Dione & Massoud
[2022] FedCFamC2F 898
Federal Circuit and Family Court of Australia
(DIVISION 2)
Dione & Massoud [2022] FedCFamC2F 898
File number(s): SYC 9655 of 2021 Judgment of: JUDGE M NEVILLE Date of judgment: 11 February 2022 Catchwords: FAMILY LAW – parenting – interim hearing – whether children should live with maternal grandmother or whether child aged 15 years should live with father and child aged 6 years should live with maternal grandmother – mother deceased – father’s criminal and offending history – father recently released from prison – family violence – coercive and controlling behaviour – best interests – views of the child – recovery order – sole parental responsibility – supervised time on a weekly basis – hair drug testing on a one-off basis – injunctions and restraints Legislation: Family Law Act 1975 (Cth) s 60CC, 67U;
Crimes (Domestic and Personal Violence) Act 2007 (NSW) ss 5, 36.
Cases cited: Dieter & Dieter [2007] FamCA 608
Goode & Goode (2006) FLC 93-286
Massoud v R [2019] NSWCCA …
SS & AH [2010] FamCAFC 13
Division: Division 2 Family Law Number of paragraphs: 148 Date of last submission/s: 11 February 2022 Date of hearing: 10 February 2022 Place: Sydney Counsel for the Applicant: Mr Watkins Solicitor for the Applicant: Solari & Stock Lawyers Counsel for the Respondent: Mr Fowler Solicitor for the Respondent: Walkom Lawyers ORDERS
SYC 9655 of 2021 FEDERAL CIRCUIT AND FAMILY COURT OF AUSTRALIA (DIVISION 2)
BETWEEN: MS DIONE
Applicant
AND: MR MASSOUD
Respondent
order made by:
JUDGE M NEVILLE
DATE OF ORDER:
11 FEBRUARY 2022
THE COURT ORDERS THAT:
1.Pending further order, the children, X, born 2006 ("X") and Y ("Y"), born 2015 ("the children") live with the Applicant.
2.Pending further order, the Applicant shall have sole parental responsibility for the children.
3.Pending further order, the children shall spend time with the father for a period of 3 hours on one occasion each week, on the following basis:
(a)Such time be supervised by a supervising agency as agreed in writing between the parties and failing agreement by B Service; and
(b)The cost of supervision is to be paid for by the father; and
(c)Time shall commence and conclude as agreed between the parties in writing, and failing agreement as nominated by the supervising agency.
4.The father do all things necessary to ensure that he or his agent deliver X to the maternal grandmother or her agent, at Suburb H Police Station at 6.30pm today.
5.The maternal grandmother or her agent do all things necessary to collect X at Suburb H Police Station at 6.30pm today.
6.Pursuant to s67U of the Family Law Act 1975 (Cth), a recovery order issue directed to the Marshal of the Federal Circuit Court, all officers of the Australian Federal Police and all officers of NSW Police authorising and directing them with such assistance as they may require, and if necessary by force, to recover the child X born 2006.
7.Pursuant to s 67U of the Family Law Act 1975 (Cth), a recovery order issue directed to the Marshal of the Federal Circuit Court, all officers of the Australian Federal Police and all officers of NSW Police upon recovery of the child X born 2006 to deliver him to the maternal grandmother MS DIONE born 1948.
8.The Applicant's legal representative advise Chambers by email once X is in the Applicant's care.
9.By consent and without admission and without prejudice each party be and is hereby restrained from:
(a)Discussing with the children and/or in the presence of and/or within the hearing of the children these proceedings, or permitting any other person to do so.
(b)Making comments about the other party of the other party's family which are derogatory in nature or denigrating the other party or their family in any way within the children's hearing or presence.
(c)Sending abusive, derogatory, harassing or offensive messages by email, SMS text message, Facebook messenger, or any other electronic means or through third parties to the other party or their family.
10.The father be and is hereby restrained from approaching, contacting or communicating with either of the children including by a third party other than:
(a)As provided for by order 3 herein; and, or
(b)In circumstances where either of the children initiate contact to him in which case he shall do all things necessary to cease such communication; and, or
(c)To facilitate X entering into the care of the maternal grandmother as provided for by these orders.
11.The Father shall make an appointment and attend for hair collection at an Australian Workplace Drug Testing Services (AWDTS) Clinic or nominee for hair drug testing purposes with collection to be conducted by a qualified and certified collector and with a chain-of-custody procedure to be applied to the sample. The testing is to be conducted by an approved laboratory, accredited to conduct hair drug testing to the recognized International Standard ISO/IEC 17025:2005 by the relevant national accreditation body for that laboratory (with either head or body hair to be collected) for testing and to give effect to this order:-
(a)The father is required to maintain his head hair and body hair at its current length and not to be cut, bleached or dyed between the date of this order and the time of collection of hair;
(b)Within seventy-two (72) hours of the date of these orders, the father is required to make an appointment with AWDTS by telephoning … for the purpose of providing a hair sample for hair drug testing purposes;
(c)Each party or their legal representatives is at liberty to provide AWDTS with a copy of these orders;
(d)The father is to attend at an AWDTS Clinic or nominee and submit to the supervised collection of a hair sample from the father at the earliest available appointment time within seven (7) days of this order to undertake hair collection for hair drug testing purposes;
(e)The father is to provide the collector with photographic identification to be recorded before the hair collection and authority, with this order also hereby authorising AWDTS or nominee to provide the results of each test to the legal representatives of both parties, the father, and the Independent Children's Lawyer (if applicable) upon receipt of such test results;
(f)The hair drug and/or alcohol test shall screen for alcohol EtG or drugs of abuse including amphetamine-type substances and metabolites, cannabis and metabolites, cocaine and metabolites, opioids and metabolites;
(g)AWDTS is required to utilize the testing services of an appropriate laboratory accredited to conduct hair drug testing to the recognised International Standard ISO/IEC 17025:2005 by the relevant National Accreditation body; AWDTS' selection is to be based on the type of test required, the specific drug or drugs to be tested, the laboratory's compliance level with international Society of Hair Testing (SoHT) guidelines, cost, and time required for results to be made available;
(h)The cost of the hair drug and alcohol test is to be met by the Respondent Father.
12.In the event the father:
(a)fails to undertake a hair drug test; and, or
(b)fails to return a satisfactory hair drug test; and, or
(c)returns a hair drug test that is positive for drugs of abuse, other than a lawfully obtained current prescription or over-the-counter medication;
then the Applicant's legal representative is to contact my Associate by email so that the matter may be relisted.
13.The Court requests that Legal Aid NSW expedite the appointment of the Independent Children's Lawyer.
14.Leave is granted to the Independent Children's Lawyer to relist the matter on short notice by contacting my Associate by email.
15.Leave is granted to each party to provide a copy of these orders to NSW Police to assist in the implementation of orders 1, 4, 5, 6 and 7 herein.
16.The matter be adjourned to 6 June 2022 at 9.30am for mention.
THE COURT NOTES THAT:
A.The Child Impact Report dates of 20 and 26 May 2022 allocated by a Judicial Registrar remain listed.
B.Insofar as the orders sought by the father at interim hearing as set out in his minute of order which was Exhibit B in the proceedings differed from those in the application sent by him to the court on 23 December 2021, marked as being filed on 13 January 2022, his proposed minute of order was sought on the basis that short term interim arrangements be put into place pending the release of the Child Impact Report. The Court confirms that the interim hearing took place on the basis that further interim hearing time may be allocated after the receipt of the Child Impact Report. The orders made herein do not preclude further interim hearing time being allocated to this matter following the release of the Child Impact Report.
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 the pseudonym Dione & Massoud has been approved pursuant to s 121(9)(g) of the Family Law Act 1975 (Cth).
EX TEMPORE
REASONS FOR JUDGMENTJUDGE M NEVILLE
These reasons for judgment were delivered orally and have been corrected from the transcript.
Introduction
X, aged 15 years, and Y, aged six years, are the children of Ms Massoud (“the mother”) and Mr Massoud (“the father”). Sadly, the children’s mother died in 2021. Since her death, X has been living with the father and Y has been living with the maternal grandmother, Ms Dione. The maternal grandmother and the father are in dispute about the children’s parenting arrangements. The matter was listed for interim hearing yesterday, 10 February 2022.
Issues in Dispute
The Court was required to determine the following issues:
(a)Whether both children should live with the maternal grandmother or whether X should live with the father and Y with the maternal grandmother;
(b)The frequency and duration of either or both of the children’s time with the father, and whether it needs to be supervised;
(c)What orders, if any, should be made about parental responsibility;
(d)Whether, after one hair drug test is undertaken, the father should be required to submit to further hair drug tests on a regular basis; and
(e)Whether injunctions and restraints should be imposed on the father for the protection of the maternal grandmother and other extended maternal family members.
Background
X was born in 2006 and Y was born in 2015.
The parents appear to have been in a relationship that spanned some years, coming to an end in 2015. The parents do not appear to have lived together during their relationship, and as I understand matters, the children did not ever live with their parents in an intact family unit.
As will be discussed in greater detail later, it was not controversial in these proceedings that the father was in prison from 2015 until 2021 on convictions for drug offences. Throughout the period of his incarceration, both X and Y lived in the mother’s care.
It appears that for a period of time, the mother facilitated time and communication between the children and the father at or through the prison, although the evidence does not disclose how often this occurred nor when it came to an end. It is not controversial, however, that it did at some point cease.
The father was released from prison on parole in 2021, and shortly after that X went to live with the father. Y remained in the mother’s care.
It appears that tensions between the maternal and paternal families started to run high after the father’s release from prison. In late 2021, following an argument between the mother and the father over the telephone, the father attended at the mother’s residence. The maternal grandmother was there. There is controversy between the parties as to what occurred on that occasion but the outcome was that the police were called and attended; the father was charged in relation to a threat alleged to have been made by him against the maternal grandmother; and a provisional Apprehended Domestic Violence Order (“ADVO”) was made for the protection of the maternal grandmother against the father.
The father is defending the charge matter as well as the ADVO, and those applications are listed for hearing in the Local Court of New South Wales in 2022.
It was not controversial that, at various points in her life, the mother struggled with alcohol use. At or around the time that the father was released on parole, the mother entered rehabilitation in relation to alcohol use. It is not clear whether it is controversial in these proceedings, however, the maternal grandmother contends that the mother had – prior to that point – maintained sobriety for a period of 13 years.
In late 2021, whilst in hospital, the mother passed away. Her family have not yet been advised of the cause of her death. If Y was not already in the maternal grandmother’s care prior to his mother’s death, it is not controversial that he has lived with her since.
After a series of tense family events which occurred in late 2021, both the maternal grandmother and the father filed an Initiating Application, affidavit, and Notice of Family Violence, Child Abuse, and Risk on 23 December 2021. Whether by a matter of minutes or hours, the maternal grandmother’s application was received first in time, and she has been designated as the Applicant in these proceedings. Although the father’s legal process is date‑stamped 13 January 2022 on the Court file, it does not appear contentious, and I accept, that it was in fact lodged with the Court on 23 December 2021.
The applications were listed before a Judicial Registrar on 10 February 2021. The Judicial Registrar made orders appointing an Independent Children’s Lawyer and referring the parties and the children to the Court Children’s Service for the preparation of a Child Impact Report, with appointments scheduled for May 2022. The matter was otherwise referred to me urgently for interim hearing.
The Law
By reference to the matters set out by the Full Court of the Family Court of Australia (“the Full Court”) in Goode & Goode (2006) FLC 93-286, it is clear that an interim hearing is an abridged process with a curtailed scope of inquiry. Where the Court is unable to make findings of fact, it should not be drawn into issues of fact, nor matters relating to the merits of the substantive case where findings are not possible. The Court looks to less contentious matters such as agreed facts of issues not in dispute, and regard is to be had to the care arrangements prior to separation or prior to relationship breakdown, the current circumstances, and the parties’ respective proposals for the future. The Court must regard the best interests of the child as paramount in deciding what interim parenting order to make.
The task of determining interim parenting applications where there are allegations that children are at risk from a variety of issues, including but not limited to family violence or criminal activity, is notoriously difficult. The authorities are clear, however, that notwithstanding the confines of an interim hearing, the Court cannot set aside competing contentions as to risk, and must grapple with risk assessment, even if matters are difficult to resolve on an interim basis.
In SS & AH [2010] FamCAFC 13 the Full Court observed that a Judge may need to weigh the probabilities of competing claims where there are competing contentions as to risk, and the likely impact on children in the event that a controversial assertion is acted upon or rejected.
In Dieter & Dieter [2007] FamCA 608 (“Dieter”) the Full Court identified that risk assessment comprises two elements. The first is the prediction of the likelihood of the occurrence of harmful events, and the second is the severity of the impact of those events if they were they to come to pass. Importantly, in Dieter, the Full Court observed that risk assessment cannot always await the last piece of evidence being given, and it is always a question of degree.
The authorities caution that at an interim stage where events are yet to be tested, where the Court is often faced with competing contentions and little agreed facts or other independent evidence to allow the Court to make findings on such a dispute, the Court should proceed on a cautious basis.
Areas of Agreement
Before identifying the competing applications, it is useful to observe that the parties agreed upon the following orders being made:
(a)Pending further interim order, Y live with the maternal grandmother; and
(b)Without admission or prejudice, each party be restrained from:
(i)Discussing the proceedings with or in the presence of the children or allowing any other person to do so;
(ii)Making derogatory comments about or denigrating the other party or their family in the children’s presence or hearing;
(iii)Sending abusive, derogatory, harassing, or offensive messages to the other party or their family, or having a third party do so; and
(iv)Passing information or messages through the children to the other party.
The Parties’ Competing Applications
The maternal grandmother’s application
Beyond those matters, the maternal grandmother sought orders to the following effect, that:
(a)She have sole parental responsibility for each of X and Y;
(b)X live with her;
(c)Both children spend time with the father for a period of three hours on one occasion each fortnight, to be supervised by a professional supervision service as agreed between the parties, and failing agreement, by F Service;
(d)The father be restrained from approaching, contacting, or communicating with the children, including through third parties, other than in accordance with the interim orders;
(e)The father be restrained from assaulting, molesting, harassing, or interfering in any manner with the maternal grandmother or her family;
(f)The father undertake hair drug testing through AWDTS in accordance with recognised international standards and that:
(i)The first hair sample be provided within 72 hours, and any subsequent sample be provided within seven days of written request made by the maternal grandmother, with such requests to be limited to one in every three calendar months;
(ii)All samples be provided under supervision, and with photographic identification being provided by the father at the time that the sample is provided;
(iii)The father be restrained from cutting, bleaching, or dyeing his hair between the date of the orders and the time the hair sample is collected;
(iv)The agency screen for alcohol and specified drugs of abuse.
(g)In the event that the father does not produce a satisfactory hair drug test, then the children’s time with him be suspended until he does so, and once he does so the children’s time resume in accordance with the orders;
(h)In the event that the father:
(i)Returns a test that is positive for alcohol or is positive for one of the drugs of abuse tested for, other than where he has lawfully obtained a current prescription or over-the-counter medication, and, or,
(ii)Fails to provide a hair sample in accordance with orders or in the timeframe provided for by the orders; and, or,
(iii)Does not abide the restraints in relation to cutting, bleaching, or dyeing his hair,
then the children’s time with him be suspended.
The father’s application
The father sought orders to the following effect, that:
(a)X live with him;
(b)Y spend time with the father each Sunday for six hours, unsupervised;
(c)The father communicate by telephone or FaceTime with Y each Tuesday and Thursday for up to 30 minutes on each occasion on a phone or device to be provided to him by the father, and that the maternal grandmother ensure Y is available to take those calls; and
(d)The father undertake hair drug testing on one occasion only, otherwise under the testing conditions and subject to the same restraint as to the cutting, bleaching, or dyeing of his hair as proposed by the maternal grandmother in her minute of order.
Concessions made by the parties at the interim hearing
Insofar as the parties are in dispute in relation to the minutes of order, the following concessions were made in the course of the interim hearing:
(a)In the event that the Court determines, contrary to the father’s application, that it is necessary to make an order about parental responsibility, he would not oppose an order for equal shared parental responsibility being made in favour of himself and the maternal grandmother.
(b)In the event that the Court determines, contrary to the maternal grandmother’s application, that she should not hold sole parental responsibility of both children, she would not oppose an order for equal shared parental responsibility being made in favour of herself and the father.
(c)In the event that the Court determines both children should live with the maternal grandmother, she does not oppose the children spending weekly supervised time with the father for a period of three hours.
(d)In the event that the Court determines that the father’s time with either or both of the children should be professionally supervised, he proposes that in default of agreement on the supervisor between the parties, the supervising agency be B Service. The maternal grandmother did not oppose the nomination of that agency.
Material relied upon
By the maternal grandmother
In her case, the maternal grandmother relied upon:
(a)Her case outline document, including the minute of order proposed, which superseded the relief sought by her in the Initiating Application she filed on 23 December 2021 as amended on 9 February 2022;
(b)The Notices of Family Violence, Child Abuse and Risk filed on 23 December 2021 by her and by the father;
(c)Her affidavit filed on 23 December 2021;
(d)The affidavit of Ms E, maternal aunt, filed on 9 February 2022.
She tendered in the proceedings the following documents:
(a)The father’s criminal history bail report dated 24 September 2015
(b)The father’s parole reporting arrangements
(c)A text message from X to the maternal aunt of 9 February 2022.
Over objection by the father, the maternal grandmother tendered, and I admitted, the decision of the New South Wales Court of Criminal Appeal in Massoud v R [2019] NSWCCA … (“Massoud v R”), being a decision in relation to an appeal lodged by the father’s adult son Mr D against his conviction for drug-related offences.
Again, over objection by the father, the maternal grandmother tendered, and I admitted, paragraphs 22 to 34 of the affidavit of the mother made on 14 June 2019 in separate property proceedings between the mother, the father, and the New South Wales Crime Commission on foot in the family law jurisdiction.
By the father
For his part, the father relied upon:
(a)The minute of interim order proposed by him, which superseded the relief sought by him in his Initiating Application filed 23 December 2021;
(b)His affidavit filed on 23 December 2021;
In addition, he tendered, and I admitted as an exhibit, a bundle of text messages from the mother to the father sent in 2021.
Discussion
The maternal grandmother’s case
The maternal grandmother contends that both children should live with her. She says that there are real risks to X if he remains in the father’s care and to both children if they spend unsupervised time with the father, namely that they:
(a)Will be exposed to criminal activities;
(b)Will be exposed to family violence;
(c)Will be exposed to coercive and controlling behaviour by the father or their older brothers; and
(d)May be turned against the maternal family.
She contends that the children’s best interests are met by living with her and by spending regular, professionally supervised time with the father to mitigate these risks.
Given the nature of the father’s criminal history, the maternal grandmother contends there are real questions as to illicit drug use by the father which need to be investigated by way of ongoing hair drug testing. Given the nature of interactions between the parties in recent times, she contends that it is necessary to put restraints in place against the father to manage the risks of family violence and to manage any attempt by him to contact the children.
The father’s case
The father contends that he poses no risk that warrants X being placed in the maternal grandmother’s care or that warrants supervision of his time with either child. He contends that following his release from prison, he was spending regular time with the children, and indeed, X came to live with him. He contends that this was done with the mother’s consent, in circumstances where he says the Court can be confident that the mother had no concerns for either child’s safety whilst with him.
The father contends that the relationship between X and the maternal grandmother, and the extended maternal family, is strained. It is his position that living with maternal family members is contrary to X’s wishes, and that at 15 years of age, some weight should be placed on those wishes as they are presently known to the Court.
The father contends that the Court would not be concerned that he will engage in criminal conduct when he is presently on parole, and where the consequences of breaching his parole conditions would be serious, including, I infer, a return to prison.
On instruction, his counsel informed the Court that the father contends he has not used illicit drugs since the early 1990s. He is willing to undergo a hair drug test; such is his confidence that the results will establish that he is free of illicit drug use. He contends that the evidence in this matter does not otherwise support ongoing testing.
The father also contends that the restraints proposed by the maternal grandmother, beyond those that are agreed between the parties to be made on a mutual basis, go further than is necessary in circumstances where there is an ADVO presently in place.
Discussion
At an interim stage, in determining what is in a child’s best interests, the Court considers the matters set out at section 60CC of the Family Law Act 1975 (Cth) (“the Act”) that are relevant to the issues in dispute.
The primary considerations are:
(a)The benefit to the children of having a meaningful relationship with each parent; and
(b)The need to protect the children from physical or psychological harm, from being subjected to or exposed to abuse, neglect, or family violence.
The Act is clear that the Court is to give greater weight to the need to protect children, if it exists.
In addition to the primary considerations, the Court gives considerations to those factors at section 60CC(3) of the Act relevant to the issues in dispute.
Primary considerations
Section 60CC(2)(a): The benefit to the child of having a meaningful relationship with both of the child’s parents
It is too early in these proceedings to determine, with precision, the nature of the children’s relationships with the father. I observe however that those relationships must, by virtue of circumstance, be limited, where Y appears to have been six weeks old and X was almost nine years old when the father was incarcerated; and at the time of this interim hearing, he had been in the community for a period of only about four months. It would appear that the father has been incarcerated for most of Y’s life and for a significant part of X’s.
Although the father gives evidence that the mother would facilitate time and communication between the children and him when he was in prison, he deposes that at some point in time following an argument between him and the mother over the telephone, the mother ceased facilitating time or communication. Unfortunately, he does not say when this occurred and there is no way to know if it occurred in the early or later part of his sentence.
Regardless of when it happened, however, I observe that any time or communication that may have occurred between the father and the children would have occurred in prison or over the prison telephone. It would therefore have been limited in nature – not only in terms of the quantity and frequency of time, but also the conditions under which it might have occurred.
Because the children’s mother is deceased, it is not possible at this point in time to make any findings in relation to the nature of the relationship between her and the children other than to observe that whilst the father was in custody, the children appear to have remained in the mother’s full-time primary care.
Section 60CC(2)(b): The need to protect the child from physical or psychological harm from being subjected to, or exposed to, abuse, neglect or family violence.
Turning, then, to the concerns that are raised by the maternal grandmother.
By necessity, these reasons will focus on risk in the father’s care because insofar as the father makes contentions about the parenting arrangements for the children, it appears that he does not suggest that either of the children are at risk of physical or psychological harm arising from being subjected or exposed to family violence, neglect, or abuse in the maternal grandmother’s care.
The father’s criminal history
It is clear that the maternal grandmother is worried that either or both of the children will be exposed to criminal activity if they live with or spend unsupervised time with the father.
In his affidavit made on 23 December 2021, the father sets out details in relation to his criminal history at paragraphs 21 to 26. He gives evidence in his affidavit that:
(a)In 2015, he was arrested and charged with various offences relating to the supply of illegal drugs;
(b)He was held on remand until later entering a plea of guilty to various offences with which he was charged;
(c)He was first sentenced in relation to those matters in 2017;
(d)In 2018, he was sentenced in relation to separate charges;
(e)As a result of the sentencing, he was to serve a total minimum period of imprisonment of more than six years, to take effect from the date he was first detained in 2015.
The father deposes that he has never been convicted of a crime of violence and that he will produce a copy of his criminal history to the Court when required.
That is the extent of the matters he sets out in relation to his criminal history, other than to acknowledge that he has been charged with stalk/intimidation, and that there is an application for an ADVO against him at the present time.
If the Court were to rely solely on the father’s affidavit, it would appear that other than the supply offences, his record is free of convictions. The father’s Bail Report Criminal History tendered by the maternal grandmother in the proceedings reveals, however, a far more extensive criminal history.
I have disregarded for present purposes any convictions entered against the father as a juvenile, and I do not take those matters into account in determining this application.
As an adult, it would appear that the father has been convicted of a range of offences, including but not limited to driving offences, weapons offences, drug-related offences and assault, between 1985 and 2006.
In the course of submissions, counsel for the maternal grandmother made reference to a conviction for maliciously inflict grievous bodily harm. It is clear from the father’s Bail Report Criminal History that that conviction was quashed on appeal. I have not taken that conviction into account in determining this application.
In addition to the matters just outlined, the father’s criminal history reveals that in 2012 he was charged with serious criminal and drug-related offences. The record indicates that in 2014, he was committed to stand trial for those offences. It appears, again by reference to the father’s Bail Report Criminal History, that those charges went before the District Court of New South Wales, although the evidence does not reveal what those matters were listed for nor the ultimate outcome of those charge proceedings. Although the father is silent about those charge matters, I infer from the maternal grandmother’s affidavit, as well as what appears to be bail conditions set out in the Bail Report Criminal History, that the father was granted bail in relation to those offences.
In 2015, the father was arrested and charged with multiple counts of drug-related offences.. As I understand the evidence, he was held on remand pending trial. As best I can work out, in 2018, and by reference to the New South Wales Court of Criminal Appeal decision of Massoud v R, the father was convicted of a number of the offences.
The father was sentenced to a non-parole period of five years and a total effective sentence of seven years on one conviction; and to a non-parole period of over five years and an effective sentence of eight years with partial accumulation of three months on the second charge. The sentences were to commence in 2015, being on the date the father was arrested.
The father’s criminal history – having regard to all of these matters – is extensive, and his affidavit gives no indication of the extensive nature of it. The maternal grandmother says that the Court should be concerned about this.
It was submitted for the father that his affidavit was prepared in circumstances of urgency, and that the Court should recognise this when considering the maternal grandmother’s submission.
The maternal grandmother was also critical of the father for having failed to disclose convictions of drug-related offences in the Notice of Family Violence, Child Abuse, and Risk filed and signed by him on 23 December 2022.
I have given consideration to those matters, and I observe and accept that both the father’s affidavit and his Notice of Family Violence, Child Abuse and Risk were prepared by the father just prior to Christmas and in circumstances of some apparent urgency.
Against that, however, I observe that the relief sought by the father in his Initiating Application included urgent listing of the proceedings; and in the event that the maternal grandmother did not respond to or appear on the return date of the Initiating Application that he be granted leave to proceed ex parte on an application for an order recovering Y to his care.
Where a party seeks to proceed on an ex parte basis, they have obligations of the utmost candour to the Court. Had the Court proceeded on an ex parte basis, and relied only on the affidavit the father filed in support of his application, the Court would not have had a clear picture of the father’s criminal and offending history.
Whilst I accept that the father failed to disclose his drug convictions in the Notice of Family Violence, Child Abuse, and Risk, I observe that he did disclose those matters in his affidavit, and so I place less significance on their omission from Notice of Family Violence, Child Abuse and Risk.
I am concerned, however, about the lack of information provided by the father in his affidavit about his criminal offending behaviour. On the basis of the evidence presently available, I am unable to determine the outcome of some of the charges. It may be that he was acquitted of those matters, that those charges were withdrawn, or that he was convicted of those offences. Where he says at paragraph 23 of his affidavit that he was first sentenced in relation to the 2015 matters in 2017, and then in 2018 he was sentenced in relation to separate charges, it may be that that was a reference to certain charges. However, the evidence does not allow me to so conclude. I observe that the charges are serious.
On the basis of the evidence available about the father’s criminal history, I observe that his behaviour has occurred over a number of decades. Insofar as it was submitted that the father has been on good behaviour since his release and that he does not appear to have committed any criminal convictions for some years now, I observe that his release was only a few months ago and that he had been incarcerated for a period of six years prior to that. I also observe that his offending history spans many years.
Insofar as it was submitted that the Court would have confidence that the father would be deterred from the commission of further offences given the conditions of his parole, I observe that the 2015 convictions appear to have been committed at a time when the father was facing serious criminal charges in relation to the 2012 matters; and where it appears he was on bail conditions in relation to those matters. Where there is no evidence about those proceedings other than what appears in the criminal history, I cannot be as confident about the father’s parole conditions being a deterrent to the commission of further offences as the father would invite.
In relation to the evidence available about the father’s criminal history, I observe the counsel for the father informed me, on instruction, that the father denies illicit drug use since the early 1990s. It is difficult to feel confident in that information, having regard to a possession offence which appears to have been committed in 1998; and in the absence of information about the outcome of the charge in 2012.
There is no context or explanation provided by the father in relation to the weapons offences committed. I recognise that the matters to which I have just made reference occurred some years ago, however, they are serious matters. If X or Y were to be exposed to behaviour in the same nature as that which grounded any of those convictions, I consider that both of the children would be at risk of harm.
Insofar as the father has deposed in his affidavit that he has never been convicted of a crime of violence, there is a conviction for common assault on his record. As observed earlier in these reasons, that conviction appears to have been entered against him some 20 years ago. I place little weight on the father having failing to disclose that in his affidavit, given that the matter appears to have been a common assault committed such a long time ago.
To the extent that it may be considered that either child could be shielded from criminal activity if the father was to engage in it, I observe that the father’s older children, Mr D and Mr J, were both convicted of drug offences apparently committed in association with the father or in the enterprise that led to the convictions against the father. In the Court of Criminal Appeal judgment, Mr D was reported to have informed Professor G, who prepared a psychological report in those proceedings, that he had been exposed to illicit drug use in the father’s household. Professor G considered that Mr D had mental health difficulties which had their aetiology in dysfunction within the paternal household and dysfunction within the father-child relationship between Mr D and Mr Massoud.
The maternal grandmother submitted that the Court would observe these matters and be concerned for X and Y in relation to the issues raised. I observe the matters that are set out at paragraphs 17 to 24 of Massoud v R. I place limited weight on them but do not disregard them entirely.
I place limited weight on them, because whilst they contain an account of what was reported to have been Mr D’s experience in the father’s household, I do not have Professor G’s report in evidence. I consider I need to approach any summary of statements Mr D is reported to have made to Professor G with caution. I do not know whether what is contained in the judgment was all that was reported nor can I be satisfied as to its accuracy when it is not clear whether Professor G or Mr D were cross-examined in those proceedings. There is also no evidence from Mr D in these proceedings.
I observe, however, that Mr D is reported to have told Professor G that he observed the father to have engaged in frequent illicit drug use. Where Mr D was born in 1992, this also calls into question the father’s assertion that he ceased illicit drug use in the early 1990s.
Family violence
This is a matter where there are also competing contentions as to family violence. Importantly, it was contended that there was family violence in the relationship between the father and mother. I observe that the maternal grandmother and the maternal aunt say that family violence occurred by the father on the mother. The father denies this to have been the case. In this regard, I observe the mother’s affidavit, which was admitted over objection. Paragraphs 22 to 34 of that affidavit set out the mother’s evidence in relation to her concerns about family violence and contentions she made in the property proceedings as between her and the father.
It is clear from the Child Impact Report that if the matters alleged against the father in the affidavits of the mother, and the maternal grandmother are true, it would constitute coercive and controlling behaviour. I am unable to conclude whether or not the family violence has in fact occurred in circumstances where it is denied by the father, and so I approach with caution the father’s contention that the mother willingly facilitated time between the children and the father late in 2021 without concern for either child’s safety. It is of course possible that the mother freely and willingly facilitated that time in circumstances where she had no concerns for X and Y. However, where I can draw no conclusion about family violence, and noting the competing contentions, I must allow for the possibility that the mother facilitated time because she was fearful of the father. I emphasise that I do not find that either scenario was in fact the case.
I cannot accept or reject the father’s contentions about the way in which arrangements were made between the parents in late 2021 for time and communication between the father and the children. This is because the text message communication between the parents tendered by the father would appear to suggest that there was at least civil communication between the parents at that point in time.
For the same reasons, I can neither accept nor reject either party’s contentions about the circumstances under which X entered the father’s primary care in 2021. The father contends that X entered his care after the mother had relapsed into alcohol use and those arrangements were made so as to provide for X’s safety. The maternal grandmother contends that X was spending time with a friend and the father simply arranged to collect him and thereafter did not return him to the mother’s care.
As noted earlier in these reasons, the police were called to the mother’s home following an argument over the telephone between the parents in late 2021. The father gives evidence that it was he who called the police on that occasion. A provisional ADVO was issued and charges were brought against the father. Those charges relate to a threat alleged to have been made by the father against the maternal grandmother. The alleged threat appears to have comprised the father saying to the maternal grandmother words to the effect of, “I am coming over to break every bone in your body and I’m going to get [Y].”
The complaint for the ADVO is in evidence, annexed to the maternal grandmother’s affidavit as well as to the Initiating Application that was filed by the father. Insofar as the complaint records the police assessment of the credibility of accounts given by the father, his partner, or X in relation to that incident, I disregard entirely those assessments from my consideration of this matter. I have no evidence or information about the basis on which the police reached those conclusions; there has been no cross-examination on that matter; and I am not assisted by that portion of the evidence.
I observe, however, that the complaint discloses – and no issue was taken during the course of the interim hearing – that during an electronically recorded interview the father reported that he believed he said to the mother “Mate, you shouldn’t have broken your legs. You should have broken every bone in your body.”
The father denied directing that comment to the maternal grandmother.
In the event that that is an accurate account of what occurred, it is a curious comment for the father to have made in circumstances where it appears uncontroversial that the mother had broken her foot at that point in time. Having regard to the competing contentions about family violence, I am unable to conclude whether it was an innocuous or a benign comment, or whether it was a reference to something more serious.
In any event, it would appear that the issue of family violence as between the father and the mother was a live one throughout the course of their relationship, as well as post-separation whilst the mother was alive.
In addition to that matter, I observe that the father is presently facing criminal charges which are being defended.
Family violence encompasses behaviours that occur not only between a child’s parents but between members of a child’s family. The maternal aunt gives evidence throughout her affidavit that she and the maternal grandmother have had concerns and have felt apprehension about the father’s conduct towards them. This arises in part from conduct alleged to have occurred at the mother’s funeral in 2021.
The father has not given evidence about those matters in his affidavit, it having been filed before the mother’s funeral. The maternal aunt’s affidavit, in which those matters were raised, was filed only one day before the matter was listed for interim hearing. I infer that the father in any event denies the matters that are complained of, but I observe those risk factors.
Insofar relation to the issue of coercive and controlling behaviour, I observe the maternal grandmother’s contentions that the father would engage in conduct that places pressure upon X to act or behave in certain ways, as well as possibly upon Y in the event that the father was to spend unsupervised time with him.
It is difficult at this interim stage of proceedings to draw any conclusions about the matters contended by the maternal grandmother and disputed by the father in this regard. However, having regard to the matters that I have outlined, it would appear to me that the father has an extensive history of engaging in criminal conduct; that it was not disclosed in his affidavit; that the offences for which he has been convicted are serious – they relate to weapons and drugs; and that his two older sons were involved in the commission of some of those offences.
The evidence does not comfortably satisfy, me at this point in time, that I could be confident that the father’s offending behaviour is at an end. This is because of the extensive nature of his criminal history as well as what appears to have been the commission of offences at a time when he was facing other serious charges and, or, was on bail conditions for those matters.
If Y or X were to be exposed to the behaviour that grounded those convictions, I consider that each of the children would be at risk, and I consider that there is a need to protect both children from being subjected to or exposed to family violence and criminal conduct which would, in my view, constitute some form of abuse or neglect whilst in the father’s care.
Relevant section 60CC(3) considerations
X’s views
X is a 15‑year‑old young person. He is at an age where his views would ordinarily attract some weight, subject to the Court being satisfied that they have been expressed freely and formed with capacity. The Court has, at this point in time, very little by way of X’s views before it, although I observe that appointments have been made for the preparation of a Child Impact Report through which his views may be obtained.
The father contends that X’s wishes to remain in the father’s care; and that his relationship with the maternal grandmother is presently strained. In that regard, he relies upon text message communication sent by X to the maternal family which is included either in the maternal grandmother’s tender bundle or annexed to her affidavit.
Having regard to the evidence that is available in relation to those communications, it appears that there was some controversy about a decision taken by the maternal grandmother to redirect mail that was going to the residence at which X had been living. On or around 9 February 2022 X sent a text message which read:
I really don’t know who the fuck you guys think you are redirecting our fucking mail to your house. That is our personal details. Now you better have it all fucking ready, every single fucking bit of it, because the cops are coming to look for it. I don’t want to hear from you ever fucking again, because you guys are just fucking pathetic for pulling something like that.
In addition to that, it would appear that in December X sent messages to the maternal aunt to the following effect:
You’re missing out on the bit where he said to Ma (being the maternal grandmother) “You are always welcome to see the boys.” But don’t worry about sending the info for Christmas Day, because I don’t want to come, seeing that you’re hiding [Y] from my dad. And my only advice, stop separating what’s left of my family.
On 31 December 2021, X sent a further message:
I just found out that you’re making shit up about [Mr D] threatening you. Now you know that is fucking bullshit. The conversation was between me and my brother. You had nothing to do with it, and if you felt so threatened, then you should stay the fuck out of it. First you get my dad charged for nothing. Now you’re trying to get my brother charged. Who the fuck do you think you are, trying to push yourself into a conversation you were never in? Trust me, when we go to court for [Y], I will sit in that box and say the truth of who you really are, and I will never forget how you are breaking up the only family I have left. Now, don’t ever call me again, delete my number, because all you are is a whole bunch of liars.
It would appear from those text messages that X certainly has some strong views towards the maternal family.
In the message that was sent on 31 December 2021, X appears to make reference to family law proceedings, the details of some of the concerns expressed in the maternal grandmother’s affidavit about the risk that Mr D may pose, as well as the fact that family law proceedings were going to go to Court about Y. I am unable to draw any conclusion as to how it is that X became aware of those matters or how he became aware of the redirection of mail. However, a reasonable reading of that text message would allow for the possibility that X had seen a copy of some of the evidence that had been filed in the proceedings or had somehow been made aware of it.
Whilst it is possible that there was discussion between X and either the maternal aunt or the maternal grandmother about those matters, it is equally possible that those were matters that were brought to his attention by the father. Having regard to those concerns and those possibilities, I cannot conclude that the views that might be attributed to X from those messages are in fact views that he has freely come to or that they are necessarily his own views.
The nature of the children’s relationships with the adults and other people in their lives
I have already observed the limited opportunity for relationship between the father and X and between the father and Y, having regard to the father’s incarceration from 2015 to 2021.
It appears that each of the children has relationships with the extended maternal family. Both the maternal grandmother and the maternal aunt give evidence of a strong involvement with the children by virtue of their regular contact with the mother, particularly during the period that the father was incarcerated. They speak of warm and loving relationships that they shared with each of the children. It appears that the father accepted that X had, if not a good relationship, then at least not a negative one with the maternal family prior to the father’s release from custody.
No explanation is given by the father in his affidavit as to how or why things appear to have become so bad, so quickly in terms of X’s relationship with the maternal family. This is curious in circumstances where it would appear that X, who had lived in the mother’s primary care for all of his life, appeared to have had regular contact with his extended maternal family and where it appears he had good relationships with them. In submissions, it was contended that things may have soured when the mother appeared to have relapsed into alcohol use in late 2021, but it is difficult to see how this came to impact on X’s relationships with his maternal grandmother and maternal aunt.
The father is presently in a relationship with his partner, Ms C, who he married in 2012. He has been living with her since his release from prison in 2021. There is no affidavit in these proceedings from Ms C, and there is no evidence that would allow me to draw any conclusion as to the nature of the relationships between Ms C and either of the children during the period that the father was in custody. There is little evidence in the father’s affidavit about the nature of either of the children’s relationship with Ms C.
In the course of submissions, and on instruction, counsel for the father informed the Court that a couple of weeks ago the father and Ms C welcomed into the world a child, Z, who is only weeks old. Z is a sibling to both X and Y, but for reasons that are perhaps understandable, there is no evidence of the nature of that relationship.
It is also clear that the children have relationships with Mr D and Mr J, being the father’s older children. It is not clear what time, if any, the father spends with Mr D and Mr J, although I observe the affidavit evidence given by the maternal grandmother that Mr D was at the mother’s funeral to support X.
The likely effect of changed circumstances
Both of the children have very recently sustained a very significant loss.
On the maternal grandmother’s proposal, X would come into her primary care. This would represent a change in the circumstances that X has known for the past three to four months, in that he would move from living with the father and the paternal family into the maternal grandmother’s household. It would appear, however, that he is familiar with the maternal grandmother’s household, having spent regular time with her. If orders were made as proposed by the maternal grandmother, it would see X reunited with Y, with whom he appears to have lived for all of Y’s life. On the maternal grandmother’s proposal, X would spend regular time with the father, albeit supervised and for limited periods.
On the father’s proposal, the children would remain living where they presently are. This would mean that they would remain separated from one another, in circumstances where they lived together for all of Y’s life. The brothers would spend time together at the times the father would spend time with Y, being, on the father’s proposal, each Sunday from 9.00am until 3.00pm. The orders proposed by the father under the minute of order make no proposal for any time or communication between X and the maternal family at all.
It is impossible to reach any conclusion as to the effect of those changes in circumstances on either of the children, but I observe those matters in terms of the nature and the effect of the orders.
Remaining Section 60CC(3) factors
I consider that the issue of family violence and family violence orders is relevant to this interim dispute and I consider that I have outlined my consideration of those matters earlier in these reasons.
I also consider it significant that the children are, at a time of grief and loss, separated from each other. Sibling bonds are important, and it is reasonable to consider that each of the children is grieving the loss of their mother with whom they lived for all of their lives.
Conclusion
Turning then to the questions that need to be determined in this matter.
Whether both children should live with the maternal grandmother or whether X should live with the father and Y should live with the maternal grandmother
For the reasons earlier given, I have concluded that there is a need to protect both of the children from physical or psychological harm, from being subjected to or exposed to abuse, neglect or family violence in the father’s care.
In the event that I am wrong in concluding that potential exposure to criminal activity is a matter that falls within the definitions of family violence, abuse or neglect, I otherwise consider that it is a risk factor for X and Y. If it were the case that the father was, for any reason, to be charged with any further offences and go to prison under his parole conditions, or for any other reason, it would represent another loss of a parent if X was to be living with him.
Whether or not the risks are likely to arise is unknown at this time. Observing the caution that the authorities urge at an interim stage, and observing the significant consequences for X were he to be exposed to any of the matters that grounded the father’s earlier convictions, I consider that X is at risk in the father’s household and that X should live, on an interim basis, with the maternal grandmother and with Y.
Whether time needs to be supervised
Having regard to the text message communication to which I have made reference earlier in these reasons; the heightened tensions that are presently in existence between the maternal and the paternal family; and the risks that arise from the history of criminality in this matter, I consider that the children would be at an unacceptable risk of harm in the father’s unsupervised care. I can see no way, at this point in time, of mitigating the risks to which I have made reference other than through supervision.
Whilst I observe that each of the parties has agreed to enter into orders that they not denigrate or speak badly of the other, and that they not do or say things that would expose the children to the proceedings, it is difficult in light of the present evidence to really know and understand the father’s capacity to comply with those orders having regard to the matters raised on his criminal record and to the lack of evidence about his capacity to comply with bail conditions previously imposed and, or, to feel the deterrent effect of serious criminal convictions which would prevent him from committing further criminal offences.
In the circumstances, I consider that the children’s time needs to be supervised so as to protect them from the risk of being subjected to or exposed to any denigration, any discussion about the proceedings, or anything that might compromise the children’s memory of their mother. I say that in circumstances where it would appear that there were difficulties in the relationship as between the mother and the father, and where I have not been able to make sense of the comment the father says he made in late 2021 as recorded in the ADVO complaint.
The frequency and duration of time that should be spent
Where X has been living with the father, I consider that it may be difficult for him to separate from the father. In circumstances where it was not controversial that if the Court considered it appropriate weekly time should be ordered, it is preferable that both of the children spend weekly time with the father. This will provide X with some ongoing contact with the father in circumstances where he has been living with him. It will provide Y with regular contact with the father at a time where he can only be considered to be building his relationship with the father and where he is a much younger child. It will provide regular contact that will not leave so long between visits for Y at this important time in developing the father/child relationship.
In terms of the duration of time, the father proposes that time occur for six hours. The maternal grandmother proposes that time occur for three hours. This has been a difficult issue to resolve in circumstances where it would appear that Y has very little knowledge of, or personal experience of, the father, and where X has a much stronger and much more robust personal knowledge and experience of the father. I consider, on balance, that time should occur for a period of three hours because I consider that it will better meet Y’s needs in circumstances where he is in the process of forming and developing a relationship with the father who he does not presently appear to know well.
It was not controversial in these proceedings that if orders were made for supervised time, the father would bear the cost of that supervision.
Whether there should be FaceTime and, or, telephone communication
The father seeks orders for communication by telephone or FaceTime on Tuesday and Thursday. At this early stage in proceedings, where I am concerned that there is a risk of discussion about the family law proceedings and, or, there is a risk of denigration; and where it is not possible – nor do I consider it reasonable – to expect the maternal grandmother to supervise those calls, I do not consider it is in the children’s best interests that there be FaceTime communication with the father.
Parental responsibility on an interim basis
In terms of the orders – if any – that should be made about parental responsibility, as I understand the father’s position, he seeks no order for parental responsibility. The maternal grandmother seeks sole parental responsibility.
When making parenting orders under the Act, the Court starts with the presumption that it is in a child’s best interests that their parents hold equal shared parental responsibility. That presumption does not apply where the Court is satisfied that there are reasonable grounds to believe that a parent has engaged in family violence. It may otherwise be rebutted by evidence satisfying the Court that equal shared parental responsibility would not be in the children’s best interests.
Here, where the children’s mother has passed away, it is not possible for the parents to hold equal shared parental responsibility.
If the orders are silent about parental responsibility, then the common law position applies. That is, that each of the child’s parents – but not grandparents – has the authority to make decisions about the things that need to be decided.
Where I have determined that both children should live with the maternal grandmother, I consider that orders must be made about parental responsibility. If either of the children require medical attention, if decisions need to be taken in liaising with the children’s school, then the maternal grandmother is going to need some authority to take those decisions. The question is whether orders should be made, as she seeks – that she have that parental responsibility solely, or whether it should be shared with the father.
I have given careful consideration to this matter because it is important for children that their parents play a decision making role in their life. I have concluded that it is in X and Y’s best interests, however, that the maternal grandmother, on an interim basis, holds sole parental responsibility.
I have reached that conclusion, firstly, because it reflects the children’s lived experience – at least for the period during which the father was incarcerated – that the father has not played a significant role in decision making for them and where they were in the mother’s primary care.
Secondly, there is presently an ADVO against the father for the protection of the maternal grandmother on a provisional or an interim basis. Whilst it is also clear that the father is defending that ADVO being made against him, it would appear that there are significant tensions in the maternal and paternal family relationships at this point in time. Having regard to those matters, and having regard to what is required of people when an order is made for equal shared parental responsibility, I am not confident at this point in time that the maternal grandmother and the father are able to do all things necessary to genuinely confer, to consult with each other, and to try and reach a joint decision in the children’s best interests. If decisions need to be taken, and if the maternal grandmother and the father find themselves in dispute or at loggerheads, it will only prompt a further application to the Court to get decisions made; or the children run the risk of decisions not being made on their behalf. Where the maternal grandmother has no decision making capacity other than by order of this Court, and where there is a risk that decisions will be delayed or not made, I consider that where the children are living with her, she should hold sole parental responsibility.
Hair drug testing by the father
There is no evidence before me at the moment that the father is presently engaged in illicit drug use. The father will willingly undergo one hair follicle test. This should give the Court some data about any illicit drug use in the period of time since he has been released from prison.
I consider that where orders have been made that the children live with the maternal grandmother, and where orders are to be made that the children spend supervised time with the father, that the father should not be required to undergo ongoing hair drug testing where it appears that if there is any risk associated with illicit drug use that it can be managed by the orders that are otherwise put into place.
It is clear that illicit drug use is an issue in these proceedings. The father may choose to have further tests undertaken. If, at a future point, the evidence suggests that drug use has become an issue then a further application for drug testing can be agitated when the matter returns to court. I consider, however, that the risks are presently mitigated by supervision orders such that hair drug testing on an ongoing basis should not be ordered by this Court.
Injunctions and restraints against the father sought by the maternal grandmother
The maternal grandmother seeks orders that the father be restrained from assaulting, molesting, harassing or interfering in any manner with the maternal grandmother or with members of her family; and that the father otherwise be restrained from approaching, contacting or communicating with the children other than as provided by court order, or having any associate or third party contact the children or relay messages on his behalf.
There is presently an ADVO in place on a provisional basis which prohibits the father from assaulting or threatening, stalking, harassing or intimidating the maternal grandmother; intentionally or recklessly destroying or damaging her grandmother’s property; from approaching her in any way other than through a lawyer; and from going to her home or place of work. It therefore appears that the restraints she seeks in these proceedings are already in place for her protection.
Section 36 of the Crimes (Domestic and Personal Violence) Act 2007 (NSW) provides that an ADVO extends to protect people in a domestic relationship with the protected person insofar as the ADVO prohibits the defendant from assaulting, threatening, stalking, harassing or intimidating the protected person and from intentionally or recklessly destroying or damaging property belonging to or in the possession of the protected person. Section 5 of that Act provides that a domestic relationship exists between, inter alia, people who live in the same household and people who are relatives (including grandparents and grandchildren). Accordingly, the ADVO in place for the protection of the X and Y’s maternal grandmother will extend to protect them in relation to those behaviours, but not beyond that.
In relation to the application for a restraint on the father from approaching, contacting and communicating with the children other than in accordance with court orders, I consider that that is an order which should be made.
X is of an age where he is likely to be able to independently engage in communication with the father. Where I have determined that X’s time with the father should be supervised, and I have declined to make orders facilitating communication, I consider that orders should be made restraining the father from approaching, contacting or communicating with the children other than as provided for in these orders.
I further consider that that restraint should extend to not having any associate or third party contact the children or relay messages on his behalf. This is because I observe that there are concerns in these proceedings as to the influence of not only the father but also Mr D and Mr J. I emphasise that I can make no findings as to whether or not Mr D and Mr J have relayed messages on behalf of the father in the past, nor whether or not they have engaged in conduct that made X feel frightened on the drive from his mother’s funeral to the burial site as set out in the maternal aunt’s affidavit. I observe, however, that the grief of the maternal family is fresh; that tensions are running high; that both X and Y need a primary carer who is in as robust a frame of mind as she can be, particularly in circumstances where the children are also grieving.
I infer that the orders sought by the maternal grandmother would provide comfort to her and provide her with some feelings of reassurance. In any event, it appears to me consistent with the father’s obligations under the orders that he abide by the conditions of the orders in terms of arrangements for time and communication. For those reasons, I consider that the restraints proposed by the maternal grandmother in relation to approaching, contact or communicating with the children should be made.
Earlier date for Child Impact Report interviews
One of the matters I raised with each of the parties was whether steps should be taken to try and secure an earlier date for the Child Impact Report and bring the matter back for further interim hearing at a sooner point in time. The maternal grandmother did not support such a course being taken; the father did.
In relation to that matter, I consider, firstly, that in circumstances where the father is going to undertake some hair drug testing and the results of that will need to be available; and secondly, where there have been orders made today for supervised time and where the Court will benefit from the receipt of supervision reports in terms of interactions between the father and children – thereby gaining a better understanding of the nature of the relationships between the father and the children – that it is preferable that the May 2022 dates for Child Impact Report interviews be maintained.
Next steps
In terms of the next steps to be taken after that, I observe the matters put by counsel for the father yesterday, namely that to the extent that the relief sought in the Initiating Application filed by the father related only to X at this point in time, and that he did not seek the return of Y to his care, it was a concession made on the basis that there would be further interim hearing time allocated to the matter.
I will, therefore, bring the matter back for further directions before me shortly after the Child Impact Report is received so that I can give consideration to what further interim hearing time might be required.
Accordingly, the next steps in the matter will be the preparation of the Child Impact Report and the matter coming back before me for further directions.
In order to transition X into the maternal grandmother’s care, the father or his agent is to deliver X to the maternal grandmother or her agent at the Suburb H Police Station at 6.30pm today. X is a 15-year old young person, and I expect that he will be informed of the orders and given every encouragement by the father to go into the grandmother’s care. Accepting that there is a risk associated with the changeover; having regard to his age; and having regard what appears to be heightened tensions between the families, I consider that it is in X’s best interests that changeover occur at 6.30 pm at Suburb H Police Station.
To avoid a situation where, if there is difficulty effecting changeover, one or both of the parties might find themselves in breach of the orders made this afternoon, I will make a recovery order authorising New South Wales Police, as well as the usual authorities, with such assistance as is required and, if necessary, by force, to recover X and deliver him to the maternal grandmother.
I certify that the preceding one hundred and forty-eight (148) numbered paragraphs are a true copy of the Ex Tempore Reasons for Judgment of Judge M Neville. Associate:
Dated: 11 July 2022