DOTSON & GOFF
[2019] FCCA 3943
•23 August 2019
FEDERAL CIRCUIT COURT OF AUSTRALIA
| DOTSON & GOFF | [2019] FCCA 3943 |
| Catchwords: FAMILY LAW – Interim parenting – competing lives with applications – acceptance of the submissions made and proposed orders of the Independent Children’s Lawyer. |
| Legislation: Family Law Act 1975 (Cth), ss.60B, 60CA, 60CC, 61DA, 65DAA. |
| Cases cited: Goode & Goode [2006] FamCA 1346 |
| Applicant: | MS DOTSON |
| Respondent: | MR GOFF |
| File Number: | WOC 322 of 2017 |
| Judgment of: | Judge Altobelli |
| Hearing date: | 20 August 2019 |
| Date of Last Submission: | 20 August 2019 |
| Delivered at: | Wollongong |
| Delivered on: | 23 August 2019 |
REPRESENTATION
| Solicitors for the Applicant: | MDV Family Lawyers |
| Solicitors for the Respondent: | Foye Legal Pty Ltd |
| Solicitors for the Independent Children's Lawyer: | Melea Mullard Lawyers |
ORDERS PENDING FURTHER ORDER
Orders 2 - 10 of the Orders made by Wollongong Federal Circuit Court on 11 September 2017 be suspended.
The Child X born 2010 (“the Child”) live with the Father.
On a without admissions basis, the Child spend time with the Mother as follows:-
(a)Each Saturday, for a minimum period of three (3) hours, at times to be agreed upon by the parents in consultation with the supervisor;
(b)Each Tuesday, from the conclusion of school until 7.00pm each Tuesday; and
(c)From 9.00am to 2.00pm Christmas Day 2019, provided that such time be supervised by Ms A, or another supervisor as agreed upon by the parents and the Independent Children’s Lawyer; and
(d)At such other times as may be agreed between the parents in writing, provided that such time is supervised by an employee of parenting centre B, Ms A, or such other supervisor as agreed upon by the parents and the Independent Children’s Lawyer.
The time that the Child spends with the Mother in accordance with Order 3(a) of these Orders is to be supervised by parenting centre B, with the costs of the service provider to be shared equally between the parents.
The time that the Child spends with the Mother in accordance with Order 3(b) of these Orders is to be supervised by the maternal aunt, Ms A, and the Child is to attend her usual extracurricular activities during this time.
For the purposes of Orders 3(b) – 3(d) inclusive of these Orders, the Mother and the supervisor are to collect the Child from the Child’s school, in the event that changeover is occurring on a school day, or at location C, in the event that changeover is occurring on a non school day, at the commencement of the Mother’s time with the Child, and the Mother and the supervisor are to return the Child to the Father at location C at the conclusion of the Mother’s time with the Child.
The Mother is to continue to attend upon Psychologist Ms D for as long as Ms D considers is necessary, at such times and as recommended by Ms D. In the event that the Mother ceases attending upon Ms D, the Mother is to notify the Independent Children’s Lawyer and the Father’s solicitor within 72 hours, and advise of the reason for her cessation.
The Independent Children’s Lawyer is granted leave to provide any therapist that either the Mother or the Child attends upon, with a copy of the Child Inclusive Memorandum dated 30 May 2018 prepared by Family Consultant F, and the Family Report of Ms E, dated 19 July 2019, as well as any Orders made by the Court in this matter.
The Independent Children’s Lawyer is at liberty to speak with Psychologist Ms D, the parenting centre B supervisor, and Ms A, in relation to this matter, and these Orders operate as an authority for Ms D and the supervisor from parenting centre B, and any employees of that organisation, to release any information and documentation to the Independent Children’s Lawyer that she may request, and to discuss the Child and the Mother’s progress with them.
Both parents authorise by these Orders for Dr G, or any other treating medical practitioner to provide to either parent any information, including but not limited to, the Child’s progress and treatment, and medical reports or other documentation relating to the Child at that parent’s cost.
Both parents authorise by these Orders for Dr G, or any other treating medical practitioner for both parents to be involved in any processes that Dr G and any other treating medical practitioner, may deem is necessary for the Child’s treatment and progress with them.
Both parents authorise by these Orders any school attended by the Child to provide to either parent upon request any reports, photos, other information or documents relating to the Child, that are normally provided to a parent of a Child, at that parents’ cost.
Both parents authorise by these Orders the Child’s General Medical Practitioner or any other treating medical practitioner to provide to either parent any information, medical reports or other documentation relating to the Child at that parent’s cost.
The parents will ensure that they keep each other informed as soon as it is reasonably practical of:-
(a)Any medical problem or illness suffered the Child whilst in either parent’s care;
(b)Any medications that have been prescribed for the Child;
(c)Any specialist medical appointments with any medical doctor, psychiatrist, psychologist, counsellor, or therapist regarding the Child;
(d)Any significant social, school or religious functions which the Child is to attend;
(e)Their current contact telephone number, including mobile and landline, if applicable, and inform the other parent of any changes to their contact numbers within 24 hours of such change occurring; and
(f)Any other important matter relevant to the welfare to the Child.
Both parents authorise by these Orders the provider of any extra curricular activity to the Child to provide to either parent any information or documentation relating to the Child at that parent’s cost.
The Mother shall refrain from making critical or derogatory remarks about the Father or members of his family in the presence or within the hearing of the Child and the Mother shall do all things reasonably necessary to remove the Child from the presence of any person who does so.
The Father shall refrain from making critical or derogatory remarks about the Mother or members of her family in the presence or within the hearing of the Child and the Father shall do all things reasonably necessary to remove the Child from the presence of any person who does so.
Neither parent is to discuss the Court proceedings with the Child, or within the presence of hearing of the Child, and both parents shall do all things reasonably necessary to remove the Child from the presence of any person who does so.
Neither parent is to show the Child any Court documents filed in these proceedings, or allow any other person to do so.
Within 7 days of the making of these Orders, both parents do all things necessary to sign up to “Our Family Wizard”, and all communications between the parents regarding the Child and her care arrangements are to occur via “Our Family Wizard”.
In the event of an emergency involving the Child, both parents are to notify the other parent within 1 hour of such emergency occurring.
These Orders be reviewed in 6 months’ time, after an update about the Mother’s progress with her counselling with Ms D has been obtained.
The matter be adjourned to 25 February 2020 at 9:30am for Mention.
The matter be listed for a 2 day Final Hearing on 16 – 17 April 2020 at 10:00am.
The Applicant is to comply with the payment of any setting down and/or daily hearing fee in accordance with Rules 24.03 and 24.04 of the Federal Circuit Court Rules 2001 or as otherwise directed by the Registry Manager by the date of filing of further material.
NOTATIONS:
A.If in any proceedings there are allegations of family violence and the provisions of section 102NA of the Family Law Act 1975 apply (see attached Family Violence Information Sheet), any unrepresented party will not be permitted to personally cross-examine the other party/parties.
B.Affected unrepresented parties may apply to the Commonwealth Family Violence and Cross-Examination of Parties Scheme (“the Scheme”) for representation but any such application must be made at least 12 weeks prior to the final hearing.
C.Further information about the legislation and the Scheme can be found at Part 4 of the attached Family Violence Information Sheet.
D.If s102NA applies and a party becomes unrepresented after trial directions have been made, that party is required to promptly advise the Court.
IT IS NOTED that publication of this judgment under the pseudonym Dotson & Goff is approved pursuant to s.121(9)(g) of the Family Law Act 1975 (Cth).
| FEDERAL CIRCUIT COURT OF AUSTRALIA AT WOLLONGONG |
WOC 322 of 2017
| MS DOTSON |
Applicant
And
| MR GOFF |
Respondent
ORAL REASONS FOR JUDGMENT
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 orally delivered reasons amenable to being read.
Introduction
This is a matter that came before me on 20 August 2019. The application relates to a child, X, born 2010. X is currently 9 years old.
In the Father’s Application in a Case filed 8 July 2019, he seeks interim orders for X to live with him and to have contact with the Mother in accordance with X’s wishes, until the Mother undergoes a comprehensive psychological evaluation.
In the Mother’s Response to the Father’s Application in a Case, she seeks interim orders for X to be returned to live with her and spend time with the Father each alternate weekend from the conclusion of school Thursday until the commencement of school Monday in one week, and from the conclusion of school Thursday until the commencement of school Friday in the other week, and for the Mother to attend upon a suitably qualified therapist to address the issues identified by the Family Consultant, Ms E, in her Report.
The Independent Children’s Lawyer’s proposal is set out in her Case Outline document that was filed 19 August 2019. The Independent Children’s Lawyer’s proposal is for X to continue to live with the Father, and spend time with the Mother each Saturday for 3 hours at times to be agreed upon by the parents in consultation with the supervisor, for a few hours after school on Tuesday, and then special times. The Independent Children’s Lawyer’s order provides for supervision and a number of other detailed requirements.
The matter was last before the Court on 24 July 2019, when some interim orders were made on a without-admission basis. On the last occasion the existing Orders before then were suspended. X was to remain living with her father and spend supervised time with the Mother.
The Court has to decide where X is to live and what time she should spend with the other parent. Specifically, the issue was whether X should be returned to live with her mother and, if so, on what basis. If X is not so returned, the question is what contact should her mother have, and again, under what circumstances.
The evidence before the Court:
In the Mother’s case, she relied on the following documents:
a)Initiating Application filed on 21 March 2017;
b)Response to an Application in a Case filed on 22 July 2019
c)Affidavit of Ms Dotson affirmed and filed 21 March 2017;
d)Affidavit of Ms Dotson affirmed and filed 22 July 2019;
e)Notice of Risk filed on 21 March 2017
f)Case Outline filed on 24 July 2019.
In the Father’s case, he relied on the following documents:
a)Response filed on 28 April 2017;
b)Application in a Case filed on 5 July 2019
c)Affidavit of Mr Goff filed on 28 April 2017;
d)Affidavit of Mr Goff filed on 5 July 2019;
e)Affidavit of Mr Goff filed on 13 August 2019;
f)Notice of Risk filed on 28 April 2017
g)Case Outline document filed 16 August 2019.
The Independent Children’s Lawyer relied on her Case Outline document filed 19 August 2019.
The following material was tendered as evidence during the course of the proceedings:
a)Supervised contact report from 17 August 2019;
b)Medical Consultation Record;
c)Family Report dated 16 July 2019; and
d)Child Inclusive Conference Memorandum dated 30 May 2018.
A brief chronology was set out in the Independent Children’s Lawyer’s case outline. It is very useful. It is based on the material filed by the parents as well as reference to the more independent documents that have been produced on the subpoena. For present purposes, I am just going to incorporate into the First Schedule in these Reasons for Judgment, the chronology that starts at page 3 of the Independent Children’s Lawyer’s case outline, and concludes at page 8.
The applicable law
The applicable law is found in Part VII of the Family Law Act 1975 (Cth) (hereafter referred to as ‘the Act’). In determining parenting matters under Part VII of the Act the Court must regard the best interests of the child as the paramount consideration: s.60CA.
The objects and principles of Part VII are set out at s.60B:
60B Objects of Part and principles underlying it
(1) The objects of this Part are to ensure that the best interests of children are met by:
(a) ensuring that children have the benefit of both of their parents having a meaningful involvement in their lives, to the maximum extent consistent with the best interests of the child; and
(b) protecting children from physical or psychological harm from being subjected to, or exposed to, abuse, neglect or family violence; and
(c) ensuring that children receive adequate and proper parenting to help them achieve their full potential; and
(d) ensuring that parents fulfil their duties, and meet their responsibilities, concerning the care, welfare and development of their children.
(2) The principles underlying these objects are that (except when it is or would be contrary to a child’s best interests):
(a) children have the right to know and be cared for by both their parents, regardless of whether their parents are married, separated, have never married or have never lived together; and
(b) children have a right to spend time on a regular basis with, and communicate on a regular basis with, both their parents and other people significant to their care, welfare and development (such as grandparents and other relatives); and
(c) parents jointly share duties and responsibilities concerning the care, welfare and development of their children; and
(d) parents should agree about the future parenting of their children; and
(e) children have a right to enjoy their culture (including the right to enjoy that culture with other people who share that culture).
(3) For the purposes of subparagraph (2)(e), an Aboriginal child’s or Torres Strait Islander child’s right to enjoy his or her Aboriginal or Torres Strait Islander culture includes the right:
(a) to maintain a connection with that culture; and
(b) to have the support, opportunity and encouragement necessary:
(i) to explore the full extent of that culture, consistent with the child’s age and developmental level and the child’s views; and
(ii) to develop a positive appreciation of that culture.
At the very core of Part VII of the Act is the creation of a presumption of equal shared parental responsibility in s.61DA. Section 61DA provides:
61DA Presumption of equal shared parental responsibility when making parenting orders
(1) When making a parenting order in relation to a child, the court must apply a presumption that it is in the best interests of the child for the child’s parents to have equal shared parental responsibility for the child.
(2) The presumption does not apply if there are reasonable grounds to believe that a parent of the child (or a person who lives with a parent of the child) has engaged in:
(a) abuse of the child or another child who, at the time, was a member of the parent’s family (or that other person’s family); or
(b) family violence.
(3) When the court is making an interim order, the presumption applies unless the court considers that it would not be appropriate in the circumstances for the presumption to be applied when making that order.
(4) The presumption may be rebutted by evidence that satisfies the court that it would not be in the best interests of the child for the child’s parents to have equal shared parental responsibility for the child.
If the presumption applies, the Court is required to consider certain things:
65DAA Court to consider child spending equal time or substantial and significant time with each parent in certain circumstances
Equal time
(1) If a parenting order provides (or is to provide) that a child’s parents are to have equal shared parental responsibility for the child, the court must:
(a) consider whether the child spending equal time with each of the parents would be in the best interests of the child; and
(b) consider whether the child spending equal time with each of the parents is reasonably practicable; and
(c) if it is, consider making an order to provide (or including a provision in the order) for the child to spend equal time with each of the parents.
Substantial and significant time
(2) If:
(a) a parenting order provides (or is to provide) that a child’s parents are to have equal shared parental responsibility for the child; and
(b) the court does not make an order (or include a provision in the order) for the child to spend equal time with each of the parents; and
the court must:
(c) consider whether the child spending substantial and significant time with each of the parents would be in the best interests of the child; and
(d) consider whether the child spending substantial and significant time with each of the parents is reasonably practicable; and
(e) if it is, consider making an order to provide (or including a provision in the order) for the child to spend substantial and significant time with each of the parents.
(3) will be taken to spend substantial and significant time with a parent only if:
(a) the time the child spends with the parent includes both:
(i) days that fall on weekends and holidays; and
(ii) days that do not fall on weekends or holidays; and
(b) the time the child spends with the parent allows the parent to be involved in:
(i) the child’s daily routine; and
(ii) occasions and events that are of particular significance to the child; and
(c) the time the child spends with the parent allows the child to be involved in occasions and events that are of special significance to the parent.
(4) Subsection (3) does not limit the other matters to which a court can have regard in determining whether the time a child spends with a parent would be substantial and significant.
Reasonable practicality
(5) In determining for the purposes of subsections (1) and (2) whether it is reasonably practicable for a child to spend equal time, or substantial and significant time, with each of the child’s parents, the court must have regard to:
(a) how far apart the parents live from each other; and
(b) the parents’ current and future capacity to implement an arrangement for the child spending equal time, or substantial and significant time, with each of the parents; and
(c) the parents’ current and future capacity to communicate with each other and resolve difficulties that might arise in implementing an arrangement of that kind; and
(d) the impact that an arrangement of that kind would have on the child; and
(e) such other matters as the court considers relevant.
Because s.65DAA refers to the best interests of the child the Court must then go back to consider s.60CC which specifies how the Court must determine what is in a child’s best interests.
Determining child's best interests
(1) Subject to subsection (5), in determining what is in the child's best interests, the court must consider the matters set out in subsections (2) and (3).
Primary considerations
(2) The primary considerations are:
(a) the benefit to the child of having a meaningful relationship with both of the child's parents; and
(b) the need to protect the child from physical or psychological harm from being subjected to, or exposed to, abuse, neglect or family violence.
Note: Making these considerations the primary ones is consistent with the objects of this Part set out in paragraphs 60B(1)(a) and (b).
(2A) In applying the considerations set out in subsection (2), the court is to give greater weight to the consideration set out in paragraph (2)(b).
Additional considerations
(3) Additional considerations are:
(a) any views expressed by the child and any factors (such as the child's maturity or level of understanding) that the court thinks are relevant to the weight it should give to the child's views;
(b) the nature of the relationship of the child with:
(i) each of the child's parents; and
(ii) other persons (including any grandparent or other relative of the child);
(c) the extent to which each of the child's parents has taken, or failed to take, the opportunity:
(i) to participate in making decisions about major long-term issues in relation to the child; and
(ii) to spend time with the child; and
(iii) to communicate with the child;
(ca) the extent to which each of the child's parents has fulfilled, or failed to fulfil, the parent's obligations to maintain the child;
(d) the likely effect of any changes in the child's circumstances, including the likely effect on the child of any separation from:
(i) either of his or her parents; or
(ii) any other child, or other person (including any grandparent or other relative of the child), with whom he or she has been living;
(e) the practical difficulty and expense of a child spending time with and communicating with a parent and whether that difficulty or expense will substantially affect the child's right to maintain personal relations and direct contact with both parents on a regular basis;
(f) the capacity of:
(i) each of the child's parents; and
(ii) any other person (including any grandparent or other relative of the child);
to provide for the needs of the child, including emotional and intellectual needs;
(g) the maturity, sex, lifestyle and background (including lifestyle, culture and traditions) of the child and of either of the child's parents, and any other characteristics of the child that the court thinks are relevant;
(h) if the child is an Aboriginal child or a Torres Strait Islander child:
(i) the child's right to enjoy his or her Aboriginal or Torres Strait Islander culture (including the right to enjoy that culture with other people who share that culture); and
(ii) the likely impact any proposed parenting order under this Part will have on that right;
(i) the attitude to the child, and to the responsibilities of parenthood, demonstrated by each of the child's parents;
(j) any family violence involving the child or a member of the child's family;
(k) if a family violence order applies, or has applied, to the child or a member of the child's family--any relevant inferences that can be drawn from the order, taking into account the following:
(i) the nature of the order;
(ii) the circumstances in which the order was made;
(iii) any evidence admitted in proceedings for the order;
(iv) any findings made by the court in, or in proceedings for, the order;
(v) any other relevant matter;
(l) whether it would be preferable to make the order that would be least likely to lead to the institution of further proceedings in relation to the child;
(m) any other fact or circumstance that the court thinks is relevant.
The case law
In MRR v GR [2010] HCA 4, the High Court referred to s.65DAA(1) and said
9. Each of sub-ss (1)(b) and (2)(d) of s 65DAA require the Court to consider whether it is reasonably practicable for the child to spend equal time or substantial and significant time with each of the parents. It is clearly intended that the Court determine that question. Sub-section (5) provides in that respect that the Court "must have regard" to certain matters, such as how far apart the parents live from each other and their capacity to implement the arrangement in question, and "such other matters as the court considers relevant", "[i]n determining for the purposes of subsections (1) and (2) whether it is reasonably practicable for a child to spend equal time, or substantial and significant time, with each of the child's parents".
A little later in the judgment the High Court said:
13. Section 65DAA(1) is expressed in imperative terms. It obliges the Court to consider both the question whether it is in the best interests of the child to spend equal time with each of the parents (par (a)) and the question whether it is reasonably practicable that the child spend equal time with each of them (par (b)). It is only where both questions are answered in the affirmative that consideration may be given, under par (c), to the making of an order.
At [15] the High Court emphasised the need for a practical approach:
15. Section 65DAA(1) is concerned with the reality of the situation of the parents and the child, not whether it is desirable that there be equal time spent by the child with each parent. The presumption in s 61DA(1) is not determinative of the questions arising under s 65DAA(1). Section 65DAA(1)(b) requires a practical assessment of whether equal time parenting is feasible.
The Full Court’s decision in Goode & Goode [2006] FamCA 1346 provides some guidance about the interpretation of Part VII and the way to proceed in interim hearings.
68. In our view some of the comments of the Full Court in paragraph 18 are still apposite. For example, the procedure for making interim parenting orders will continue to be an abridged process where the scope of the enquiry is “significantly curtailed”. Where the Court cannot make findings of fact it should not be drawn into issues of fact or matters relating to the merits of the substantive case where findings are not possible. The Court also looks to the less contentious matters, such as the agreed facts and issues not in dispute and would have regard to the care arrangements prior to separation, the current circumstances of the parties and their children, and the parties’ respective proposals for the future.
…
72. In our view, it can be fairly said there is a legislative intent evinced in favour of substantial involvement of both parents in their children’s lives, both as to parental responsibility and as to time spent with children, subject to the need to protect children from harm, from abuse and family violence and provided it is in their best interests and reasonably practicable. This means where there is a status quo or well settled environment, instead of simply preserving it, unless there are protective or other significant best interests concerns for the child, the Court must follow the structure of the Act and consider accepting, where applicable, equal or significant involvement by both parents in the care arrangements for the child.
…
82. In an interim case that would involve the following:
(a) identifying the competing proposals of the parties;
(b) identifying the issues in dispute in the interim hearing;
(c) identifying any agreed or uncontested relevant facts;
(d) considering the matters in s 60CC that are relevant and, if possible, making findings about them (in interim proceedings there may be little uncontested evidence to enable more than a limited consideration of these matters to take place);
(e) deciding whether the presumption in s 61DA that equal shared parental responsibility is in the best interests of the child applies or does not apply because there are reasonable grounds to believe there has been abuse of the child or family violence or, in an interim matter, the Court does not consider it appropriate to apply the presumption;
(f) if the presumption does apply, deciding whether it is rebutted because application of it would not be in the child’s best interests;
(g) if the presumption applies and is not rebutted, considering making an order that the child spend equal time with the parents unless it is contrary to the child’s best interests as a result of consideration of one or more of the matters in s 60CC, or impracticable;
(h) if equal time is found not to be in the child’s best interests, considering making an order that the child spend substantial and significant time as defined in s 65DAA(3) with the parents, unless contrary to the child’s best interests as a result of consideration of one or more of the matters in s 60CC, or impracticable;
(i) if neither equal time nor substantial and significant time is considered to be in the best interests of the child, then making such orders in the discretion of the Court that are in the best interests of the child, as a result of consideration of one or more of the matters in s 60CC;
(j) if the presumption is not applied or is rebutted, then making such order as is in the best interests of the child, as a result of consideration of one or more of the matters in s 60CC; and
(k) even then the Court may need to consider equal time or substantial and significant time, especially if one of the parties has sought it or, even if neither has sought it, if the Court considers after affording procedural fairness to the parties it to be in the best interests of the child.
In addition, I will include a number of paragraphs from my own decision in a matter called Insley & Insley [2018] FCCA 438, where I discuss some of the authorities about decision making in interim cases:
The Challenge of Fact-Finding in this Case
[61] This Court is in a very difficult position. Whilst all the material before the Court can be closely scrutinised, the fact is that the evidence has not been tested and, in reality, cannot be tested for many months, simply because of the demands on the Court’s time from other cases. The Supplementary Written Submissions proposed by Mr Knox SC highlight the evidentiary issues and emphasise the importance of credit, even in an interim hearing.
[62] If the Court believes that there is substance to the Mother’s concerns, it is more likely to accept her proposal to remain in Melbourne, and to thus focus on what is the most appropriate arrangement for X to spend time with his Father and paternal family, but in Melbourne. If the Court accepts the Mother’s concerns about family violence and abuse, it is unlikely to accede to a proposal that involves the Mother and X to the (omitted), even if all the financial issues are satisfactorily addressed by the Father. The Court accepts that whether there is an objective basis for the Mother’s fear or not to bring her back to the (omitted) where she would be alone, and completely financially dependent on the Father, is merely likely to re-traumatise her, at least from her perspective.
[63] In Goode & Goode the Full Court warned against making findings of fact where findings are not possible. The Court did not rule out making findings of fact and, it must be remembered that findings can be made on the basis of uncontested matters, or admissions. To the extent, moreover, that findings may be differentiated from inferences, inferences may certainly be drawn from all of the material available before the Court.
[64] Senior Counsel for the Father quite properly referred the Court to the Full Court’s decision in Goode & Goode. Of course there have been later Full Court decisions that suggest in that, particularly in cases where there are allegations of family violence, a more nuanced approach is warranted. For example, the Full Court in SS & AH [2010] FamCA 13 at [100] noted that sometimes judges will have little alternative but 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. The Full Court stated that 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. Nonetheless, the Full Court warned, findings must be couched with circumspection.
[65] The Full Court in Marvel & Marvel (No.2) [2010] FamCAFC 101, in referring to its earlier decision in SS &AH stated at [120] that decision-making in interim proceedings is difficult, and thus a conservative approach is warranted, or one which is likely to avoid harm to a child.
[66] In Reece & Reece [2011] FamCAFC 24, the Full Court warned at [76] about the consequences of failing to have regard to expert evidence simply because it was untested in cross-examination. In that case the evidence was a Family Report. In this case, of course, it is a Child Dispute Conference Memorandum.
[67] In Deiter & Deiter [2011] FamCAFC 82, at [54] the Full Court suggested that s.60K (now s.67ZBB) of the Act signalled a clear policy imperative of ensuring that allegations of family violence are treated seriously and dealt with expeditiously. In an ideal world, these allegations could be dealt with at a discreet issues hearing, or an expedited final hearing. In reality, in a registry of this court where almost all of the cases involve allegations of family violence, neglect, abuse, drugs or alcohol and mental health, neither a discreet issues hearing, nor expedition is possible. It is nonetheless imperative that allegations of family violence are treated seriously.
[68] At [61] in Deiter, the Full Court discussed risk analysis:
The assessment of risk is one of the many burdens placed on family law decision makers. Risk assessment comprises two elements – the first requires prediction of the likelihood of the occurrence of harmful events, and the second requires consideration of the severity of the impact caused by those events. In our view, the assessment of risk in cases involving the welfare of children cannot be postponed until the last piece of evidence is given and tested, and the last submission is made. We accept, however, that it is always a question of degree depending on the evidence that is before the Court.
[69] The Full Court at [77] noted that it is not open to a trial judge to simply ignore an allegation because it had not been tested.
[70] The Full Court in Enmore & Smoothe [2014] FamCAFC 131 at [39] explained that a finding of risk of abuse may be reached on the basis of evidence which falls short of that required for a finding that abuse has occurred. However, that is not to suggest that evidence aimed at establishing a possible risk of abuse should not be subject to careful scrutiny, since serious consequences can also flow from a finding that a child is at risk of abuse.
[71] In 2015, the Full Court in Eaby & Speelman [2015] FamCAFC 104 at [18] expressly stated that the comments of the Full Court at [68] in Goode did not mean that merely because the facts are in dispute the evidence on the topic must be disregarded and the case determined solely by reference to the agreed facts. Moreover, at [21] the Full Court recognised:
Much of what occurs in families takes place in private, as a consequence of which corroboration is often not available. It follows that the absence of corroborating evidence does not necessarily undermine a person’s evidence on that topic.
[72] In Salah & Salah [2016] FamCAFC 100 the Full Court in 2016 focused on s.60CG, which requires a Court when considering what parenting order to make, to ensure that whatever order is made, it does not expose a person to an unacceptable risk of family violence. Again, trial judges were reminded in that judgment that corroboration or objective support for allegations is not always necessary, especially because family violence often takes place in private in circumstances where no corroboration is available.
The Interim Application
Much hinges in this case about whether X told her father what he says she did on 1 June 2019 after she ran away. The Father’s evidence about this is untested. The Court cannot ignore the possibility that it is true. The possibility of truthfulness or the contrary proposition – that is that the Mother did not tell X to run away – however, can be assessed by reference to a number of other factors. In this case, whilst the Court cannot make findings, there is a very strong impression formed that the Father’s version of what X told him is more likely than not to be correct. This tentative impression is formed on the basis of a number of factors.
Firstly, the Court considers itself misled by the Mother about what she said in her Affidavit of 22 July 2019, about the cessation of counselling with Mr H. The Mother created the impression that it was Mr H who ceased the counselling, whereas a more independent impression of the records is that, in fact, it was the Mother who ceased the counselling. The significance of that can only be understood when one has reference to the chronology.
Moreover, there is an implied representation by the Mother in her Affidavit of 22 July 2019 at paragraph 61 that X told Dr I about what I will describe as the knife incident of 28 June 2019. Again, it may not make much sense in the context of Oral Reasons, but when one has regard to the chronology one will see what I mean. The difficulty here is that the implied representation is inconsistent with Dr I’ records.
Nextly, there is the Child Inclusive Conference Memorandum and the Family Report, both of which raise concerns about the Mother’s potential actions, in failing to contain her own feelings about the matters before the Court and about the Father from X.
When those four things are put together, whilst the Court cannot make a finding of fact, the impression that it can form in the circumstances is that the Father’s version of what X said is probably more reliable at this point in time.
I turn now to consider the considerations referred to under section 60CC of the Act, and in this regard, I largely adopt and incorporate in these Reasons the discussion that is contained at pages 11 through to 19 of the Independent Children’s Lawyer’s case outline. And, indeed, I am just going to incorporate those matters verbatim into these, my Reasons for Judgment:
Relevant section 60CC Factors
Primary considerations
The need to protect the child from physical or psychological harm, or from being subjected to, or exposed to, abuse, neglect or family violence.
In her April 2017 Affidavit material, the Mother provides evidence a history of behaviour by the Father, which, if accepted at its highest level, would amount to domestic violence involving emotional manipulation, control and verbal abuse and denigration, which has sometimes escalated to physical violence. In his Affidavit material, the Father provides evidence about disclosures that he alleges X has made to him that the Mother telling her that she is “afraid of losing me to you” and “It was Mum’s plan for me to run away today. It was our secret. She said it would help her keep me cause she’s afraid of losing me to you” . While at an interim hearing, no findings can be made in respect of these allegations, it is extremely concerning to the ICL that they have been raised, and if ultimately determined to be true, then X is at risk of serious and significant psychological harm in the Mother’s care.
Family Consultant F’s Memorandum to the Court following the Child Inclusive Conference on 30 May 2018, as well as the Family Report prepared by Ms E and released 16 July 2019 also identify the Mother’s emotional distress as a relevant factor in determining what Orders would be in X’s best interests. In Paragraphs 89 and 90(c) of the Family Report, Ms E states “If the Court is not satisfied that Ms Dotson can support X to have a healthy, independent relationship with both parents, and therein, her emotional needs, the Court may need to consider whether these needs may be better met with her living primarily with Mr Goff and spend time visiting with Ms Dotson”. At the time of the Family Report interviews, X was still living with her Mother and spending time with her Father.
The events that occurred since the Family Report interviews took place on 22 May 2019 have caused the ICL significant concern about X’s current emotional wellbeing. During the first weekend visit after the interviews, X ran away from her Father’s home in the early hours of Saturday morning and returned to her Mother’s residence. The Father alleges that shortly after X was returned to his care, she disclosed to him that “It was Mum’s plan for me to run away today. She said it would help her keep me cause she’s afraid of losing me to you” (Paragraphs 15 and 21 of the Father’s Affidavit filed 8 July 2019, hereinafter referred to “the Father’s July 2019 Affidavit”.
On the afternoon of 28 June 2019, X was due to commence spending time with the Father for the weekend after school. In Paragraphs 58 and 59 of the Mother’s Affidavit filed 22 July 2019, hereinafter referred to as “the Mother’s July 2019 Affidavit”, she provides evidence that X threatened to harm herself with a knife if forced to spend time with her Father that weekend. The Mother took X to Dr I, where the documents produced under subpoena from medical centre J report that X didn’t make any disclosures to him about harming herself, only that the Mother informed him that X had threatened self harm, and that the Mother is deemed to be “credible” (Tab “ICL 2”).
While obviously the evidence of the Family Report Writer remains untested at this stage, it is concerning to the ICL that immediately following the interviews for the Family Report, the sudden and dramatic changes in behaviour of X, who, to the best of the ICL’s knowledge and belief, never run away from her Father, or even threatened to do so, or threatened self – harm before. The ICL has concerns that the Family Report interviews may have intensified the Mother’s concerns and worries about “losing’ X, and therefore when Ms E opines that “Ms Dotson’s reaction to a perceived sense of losing X may intensify her maladaptive approaches in seeking to hold exclusivity in X’s sense of security and reliance upon her” (Paragraph 88), this may have well happened, to the detriment of X’s emotional and psychological health, which Ms E had already identified as being “compromised” (Paragraph 80).
This, combined with other comments made by Ms E in the Family Report, such as:-
“Ms Dotson presents as having a sustained adjustment issue within the adult relationship, and this is interfering in her capacity to place X’s needs before her own in supporting X to form and enjoy an independent relationship with her father. Should this continue, or escalate, X’s risk of emotional harm will increase substantially” (Paragraphs 81 and 82);
“Of significant concern is the apparent transference of Ms Dotson’s attitude and worries about Mr Goff to X’s. X’s individual interview raises concern about her exposure to Ms Dotson’s views and worry about Mr Goff and evidences an adoption of X of her Mother’s position as substantially contributing to her own. It is assessed that X’s capacity to differentiate between her personal experiences of her father and the comments and themes of insecurity Ms Dotson shares about him is being increasingly compromised for X” (Paragraph 79).
“X advised ‘I never say hello to Skye and the kids at school because I don’t say hello to people if I’ve experienced something with them’….Conversely, X added that Ms Dotson tells her ‘Well if she doesn’t really talk to you, I don’t think she should be your step – mum’” (Paragraph 69).
“The current assessment identifies that notwithstanding Ms Dotson’s engagement in counselling subsequent to the CIC, her vulnerabilities have persisted”. (Paragraph 78).
Therefore, due to the risk of significant psychological harm that could be caused to X if the Father is found to be truthful in the allegations he has made in his Affidavit material, combined with the comments made by both Family Consultant F in the Child Inclusive Memorandum to the Court as well as Ms E’ findings in the Family Report (although it is conceded that they are untested), it is the ICL’s view that in the interim, X should continue to live with her Father and spend time with her Mother on a supervised basis only.
Once the Mother has engaged in counselling, which will hopefully successfully address the issues that have been identified by both Family Consultant F and Ms E, then the issue of whether the Mother’s time with X needs to continue to be supervised can be reassessed. In the event that the Mother’s time no longer needs to be supervised, then her time with X can also be increased.
The benefit to the child of having a meaningful relationship with both of the child's parents
Both parents assert that X has a meaningful relationship with them, which is confirmed in the Family Report. However, given the concerns identified above, at this stage, it appears that at this point in time, X may be at risk of significant psychological harm if her time with her Mother is not supervised, due to the Mother’s inability to contain her feelings about the Father and protect X from these.
Therefore it is respectfully submitted that the need to protect X from the potential of significant psychological harm outweighs the benefit of her having a meaningful relationship with both of her parents, at least at this stage. In the event that the Mother can demonstrate that she is able to protect X from her own feelings about the Father, which hopefully counselling will address, then X can recommence spending significant and unsupervised time with her.
Additional considerations
(a) Any views expressed by the child and any factors (such as the child's maturity or level of understanding) that the court thinks are relevant to the weight it should give to the child's views
The ICL has met with X on several occasions since her appointment, with the most recent time being just after the Interim Orders were made on 24 July 2019, where X had spent the last few weeks in the exclusive care of her Father. X seemed happy being with her Father, and was excited when the ICL informed her that she would be spending time with her Mother the next day. X didn’t really express a view about her living arrangements, and even if she did, it is the ICL’s view that any views that she did express may be tainted by her Mother’s views, as identified in the Family Report.
(b) The nature of the relationship of the child with:
each of the child's parents; and
As previously discussed, X appears to being enjoying her respective relationships with each of her parents. Since separation and until very recently, she has primarily lived with her Mother and it would seem that her Mother is her primary attachment figure.
Since the parties separated, just before X turned two years of age, she has consistently spent time with her Father, and it appears that she enjoys a good relationship with him, despite what Ms E identifies that “Of significant concern is the apparent transference of Ms Dotson’s attitude and worries about Mr Goff to X’s. X’s individual interview raises concern about her exposure to Ms Dotson’s views and worry about Mr Goff and evidences an adoption of X of her Mother’s position as substantially contributing to her own. It is assessed that X’s capacity to differentiate between her personal experiences of her father and the comments and themes of insecurity Ms Dotson shares about him is being increasingly compromised for X” (Paragraph 79).
(ii) other persons (including any grandparent or other relative of the child)
X is fortunate enough to have both sets of her grandparents living in close proximity to both her respective parent’s homes, and appears to enjoy a good relationship with both sets of grandparents. It appears that both the maternal and paternal grandparents are actively involved in X’s life when she is in the care of her parents, and regularly visits them at their respective houses.
(c) The extent to which each of the child's parents has taken, or failed to take, the opportunity:-
(i) to participate in making decisions about major long-term issues in relation to the child; and
(ii) to spend time with the child; and
(iii) to communicate with the child; and
the extent to which each of the child's parents has fulfilled, or failed to fulfil, the parent's obligations to maintain the child.
Upon reading their respective filed Affidavits, it does not appear from either the Mother’s or Father’s evidence that they have accused the other parent from failing to take the opportunity to participate in making decisions about major long term issues with respect to X, to spend time with her, to communicate with her, or failed in their obligations to maintain her.
Both parents give evidence that X is attending Town K, and neither make complaint that her enrolment in this school was done without their knowledge or consent, or that they have been left out of the decision making process for making decisions about X’s health, religion or education. It is noted that the Mother makes complaint in her evidence about the Father not informing her of the details of the extra curricular activities that he has enrolled X in during his time with her, however it is respectfully submitted that while this would obviously be upsetting, it is not in relation to major decisions that will have a significant impact on X’s life.
In relation to spending time and communicating with X, it appears from the evidence that both parents want to spend as much time as they can with X, which is what has led to the current Court proceedings. In their respective Affidavit material, both parents give evidence that they have spent time with X whenever the other parent has offered them the opportunity to do so.
It is noted that neither parent accuses the other parent of failing in their obligations to maintain X in their respective Affidavit material, and it noted in Ms E Report that “Both parents are assessed as having demonstrated an ongoing ability and commitment to meeting X’s daily care needs” (Paragraph 77). Therefore it is assumed that both parents are currently fulfilling, and have always fulfilled their obligations to maintain X.
(d) The likely effect of any changes in the child’s circumstances
It is conceded that X has recently experienced a significant change in her life, going from being in her Mother’s primary care since her parents separated when she was 2 years of age until she was 9 years of age, and then suddenly living with her Father, and only having supervised time with her Mother.
It is the ICL’s view that such a significant and sudden change was in X’s best interests, to protect her from the risk of ongoing significant psychological harm, as outlined above. The ICL is not proposing any further changes to X’s current circumstances, until the Mother has demonstrated that she has developed the ability to protect X from her own emotional distress and fears about the Father, which is the purpose of her counselling sessions.
Once this issue has been adequately addressed through counselling, then the ICL believes that it would be in X’s best interests to recommence spending significant and unsupervised time with her Mother. To her credit, the Mother has engaged in weekly counselling since the Orders were made on 24 July 2019. However it is respectfully submitted that this is not enough time to address the issues adequately.
(e) The practical difficulty and expense of a child spending time with and
communicating with a parent and whether that difficulty or expense will substantially affect the children’s right to maintain personal relations and direct contact with both parents on a regular basis
The Mother lives in Town K while the Father lives in Town L, suburbs which are located next to each other, so travel is not an issue. It is conceded that the expense of both parents equally contributing to the payment of the professional supervisor of the Mother’s time with X on Saturdays would be significant for both of them, but particularly the Mother. It is hoped that supervision will only be necessary for a few months, until the Mother addresses her issues that have been identified in the Family Report, and then X can recommence spending significant and unsupervised time with her Mother. It is respectfully submitted that the cost of professional supervision it is a necessary expense to protect X from potential psychological harm while she is spending time with her Mother, at this point in time.
(f) the capacity of:
(i) each of the child's parents; and
(ii) any other person (including any grandparent or other relative of the child);
to provide for the needs of the child, including emotional and intellectual needs;
It appears from the evidence of both the Mother and Father that both of them are able to provide for X’s physical needs, and neither asserts that the other parent is unable to. Ms E also provides evidence of this “Both parents are assessed as having demonstrated an ongoing ability and commitment to meeting X’s daily care needs” (Paragraph 77).
However, both parents in their respective Affidavit material, raise concerns about the other parent’s ability and capacity to provide for X’s emotional needs. As previously outlined above, in her Affidavit material, the Mother gives evidence about the Father’s behaviour, which, if the Court determined to be true, would cause the Court considerable concern. Conversely, the Father alleges in his Affidavit material that the Mother behaves in a manner which, if true, would cause significant emotional distress to X.
The Father’s allegations, together with X’s alarming recent behaviour of running away from her Father’s home, as well as her apparent threat to self – harm, as well as the views of Ms E in the Family Report all seem to indicate that the Mother is unable to protect X from her own emotional distress and fears about the Father, and this has the potential to have a significant and detrimental impact on X, and puts her at serious risk of psychological harm.
It is for these reasons, which are outlined in more detail above, that has led to the ICL forming the view that it is currently in X’s best interests to live with her Father and spend supervised time with her Mother. Again, in the event that the Mother is able to overcome her issues, which will hopefully be successfully addressed in her counselling with Ms D, then it is respectfully submitted that it would be in X’s best interests to recommence having significant and unsupervised time with her Mother.
(g) the maturity, sex, lifestyle and background (including lifestyle, culture and traditions) of the child and of either of the child's parents, and any other characteristics of the child that the court thinks are relevant;
Again, neither parent gives any evidence in their respective Affidavit material about anything that would be relevant in this factor, and nothing is raised by Ms E in the Family Report with respect to this factor. Therefore it is respectfully submitted that this factor is not applicable.
(h) if the child is an Aboriginal child or a Torres Strait Islander child:
(i) the child's right to enjoy his or her Aboriginal or Torres Strait Islander culture (including the right to enjoy that culture with other people who share that culture); and
(ii) the likely impact any proposed parenting order under this Part will have on that right;
Neither of the parents give evidence about the child identifying as being Aboriginal or Torres Strait Islander. Therefore this factor does not apply.
(i) the attitude to the child, and to the responsibilities of parenthood, demonstrated by each of the child's parents;
It is apparent from the evidence provided by both the Mother and Father in their respective Affidavit material that they both love X and have demonstrated that they are both capable and responsible parents for her. Although it appears that at times they have let their emotions get the better of them, which has resulted in conflict.
However, as Ms E identified in the Family Report, while “Ms Dotson presents as being a devoted and committed parent to X. The current assessment identifies that notwithstanding Ms Dotson’s engagement in counselling subsequent to the CIC, her vulnerabilities have persisted….and showing limited progress in her adjustment to X in forming an independent relationship with her father, separate to Ms Dotson’s own views about him. Of significant concern is the apparent transference of Ms Dotson’s attitude and worries about Mr Goff to X’s….X’s emotional health is also identified as being compromised. X’s discussions identify that that she is aware of Ms Dotson’s worries about her father” (Paragraphs 78 – 80).
It is for these reasons, which are also outlined above in more detail, that it is the ICL’s view that it is in X’s best interests to continue to live with her Father and spend supervised time with her Mother.
(j) any family violence involving the child or a member of the child's family;
In her Affidavit material, the Mother makes allegations about the Father being emotionally manipulative and verbally abusive towards her, which escalated into physical violence on some occasions, while they were still in a relationship together. Since the parties separated, more than 7 years ago, the Mother alleges that the Father is still sometimes verbally abusive towards her, and conversely, the Father makes similar allegations against the Mother in his Affidavit material. Both parents give evidence of an incident where the Police were involved in February 2017 in relation to a changeover, although their respective versions of what actually occurred on this date, and the cause of such conflict, are different.
At an interim hearing, no findings can be made in respect of these allegations, and it is respectfully submitted that there are other factors that are more determinative of what is in X’s best interests.
(k) any family violence order that applies to the child or a member of the child's family, if:
(i) the order is a final order; or
(ii) the making of the order was contested by a person;
The ICL does not believe that there are any current Apprehended Domestic Violence Orders in relation to the child or any member of the child's family.
(l) whether it would be preferable to make the order that would be least likely to lead to the institution of further proceedings in relation to the child;
As this Outline has been prepared for the Interim Hearing, it is respectfully submitted that this factor is not applicable.
(m) any other fact or circumstance that the court thinks is relevant.
It is respectfully submitted that there are no other relevant factors or circumstances that have not already been adequately addressed in other subsections. However, other factors and/or circumstances can be elaborated on during the interim hearing, if required.
I do not diminish the significance of the Mother’s family violence allegations, but observe that they may well have much greater significance at a Final Hearing, rather than in the present interim context. There are really two reasons for that. Firstly, the Family Report at paragraph 22 identified nil significant risks in relation to family violence. Secondly, little, if anything, in the Mother’s proposed orders suggests that the family violence issues that she raises is a substantive or operative concern to the Mother in relation to the parenting orders that she proposes.
Interim Parenting Orders
Thus when the totality of these matters is considered, the orders proposed by the Independent Children’s Lawyer are, in the view of this Court, orders in X’s best interests.
I certify that the preceding thirty (30) paragraphs are a true copy of the Reasons for Judgment of Judge Altobelli
Associate:
Date: 17 December 2020
Schedule One
Brief Chronology
| Date | Event | Evidence |
| 1980 | Father born (currently 38 years of age) | |
| 1981 | Mother born (currently 38 years of age) | |
| April 2006 | Mother and Father commence living together | |
| 2010 | X (“X”) born, currently 9 years of age and the child the subject of these proceedings | |
| 13 April 2012 | Parties separate and Father moves out of the family home | |
| 21 August 2012 | Parties participate in a Conference organised through the Family Relationship Centre and sign a Parenting Plan | |
| 4 December 2013 | Parties participate in a further Conference organised through the Family Relationship Centre and sign a further Parenting Plan, which provides for X to live with the Mother and spend time with the Father from Thursday to Saturday one week and from Friday to Sunday the following week, alternating. | |
| 30 November 2016 | Parties participate in a further Conference organised through the Family Relationship Centre and sign a further Parenting Plan, no significant changes to the amount of time that X spends with each parent | |
| 23 February 2017 | Incident occurs at a changeover where the Police are called | |
| 21 March 2017 | Mother files Initiating Application with the Court | |
| 28 April 2017 | Father files Response with the Court | |
| 11 September 2017 | Matter listed for Interim Hearing on this date, Interim Orders made by consent for X to continue to live with the Mother and spend time with the Father each alternate weekend, from Friday to Sunday, as well as the Thursday evening in the alternate week and one half of the school holiday periods | |
| 2 May 2018 | Orders made by Wollongong Federal Circuit Court for a Child Inclusive Conference | |
| 30 May 2018 | The parties and X attended the appointment for the Child Inclusive Conference with the Family Consultant. The Family Consultant raises concerns about the Mother’s ability to contain her fears and emotions about the Father, especially in the presence of X, and the impact this has on X’s relationship with her Father. The Family Consultant recommends that the Mother attends counselling and a Parenting After Separation Course, and for X to attend parenting program M, or a similar program | Child Inclusive Memorandum dated 30 May 2018 |
| 8 August 2018 | Orders made by consent at Wollongong Federal Circuit Court for the Mother to obtain a referral from her GP for counselling and to keep the ICL and Father’s solicitor informed of her progress. Orders also made for the preparation of a Family Report | |
| 27 November 2018 | The Mother’s solicitor provides a letter to the ICL advising that the Mother has attended counselling with Mr H in accordance with the Orders made 8 August 2018, and no further counselling is required The Consultation notes produced under Subpoena by medical centre Jmedical centre J record that the Mother advised Mr H that she believed continuing with her counselling was no longer necessary and she was encouraged to re – engage with counselling if she felt she needed it in the future | Annexure “A” of Father’s Affidavit filed 5 July 2019 (“F1”) Tab “ICL 1” in subpoenaed documents |
| End of 2018 | The Mother makes an appointment for X to attend a one – off appointment with Ms N at Family service O, after she alleges that X said to her “I wish I just did not exist”. | Paragraph 31 of Mother’s Affidavit filed 22 July 2019 (“M1”) |
| 22 May 2019 | The parties and X attend the appointment with Family Consultant, for the purposes of the preparation of the Family Report | |
| 1 June 2019 | X’s first weekend visit with her Father following the Family Report interviews. X runs away from her Father’s home in the early morning and goes to the Mother’s home. The Father then collects X from the Mother’s home later that day. Father alleges that after returning to his care, X says to him “It was Mum’s plan for me to run away today. She said it would help her keep me cause she’s afraid of losing me to you”. The Mother denies that she ever said anything of this nature to X, and that X later disclosed to her that the Father yelled at her for running away | F1 Paragraphs 15 and 21, M1 Paragraphs 40 – 44 |
| 28 June 2019 | The Mother alleges that when she told X that she had to go to her Father’s for the upcoming weekend, X “opened the kitchen drawer and threatened to hurt herself if she had to go……took the handle of a knife which is kept in the top drawer”. “I asked that Mr Goff be made aware. I knew if I tried to tell him what happened he would tell me again I was ‘mental’ and ‘making it up’”. The Father receives a telephone call from Dr I advising that X is in his office and is threatening self harm and would not be spending time with him that weekend. The Consultation notes produced under Subpoena by medical centre Jmedical centre J record that X didn’t actually disclose her threats of self – harm to Dr I, rather this is what was reported to him by the Mother | M1 paragraphs 58, 59 and 61 F1 Paragraph 38 Tab “ICL 2” in Subpoenaed documents |
| 6 July 2019 | X commences spending time with the Father for the school holiday period. The Father retains X in his care.\ | |
| 8 July 2019 | Father files his Application in a Case, seeking urgent Interim Orders for X to live with him | |
| 9 July 2019 | The Father alleges that he had a conversation with Dr I who informed him that X said that she was going to get a kitchen knife and demonstrate what to do with it | Paragraph 11 of Father’s Affidavit filed 13 August 2019 (“F2”) |
| 13 July 2019 | The Father alleges that text messages are exchanged between the parents regarding the Interim Orders that provide for X to be returned to her Mother’s care on this date. Father advises Mother via text message that X won’t be returned to her that day, at 7.15pm that night, the Police attend the Father’s residence to conduct a welfare check | F2 paragraphs 17 – 19 inclusive |
| 16 July 2019 | The Family Report is released | |
| 18 July 2019 | Father attends GP Dr P and obtains a mental health care plan for X and makes an appointment with Psychologist Dr G for 22 August 2019 | |
| 24 July 2019 | Interim Orders made by consent on a without admissions basis for the previous Orders regarding X to live with her Mother and spend time with her Father to be suspended, and for X to instead live with the Father and spend supervised time with the Mother each Tuesday and Saturday | |
| 30 July 2019 | X spends time with the Mother, supervised by Ms A for the first time. The Father alleges that X said to him when she returned home “I want to spend a night with Mum” then says “Mum wants me to spend a night with her”, followed by “I don’t understand why I can’t spend one week with you and one week with Mum”. | F2 Paragraph 30 |
Key Legal Topics
Areas of Law
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Family Law
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Evidence
Legal Concepts
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Natural Justice
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Procedural Fairness
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