grabbed her wrists.
On 6 October 2015 another altercation occurred. The mother alleges that whilst at home, the father grabbed the back of her hair, pushed her head towards the floor while still holding her hair and he did this in and up and down motion. The father then allegedly pulled the mother’s hair and dragged her towards the hallway. The father told the police he grabbed the mother’s hair in self-defence. The police were unable to determine which party initiated the alleged assault. To prevent further altercations between the parties, the police chose to vary the current AVO and excluded the father from the home.
On 24 November 2015, the father asserts the Local Court at Parramatta revoked the AVO Additional Conditions of not approaching the mother within 100 metres at the mother’s request; the mother states in this context that she wanted the child and the father to have a close bond.
(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.
At this interim hearing it is not possible to meaningfully consider this additional consideration.
m) -Any other fact or circumstance that the court thinks is relevant
The mother and the ICL seek interim orders, inter-alia, in relation to the father being restrained from consuming any illegal substance to excess when the child is in his care and that he submit to supervised urine analysis drug screening testing at his own cost not less than once in each calendar month and with each consecutive test to be no less than 21 days apart. In this context, the Court refers to the mother’s affidavit evidence under the heading “Drug and Alcohol Issues” including her reference to the father’s alleged previous smoking of the illicit drug ice and his ingestion of steroids. It is noted that the father denies these allegations. Nevertheless, this Court at this interim stage acting cautiously is of the view that the above proposed restraining order (which the Court would also include the consumption of steroids) and urine analysis drug screening testing in respect to the father will be, indirectly, in the best interests of the child.
Equal Shared Parental Responsibility: ss. 61DA(1) and (2)
Neither party sought a specific parental responsibility interim order. In any event noting the presumption of equal shared parental responsibility (which the Court at this interim hearing would not seek to displace by reason of, inter alia, the significant disputation between the parties), the Court is of the view that an equal time shared care arrangement would not be in the best interests of the child by reason of, inter alia, there being an unacceptable risk to the child in spending unsupervised time with the father. The continuation of the mother breastfeeding the child at night also poses an impediment in this context, including a practicability impediment. Similarly, an interim order for substantial and significant time would not be in the best interest of the child nor reasonably practicable.
Summary
Evaluating the above discussed considerations under section 60CC of the Act, the Court is of the view at this interim stage that it would be in the best interests of the child to make interim orders as follows:
a)that the child live the mother.
b)that order 3 of the Orders made by consent on 23 June 2016 shall continue up and until 8 December 2016, subject to a time variation, namely the child shall spend such supervised time with the father from 4:00pm to 6:00pm each Monday. Order 3, as varied above, shall be reviewed on 8 December 2016 (it is noted that by this time the father should have completed an anger management course and complied with urine analysis drug screening testing). The Court notes the parties’ agreement that the father will feed the child his evening meal during the course of the child’s supervised time with him.
c)The mother be authorised to travel to (country omitted) with the child for the following period:
i)From 20 December 2016 until 10 January 2017; and
ii)In the alternative, the mother be authorised to travel to (country omitted) with the child from 1 January 2017 until 21 January 2017.
d)The name of the child X born (omitted) 2015 (male) (“the child”) shall be removed from the Airport Watch List also known as the Pace Alert System for the period from 20 December 2016 to 21 January 2017 (inclusive) and thereafter the name of the child shall be reinstated on the Airport Watch List pending further order.
e)The father shall forthwith and by no later than close of business on 20 September 2016, cause the child’s passport to be delivered to the mother’s solicitor.
f)The mother provide to the father a full itinerary relating to the overseas travel proposed by her including details of air travel, destination and accommodation and contact details for the mother and the child as soon as practicable before departure and in any event not less than 14 days before departure.
g)In the event of the child suffering a medical emergency requiring medical attention while spending time with or living with either parent:
i)The other parent is to be notified as soon as practicable;
ii)That the other parent is to be provided with the full details of the practitioner or medical facility upon which the child attends as soon as practicable; and
iii)That the medical practitioner or medical facility be advised that the other parent has access to the child’s medical records and the information obtained with them upon request.
h)The parties shall not denigrate the other party in the presence or hearing of the child and each party shall ensure that no third party denigrates the other party in the presence or hearing of the child.
i)The father be restrained by injunction from consuming any illegal substance including steroids to excess when the child is in his care and for 24 hours prior to the child coming into his care.
j)The mother shall, within 7 days enrol in and subsequently complete in accordance with the course provider’s requirements, the “Parenting after Separation” course facilitated by Relationships Australia or such other parenting course as may be recommended by Relationships Australia whether facilitated by Relationships Australia or another service.
k)That the mother shall, within 7 days of enrolment in such parenting course as proposed above, cause enrolment confirmation to be provided to the father’s solicitor and the Independent Children’s Lawyer.
l)The mother shall, within 7 days of being provided with a completion certificate for such parenting course as proposed above, forward it to the father’s solicitor and the Independent Children’s Lawyer.
m)The father shall, within 7 days enrol in and subsequently shall complete in accordance with the course provider’s requirements, the “Taking Responsibility” course facilitated by Relationships Australia or such other anger management course as may be recommended by Relationships Australia whether facilitated by Relationships Australia or another service.
n)The father shall, within 7 days of enrolment in such anger management course as proposed above cause enrolment confirmation to be provided to the mother’s solicitor and the Independent Children’s Lawyer.
o)The father shall, within 7 days of being provided with a completion certificate for such anger management course as proposed above forward it to the mother’s solicitor and the Independent Children’s Lawyer.
p)The father shall submit to supervised urinalysis drug screening at his own cost not less than once each calendar month and with each consecutive test to be no less than 21 days apart as follows:
i)Such test to be a chain of custody urinalysis conducted in accordance with the Australian/New Zealand Standard 4308:2008: procedure for the collection, detection and quantitation of drugs of abuse in urine.
ii)Such test to be undertaken within 48 hours of the mother’s solicitor providing the father a written request to undertake the test.
iii)The father is to cause results of such test to be provided to the mother’s solicitor within 24 hours of receipt by the father.
iv)In the event of the production of a drug screening report that requires further testing then the father shall sign all documents and do all things to ensure that this sample is further tested and a copy of that result is provided to the mother’s solicitor within 24 hours of receipt by the father.
q)The mother be restrained from allowing the child to be alone in the presence of the maternal grandfather (this order was agreed to by the mother).
r)the mother remain engaged with the (omitted) Mission or similar referred service including that she allow home visits and consult with that service’s psychologist or healthcare professional as directed (this order was also agreed to by the mother).
I certify that the preceding one hundred and forty-two (142) paragraphs are a true copy of the reasons for judgment of Judge Newbrun
Date: 12 September 2016
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Civil Procedure
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Negligence & Tort
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