Dennis & Dennis
[2022] FedCFamC2F 770
•18 May 2022
FEDERAL CIRCUIT AND FAMILY COURT OF AUSTRALIA
(DIVISION 2)
Dennis & Dennis [2022] FedCFamC2F 770
File number(s): NCC 2065 of 2021 Judgment of: JUDGE KEARNEY Date of judgment: 18 May 2022 Catchwords: FAMILY LAW – interlocutory parenting – insufficient evidence available to the Court – cross-allegations of family violence – high conflict parents – potential alignment - further independent material required – no change of residence at this time – no unacceptable risk found – interlocutory hearing adjourned for further material – best interest of children Legislation: Family Law Act 1975 (Cth)
Federal Circuit and Family Court of Australia (Family Law) Rules 2021 (Cth)
Cases cited: Eaby & Speelman (2015) FLC 93-654
Goodev Goode [2006] FamCA 1346
Johnson & Page [2007] FamCA 1235
Jones v Dunkel [1959] HCA 8
Keats & Keats [2016] FamCAFC 156
SS & AH [2010] FamCAFC 13
Division: Division 2 Family Law Number of paragraphs: 108 Date of hearing: 16 May 2022 Place: Newcastle Counsel for the Applicant: Mr I Duane Solicitor for the Applicant: Darley Legal Solicitor for the Respondent: Ms Gillard, Gillard Family Lawyers ORDERS
NCC 2065 of 2021 FEDERAL CIRCUIT AND FAMILY COURT OF AUSTRALIA (DIVISION 2)
BETWEEN: MR DENNIS
Applicant
AND: MS DENNIS
Respondent
ORDER MADE BY:
JUDGE KEARNEY
DATE OF ORDER:
18 MAY 2022
(AS AMENDED 31 MAY 2022)THE COURT ORDERS PENDING FURTHER ORDER THAT:
1.The children X born in 2011, Y born in 2013 and Z (also known as Z) born in 2014 (“the children”) live with the father.
2.The children spend time with the mother:-
(a)each alternate weekend from the conclusion of school (or 3.00pm) on Friday until the commencement of school (or 9.00am) on Monday, commencing Friday 20 May 2022; and
(b)each alternate Wednesday from the conclusion of school (or 3.00pm) until the commencement of school (or 9.00am) on Thursday, commencing Wednesday 25 May 2022;
with such time to be supervised by the maternal grandmother Ms B.
3.To facilitate Order 2, unless otherwise agreed in writing between the parties, changeovers are to occur at the children’s school.
4.Unless otherwise provided for above, the mother, her servants and/or agents are restrained and an injunction shall issue prohibiting them from taking the children into her care.
5.The parties are permitted to provide a copy of these Orders to the children’s school.
6.The mother and the father are each restrained and an injunction shall issue restraining them from:
(a)consuming any alcohol for 24 hours before and during the time that the children are in their care;
(b)abusing, insulting, belittling, rebuking, or otherwise denigrating the other party or a member of the other party’s family, in the presence or hearing of the children, or permitting the children to remain in the presence or hearing of any other person denigrating the other parent or person with whom the other parent is in a relationship with, with the parent’s knowledge or in their presence; and
(c)discussing the proceedings or any allegations raised in these proceedings with the children or permitting any other person to do so with their knowledge or in their presence.
7.Within 14 days of the date of these orders and thereafter every four (4) weeks, the Mother and Father undergo at their own expense Carbohydrate-Deficient Transferrin (CDT) testing at an accredited clinic for excessive alcohol use.
8.Within 14 days of the date of these orders the father shall, at his own expense, submit himself for hair testing for illicit drugs and excessive consumption of alcohol at an accredited clinic, provide no less than three (3) centimetres of hair for such testing, and is restrained from taking any steps to interfere with the test result, such results are to be provided to the mother’s solicitor within 48 hours of receiving same.
9.To give effect to Orders 7 and 8:
(a)Each party is restrained from cutting, bleaching, dying or otherwise altering their hair;
(b)Each party will provide no less than 3.8cm of hair for such testing;
(c)Each party is to provide the collector with a copy of these orders;
(d)Each party must provide the collector with photographic identification to be recorded before the hair collection.
10.Within seven (7) days of the test results being produced, the collector is to email a copy of same to all the parties via:
(a)The Father’s solicitor at [email protected]
(b)The Mother’s solicitor at [email protected]: and
(c)The Independent Children’s Lawyer at the email address to be provided by the parties to their respective collectors within 48 hours of receipt of the Notice of Address for Service filed by the Independent Children’s Lawyer.
and to facilitate this occurring, this Order is an irrevocable authority by the mother and the father to the collector to provide the results of any hair strand tests to the parties’ legal representatives and the Independent Children’s Lawyer.
THE COURT FURTHER ORDERS THAT:
11.Pursuant to s 68L of the Family Law Act 1975, an Independent Children’s Lawyer be appointed for X born in 2011, Y born in 2013 and Z (also known as Z) born in 2014 (“the children”)
12.Legal Aid NSW is requested to make arrangements as soon as possible for appropriate representation for the Child/Children, and forthwith upon such appointment the Independent Children’s Lawyer file a Notice of Address for Service.
13.The Court advise Legal Aid NSW of this order forthwith.
14.Within seven (7) days of notification of the Independent Children’s Lawyer’s appointment or the filing of the Notice of Address for Service by the Independent Children’s Lawyer, each party make available to the Independent Children’s Lawyer copies of all applications, Notices of Child Abuse, Family Violence and Risk and affidavits upon which that party relies together with any court orders and copies of any relevant reports.
15.Orders 6, 7, 8 and 9 of the Orders made by Judge Betts on 28 February 2022 for the preparation of a family report are discharged.
16.Pursuant to s.62G(2) of the Family Law Act 1975 the parties and the children of the relationship attend upon Ms C (‘the single expert’) on a date and at time to be advised for the purposes of the preparation of a Family Report and in particular:
(a)To consider the factors in ss 60CC & 65DAA of the Family Law Act 1975.
(b)To assess the parents (and other significant adults)
(c)To assess the parents interactions (and those of other significant adults)
(d)To assess the children’s developmental and emotional state.
(e)To assess the relationship of the children to the parents (and other significant persons) and the wishes of the children.
(f)To assess the proposals of each party as to the children’s future.
(g)To consider any other matter which the family consultant considers relevant to the Court’s determination.
17.In the first instance, the father shall pay for the costs of the Family Report with the mother to reimburse the father one-half of those costs at the finalisation of the proceedings, noting that the costs of the Family Report will include any costs associated with the witness expenses of the single expert for preparing and attending to give evidence at the trial.
18.If the single expert is unable to inspect documents produced in response to subpoena at the Newcastle Registry of the Commonwealth Law Courts, the Registry Manager upon receiving a request from the single expert, is to forward such documents to the Registry nominated by such consultant to permit such inspection.
19.The father is permitted to issue subpoenae to the following recipients:-
(a)The NSW Police provided that the documents sought to be produced must specifically identify the DVEC recordings of the children;
(b)The D Clinic;
(c)Medicare;
(d)E Counselling and Mediation Service;
(e)Suburb F Treatment Centre;
(f)NSW Health; and
(g)NSW Department of Communities and Justice.
20.Pursuant to r 6.28 of the Federal Circuit and Family Court of Australia (Family Law) Rules 2021 (Cth) (‘the Rules’), the Registry Manager is to request the Registrar of the Local Court of NSW at Suburb G to release to the Court the Local Court file pertaining to the criminal and ADVO proceedings heard on 4 May 2022, related to Ms Dennis (the defendant) and Ms H (the victim and/or person in need of protection) including police application event number ….
21.The interlocutory parenting application is adjourned to 2.15pm on 15 September 2022 for further hearing before Judge Kearney.
22.No later than 4.00pm 1 September 2022:-
(a)each party is to file and exchange with each other updating affidavits from themselves and any witnesses; and
(b)the Independent Children’s Lawyer is to file and serve any affidavits they intend to rely upon.
23.No later than 4.00pm 13 September 2022, each party is to file and serve an Outline of Case document in the approved form for interim hearings or in another form that addresses the same information prescribed within the approved form.
THE COURT NOTES THAT
A.Pursuant to r 12.06 of the Rules, the parties have until Monday 23 May 2022 to file and serve their costs notices.
B.In making these Orders the Court has received and accepts the undertaking provided by Ms B dated 18 May 2022 and filed with the Court.
AND THE COURT NOTES IN CHAMBERS
C.The Applicant father’s legal representatives did not press the orders relating to property in the Application in a Proceeding filed on 9 May 2022 and so for the purpose of the ongoing interlocutory proceedings, only parenting aspects remain.
Note: The form of the order is subject to the entry in the Court’s records.
Note: This copy of the Court’s Reasons for judgment may be subject to review to remedy minor typographical or grammatical errors (r 10.14(b) Federal Circuit and Family Court of Australia (Family Law) Rules 2021 (Cth)), or to record a variation to the order pursuant to r 10.13 Federal Circuit and Family Court of Australia (Family Law) Rules 2021 (Cth).
Section 121 of the Family Law Act 1975 (Cth) makes it an offence, except in very limited circumstances, to publish proceedings that identify persons, associated persons, or witnesses involved in family law proceedings.
IT IS NOTED that publication of this judgment by this Court under a pseudonym Dennis & Dennis has been approved pursuant to s 121(9)(g) of the Family Law Act 1975 (Cth).
EX TEMPORE REASONS FOR JUDGMENT
JUDGE KEARNEY:
INTRODUCTION
These reasons for judgment were delivered orally. They have been corrected from the transcript. Grammatical errors have been corrected and an attempt has been made to render the reasons delivered orally amenable to being read.
These are short-form reasons pursuant to s 69ZL of the Family Law Act 1975 (Cth) (the Act).
Out of respect for each person’s gender and social status, other than parties and the children, persons will be identified by their surnames, and, where possible, there will be an avoidance of the use of gendered pronouns.
I have before me applications for parenting orders relating to three innocent children:
(a)X, born in 2011;
(b)Y, born in 2013; and
(c)Z, born in 2014
(collectively described as ‘the children’).
The parties to the proceedings are Mr Dennis (‘the father’) and Ms Dennis (‘the mother’).
X is 10 years old. Y is nine years old. Z is seven years old.
PRECIS
The genesis for the proceedings was the father’s decision to unilaterally retain the children in his care because of his rising concerns about the mother posing a risk of harm to them, including because of her alleged abusive relationship with alcohol and her erratic behaviours.
The mother says the father poses a risk of harm to the children arising from his capacity to support their relationship with the mother, which is now bordering on having the potential to align the children to him.
Nothing I have just heard about the difficulties with the D Clinic or the Anchor program ameliorates those concerns, in my respectful opinion.
There are cross-allegations of family violence.
It is common ground that the children have not spent time with the mother since 21 March 2022, other than a brief visit by her to OOSH and then another very difficult meeting the following day.
I intend to make orders on an interim-interim basis, because neither party’s evidence leaves me satisfied that to do otherwise would be in the best interests of the children. Whether their decisions about the evidence were strategic, forensic or as a result of the practicability of their circumstances, I do not know, but, in my view, it has left the Court in a difficult situation about what to do next.
For the reasons that follow, I intend to make orders that reflect parts of both parties’ relief.
The children are going to stay with the father. The children are going to spend supervised time with their mum, as sought by her as her alternative relief; with the grandmother, Ms B (‘Ms B’), to provide the supervision. This supervision will occur provided I am satisfied about an undertaking, and no doubt one will be forthcoming before the supervision starts.
There will be various ancillary orders that are made to support some of those orders, but, in addition, there is going to be some restraints in terms of alcohol, restraints as sought by the father about the mother being restrained from taking the children into her care unless otherwise as per these orders, and there will be also restraints in terms of the children not being exposed – and I use the words broadly – ‘parental conflict’. These children have seen and heard way too much. So there will be restraints that the mother will be familiar with, because they come out of her response in terms of the restraints she has sought.
I will make the order about the private family report and I will appoint Ms C. I am going to order an independent children’s lawyer (‘ICL’), because I have got no confidence that these parties are telling me the full story, and I hope that with the independent children’s lawyer’s perspective, they will be able to tell me what is going on for these children and, if it is practicable, to give me some of their views.
I am going to order that the matter be listed for an interim hearing at 2.15pm on 15 September 2022.
I will make an order in terms of what the father sought about the subpoenas, noting that there will be additional ones to those sought by him at paragraph 9 of his application to include the D Clinic and also to obtain the DVEC recordings from the NSW Police; because he says to me in his evidence that, I think, in March, the children were trotted off down to a police station, and they had to give some evidence, or the police came around to his house. I cannot quite remember now, but there is video evidence of their presentation, and I think it would be helpful to this Court if we see it.
I am also going to make orders in terms of hair follicle testing. Each of the parties have to submit to that hair follicle testing for illicit substances every month, and the CDT testing as well. The results will be sent directly from the testing service to the solicitors, including to the independent children’s lawyer.
EVIDENCE
So in terms of the evidence, the father relied on the following documents:
(a)an application in a proceeding filed 9 May 2022;
(b)an affidavit of Mr Dennis filed 7 May 2022; and
(c)an outline of case document marked exhibit “F1”.
I raised concerns about the father’s compliance with the Federal Circuit Court and Family Court of Australia (Family Law) Rules 2021 (‘the Rules’). I am grateful to counsel for the father and the lawyer for the mother for the manner in which they conducted themselves, insofar as the father sought to address my concerns, which saw various paragraphs struck out and affidavits not read at all. The other side of that discourse was that the mother did not press any further objection, despite it being apparent that the father’s affidavit, had it been properly formatted, would have still been over ten (10) pages long and with more than five (5) annexures.
I pause here to say this Court does not appreciate its time being wasted over counting pages, looking at line spacing, and noting that more than one document is attached to one annexure. It might seem really clever. It is not. It just invites me to get even more angry than I already am, and I invited counsel for the father to let his instructor know how unhappy I was at having to go through that process, particularly because, on the other side of the bench, I had the mother, who had complied with the Rules, and she was essentially letting some of this go because she just wanted a decision.
The mother relied on the following documents:
(a)a response to an application in a proceeding filed 13 May 2022;
(b)an affidavit of Ms Dennis filed 13 May 2022;
(c)an affidavit of Ms B filed 13 May 2022; and
(d)parts of the affidavit of Ms J filed 7 May 2022, namely, paragraphs [18], [19], [25], [30] and [31].
The mother also tendered various exhibits, from “M1” to “M12”, with those that I considered to be relevant being identified in my reasons.
PARTIES’ PROPOSALS
In terms of proposals, the father relied upon various paragraphs from his application in a proceeding which, in summary, sought orders for -
(a)the children to live with him;
(b)the children to spend supervised time with the mother at K Contact Centre for two hours every fortnight, with the mother to pay the costs;
(c)the children to spend supervised time with the mother at other times agreed upon by the parties;
(d)the mother and her servants and agents being restrained from taking the children into her care;
(e)the mother being restrained from consuming alcohol for 24 hours before and during the time the children spend with her or communicate with her;
(f)the appointment of an ICL;
(g)the issuing of subpoenas numbering more than five;
(h)the allocation of a child impact report; and
(i)costs.
I just pause there to say I invited counsel for the father to find out just how practical K Contact Centre was, because it was one of a number of deficits in his client’s evidence. There was no evidence about how much it costs, how long it takes to get in, what is the waiting time – nothing. So it made his relief pretty useless, to be totally frank. His counsel diligently looked at the website and said, “Look, it says on there - immediate availability.” To his credit, he was frank, but it did not help me.
I was informed that the father did not press the substantive property orders, and, for clarity’s sake, there will be a notation to that effect so that the next time we are here, I will know that we are just dealing with these children.
Taking a broad brush to her extensive interlocutory relief, the mother sought orders for -
(a)the children to live with her and spend time with the father, as agreed in writing, but failing agreement, for five nights a fortnight, being four nights one week, Thursday after school to before school Monday, and in the alternate week for one night Thursday after school to before school Friday; or, in the alternative,
(b)the children to live with the father and spend time with the mother for four nights a fortnight, being three nights one week, Friday after school to before school Monday, and in the alternate week for one night Wednesday after school to before school Thursday, with that time to be supervised by her mother.
In addition, the mother then sought orders for –
(a)the children to spend half-school holidays with each of the parties;
(b)the children to spend time with each of the parties on special occasions, including their birthdays;
(c)changeovers to occur via school;
(d)communication via OurFamilyWizard;
(e)communication for the children electronically with the parties between 6.00pm and 7.00pm each Friday and Sunday, and at other times in accordance with the children’s wishes;
(f)orders ancillary to ensure the parties were kept informed about medical and educational issues to do with the children;
(g)various restraints against each of them engaging in specified behaviours which have the broad aim of quarantining the children from parental conflict;
(h)the father submitting to an HST or hair strand test; and
(i)costs.
During the course of submissions, there appeared to be some consensus about the appointment of a family report writer, and I invited the parties to produce a proposed minute of order so that I could incorporate that into any decision I made.
In order to properly consider the issues for determination, the relevant short-form chronology of these proceedings is explored below, which, unless otherwise specified, reflects common ground as between the parties. In that regard, I express my gratitude to the father’s counsel for the preparation of his client’s short case outline.
THE EVIDENCE
The father is now 40 years of age, having been born in 1982.
The mother is now 39 years of age, having been born in 1982.
In 2007, the parties commenced cohabitation, with the mother saying June and the father saying December.
In 2009, the parties married.
Earlier I recorded the children’s dates of birth.
On 30 November 2019, exhibit “M8” records the father admitting to police that he took cocaine.
In 2020, the parties separated, with the mother saying May and the father saying June.
The father says he met his current partner, Ms J (‘Ms J’), in 2020, and says, using his language, he was cautious about introducing the children to Ms J. Curiously, he does not say when the children first met Ms J, and so I am unsure as to what insight he showed about the likely effects of his short turnaround between partners and what effect that could have had on the children. This is just the start of information that should have been before this Court so that I got a full picture about what is happening for these children.
On 24 January 2021, an alleged incident occurred between the mother and the paternal grandmother which caused charges to be laid against the mother and a provisional ADVO to issue on 24 January 2021 (‘the first ADVO’).
I am told that X gave a statement to the police, but, curiously, I do not have that document before me, and so I do not know what exposure to conflict X may have had between two people that she more than likely loves, and how that has impacted on her.
At annexure ‘A’ to the father’s affidavit is a copy of the provisional ADVO, and I shall read the grounds onto the record:
The defendant – (who is the mother) – and Mr Dennis, (the father), have shared custody of the children and own two properties together in Suburb L.
During the afternoon of Sunday, 24 January 2021, the PINOP – (so this is the paternal grandmother)…was present at her son Mr Dennis’ home at M Street, Suburb L. At this time, the PINOP was looking after X whilst Mr Dennis was away with friends. X was due to return into the care of the defendant the following day.
At about 5.15pm on the same date, the PINOP and X were sitting on a couch in the lounge room at M Street, Suburb L, watching television, when the defendant – (who is the mother) – attended the location and knocked on the front door.
The PINOP opened the front door, with the defendant standing in front of her. The defendant pushed the door open and entered the residence. The PINOP was standing in front of the defendant as she entered the residence, and with two hands the defendant pushed the PINOP to the chest, forcing her backwards and into the wall.
The defendant turned to face X and demanded she come with her, however, the child refused and stated she wished to remain with her grandmother. The defendant persisted and continued to tell X to come with her. The PINOP told the defendant to get out of her house, to which the defendant replied, “It’s my house.”
The defendant raised her right arm, clenched her fist and drove it backwards, hitting the PINOP, who was standing behind her, in the top lip. In defence, the PINOP slapped the defendant to the face.
After some time, the defendant left the location with X, who at this time was crying.
Following the incident, the PINOP contacted her son Mr Dennis and advised him of the incident. Mr Dennis subsequently contacted police, who attended L Street, Suburb M and spoke to the PINOP. Police obtained a DVEC video statement from the PINOP, at which time she outlined the above incident.
The PINOP disclosed to police that she was scared and fearful of the defendant after the incident.
And then:
At about 9pm on the same date, police attended N Street, Suburb L. Police knocked on the front of the location, which was answered by the defendant.
The defendant was cautioned and questioned in relation to the above incident, at which time she made admissions to attending M Street, Suburb L to collect her daughter. The defendant was placed under arrest and further questioned in relation to the incident. The defendant was well intoxicated and argumentative with police, and as a result she was escorted from the location and placed in the caged section of the police vehicle.
The defendant was conveyed to Suburb G Police Station, where she was introduced to the custody manager, who read and explained and provided her with a copy of her rights, as per part 9 of the Law Enforcement (Powers and Responsibilities) Act 2002.
The defendant was not offered the opportunity to participate in a formal interview during her time in custody, due to her level of intoxication.
So if I take out all the stuff in there that no doubt was contested, the reality is that the police observed the mother to be in a state of intoxication.
On 11 February 2021, it was common ground that the police were involved in an incident between the parties. Exhibit “M7” is a COPS event, excerpts of which are recorded below:
At 2.40 pm on Thursday, 11 February 2021, the victim was at her residence with her child – (this is not spelt correctly, but it is Z, so the victim is the mother. I will skip a few lines):
The person of interest – (which is the father) – left the location when asked to by the victim.
So this is the mother telling the police her side of the story:
At 3.30pm that afternoon, police attended the victim’s address to speak with her regarding the incident, as she had called police upon the person of interest – (who is the father) – leaving the location prior. The victim stated to police that nil offences had been committed by the person of interest, that she was not fearful, and that she was just upset that he had attended her house unannounced and wishing to see his children.
And I will skip the next part. It is not relevant:
Whilst at the location, police sighted Z with him, presenting to police as having nil issues regarding the incident.
Which is a miracle. That is me saying that, not the police:
The other children were not there. A short time later, police attended the father’s address and spoke with him regarding the incident. The father was remorseful with police, stating he had only attended the victim’s address due to her not adhering to their verbal agreement regarding their children. The police warned the father that by him attending the address, this will upset and cause fear/alarm to the victim, with him stating that he will immediately cease contact with the victim and communicate through his legal rep regarding their children. Police have made a record only regarding the incident, due to nil offences having been committed and nil grounds for an ADVO application.
So that is the independent business record.
The father gives a slightly different account. He says at paragraph [18] that he was on the point of arrest. The COPS event does not record the police ever having formed that view. I was invited to make an adverse finding about the father’s credibility, given the hyperbole attached to his recollection of the event. Nowhere in his affidavit does the father express remorse about the potential risk of at least one of the children being exposed to parental conflict by him unilaterally turning up at the house. Thankfully, the police record that Z did not seem to be distressed.
I pause here to note that this is the second occasion where one of the children has met with police in circumstances of conflict between people they most probably love dearly.
At paragraph [10], the father says that between separation and until 21 March 2021, the children lived primarily with the mother and spent substantial and significant time with him, being four nights from Thursday to Monday in week one, and two nights from Wednesday to Friday in week two. The mother’s affidavit is silent.
On 22 March 2021, the father said he arranged for the children to participate in The Anchor program auspiced by E Counselling Services, which I will call “Anchor”.
On 22 June 2021, the father commenced parenting and property proceedings. In broad terms, his parenting relief on a final and interlocutory basis reflected what he says was the children’s lived experience, that is, Mum is the primary carer, and he has substantial and significant time.
Annexure ‘B’ to the father’s affidavit includes a letter dated 23 July 2021 from a representative of Anchor, which advised the father that despite his request for the children to participate in Anchor, the children could not do so, because the service provider had not been able to reach the mother, despite various attempts. Clearly, there was no cooperation between the parties at this stage. I was told that subsequently the children have engaged with Anchor, but today I am being told, no, that is not happening. I was invited to make an order to rectify this issue. I do not intend to. There is no procedural fairness. It is not fair.
In July 2021, the father says he and Ms J commenced living together, so certainly by that stage the children must have been introduced to her.
On 5 July 2021, during a changeover at the father’s house, the mother asked the father to return some chairs to her. The police were called, this time by the father. Nowhere in her affidavit does the mother express remorse about the children being exposed to or being at risk of exposure to parental conflict.
On 27 July 2021, the mother filed her material in reply. In broad terms, her parenting relief on a final and interlocutory basis reflected what she asks the Court to make now.
On 28 July 2021, an interim hearing was listed in relation to all extant matters, and on that date, amongst other orders, interlocutory procedural orders were made regarding the valuation of certain property.
On 13 August 2021, at paragraph [25] of his affidavit, the father sets out his version of what happened when he arrived at the children’s school. Annexure ‘D’ to the father’s affidavit is a document purportedly written by a Ms O of P School, where I presume the children were enrolled until this year.
It is of significant concern to this Court that a party has acted in such a way as to rely on a document in these proceedings which was purportedly written for use by the police in another. Given this is an interlocutory hearing, where evidence cannot be tested, I am unable to make any adverse inference. I do not know if the police or the author gave consent or not for the document to be used in the way it has. It is not signed. It is not annexed to an affidavit from Ms O.
Needless to say, I am extremely concerned about how high the level of conflict has become, that a party considered it appropriate to rely on a third-party document in the manner in which they have to date. Given all the uncertainties around the providence of this document, I have given it zero weight, and once again express my concern and disappointment about how it came to be placed before this Court. Lawyers in this jurisdiction should know better.
The same day, a provisional ADVO was issued, so I think this is ADVO #2. It is exhibit “M11”, and it records the mother as the PINOP and the father as the defendant. I was told a defended hearing has been scheduled for February 2023. Actually, I withdraw that. I think it is July this year. I might have mixed up those dates.
At paragraph [42] of her affidavit, the mother appears to say that in November 2021, the father unilaterally changed what she described as their informal parenting arrangement. She said he did this by attending the school without notice to the mother, and as a result the school rang the New South Wales Police and an interim ADVO was issued.
I have not seen any interim ADVO issued at or around November 2021, and it may be that I have read this incorrectly and in fact the event is one and the same as the August 2021 incident, where there was a scene at the school which I have referred to earlier, but I cannot take that evidence any further, because I am not going to rely on annexure ‘D’, and I have got ‘he said/she said’ from the parents about what actually happened. The tragedy is that it happened at the children’s school.
After unsuccessful mediation, on the same day, the father saw the children. This is 11 November 2021. At paragraph [30] of his affidavit, the father says he asked them about their mother driving into a wall at Ms B’s home. Photographs of the mother’s car and the wall are annexed.
The mother submitted that the Court should have regard to the steep driveway, and, by inference, it appeared to me, denied that she had been intoxicated. It is noteworthy that she gives no evidence about this, despite her affidavit being in reply. Ms B speaks of the incident and does not describe how she observed the mother at the time of the incident, only refuting that her daughter did not subsequently drink drive home with the children.
The Court once again is left feeling like it is a mushroom, because the evidence that could have been given is not there. In my view, it is open to me to make an adverse inference (see Jones v Dunkel [1959] HCA 8) against the mother, given the state of her case.
Having said that, I have had regard to the father’s willingness to ask his young children all about what happened. He already knew, because he had allegedly spoken to Mr Q. So, other than to gather evidence against their mother, why ask the children? Did it not occur to him that he would immediately be putting loyalty demands on these children, who presumably he thinks would benefit from a meaningful relationship with their mother, given his final relief is that they live with her? Instead, insight went out the window, and parental conflict flew straight in.
As part of the mother’s evidence, a photograph allegedly taken on New Year’s Eve 2021 was produced, showing Ms J with another person next to a table, upon which a plate can be seen with lines of what looks like white powder. The mother invited me to draw an adverse inference. The father’s counsel submitted that his client has not had the opportunity to formally reply. I accept that submission, and I will leave it at that.
In January 2022, the mother says the father unilaterally changed the children’s school to L Public School. The mother’s submission about his action was not the subject of challenge, and so although I appreciate he has not had the opportunity to formally reply, I accept that it must be an agreed fact.
The father’s affidavit is silent on the issue, which causes me to have some concern, because if it is accurate, he had the opportunity to tell this Court about a changed circumstance when he filed his application, and he did not do it. His lack of insight into the effects on the children from changing their school and possibly their peer group relationship, in circumstances where Ms J joined their household six months earlier, when he was aware that the mother was not happy about this new relationship, are not explored at all. So, again, the Court has got no idea what the lived experience is for these children.
What was described by counsel as “the rousing incident” occurred on 27 February 2022. It was common ground that the mother has significant pain arising from a back injury caused during a motor vehicle accident. She says she fell asleep as a result of the pain relief she had been prescribed. There is some contest about the rest of the incident, and absent firsthand evidence from the mother’s neighbour, I cannot take it any further.
On 21 March 2022, the father says he received an uninvited call from X, and subsequently X and Z found the father, and he took the children to the police. In the meantime, he says that Y was delivered to him by a maternal family member, with him observing Ms B and the mother to be in the car from where the family member came.
The mother denies allegations which have come from X and Z that she was intoxicated when she picked them up from school. She does say she drank a glass of wine and at some point noticed X and Z were gone. Her lawyer submitted that I should find that the children’s departure was instigated by the father in a worrying pattern of alignment against the mother.
The mother gives no explanation for why Y was subsequently handed over. Ms B gives no evidence about this at all. I have to ask why not, because this was the last time the children saw their mother. For the same reason as before, I intend to draw an adverse Jones v Dunkel inference against the mother.
The father says that when the children spoke to the police, certain damaging statements were made by them. There is no independent business record before the Court, despite the father having had the best part of six weeks to issue a subpoena for the documents to be produced. For what it is worth, the Court would be very interested to see the DVEC recording of the alleged disclosures, and the parties should make note of this.
Between 29 March 2022 and 8 April 2022, the mother voluntarily admitted herself to the Suburb F Private Hospital for trauma and PTSD. The reason for admission is not clear from exhibit “M2”, but the mother’s principal diagnosis is psychiatric and not related to alcohol misuse.
Any person with the insight to seek help for mental health issues is to be encouraged and supported, and I wish to acknowledge the mother’s brave steps. I cannot and will not infer that the cause of her admission was anything other than for mental health treatment. I simply do not have the evidence. No doubt a subpoena will be issued to secure the full documentation related to the mother’s admission, and whether the characterisation of same changes - time will tell.
The mother’s next steps, however, are regrettable. The same day she was discharged, she attended OOSH and asked the children if they wanted to come home with her. Yet another loyalty demand placed upon innocent children.
The following day, the mother turned up at the father’s home. Exhibit “M10” is a video taken by the father. The behaviour of the parents and the reactions of the children are damning of how low this family has plummeted. Two girls can be seen. The younger one appears at times to be distressed and wanting to get closer to her mother, who is outside the window. The older one appears to be at one stage telling her mother she cannot stay there. There is a child lying face down on a lounge. Meanwhile, the parents continue to engage in conversation, with the father preferring to make a recording, rather than simply taking the children away from the window, and the mother refusing to withdraw once it became obvious to her that she was distressing at least the younger one.
Needless to say, another provisional ADVO has been issued, so this would be number three (3), which is exhibit “M12”. This time, the mother is the defendant with the father named as the PINOP, although, by inference, other persons with whom he has a domestic relationship are also protected. I am told that matter is set down for a defended hearing, and that might be the February 2023 hearing.
At paragraph [49], the mother says the children are engaged with a psychologist at the D Clinic at Suburb R. It is unclear from the evidence, yet again, whether the father has been engaging with the children’s psychologist or not, and I note that within his relief he does not specify that a subpoena should issue to this practice, and that is something that will be cured in the orders I make.
For reasons I do not fully understand, the father has decided not to permit the children any contact or communication with their mother, even when she was under the professional care of hospital staff and even after he wrote a text message to the mother’s sister, Ms S, on 20 February 2022, which is exhibit “M1”, that essentially conveyed the message that he trusted the mother’s family to help and support her when she could not look after the children.
As I said during the hearing, I have no evidence from the father about how the children are coping right now with the sudden change in their circumstances. Once again, I feel like a mushroom. The mother says that the children are clinging to her after spending time with the father, and given the behaviour of their parents in drawing them into the conflict, it is no wonder they may be acting the way the mother says.
LEGAL PRINCIPLES
Putting aside the evidence, I have to look at the legal principles. Principles in respect of interim hearings are well known, including that the legislative pathway must at all times be followed. (See Goode v Goode [2006] FamCA 1346).
As interim hearings are curtailed by the absence of cross-examination and testing of evidence in general, the Court, as here, is often in a position where it is unable to make findings of fact. Even in such constrained circumstances the Court is still required to determine the applications before it.
It does not follow that merely because there are facts in dispute the evidence on the issues should be disregarded, but one must approach fact-finding in interim matters with considerable circumspection (see Eaby & Speelman (2015) FLC 93-654 at 80,331).
In terms of risk assessment, the Court is to determine that issue by weighing the probabilities of competing claims and the likely impact on the child in the event that a controversial assertion is acted upon or rejected (see Keats & Keats [2016] FamCAFC 156).
In SS & AH [2010] FamCAFC 13, at paragraph 100, the Full Court said that:
Apart from relying upon 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[1].
[1] SS & AH [2010] FamCAFC 13
Part VII of the Act sets out the considerations the Court must take into account when making parenting orders. The overriding requirement is that any order be in the interests of the children. Section 60CC prescribes the mandatory best interest considerations to which the Court must have regard in arriving at a statutorily mandated best-interest decision (see s 60CA and, as may be applicable, s 65AA). Many of the provisions in s 60B, which sets out the objects and principles of the Act, and s 60CC, which sets out the relevant “best interests” considerations, do not strictly apply to these proceedings. Section 61DA specifies a rebuttable presumption that a child’s best interests is served by an order allocating the parents of a child equal shared parental responsibility.
In submissions the father asserted that the mother posed an unacceptable risk of harm to the children. Based on the relief being sought by the parties on a final basis, it appears to me self‑evidently that the parents both consider the children will benefit from meaningful relationships with each of them.
There are cross-allegations of family violence which are the subject of orders and pending defended hearings. At least one set of proceedings has been successfully defended by the mother. Because there is so much contest and heat in those allegations I am not going to make any findings in those circumstances. No other s 60CC(2)(b) considerations, as in paramount considerations, arise.
But because the unacceptable risk issue can extend beyond paramount considerations, I have taken into account Johnson & Page [2007] FamCA 1235, which says that in assessing what is an unacceptable risk I need to evaluate the nature and degree of the risk and whether with or without safeguards it is acceptable. My task is to consider whether there is an unacceptable risk by evaluating the nature and degree and whether it is acceptable and, as identified in Keats and SS & AH, this case invites me to make a risks assessment by weighing up the probabilities of competing claims and the likely impact on the children if a controversial assertion is acted upon or rejected.
Even if I approach fact-finding with considerable circumspection (see Eaby & Speelman), I am left with the overwhelming conclusion borne largely out of the lacuna in the mother’s evidence that she is struggling with her relationship with alcohol and/or psychiatric issues which pose risks to the children.
There are certain events that are tied to these two risks. Firstly, the most compelling evidence about the mother’s relationship to alcohol is what is not said about whether she was intoxicated when she drove into her mother’s wall and when the children left of their own accord. Secondly, on the day of discharge from (I think) what was at least a 10-day admission in hospital, with a principal diagnosis related to psychiatric issues - the mother firstly goes to the school (OOSH) and then the next day the father’s home and invites the children to be exposed to parental conflict and loyalty demands. I do not have any compelling evidence from the mother about any steps she has taken to address this.
I understand – and I think this might have formed part of submissions – that the mother has obtained, or has allowed a hair strand test to be done, but I do not have the results of it. I do not have any information about what mental health steps she has taken since she was discharged from hospital. The risks are there and I just have to try and manage them as best I can whilst trying to preserve a relationship between the mother and the children. Just like the father, there is no self-reflection in her evidence about the immense damage she is causing to the children emotionally and potentially psychologically.
To be frank, in some ways these parents are as bad as each other. But that does not mean they cannot change. They need to get better for their children.
On that basis, I cannot be confident that simply permitting the children unsupervised time with the mother would be enough to ameliorate the risks, and I am not satisfied that to have the children returned to her care would be a safe course either. Whilst Ms B is not the perfect option because I apprehend she is caught between a rock and a hard place (and that is based on what she does not say in her affidavit), in my view, she has stepped in to support the mother by, for example, allowing her to stay overnight after the rock wall incident, and being present when Y was given to the father – something that, from the mother’s evidence, would have been the last thing she (the mother) would have wanted to have happen.
When I look at the additional considerations that I have not already touched on, I do not know the views of the children. I do not really know and understand the nature of the relationships between the children and significant others in their lives.
There is clearly zero cooperation between these parents. It seems like the Anchor program has gone off the rails. It seems like schools have been changed without notice to other parties. I do not even know whether the children are going to the D Clinic. There is a risk in terms of changing the children’s circumstances, but I actually do not know the impact because the father really has not told me. And whilst Mr Duane invited me to draw some inferences from the exhibited video, all I can apprehend is that at least one of the children was quite upset about seeing her mum and not being able to touch her.
But the risk is that if I take the children out of the father’s home, put them back in the mother’s home and the subpoenaed material comes in, or the hair test reveals some real concerns about the mother’s capacity, I have got to take them back out again and put them somewhere else. So that is why I am adopting a conservative approach and keeping them where they are. But that is not to say – and this is a message to the parents – that it will not change. It may well change. In terms of capacity, I think I have said enough, just by the language that I have used. They have to change. They have to be better. They have to support these children emotionally, if nothing else.
I have got no doubts these children love their parents. They are just not seeing it in actions from the ones that they should. In terms of their attitude, both parents are using loyalty demands on these children, gathering evidence, asking, “What do you think? Where do you want to live? Where do you want to go?” It is just not fair to the children.
So in terms of a summary as to why I am going to order the children live with the father, the real difference is that I do not see any unacceptable risk in his household. In the mother’s household I have got some concerns, which may or not bear fruit once all the subpoenaed material comes in and all the hair testing and CDT testing is done.
But in the meantime, if I can permit Ms B to provide that supervision, it is something that can happen now. I do not know when K Contact Centre can start working and, frankly, it is a bit of an artificial place to be in, when the children clearly are comfortable in their grandmother’s care. The time starting will be qualified by me having a look at whatever undertaking has been prepared and signed by the maternal grandmother. So that will be a separate order. The time cannot start until I see the undertaking and I am happy with it. The children will spend time with the mother, supervised by the maternal grandmother on Wednesday in the off week from after school until commencement of school on Thursday morning and inserting there 3.00pm if it is not a school day.
Injunctions will issue so that unless provided for above, the mother, her servants and her agents be and hereby are restrained by way of injunction from taking the children into her care. In addition, the mother and the father are each restrained and an injunction shall issue restraining them from:
(a)consuming alcohol for 24 hours before and during the time the children are in their care; and
(b)abusing, assaulting, belittling, rebuking or otherwise denigrating the other party or a member of the other party’s family in the presence or hearing of the children, or permitting the children to remain in the presence or hearing of any other person denigrating the other parent or person with whom the other parent is a relationship with, with the parent’s knowledge or in their presence; and
(c)discussing the proceedings or any allegations raised in these proceedings with the children or permitting any other person to do so with their knowledge or in their presence.
I have not made other restraints sought by the mother because I am not satisfied the evidence was there upon which I could ground the order.
Pursuant to section 68L of the Act, an independent children’s lawyer shall be appointed for X, Y and Z, and there will be orders that support that.
I have not made any orders about communication. I do not trust the parents. I do not trust it is not going to turn into another farce. Every time these parents seem to get together there is conflict. So there is not going to be any communication. If the parents decide between themselves that they can trust each other to have phone calls with the children – matter for them, but I am not going to make the order.
In terms of the subpoenae order, I will make an order in similar terms to the father’s application, but I am going to add to it insofar as the NSW Police, that there is a specific identification of the DVEC recordings of the children as well as including the D Clinic within those identified recipients. I am also going to make an order asking the Registrar of our Court to contact the Local Court for a copy of the file in relation to the first ADVO.
I will also make orders about Ms C being appointed and having access to subpoenaed material with the father to pay for it in the first instance, and mum to pay back half at the end. Consequently, I will discharge the family report order that has been previously made.
I will also make the order for an interim hearing to occur at 2.15pm on 15 September 2022.
So for those reasons I am satisfied that the orders that I am going to make are in the best interests of X, Y and Z.
I certify that the preceding one hundred and eight (108) numbered paragraphs are a true copy of the Ex Tempore Reasons for Judgment of Judge Kearney delivered on 18 May 2022. Associate:
Dated: 14 June 2022
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