DEMPSTER & SHIPTON

[2017] FCCA 2002

FEDERAL CIRCUIT COURT OF AUSTRALIA

DEMPSTER & SHIPTON [2017] FCCA 2002

Catchwords:
FAMILY LAW – Interim Parenting – recovery application – young child – both parents engaged in family violence – both parents alleged to be using illicit substances – risk of harm assessment.

Legislation:

Family Law Act 1975, ss.60B, 60CA, 60CC, 60CG, 61C, 61DA, 65DAA

Cases cited:

Goode v Goode (2007) 36 FamLR 422
Keats & Keats [2016] FamCAFC 156
Mazorski & Albright [2007] FamCA 520
MRR & GR [2010] HCA 4
Salah & Salah [2016] FamCAFC 100

Slater & Light [2011] FamCAFC 1

Applicant: MS DEMPSTER

Respondent: MR SHIPTON

File Number: SYC 8669 of 2016

Judgment of: Judge Obradovic

Hearing date: 1 June 2017

Date of Last Submission: 1 June 2017

Delivered at: Parramatta

Delivered on: 23 August 2017

REPRESENTATION

Appearing for the Applicant: Ms Neuhaus

Solicitors for the Applicant: Mahony Family Lawyers

Counsel for the Respondent: Ms Falloon

Solicitors for the Respondent: Tully & Chipper Lawyers

Appearing for the Independent Children's Lawyer: Ms Carroll

Solicitors for the Independent Children's Lawyer: Crawford Ryan Lawyers

ORDERS PENDING FURTHER ORDER:

1. That the father shall return the child X born (omitted) 2013 to the mother by 6pm on 23 August 2017.

2. That all previous parenting orders are discharged.

3. That order (2) above be stayed for a period of 28 days.

4. That the mother shall have sole parental responsibility for the child X born (omitted) 2013.

5. That the child shall live with the mother.

6. That the child shall spend time with the father as follows:

   (a)Commencing on Friday 22 September 2017 and each alternate weekend thereafter, from 3pm Friday to 9am Monday; and

   (b)Commencing on Thursday 28 September 2017 and each alternate week thereafter, from 3pm Thursday to 9am Friday.

7. That the child shall communicate with the father via “Hangout” or other appropriate application or means of communication each Tuesday at 6.30pm and the mother shall facilitate such communication.

8. That each of the parents is restrained by injunction from:

   (a)Changing the child’s enrolment or attendance pattern at (omitted) Early Centre in (omitted);

   (b)Denigrating the other parent in the presence or hearing of the child or permitting any third party to do so;

   (c)Consuming any alcohol while the child is in his or her respective care and for 12 hours prior to the child coming into his or her respective care; and

   (d)Consuming or using any illicit substance while the child is in his or her respective care and for 24 hours prior to the child coming into his or her respective care.

9. From the date of these orders:

   (a)At the request of the Independent Children’s Lawyer the mother and father shall submit to urine analysis within 48 hours of receiving notice of such request.

   (b)Such request shall be made no more than once every six weeks.

   (c)Such urine analysis is conducted by way of chain of custody and in accordance with the Australian New Zealand Standard 4308 2008: Procedure for the collection, detection and quantification of drugs of abuse in urine.

   (d)Each party do all things necessary to authorise the lab that carries out the testing to immediately provide to the other parties’ solicitor and the Independent Children’s Lawyer a copy of the drug screening report.

10. Pursuant to s.91B of the Family Law Act 1975, the Department of Family and Community Service NSW is requested to intervene in these proceedings and with respect to same:

    (a)Leave is granted to Departmental Officers to inspect the Court file and any subpoenaed material produced to the Court and for which leave to inspect has been grant to the parties, their legal representatives and/or the Independent Children’s Lawyer;

    (b)The Department is requested to advise, in writing and within 14 days, whether they intend to intervene in these proceedings and in the event the Department indicates a desire to intervene orders shall, upon such intention being advised to the Court, be made in chambers:

    (i)Formally granting such leave and joining the Department as a party;

    (ii)Granting photocopy access to the Department to copy such material as the Department desires and at the Court’s expense from the Court file and any subpoenaed material;

    (iii)Relisting the proceedings on short notice to allow further case management directions to be made.

    (c)IT IS NOTED that the Child X born (omitted) 2013 lives with the mother in accordance with these Orders at (omitted), New South Wales.

11. Matter to be listed on a date to be advised upon the release of the Single Expert’s Report.

12. The parties are granted liberty to have the matter restored on 7 days’ notice.

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

FEDERAL CIRCUIT COURT
OF AUSTRALIA
AT PARRAMATTA

SYC 8669 of 2016

MS DEMPSTER

Applicant

And

MR SHIPTON

Respondent

REASONS FOR JUDGMENT

Introduction

1. These are the Reasons for Judgment in relation to interim parenting proceedings concerning the child, X born (omitted) 2013, presently aged three years. 

2. The parties to the proceedings are the Applicant mother Ms Dempster and the Respondent father Mr Shipton.

3. The proceedings were commenced by way of Initiating Application filed on 30 December 2016 which sought an urgent recovery order for the child.

4. On 6 January 2017 Judge Altobelli made orders by consent inter alia that:

   a)The child be returned to the mother;

   b)The child live with the mother;

   c)The child spend time with the father each Tuesday from 3pm to 6.30pm and each Sunday from 10am to 3.30pm;

   d)That changeover be facilitated by the maternal grandfather or maternal uncle;

   e)That the child communicate with the father via the “Hangout” application each Thursday at 6.30pm;

   f)Both parties to submit to random chain of custody urinalysis within 48 hours of a request;

   g)That an Independent Children’s Lawyer be appointed; and

   h)That the matter be transferred to the Parramatta Registry of the Federal Circuit Court.

5. The father filed an Application in a Case on 13 April 2017 seeking that:

   a)The orders made by consent on 6 January 2017 be suspended;

   b)The child live with the father and spend time with the mother each Sunday from 10am to 3.30pm, such time to be supervised by the maternal grandfather;

   c)The child communicate with the mother via the “Hangout” application each Tuesday and Thursday at 6.30pm; and

   d)The mother be restrained from contacting the father by any means other than via the “Hangout” application.

   That Application in a Case was made returnable on 1 June 2017, when the substantive proceedings were already listed before the Court.

6. On 24 April 2017 the mother filed an Application in a Case seeking a further recovery order for the child as the father had retained the child on 4 April 2017, such time being in accordance with the consent orders made on 6 January 2017. That Application in a Case also being made returnable on 1 June 2017.

7. On 1 June 2017 the Court heard the Application in a Case filed by the father on 13 April 2017 and the Application in a Case filed by the mother on 24 April 2017. These are the Reasons for Judgment in relation to those Applications.

Documents relied upon

1. The mother relied upon the following documents:

   a)Application in a Case filed 24 April 2017;

   b)Response to Application in a Case filed 26 April 2017;

   c)Notice of Risk filed 24 April 2017;

   d)Affidavit of Ms Dempster filed 30 December 2016;

   e)Affidavit of Ms Dempster filed 24 April 2017; and

   f)Affidavit of Ms Dempster filed 31 May 2017.

2. The father relied upon the following documents:

   a)Application in a Case filed 13 April 2017;

   b)Affidavit of Mr Shipton filed 13 April 2017;

   c)Affidavit of Mr Shipton filed 1 June 2017;

   d)Affidavit of Mr Shipton filed 6 January 2017.

3. The following documents became Exhibit’s in the proceedings:

   a)Exhibit 1 – Documents produced under Subpoena by the Department of Family and Community Services, Sleeve 2, being tags ‘ICL 2’, ‘ICL 6’, ‘ICL 16’, ‘ICL 20’, ‘M2.1’, ‘M2.3’, ‘M2.4’, ‘M2.5’ and ‘M2.6’;

   b)Exhibit 2 – Documents produced under Subpoena by New South Wales Police, Sleeve 3, being tags ‘ICL 1’, ‘ICL 2’, ‘ICL 3’, ‘ICL 4’, ‘ICL 5’, ‘ICL 6’, ‘M3.1’ to ‘M3.6’; 

   c)Exhibit 3 – Documents produced under Subpoena by New South Wales Police, Sleeve 12, being tags ‘ICL 2’ and ‘ICL 3’;

   d)Exhibit 4 – Documents produced under Subpoena by (omitted) Hospital, Sleeve 1, being tags ‘ICL 1’, ‘ICL 5’, ‘ICL 16’, ‘M1.1’, ‘M1.3’ and ‘M1.4’;

   e)Exhibit 5 – Documents produced under Subpoena by (omitted) Hospital, Sleeve 13, being tags ‘ICL 1’, ‘F7’, and ‘F8’;

   f)Exhibit 6 – Documents produced under Subpoena by New South Wales Police, Sleeve 4, being tag ‘M.1’;

   g)Exhibit 7 – Documents produced under Subpoena by (omitted) Hospital, Sleeve 5, being tags ‘M5.1’ and ‘M5.2’;

   h)Exhibit 8 – Documents produced under Subpoena by Brighter Futures, Sleeve 7, being tags ‘M7.1’ to ‘M7.10’; and

   i)Exhibit 9 - Documents produced under Subpoena by Dr B, Sleeve 9, being tags ‘M9.2’ – ‘M9.6’, ‘F5’ and ‘F6’

Competing Proposals

1. The mother seeks a recovery order for the child and that the child live with her and spend time with the father in accordance with the orders made by Judge Altobelli on 6 January 2017.

2. The father seeks that the child live with him and spend time with the mother, supervised by the maternal grandfather each Sunday from 10am to 3.30pm.

The Law

1. The central enquiry is for the Court to determine the outcome that will be best for the child the subject of these proceedings.

2. Parenting proceedings are governed by the provisions of Part VII of the Family Law Act 1975. Section 60CA provides that in deciding whether to make a particular parenting order, the Court is to regard the best interests of the child as the paramount consideration.

3. Section 60B of the Act outlines the objects and principles underlying Part VII of the Act.

4. In determining what is in a child’s best interests, the Court must consider the matters set out in s60CC. Section 60CC outlines the primary and additional considerations that the Court is to take into account in determining what is in the best interests of the child.

5. The Act does not mandate the discussion of considerations under s60CC in any particular order, and it is well recognised that additional considerations may outweigh primary considerations.[1]

   [1] see for example Slater & Light [2011] FamCAFC 1at [45]

6. In applying the primary considerations the Court must give greater weight to the need to protect the child from physical or psychological harm, from being subjected to, or exposed to, abuse, neglect or family violence than to the benefit to the child of having a meaningful relationship with both of the parents.

7. It has been held that a meaningful relationship “is one which is important, significant and valuable to the child.”[2] The focus is not on the relationship as such, but on the benefit the relationship might have for the child.[3]

   [2] Mazorski & Albright[2007] FamCA 520 at [26], cited with approval by the Full Court in

   [3] Ibid at [122]

8. In addition, in considering what order to make, the Court must, to the extent that it is possible to do so consistently with the child’s best interest being the paramount consideration, ensure that the order does not expose a person to an unacceptable risk of family violence.[4] The Court may include[5] in the order any safeguards that it considers necessary for the safety of those affected by the order.

   [4] S.60CG(1)(b); see the brief discussion of s60CG in Salah & Salah [2016] FamCAFC 100 at [35]

   [5] See s60CG(2), such safeguards are for the purposes of sub-paragraph (1)(b)

9. Section 61DA of the Act provides that when making a parenting order, 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. The presumption does not apply where there are reasonable grounds to believe a parent has engaged in abuse of the child or family violence and the presumption may be rebutted if the Court is satisfied that an order for equal shared parental responsibility would not be in the child’s best interests. In interim proceedings, the presumption applies unless the Court considers that it would not be appropriate in the circumstances for the presumption to be applied when making an interim order.[6]

   [6] s61DA(3)

10. In the event that the Court orders the parents to have equal shared parental responsibility, the Court must apply the provisions of section 65DAA which provides for a consideration of the child spending equal time with the parents. If the Court finds that it is not in the child’s best interests and reasonably practicable, then the Court must consider the child spending substantial and significant time with the parents. Section 65DAA is expressed in imperative terms.[7]

    [7] MRR v GR [2010] HCA 4 at [15]

11. The Full Court in Goode v Goode[8] mandated that this legislative approach must be followed in all parenting cases, and in particular set out the procedural steps to be followed on an interim application, noting that in interim proceedings there may be little uncontested evidence to enable more than a limited consideration of these matters to take place.

    [8] (2007) 36 Fam LR 422, (2006) FLC 93-286

12. As stated by the Full Court in Keats & Keats, in respect of the conduct of interim proceedings:[9]

    …the principles that emerge from cases such as SS v AH [2010] FamCAFC 13, [are] namely, that apart from relying upon the uncontroversial or agreed facts, a judge may 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.

    [9] [2016] FamCAFC 156 at [9]

13. The mother has standing to bring a recovery application. In proceedings for a recovery order, the Court may, subject to section 67V, make such recovery order as it thinks proper.  In deciding whether to make a recovery order in relation to a child, the Court must regard the best interests of the child as the paramount consideration.

Issues in Dispute

1. The central issue for determination is which parent the child should live with on an interim basis and the assessment of risk based on each of the parties’ cases. This is a case where the primary considerations, namely the need to protect the child from harm, is at the forefront of the Court’s deliberations.

Uncontested Relevant facts

1. The father was born on (omitted) 1969 and is currently aged 47 years.

2. The mother was born on (omitted) 1982 and is currently aged 35 years.

3. The parties met in (omitted) 2012 and commenced a relationship shortly thereafter. They commenced cohabitation in 2013.

4. The subject child of the relationship X was born on (omitted) 2013 and is currently aged 3 years.

5. The parties separated on a final basis in July 2015.

6. The mother currently lives in private rental accommodation and the father lives in a home owned by him.

Other Relevant Evidence

Evidence in the mother’s case

1. The mother describes numerous incidents where the father has allegedly perpetrated family violence against her and the child including physical assaults, verbal abuse and coercive and controlling behaviour. Such violence the mother says commenced prior to the birth of the child.

2. She says that the father would punch her, spit on her, slap her to the side of the head and call her names such as “dog”, “cunt” and “junkie”.

3. The mother describes injuries found on the child whilst he has been in the father’s care including what appeared to be “knuckle marks” on his back, a cigarette burn to his right palm and blisters to the child’s hand allegedly from the father putting the child’s hand in a “hot pie” as discipline in mid-2014 when the child was approximately six months old.

4. The mother says that the father has made numerous threats to harm the child during their relationship and post separation saying words such as “If you keep taking drugs I will hurt X”.

5. The mother says that the father has physically assaulted the mother on numerous occasions whilst the child has been in the mother’s arms. On one occasion in late 2014 the father punched the mother in the nose making her drop the child. Following this incident the mother attended (omitted) Hospital where it was confirmed that the mother had sustained “multiple fractures” to her nose.

6. In late 2015 early 2016 the mother and father were having an argument, again whilst the mother was holding the child, when the father allegedly forcefully shut a door on the mother and child resulting in injuries to the child’s face. The mother attended (omitted) Police Station to report the incident. The father denies that the injuries to the child’s face were caused in this way saying that the child had fallen off the porch whilst playing with a car seat which was on the edge of the porch landing on the concrete path.  

7. On 23 June 2016 the parties again became embroiled in a verbal and physical argument in the presence of the child. The mother says that she became fearful that the father would hurt her so she grabbed her keys from her pocket and began punching the father “all over his body”. The father denies this is how the incident unfolded and that the mother began punching the father when he arrived home from work. The father says that he feared for his safety and jumped from the window and attended the Police Station.

8. The police attended the home and escorted the mother and child to the Police Station where the mother was charged with assault for which she received a 12 month good behaviour bond and an Apprehended Domestic Violence Order against the mother for the protection of the father for a period of 12 months.

9. Despite the above incident, on 3 December 2016 the parties were again in each other’s company when an argument erupted. The argument became physical with the father allegedly kicking the mother in the crotch causing her to wet her pants and then further hitting her on the head with a glass beer bottle. Again all this while the child was being held by the mother. The mother and child, according to the mother, fell to the ground where the child hit his head. The mother got up and began walking away with the child when the father followed and further punched the mother in the left eye. Three bystanders came to the aid of the mother which allowed the mother to contact police to report the assault.

10. Following the above incident the police attained a provisional Apprehended Domestic Violence Order for the protection of the mother and the child. The mother also attended (omitted) Hospital to be examined in relation to the injuries sustained during this altercation.

11. The mother asserts that the father is a daily user of the drug ‘ice’ and admits that she has used the drug in the past. She asserts that the father also uses cocaine and ecstasy on a regular basis. She says that she has not used any illicit substances since October 2016.

12. The mother had been working with Brighter Futures since December 2015 to December 2016 to improve her parenting of the child.

13. Since the interim orders were made by Judge Altobelli on 6 January 2017 the father had been spending time with the child in accordance with those orders. He had also spent additional time with the child following the production by him of a clean urinalysis test including some overnight time.

14. The mother says that the father on some of these occasions refused to return the child in accordance with the orders and that he has retained the child in his care since 8 April 2017.

1. On that day, the mother attended the father’s residence to pick up the child an hour earlier than the Orders of 6 January 2017 provided for. The mother says that only a few days prior, on 4 April 2017, the father did not return the child to the mother in accordance with the orders but rather returned the child the following day. The mother believes that the father was trying his best to make the mother late for court, when she was due to attend as the person in need of protection on the police application for an apprehended violence order against the father.

2. On 8 April 2017, the mother says that she was concerned that the father would try to keep the child from her again, and so when she attended his home she kept knocking on the door and also kicked the door. She then called the police and when they told her there was nothing they could do, she “became angry and threw an ashtray at the door”. She then left and as she was leaving, her car collided with the father’s parked car. She says she “nudged” his car and that it was not intentional. Approximately an hour later, at the time provided for in the orders, the mother returned to collect the child. She again knocked on the door but the father did not answer. She again called the police. The mother says that she then began panicked “and picked up a pole from the front porch and started banging the door, yelling ‘give me my son.’”. The Police arrived a short time later and the mother was ultimately arrested and charged with malicious damage and breach of apprehended violence order. The mother pleaded guilty to malicious damage, but not guilty to intimidation on breach of the AVO.

Evidence in the father’s case

1. The father denies all allegations of physical and verbal violence by him towards the mother. He admits that both parties used derogatory words towards each other. He also denies that he was controlling and coercive.

2. The father denies having ever made a threat to hurt the child and denies having physically assaulting the child in any way.

3. The father says that the mother was the instigator of all violence that occurred between the parties and that he was the victim of several physical attacks.

4. The father says that during the parties’ relationship he witnessed the mother’s mood change from “extreme niceness to hysterical screaming to violent outbursts” and describes the mother as suffering from untreated bi-polar.

5. The father describes an incident in 2014 when the parties were on holiday when the mother began punching the father whilst she was holding the child.

6. The father does not recall the child ever sustaining a cigarette burn to his hand and denies burning the child’s hand with a “hot pie”. He says that the child did burn his hand at dinner whilst eating a pie but that the father did not cause this injury to the child and that it did not require medical treatment.

7. The father admits that he punched the mother during an argument in April 2015 as self-defence and as a means to stop the mother from hitting him.

8. In July 2015 the father describes an incident between the parties where the mother grabbed a “sharp meat cutting knife with a 20cm blade” and attempted to slash the father across the face. The father put his hand up to protect his face and the knife slashed his ring finger. The injury caused to the father’s finger required surgery to repair the tendons.

9. The father denies the allegations made by the mother in relation to the incident on 3 December 2016. The father says that the mother instigated the argument by punching the father to the face after an argument about taking the child to the park. The father says that he walked away and that the mother followed him, grabbed him by the shirt and began punching him in the face. The father says it was at this point that he punched the mother in the face and that he believes he sustained a broken nose following the mother’s punches.

10. The father says that he is vigoursly defending the charges which were laid against him following this assault which were due to be heard on 26 July 2017.

11. The father denies that he is a daily user of the drug ‘ice’ but admits to using the drug in the past. He also admits to using cocaine in the past as often as weekly as well as using ecstasy. The father says that he has not used any illicit substances since around May 2016.  

12. The father holds concerns for the mothers escalating violence, alleged untreated mental health issues and lack of stable accommodation and that if the child is returned to the mother’s care the relationship between the father and the child will be negatively impacted.

13. The father’s account of what occurred on 8 April 2017 is similar to the mother’s account. The father however, says that the mother caused additional damage to his property. He also says that the child was crying and looking petrified when the mother was banging loudly on the front door and screaming. The father says he saw the mother drive off at high speed after she hit his car. The father says that the CCTV footage which was taken on the day shows the mother kicking his front door and of her car colliding with the father’s. It is also said to show the mother using a steel bar to smash his front door and a glass table on the front veranda. The CCTV footage is not in evidence.    

Section 60CC(3) Considerations 

1. The child was three and a half years of age at the time of the interim hearing.

2. The father gives evidence that the child is frightened of the mother, and that he does not want to see the mother.

3. Prior to April 2017, the child had been in the mother’s primary care and particularly since separation, had spent sporadic time with the father. The parties give differing evidence as to what time the child spent with the father post separation.

4. The child has been living with the father since 8 April 2017, at the time of the publication of this judgment a period of close to five and a half months.

5. No urgent applications have been made to the Court during the period of time the decision has been reserved.

6. There is no practical difficulty with the child spending time with the parent with whom he does not live.

7. The notes produced under subpoena from the Department of Family and Community Services for 5 January 2017 record as follows:

   The state of Mum’s house was concerning although liveable, it was just a mess. Kids stuff everywhere. Hasn’t had X for a few days. Looked like recent drug use on inside of her arms…

   We went to check on X’s welfare, He’s with dad and new partner… let us in to look through and the home was very clean and tidy. Much better house than X’s mother’s… X looked great, happy, giggling, and comfortable with dad, hid into dad, waving and laughing, he sought dad out. Couldn’t see any issues….

8. Each of the parents has had difficulties in looking after the child, and the mother has had extensive involvement with Brighter Futures. There have been multiple risk of harm reports to the Department of Family and Community Services in respect of the child.

9. There are numerous allegations of family violence made by both the mother and the father. Those allegations are to a large extent answered by the other party in his/her evidence and it is clear that many of the facts are in dispute.

10. Before the Court is also a large volume of subpoenaed material. While the Court is not in a position to make findings of fact in respect of many of the matters which are alleged, the Court has had regard to the material which has been tendered in coming to a conclusion about the orders which are in the child’s best interest.

11. While the Court appreciates that the mother’s first affidavit was drafted in circumstances of urgency and as such may possibly contain some inconsistencies and/or inaccuracies, the allegations which the mother makes against the father are significant.

12. As mentioned earlier in these reasons, the mother in her Affidavit filed 30 December 2016, makes an allegation which is as follows:

    In or around mid-2014, X was misbehaving and trying to grab the cigarette Mr Shipton was smoking from his hands. I turned around momentarily when I heard X screaming and crying. I rushed over to X and saw he had a cigarette burn to his right palm. It took approximately 2 months for X’s burn to heal completely.

    One or two months after the above incident and also in or around mid-2014, X was misbehaving and trying to grab a hot pie which had just come out of the oven. Mr Shipton became angry with X and put X’s hand in the hot pie as punishment. X screamed and cried and became red and blistered as a result of the hot meat burning his hand. It took approximately 3 months for the blisters to be healed completely.

13. The material produced under subpoena from the Department of Family and Community Services, being a contact record of 30 December 2016, records as follows:

    … Happened when he was 1 – she wasn’t there, cigarette burn. Mr Shipton had a cigarette and X was learning to walk and dad was yelling. Ms Dempster was outside and ran in and X had been burnt. Ms Dempster thought Mr Shipton must have done it.

    X was also burn by a pie. Ms Dempster cooked Mr Shipton a hot meat pie for lunch, she took it out to him where he had X, Mr Shipton fed some pie to X and Ms Dempster went back inside. X had burnt his hands on the pie, he had blisters from the burns – no medical attention sought or incident reported. Why? In a relationship with father then.

14. The notification to the Department was made at or around the same time that the mother’s first Affidavit was filed. On the face of the documents, it appears that the detail in the mother’s Affidavit is not reflected in her complaint to the Department made at or about the same time. There may be very good reasons for this and these matters could easily be explained during the testing of the evidence. However, at this point in time, the Court has before it two differing accounts, which appear to both have been given by the mother.

15. The father denies the allegations of burning the child with a cigarette or of putting his hand in a hot meat pie as punishment. The father deposes to the child putting his hand into a hot pie, and suffering minor burns for which no medical attention was sought by the parents.

16. By way of further example, the mother makes an allegation that in late 2015/early 2016 the parties were having an argument as set out earlier in these Reasons. The police material records a slightly different version of events. While the Court cannot make any findings as to which of the three versions is the correct one, indeed if any of them is, it is important in assessing the likelihood of the allegations being proven that the Court has considered the inconsistencies. The mother is the person who made the report to the Police in respect of that incident. On the face of the COPS entry, it appears that the mother may have been acting unreasonably or aggressively on the day, and that it was her actions which placed the child at risk.

17. The COPS entry records as follows:

    The [mother]… tried to push the door open while the [father]… told the [mother]… to leave and closed the door on the [mother]… As the [father]… closed the door the [mother]… was pushed onto the door jam with the childs (sic) face hitting the architrave causing 2 slight abrasions, one on his cheek and one on his forehead. The [mother]…. then left the house and was given a lift to (omitted) police station. After police obtained details from the [mother]…, the [mother]… refused to give police a statement at the time as she stated that she has to take the child home as its past his bedtime and that she will speak to the police tomorrow and give police a statement then. The [mother]… consented to police obtaining photos of the child’s injuries and uploaded them to view. Police had trouble obtaining aversion (sic) from the [mother]… as the [mother] at times could not clearly recall what happened. The [mother]… appeared to be slightly intoxicated and stated that she had not long finished having four beers that evening… There is an AVO in place between the [mother]… and the [father]… however nil breaches have been detected at this time.

18. A report was made to the Department by the Police about this incident on 22 November 2015. That report records as follows:

    At the doorway mother had the child in her arms and she wanted to go into the house to get some things. The father would not let her in and she tried to push her way in while holding the child. He closed the door on her and she went into the architrave of the door causing [the child] to scrape his head.

    … he could smell alcohol on the mother and believes she was drinking. She stated to another officer that she had 4 beers.

    … the child had a mark to his right cheek and right forehead just above his eye. He did not seem to need medical attention… it was not bleeding but there was evidence redness to the area and a slight bump on the child’s forehead....

19. Subsequent reports in or about late December 2016 to the Police and to the Department of Family and Community Services made by the mother in relation to this incident in November 2015, refer to the father having “slammed the front door in X’s face, causing the left side of his face to be bruised, scratched and bleeding.” On the face of it, this appears to be a significantly different version of events to the one which the police records indicate the mother gave contemporaneously.

20. The father denies the incident in the way the mother describes it. He recalls that while the child was in his care he fell and hit his face on concrete and that he had visible injuries to his face from the fall.  When the mother came to collect the child they had an argument. The police attended the father’s home subsequently and the father further attended the police station where he gave his version of events, but was not asked to make a statement. The father’s version is highly troubling to the Court in light of the material produced under subpoena.

21. It is highly likely that during the parties’ argument the child suffered a slight injury. The fact that the mother seems to blame the father entirely and the fact that the father seems to deny any injury to the child on the day, indicates to the Court that neither party is particularly child focused, but rather intent on proving the other side is to blame for the incident.

22. One of the very serious incidents which is described in the evidence of both parties occurred on 23 June 2016. The parties’ versions have been referred to earlier in these Reasons.

23. The Police records indicate as follows:

    ...Shortly after [the incident]… the accused [the mother]… contacted police to attend the location and MR SHIPTON drove himself to (omitted) Police Station to report the matter to police. Police arrived at the location shortly after and were greeted by the accused at the front door. Police entered the location and observed that the accused had small blood smears on her pink hoodie that she claimed were from MR SHIPTON. Police observed a small blood smear on the wall directly opposite the front door in the lounge room, the accused stated to police came from MR SHIPTON. Police had a conversation with the accused in which she stated “I opened the door and he barged his way inside and grabbed me and threw me against the wall and head butted me, that’s when I took my keys out of my pocket and started to stab him with them… I wanted to get in on him first, before he got me… [at the station] the accused agreed to participate in an electronically recorded interview… the accused admitted the striking MR SHIPTON with her keys in her right hand and claimed it was in self defence. During the interview the accused changed her version she provided police at the scene stating she started hitting MR SHIPTON as soon as he grabbed her and head butted her to when he threw her on the lounge. This is inconsistent with the version she provided police before and inconsistent to the small blood smear on the wall that police observed and the accused admitted to police belonged to MR SHIPTON. The accused went on to say she did not recall telling the police that at the scene….

24. In addition, there is the incident said to have occurred in December 2016 when the father punched the mother in the face following the parties’ attendance at the (omitted). The parties’ versions are again different, not only in their Affidavits but also as to what is recorded in the police material. The sequence of events in the mother’s Affidavit is different to the one recorded in the police records, presumably on her complaint. The records produced under subpoena from (omitted) Hospital also contain relevant information about this event. However, the allegations made by the mother against the father are very serious and include an assault of the mother while she was holding the child.  

25. The mother describes the incident above in her Affidavit as follows:

    On 3 December 2016, Mr Shipton, X and I had just finished dinner at (omitted) at (omitted). We were walking home when Mr Shipton insisted that we stay at the park. X did not want to go to the park and said to both Mr Shipton and me words to the effect of:

    I don’t want to go. I just want to go home.

    I then said to Mr Shipton words to the effect of:

    Come on let’s go. X doesn’t want to go to the park.

    Mr Shipton then became angry at me and said words to the effect of:

    I’m going to hit you. I’m going to flog you.

    I was carrying X across the road during the above conversation. X started crying and I was holding him, trying to calm him down. Mr Shipton then kicked me in the crotch with his right foot, causing me to wet myself. He then held his longneck glass beer bottle up and hit me in the head. Both X and I fell onto the floor as the glass bottle hit me. As X fell, he hit his head on a brick wall to the side of the road and started screaming and crying hysterically. I got up, picked X up and started walking towards the house. Mr Shipton followed us and nudged me in the side with his elbow. Mr Shipton then raised his right hand and punched me in the left eye. During this incident, I was pushing Mr Shipton away whilst cradling X in my arms. 3 men rushed over to us and said to Mr Shipton words to the effect of:

    Get off her. Get off her. Just go.

    Mr Shipton then walked away, got in his car and left.

26. The events as recounted by the father in his Affidavit are again different, but seem to be similar to the version he provided to the police on 24 December 2016. The father in any event, admits to punching the mother in the face. He says it was in self-defence, after she had punched him repeatedly. The father does not deny that the mother was holding the child when he punched her in the face.   

27. The above matters are but a few examples of the conflicting evidence in these proceedings.

28. It may well be that findings of fact about many of the allegations are never made. This will depend ultimately on the evidence at final hearing and the submissions which may be made.

29. This is not to suggest that the Court has not been troubled by the evidence in the mother’s case, or the serious nature of the allegations which she makes against the father including those matters which have resulted in criminal charges against the father. It is likewise troubled by the serious nature of the allegations which the father makes against the mother, including those matters which have resulted in criminal charges against the mother. However, it is the Court’s preliminary view that the father has minimised his involvement in the family violence perpetrated by him particularly in the way the father has acted, described by him as ‘self-defence’.

30. The mother has been involved in other incidents of violence where the father was not a party to what occurred, including as recently as December 2016 and March 2017.

31. The evidence suggests that on 24 December 2016, the mother assaulted the father’s partner/boarder, by punching her in the eye. The mother was interviewed and denied the assault. Instead the mother stated “the victim flatly made up the allegation and that the victim applied make-up for it to look like a bruise.” The Police applied for an apprehended violence order naming the mother as the defendant.

1. The notes produced under subpoena from (omitted) Hospital in respect of an incident on 8 March 2017 record as follows:

   34 year old lady presented following a physical assault

   …

   - patient tried to push her friend’s fiancée out of the door

   - he responded with multiple blows to her face, head and neck

   …

   Drinks 3-4 glasses of wine per day

   …

   Patient’s son is with his father, with whome (sic) she believes he is safe

2. The Court is significantly troubled by the mother’s involvement in these incidents. The evidence referred to above has however not been tested. The incidents were not said to have occurred in the presence of the child.

3. These are only interim orders, and it is likely that if the matter proceeds to final hearing, there may be a time period of at least some six to twelve months before the matter is decided on a final basis, much depending on when the Expert’s Report is finalised.

4. The length of time that the matter will take to reach readiness for a final hearing is also something which the Court has considered in making these interim orders, particularly in trying to balance the child having a meaningful relationship with both of his parents while ensuring that his safety is ensured as much as possible.

Primary Considerations and Risk of Harm

1. The protection of the child from harm is an important matter for the Court’s consideration when weighing up the primary considerations. Indeed, the Court must prioritise the need to protect the child from harm as against the benefit of the child having a meaningful relationship with the parents.

2. Even if the Court is unable to make findings of fact about many of the issues, the Court is still obliged to take into consideration the various allegations which have been made. In doing so the Court must weigh up any risk of harm to the child, all the while considering what might be in the child’s best interest. It is the existence and magnitude of the risk of harm that is a fundamental matter to be taken into account in deciding what orders are to be made.  

3. The parties agree that the mother has been the child’s primary care giver since birth and post-separation. The situation changed in early April 2017 when the father retained the child. Since then it is the father who has been the child’s primary care giver.

4. The mother maintains that the child has a close and meaningful relationship with her and that his primary attachment is to her.

5. The child has had a very turbulent young life, with his parents engaging in family violence in his presence. It appears that he has at times been physically hurt as a consequence of such violence. Certainly, there can be little doubt that he will likely have suffered the emotional effects of such violence, although there is at present little such evidence before the Court.

6. The mother may in the past have failed to act protectively towards the child. This is reflected in the safety plans which were made for the child’s protection by the Department, the documents produced under subpoena by the Department record as follows:

   After assessment of Safe with Plan, caseworker has again planned with Ms Dempster about how to avoid instigating and progessing (sic) conflict between herself and Mr Shipton. There had been previous Safety Plans with Ms Dempster about how to protect X when she sees father Mr Shipton; planning where Ms Dempster doesn’t see Mr Shipton at all due to their fighting in front of X; and planning who and where she can take herself and X when she feels vulnerable or unsafe.

   …

   Caseworker… has spoken more extensively with Ms Dempster since addressing the (omitted) Hospital concerns, and we have fears that her anger towards Mr Shipton and the need to vent this through verbal and physical violence, is reaching a point where she no longer has any control over her actions. This is already apparent when she is unable to prevent X from being exposed to these incidents, and since this recent incident was precipitated by Ms Dempster herself inviting Mr Shipton to her home, even though she had agreed not to provide him with her address.

   Note: 30/7/2016 – Caseworker… has made a follow up with Helpline report based on further concerns that Ms Dempster has admitted to … that she ‘enjoyed’ hurting ex-partner Mr Shipton and that if X were ever taken away from her (ie by Mr Shipton) that she would act on her impulses to cause serious harm, and ‘put myself in gaol.’

   …

   Ms Dempster has an extensive history of drug use, including ice.

   Ms Dempster’s previous drug use, and desire to use, is almost always linked to her relationship with Mr Shipton.

   … that she knows Mr Shipton to still be using illicit drugs…

   Ms Dempster admitted to alcohol use, but not to drug use on the night of the incident.

   …

   Caseworker… has had extensive conversations with Ms Dempster, and with Mr Shipton in the past about the link between current and previous drug use to domestic violence and inadequate supervision of X…

7. The parties’ use of illicit substances and alcohol is a significant concern to the Court.

8. The mother had been engaged with Brighter Futures but this ceased in December 2016.

9. The documents produced under subpoena from (omitted), Brighter Futures, record as follows:

   … Mr Shipton had come to her home on 28^th Dec and taken X and not returned him until yesterday. She said she had been devastated. He told her she could now experience what he had when he hadn’t seen X for 2 months.

   She contacted the police and then made an application for custody… last Friday (6.1.17) an agreement was reached and signed between them that X would see his father…

   …

   Ms Dempster said she was so depressed she barely ate or did anything while X was away. She was proud of herself that she didn’t even want to do drugs and hardly drank alcohol…

   She is willing to have drug tests if requsted.

10. On 21 April 2017, the mother obtained a referral to see Ms R psychologist, for further supportive counselling “in particular related to anger management”. The mother’s evidence is that she continues to be engaged with counselling for drug and alcohol and has requested of Ms R that she refer her to support services and for an anger management course.

11. The father tested positive to methamphetamines on 4 January 2017. Despite his positive test, the father denies using methamphetamines at the time, and suggests that this is a false positive resulting from his use of “Codral tablets”. The results of this test were not available to the mother at the time the Court made orders by consent on 6 January 2017.

12. This is a difficult and complex case, made all the more difficult by the fact that so many of the facts are disputed by the parties. Ultimately, the Court is left with a situation where there has been much turmoil in the child’s life particularly since December 2016 where he has been the subject of a tug-of-war between his parents.

13. It appears that the father may have acted in an opportunistic fashion in December 2016, when he retained the child on 28 December 2016, resulting in the mother’s first application for a recovery order. He says “I made the impromptu decision to take X home with me” after he noticed the child wasn’t his usual self, and after the child said to the father “I want to go to Daddy’s”.

14. The father says as at 6 January 2017 when he swore his first Affidavit, that he has “had growing concerns over X’s safety and wellbeing, while in Ms Dempster’s care, over a period of some 9 months. Ms Dempster’s behaviour has become more and more erratic resulting in acts of physical violence against me and even my flatmate.” The father asserts that the mother used the drug ice throughout the parties’ relationship. The father says “Due to my concerns about Ms Dempster’s recent violent behaviour and X’s change in behaviour by requesting to stay with me I have kept him with me since 29 December 2016.”

15. The father did not retain the child in June 2016 when the mother hit him in the face with keys causing injuries. The incident which occurred in June 2016 was on both parties’ evidence serious.

16. The father does not explain why he retained the child on 4 April 2017 as alleged by the mother. The incident on 8 April 2017 is most unfortunate, and the father refusing to return the child to the mother when she first knocked on his door, is also concerning when one considers both parties’ versions of events.

17. It may well be that the child is at risk in each of the parent’s care. What is clear is that the child is at an unacceptable risk of harm when the parents come together. Whether this is because the violence between them is alcohol or drug fuelled, or whether they are each so poor at regulating their own behaviours, or for other reasons, on all of the evidence the parties do not place the child’s needs above their own.

18. The best that the Court can do at this stage is objectively asses the evidence and take an approach that is least likely to place the child at unacceptable risk of harm. It is in one sense, the least worst option for the child based on the limited, untested evidence presently before the court.

19. To change the child’s living arrangements again will certainly be disruptive for the child, however, it would place him back in the care of the person who was his primary carer his whole life.

20. All drug tests requested by the Independent Children’s Lawyer pursuant to the orders of 6 January 2017 have returned a negative result for both parents. The mother is engaging in ongoing counselling.

21. The Court recognises that there is also a risk that the mother will have reverted to using illicit substances during the period of time this judgment was reserved. The injunctions which the Court makes and the continued random drug testing of the parties will ensure that any risks associated with the mother’s drug use are at least likely to be minimised. The same would be true of the father’s drug use. 

22. There have not been any reports of the child being placed at an unacceptable risk of harm while he has lived with the father since April 2017.  For that reason, an order for the child to spend significant and substantial time with the father will be made.

23. The Court has considered the matter from a number of possible safeguards which exist for the child. He attends day-care five days per week, and appears to be well settled and looked after at the centre. The day-care is a mandatory reporter and the Court has no difficulty in accepting the submission made by the Independent Children’s Lawyer that this provides significant safeguards for the child. An order preventing the parties from changing the child’s day-care centre or his attendance at the centre, pending further order, will be made. This will provide stability for the child going forward.

24. The Independent Children’s Lawyer submits to the Court that the evidence favours an order for the child to remain living with the father. The Court does not accept this submission for reasons explained above. The Court does not accept the submission made by the Independent Children’s Lawyer that the mother was acting maliciously during the 8 April 2017 incident.

Parental Responsibility

1. Section 61C of the Act provides that each of the parents of a child who is not 18 years has parental responsibility for the child. This section states the legal position that prevails in relation to parental responsibility to the extent to which it is not displaced by a parenting order.[10] Section 61DA provides for a presumption of equal shared parental responsibility that applies when the Court makes a parenting order.

   [10] See note 1 s61C

2. As noted earlier, in interim proceedings, the presumption applies unless the Court considers that it would not be appropriate in the circumstances for the presumption to be applied when making an interim order.[11] The presumption is also rebutted where there are reasonable grounds to believe that a parent has engaged in family violence.

   [11] s61DA(3)

3. It is noted for the benefit of the parties that in making a final parenting order in relation to a child, the Court must disregard the allocation of parental responsibility made in the interim order.[12]

   [12] s61DB

4. There are reasonable grounds to believe that both of the parents have engaged in family violence. This is a finding made on the basis of the matters referred to earlier in these Reasons. As such the Court finds the presumption of equal shared parental responsibility has been rebutted. Given the competing applications, it is the Court’s view that an order for the live with parent to have sole parental responsibility is an order that is at this stage of the proceedings, in the child’s best interest.

Conclusion

1. The Court is not bound by the parties’ proposals.

2. However, the orders which the Court makes at this interim stage have not specifically been canvassed with the parties’ during the interim hearing which occurred during a busy duty week.

3. As such, the discharge of the orders made on 6 January 2017 will be stayed for a period of 28 days, thus giving the parties the opportunity to make any necessary application to this Court in respect of the orders which are hereby made.

4. The Court will grant the parties leave to seek to have the matter re-listed on an urgent basis if any party wishes to make submissions against the specific wording of the orders which will come into force after a period of 28 days. Those orders provide for the father to spend more time with the child than in accordance with previous interim orders made by consent.

5. The Court will also request that the Department of Family and Community Services intervene in these proceedings in light of their previous involvement with the parties and the child and particularly in light of the evidence outlined in these Reasons.

6. In all of the circumstances and for all of the reasons set out above, it is in the child’s best interests for orders to be made as set out at the forefront of these Reasons.

I certify that the preceding one hundred and thirty (130) paragraphs are a true copy of the reasons for judgment of Judge Obradovic

Date:  23 August 2017