Downes and Fitch

[2016] FCCA 2658

FEDERAL CIRCUIT COURT OF AUSTRALIA

DOWNES & FITCH [2016] FCCA 2658

Catchwords:
FAMILY LAW – Interim parenting – where mother unilaterally relocates child from the (omitted) region of New South Wales to Brisbane – where serious concerns about parenting capacity of the mother.

Legislation:

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

Cases cited:

Goode & Goode [2006] FamCA 1346

Morgan & Miles [2007] FamCA 1230

MRR v GR [2010] HCA 4

Applicant: MR DOWNES

Respondent: MS FITCH

File Number: WOC 895 of 2016

Judgment of: Judge Altobelli

Hearing date: 12 October 2016

Date of Last Submission: 12 October 2016

Delivered at: Sydney

Delivered on: 14 October 2016

REPRESENTATION

Solicitors for the Applicant: Dawson Lawyers

The Respondent appeared by telephone.

ORDERS

THE COURT ORDERS PENDING FURTHER ORDER THAT:

(1)Within 7 days, the Mother is to cause the child X, born (omitted) 2013 (‘the child’) to be returned to the Father at an address in either the (omitted) or (omitted) region of New South Wales.  

(2)The child live with the Applicant Father.

(3)The child communicate with the Mother by telephone, Skype or Facetime three times weekly as agreed by the parents and failing agreement on Mondays, Wednesdays and Saturdays between 5.30pm and 6.00pm.

(4)Pursuant to section 68L of the Family Law Act 1975 an Independent Children’s Lawyer be appointed for the Child X, born (omitted) 2013 and the Legal Aid Commission of New South Wales is requested to provide such representation. 

(5)The parties are to provide to the Legal Aid Commission at PO Box K847, HAYMARKET NSW 1238 or DX 5 SYDNEY forthwith all documents thus far filed by them in these proceedings together with all existing orders and copies of any relevant reports.

(6)Leave be granted to the Independent Children’s Lawyer to issue such additional subpoena as they consider relevant to the issues before the Court.

(7)Leave be granted to the Independent Children’s Lawyer to inspect and photocopy any documents produced on subpoena in these proceedings. 

(8)Leave be granted to the Independent Children’s Lawyer to relist the matter on short notice by communication with Chambers in appropriate circumstances.

(9)Pursuant to section 91B of the Family Law Act 1975, the Secretary of the Department of Family and Community Services is requested to intervene in these proceedings in relation to the child X, born (omitted) 2013.

(10)The Mother and the Solicitor for the Father are to forward to the Solicitor for the Secretary of the Department of Family and Community Services at its Head Office in (omitted), not later than 4.00 pm on 28 October 2016 copies of the documents filed by each of the parties to date.

(11)Upon request from the nominee of the Secretary the Registry Manager permit inspection of the Court file to enable consideration of the request to intervene in the proceedings.

(12)The Court notes that for the purposes of this notification the subject child presently lives with the Respondent Mother.

(13)The matter be adjourned to 14 December 2016 at 2.00pm for Mention to further consider orders for the Mother to spend time with and communicate with the child.

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

FEDERAL CIRCUIT COURT
OF AUSTRALIA
AT SYDNEY

WOC 895 of 2016

MR DOWNES

Applicant

And

MS FITCH

Respondent

REASONS FOR JUDGMENT

Introduction

1.This case is about a child, X, born (omitted) 2013.  By the time these reasons for judgment are delivered, X will be nearly 3 years old.  Her father is the Applicant.  He currently lives in the (omitted) region of New South Wales.  He is unemployed and is 40 years old.  The Respondent is X’s mother.  She is 24 years old, is currently unemployed and lives with X in a suburb of Brisbane in Queensland.

2.The Court needs to make urgent orders in relation to X.  Each parent makes very serious allegations against the other in relation to the risk that X would be exposed to in the care of the parent as well as concerns about the parent’s capacity to look after X. 

3.The process that the Court is undertaking is a risk assessment exercise.  What will be apparent from the survey of the evidence presently before the Court is that there will be risk to X and disruption in her life whether she remains in her mother’s care or whether she is placed in her father’s sole care.  Whilst, from a legal perspective, the Court must decide what it is in X’s best interests, in reality, the exercise is one in trying to ascertain where there is the least risk for this young child.

Background

4.What appears to be clear is that, until late August in 2016, X and her parents both lived in the (omitted) region of New South Wales.  On 24 August 2016, the Mother and X relocated to a suburb of Brisbane in Queensland. 

5.The Father contends that this relocation was unilateral in the sense that he was neither made aware of the move nor consented to it.  The Mother contends that the reality is somewhat more complex in that she asserts the Father agreed to X and her moving to Queensland.  The Father says in response that if there was any agreement, which he denies, he had certainly made it clear to the Mother that he did not want X taken away from him. 

6.The Father’s application was filed on 30 August 2016.  The matter first came before the Court on 16 September 2016.  There was no appearance by the Mother, but Ms Oliver appeared together with the Father.  The Court caused the Mother to be telephoned, and she participated in the proceedings.  She explained to the Court that X was safe with her in Queensland.  She provided a telephone number and a forwarding address for documents, the forwarding address being that of her grandparents. 

7.The Court requested both parents to provide a drug test.  The Mother was encouraged, indeed urged to obtain legal advice as the Court was being asked to make urgent orders in relation to X.  The matter was adjourned to 27 September at 2 pm. 

8.The matter resumed on 27 September 2016.  On this occasion, the Father was represented by Ms Mitchell.  Ms Fitch participated by telephone.  She had not provided any documents in support of her case, and she explained that she had not been successful in obtaining assistance from organisations such as Queensland Legal Aid or Women’s Legal Aid. 

9.She explained that she did consume a little marijuana and that, in the past, it was at least 3.5 grams per day, but now it is down to about 3.5 grams every three days.  She was asked once again to obtain a drug test, to get legal assistance and to be prepared to deal with the matter when it came before the Court at 4 pm on 10 October 2016.

10.The matter came before the Court again on 10 October 2016.  The Mother attended by telephone.  The Father was represented by Ms Oliver.  No material had been received on behalf of the Mother.  She explained that she had prepared material and had sent it by mail.  She was confident that the Court would shortly receive it.  The Father produced a drug test, which indicated the presence of the drug THC, or, in other words, cannabis, in a quantity of 101 mg/L.

11.The Mother had still not provided a drug test and indicated to the Court that she could not afford the same.  She explained to the Court, however, that she was still consuming cannabis.  In the morning, it would be up to two or three cones, and then in the evening, a few cones.  The marijuana was consumed using a billy.  She accepted that she might have up to eight cones a day and that on a stressful day it could be more. 

12.She also candidly acknowledged that she once spent up to 100 dollars each week for cannabis but that was when she was together with the Father, the implication being that he consumed some of that.  Since coming to Queensland she explained that she would spend about 50 dollars for cannabis, which would last three to four days.           

13.In order to give the Mother the opportunity to have her case presented as best she could, the Court further adjourned the matter to 12 October 2016 at 4 pm.  By then, the Court had received the Mother’s response, her affidavit and a Notice of Risk, which appear to have been filed 11 October 2016. 

14.Putting aside irregularities in the filing and even the attestation of these documents, in substance the Mother’s proposal was that X continue to live in Queensland with her, and not with the Father in New South Wales.  She clearly indicated in the orders contained in her Response as well as in the submissions she made to the Court that she would not return to New South Wales.  She proposed telephone calls three times per week and visits once or twice a year, but not unsupervised, and preferably in Queensland.

15.The order that the Father proposed continued to be that set out in his Initiating Application, and that was for X to live with him in New South Wales and to be returned in his care, using a recovery order if necessary.  The Father was unable to articulate a proposed order for X to spend time with her mother, but seemed content to abide with any order that the Court considered appropriate. 

The Evidence

16.Accordingly the evidence that was before the Court consisted of the following affidavits filed in the Father’s case:  his affidavit of 26 August 2016, an affidavit of a Ms S of 21 September 2016, an affidavit of a Ms P of 21 September 2016, and an affidavit of the process server, Mr R, of 15 September 2016.  The affidavits relied on in the Mother’s case consisted in what purports to be her affidavit of 6 October 2016 but it is unsigned and unsworn. 

The Issues

17.The obvious issue that the Court has to decide is where X should live, pending further order and how much time she should spend with the other parent and in what circumstances. As foreshadowed earlier in these reasons, the evidence does raise concerns about the risk to X, whether in the care of her mother or father, and there are reasonable doubts about the parenting capacity of each parent. What is obvious before considering the evidence further is that there is a need for an Independent Children’s Lawyer for X, and this is a matter the Court considers appropriate for an order under section 91B of the Family Law Act, inviting the Department of Family and Community Services to intervene in this case.

The Applicable Law

18.The applicable law is found in Part VII of the Family Law Act 1975 (hereafter referred to as ‘the Act’) and I will set out some of the relevant provisions here. 

19.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.

20.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.

21.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.

22.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.

23.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.

24.In MRR v GR [2010] HCA 4, the High Court said

8.  Sub-section (1) of s 65DAA is headed “Equal time" and provides:

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."  (emphasis added)

Sub-section (2) makes provision for where a parenting order provides that a child's parents are to have equal shared parental responsibility for the child (par (a)) but the Court does not make an order for the child to spend equal time with each of the parents (par (b)).  In such a circumstance the Court is obliged to:

(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."

Sub-section (3) explains what is meant by the phrase "substantial and significant time".

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".

25.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.

26.The Full Court’s decision in Goode & Goode [2006] FamCA 1346 contains a useful discussion of the applicable law as well as guidance of the procedure to be adopted in interim cases such as the present.

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.

27.The Full Court’s decision in Morgan & Miles [2007] FamCA 1230 also provides guidance as to how to proceed in cases such as the present one, where the mother appears to have unilaterally relocated with X to a place that makes it impracticable for X to continue to have a relationship with her father.

82. It is important to note that there are no separate provisions in the Act dealing with interim, as distinct from final orders, although s 61D(3) does not require mandatory application of the presumption of equal shared parental responsibility on the making of an interim order. Thus there is no legislative mandate to consider different criteria in interim parenting application involving relocation to final applications, although the former will of necessity, be an abridged enquiry.

83. I have noted above that cases before the introduction of amending Act generally applied principles enunciated in Cowling, and particularly had regard to those factors relevant to a child’s stability as the foundation for orders maintaining existing arrangements. Thus generally courts prohibited a relocation on an interim basis, or made orders which provided for the return of a child if only a short period had elapsed after a unilateral relocation by one parent.

84. The cases demonstrate that sensibly Judges recognised that these very difficult cases, often with far reaching consequences for the child, required the full investigation which can only occur at a final hearing, or now by issues being identified and determined in a Less Adversarial Trial as contemplated in Div 12A of Pt VII.

85. In Goode the Full Court considered whether the principles in Cowling remained applicable after the introduction of the amending Act, particularly paragraph 22 in Cowling which talks about a “well settled environment”. The Full Court determined the amending Act had effected change which required reconsideration of that paragraph. Whilst lengthy, it aids understanding to set out the relevant passages from Goode:

71. The reasoning in Cowling, particularly in paragraph 22 of the reasons for decision to the effect that the best interests of the child are met by stability when the child is considered to be living in well-settled circumstances, must now be reconsidered in light of the changes to the Act, particularly changes to the objects (s 60B), the inclusion of the presumption of equal shared parental responsibility (s 61DA), and the necessity if the presumption is not rebutted to consider the outcomes of equal time and substantial and significant time.

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.

73. That is not to say that stability derived from a well-settled arrangement may not ultimately be what the Court finds to be in the child’s best interests, particularly where there is no ability to test controversial evidence, but that decision would be arrived at after a consideration of the matters contained in s 60CC, particularly s 60CC(3)(d) and s 60CC(3)(m) and, if appropriate, s 60CC(4) and s 60CC(4A).

86. I conclude, the legislation, including the matters referred to above in Goode, does require consideration of s 60CC, s 61D, and s 65DAA (with reference to s 4(1)) in dealing with all interim applications for parenting orders including applications involving a relocation, or where an “unauthorised” relocation has occurred.

87. As explained in Goode, the circumstances of the child at the time of the application or immediately before an unauthorised removal, particularly absent issues such as abuse or violence, may well be likely to be extremely relevant.

88. It appears to me that the very difficult issues in cases involving a relocation, which difficulties are highlighted in the cases and referred to by the Family Law Council in its 2006 report Relocation: a report to the Attorney-General prepared by the Family Law Council, (Family Law Council of Australia, Barton, 2006) make it highly desirable that, except in cases of emergency, the arrangements which will be in the child’s best interests should not be determined in an abridged interim hearing, and these are the type of cases in which the child’s present stability may be extremely relevant on an interim basis. It further appears to me the comments of Warnick J in C and S remain apt and relevant to determination of these cases.

Review of the Evidence

28.It is important to review the evidence that is before the Court.  Exhibit A1 constitutes documents produced by (omitted) Medical Centre of Queensland.  This practice appears to be the general practice consulted by the Mother since moving up to Queensland.  What is significant about these records, as submitted by Ms Oliver on behalf of the Father, is the absence of any record of disclosure by the Mother of her current medication.  The significance of this will become apparent when examining other documents produced on subpoena.  A reasonable inference to be drawn from these documents is that the Mother is not medication compliant.  A submission made further on behalf of the Father is that the situation goes further and that the Mother resists compliance with the advice of her treating professionals.

29.The other matter to emerge from these records is that on 29 September 2016, the Mother approached her doctor for a urine drug screen.  The records indicate that she was advised that the cost would be between 90 and 100 dollars.  No such drug screen was provided by the Mother.  The explanation that she gave to the Court on 10 October 2016 was that she could not afford such a test.  Ironically and of concern to the Court is the Mother’s acknowledgement that she spends $50 for cannabis which lasts three or four days.  She could find the money to purchase cannabis for her own consumption but, apparently, could not find the money to pay for a drug test.  The reasonable inference to be drawn from all the circumstances and, indeed, the totality of the material before the Court is that if the Mother had produced a drug test, it would have been positive in all likelihood for cannabis.  Nonetheless, the Court has been deprived of the opportunity of at least having a test which would provide an indication of the quantity of THC in her urine. 

30.The next document produced on subpoena is exhibit A2, being documents produced by (omitted) Medical Practice.  This is the Father’s treating General Practitioner.  It confirms the Father’s own evidence about his ongoing back problems that require him to take painkilling medication.  The Mother raises concerns about the Father’s use of prescription drugs as well as limits on his parenting capacity because of his back problems.  There is nothing in these documents to corroborate the Mother’s concerns. 

31.Exhibit A3 are documents produced by the (omitted) Medical Centre - the Mother’s treating General Practitioners.  A patient health summary that was printed on 27 September 2016 lists the medication that the Mother was prescribed, including clonazepam, largactil, levlen, mirtazapine, nexium and propranolol.  When this list of medications is compared to that referred to in the (omitted) Medical Practice notes there is a concerning difference. 

32.The documents produced by (omitted) Medical Centre provide further information about the Mother’s mental health.  It is clear that she suffers from longstanding and pervasive depression and anxiety.  In a surgery consultation on 14 July 2016, there is reference to “lots of family stress” and “partner has been great support but he has had to move out of flat in past week to look after his daughter” and “struggling with this - increased anxiety.” 

33.There is a referral dated 14 July 2016 from Dr S, the Mother’s GP, to a Ms S.  The letter states:

Thank you for seeing Ms Fitch, aged 24 years, for opinion and management of anxiety and depression with adjustment disorder.  She has had longstanding mood issues and has been seen by the community mental health team in the past.  Her partner has had to leave their shared house in the past week.  He is very supportive and she is struggling to cope without him.  She is keen to try some psychological therapies to improve her personal coping skills.

34.In the said letter, there is reference to her current medications which include largactil, levlen and mirtazapine.  A document within this bundle explains what the purpose of some of her medication is.  Thus, for example, mirtazapine is described as a medication to improve mood and the note is that this dose has been increased; clonazepam is a drug that controls seizures, controls panic or eases restless leg. 

35.Exhibit A4 consists of documents produced by (omitted).  By way of background, (omitted) appears to be a provider of the Brighter Futures program.  It is common ground that the family was involved with the Brighter Futures over a period of years - it would seem between 2013 and 2014.  A number of documents are informative.  There is reference to issues with drug consumption.  In relation to domestic violence, an assessment tool states:

…has not provided any concern and issues regarding domestic violence with her current partner.

36.There is further reference to the need for the Mother to cut down her use of cannabis in the documents.  Also, one of the records appears to be a note of an attendance by a family worker and the observation of a somewhat volatile exchange between the worker and both the Mother and the Father. 

37.Exhibit A5 consists of documents that have been produced by the (omitted) Hospital in support of the Father’s case.  His solicitor prepared succinct notes of her inspection of documents and tendered the same by way of an aide-memoire.  The notes prepared will be annexed to these reasons for judgment.  The Court has compared the documents produced on subpoena to the notes and is satisfied that to a more than reasonable degree the notes accurately summarise the content of these records. 

38.The records are of a concern and should be summarised in the present reasons.  The Mother has had multiple admissions to this hospital on each occasion for reasons that seem to be primarily focused with her mental health.  Her fourth admission was on 17 July 2016 with a discharge on 20 July 2016.  The notes record that the admission related to an acute mental health crisis and panic attack as a result of her husband leaving and her feeling suicidal.  The notes include references to her admissions that she is unable to cope at home, unable to care for her 2 year old daughter and her anxieties around how she will cope on her own with her daughter.  There is a reference that she is estranged from her parents and that the 2year old is screaming out for her daddy. 

39.On 15 January 2016 there is record of the Mother’s third admission to hospital with this time the discharge being on 20 January 2016.  She was brought in to hospital by ambulance and the records refer to daily panic attacks since April 2015, borderline personality traits, a history of anxiety and neurotic personality structure.  There is also reference to smoking THC daily and no contact with her siblings and lack of significant attachment figure. 

40.There is reference to the Mother having an estranged relationship with her own mother who she stated has been diagnosed with schizophrenia and bipolar and frequent cannabis use.  There is a reference to her father being a (occupation omitted) who moved around and is rarely home.  There is an admission that she has been using cannabis since 14 years old and was concerned about the impact of her mental health upon her child.  There are also records relating to X indicating that when she was born in (omitted) 2013, X’s urine tested positive for cannabis. 

41.Documents were produced to the Court pursuant to a s.69ZW notice issued to the Department of Family and Community Services and this file became the Court’s exhibit 1.  What is apparent from this file is that in 2016 there was a report that met the threshold for risk of significant neglect and mental health.  The record refers to the Mother having had frequent hospitalisations for mental health related issues and her mental health appears to have impacted on her care and supervision of X, including leaving her medications within reach, X falling down stairs whilst unsupervised and being unable to cope with the child’s frequent crying.  The Mother’s drug use and her inability to comply with mental health plan further increase X’s vulnerability to harm.  The source of this notification is unclear. 

42.Exhibit A6 was a screenshot of a Facebook post that the Mother put up as recently as last Saturday.  The post in question is at 8.07 pm on Saturday and states “need a place to live ASAP”.  On behalf of the Father, it was submitted that this suggested that the Mother’s accommodation was unstable.  The Court asked the Mother to make submissions in relation to this.

43.At first she denied that the message had anything to do with residential instability and suggested that it was more a desire to have a place she could call her own and for X on a permanent basis.  When pressed, however, and as the transcript will record, she, in effect, conceded that a change of her accommodation with X was almost inevitable and, indeed, inferentially, would be beneficial.  She explained that she lives in a two bedroom unit with her sister’s boyfriend who is 17 years old and her own mother.  This is of concern given how little is known about the sister’s boyfriend and how what is known about the Maternal Grandmother suggests the relationship with the Mother is not necessarily a sound one.

44.The affidavits in the Father’s case paint a somewhat dismal picture of the Mother’s use of cannabis, ongoing mental health problems and struggle with parenting capacity.  What is of concern in relation to the Father’s evidence, however, is that he doesn’t disclose that he, too, has recently re-partnered with a woman who has several children of her own and that they intend to relocate from the (omitted) area to the (omitted) area of New South Wales.  The affidavits in support of the Father’s case from Ms S and Ms P tend to corroborate the Father’s assertion about the Mother’s difficulties in coping with the care of X as well as her drug use.

45.The Mother’s affidavit of 6 October 2016 was, of course, prepared by herself.  It annexes an email from a Ms T dated 22 August 2016, which was two days before the Mother relocated.  She appears to be a neighbour.  She says that she would often hear arguments between the Father and the Mother.  She makes a number of other comments, the weight of which are doubtful because she does not provide information about the source of knowledge.  Little weight can be placed on this statement. 

46.The Mother’s affidavit raises issues about the Father’s past family violence and, indeed, the way in which her case is framed seems to be, doing the best the Court can in the circumstances, that she was fleeing the Father’s family violence.

47.The difficulty with the Mother’s case, of course, is that when one looks at the (omitted) documents, as well as the documents from her own treating doctors, there is no reference to family violence, and, indeed, most of these documents raise concerns about the Mother’s parenting capacity and refer to the Father in quite positive terms as a support for her in parenting X.  If the Mother has concerns about family violence, they certainly appear not to have been reported to the police and, indeed, documents produced under s.69ZW by New South Wales Police do not refer to complaints or incidents of violence. 

48.It is very difficult, therefore, to know just how far to take the Mother’s allegations about family violence. 

49.In her affidavit the Mother raises concerns about the Father’s parenting capacity because of his back problems and use of prescribed pain relief medication.  Again the objective evidence does not refer to the back problems as being debilitating or the use of prescription painkillers a difficulty in his life. 

50.In her affidavit the Mother refers to the support system that she has in Queensland namely her mother and grandparents and various aunts and uncles.  The difficulty, of course, is that she produces no evidence from these people and the objective evidence before the Court suggests that the Mother’s relationship with her own mother has been a strained one in the past and, indeed, that the Maternal Grandmother’s influence on X might not necessarily be a constructive one.

Application of the Law

51.In deciding whether to make a particular parenting order in relation to X, the Court must regard her best interests as the paramount consideration. Section 60CC of the Act sets out how a Court is to determine what is in a child’s best interests. The primary considerations are; the benefit of X having a meaningful relationship with both of her parents, and the need to protect her from physical or psychological harm, from being subjected to or exposed to abuse, neglect, or family violence. Subsection (2A) makes it clear that the Court must give greater weight to the need to protect her from physical or psychological harm. The impression created from the aggregated material before the Court is that X has a meaningful relationship with both of her parents. The Mother’s relocation to Queensland, irrespective of whether it was consensual or non-consensual, has made it impossible for X to continue a meaningful relationship with her father.

52.There is a clear need to protect X from the risk of harm that is referred to in subsection (2) of s.60CC. The issue before the Court is one of risk assessment. The Court has already indicated that there will be risk to her, whether in her mother’s care or in her father’s care. The issue is where is the least risk in the circumstances on the basis of the available evidence. It is clear that the Mother has struggled from longstanding and pervasive mental health issues. There is no suggestion that the Father has suffered from the same problems. The most recent evidence suggests that the Mother is not taking her medication which is of concern to the Court in circumstances where the material produced suggests a long history of her need for such medication to regulate her emotions, and indeed her dependence on them, and yet the seeming inability of this medication to help the Mother get on top of her longstanding anxiety and depression. The Court must be concerned about the risk of harm to X in circumstances where, at least prior to the relocation X had her father available to act as a protective safety net in the evident that her mother became unable to care for her and was hospitalised, as is clear has previously happened including twice this year.

53.It would appear, however, that both parents have struggled with drug abuse, probably cannabis.  The Father has provided a drug test which suggests relatively low levels of THC in his urine.  He deposes to having ceased usage.  The Mother does not provide a drug test and is quite open about the nature and extent of her drug use.  Indeed, she openly acknowledged the frequency of the consumption of cannabis in a household where clearly the child is present.  This evidence is of great concern to the Court.  A parent who is dependent on any drug, even cannabis, undermines their availability for a child.  When a drug dependency is combined with mental health issues there are powerful indications of risk to that child.  X needs to be protected against this risk.

54.However, there is risk in the Father’s household too.  There is no question that whilst he has been a significant presence in X’s life he has not been her primary care provider, and thus he is unknown in terms of his primary parenting capacity.  The issues about his drug use are not entirely resolved but at least he can be made accountable by frequent drug testing by an Independent Children’s Lawyer.  The scrutiny of the Court proceedings will make the Father accountable about his drug use whereas it appears to have made no difference whatsoever to the Mother.  There is also a risk to X of being brought into what would be a foreign environment of a new household consisting of the Father’s new partner and her children.  All of these risks, however, need to be balanced against each other, and the Court is comfortably satisfied that even though there are risks in the Father’s household they are better managed and are, in any event, both quantitatively and qualitatively less than the risk in the Mother’s household.

55.In the circumstances the additional considerations assume less significance.  The Court openly acknowledges that to remove X from the Mother’s care would be an emotional wrench for her, but she will be put into a relatively familiar environment of care by her father, who is certainly not a stranger in her life.  The evidence that the Mother adduces is consistent with the Father having had a significant involvement in X’s life and certainly assumed the primary care role when she has been unable.  The Mother’s allegations about family violence cannot be taken any further.  It is a matter for a final hearing.  It is inconsistent with the evidence before the Court.

56.The great dilemma faced in this case is that the distance between where the Father will be living and the Mother will be living in the circumstances of two parents who are Centrelink dependent will mean that having frequent contact will be a formidable challenge in this case.  This is one of those cases where the Court will have to proceed one step at a time.  Its present focus is on risk assessment and management.

Determination

57.The Court has concluded from all the material before it that this risk can be best managed in the Father’s care and out of the Mother’s care.  An Independent Children’s Lawyer will be appointed.  This will then enable the Court to determine how to seek to maintain X’s relationship with her mother once she is returned to her father’s care.  An order will be made for the Mother to cause X to be returned to the Father’s care within 7 days, failing which a recovery order will issue. 

58.In all the circumstances, however, it is not appropriate to determine parental responsibility.

I certify that the preceding fifty-eight (58) paragraphs are a true copy of the reasons for judgment of Judge Altobelli

Date: 14 October 2016

Schedule 1

Subpoena Notes provided by the Applicant

SUBPOENA- HOSPITAL RECORDS 
Matter of Downes Vs Fitch

Subpoena Number: 1

ADMISSIONS RECORD
Incident Date	Notes	Quote	Reference
17/07/16 4th Admission Discharge: 20/7/16	Left with Largactill Acute mental health crisis, panic attack, husband left, suicidal Largactill with Valium in the morning	‘Reduced ability to cope at home.’ ‘Unable to care for two year old daughter.’ ‘Only able to cope for short periods of time.’ ‘I’ll never get better.’ ‘Her anxieties are mainly around how she will cope on her own with X.’ ‘She is estranged from her parents.’ ‘2 year old is screaming out for her daddy.’	Page 6 page 22 Page 23 Page 35 Page 40
15/01/16 3rd Admission Discharge: 20/1/16	Arrived at hospital by ambulance	Daily panic attacks since April 2015. Borderline Personality traits. History of anxiety and neurotic personality structure. Childhood maladjustment, physical and emotional abuse, neglect and sexual assaultà experienced by the Mother Bipolar disorder in parents; Persecuted in crisis; PTSD possibility  ‘Ms Fitch is known to mental health services.’ ‘Smoking THC daily’ ‘Neglect, physical abuse and rape.’ ‘No contact with siblings.’ ‘Lack of significant attachment figure.’ ‘Mr Downes is to care for X if something were to happen.’ ‘Father is a (occupation omitted) and moved around and is rarely home.’ ‘Ms Fitch has an estranged relationship with her mother whom she stated has been diagnosed with schizophrenia and bipolar and frequent cannabis use.’ ‘Using cannabis since 14 years old.’ ‘Concerned about impact of mental health on child.’ ‘3rd time at emergency department today.’ Page 46à Mother unable to adequately feed herself, can she adequately feed X??	Page 6 Page 32
7/7/15	‘Ms Fitch discussed feelings of extreme anxiety and inability to cope on a daily basis, states she wakes every day in a panic with nausea and shaking and then spends the rest of the day crying.’
6/7/15	‘Ms Fitch becoming more and more distressed and out of control. Verbalising thoughts of ‘‘not wanting to wake up anymore.’’’ ‘Describes many stressors such as family stressors and substance abuse illness.’ ‘Historically self-medicated with cannabis.’ ’20 cones a day’ ‘Reports she is currently resumed some cannabis use to self-medicate anxiety.’	Mental health team
6/7/15	Severe anxiety	‘Very depressed’ ‘Can’t cope’
30/10/13	‘No Domestic Violence identified’
18/10/13	Contacted Psych Smoking cannabis while pregnant	‘Partner, he appears very supportive and is providing most of the care for the baby.’ ‘Appears, unable to provide care for the baby.’

EMERGENCY RECORD
Date of presentation	Reason
15/01/16	Abdominal pain Stopped cannabis 3 weeks ago
31/12/15	Removal of teeth
6/7/15	Removal of teeth
18/5/15	Unwell Abdominal pain Stopped cannabis 3 weeks ago
3/5/15	Abdominal pain Stopped cannabis 1 day ago Found in shower
27/4/15	Abdominal pain Vomiting Stopped smoking cannabis 1 day ago
31/3/15	Vomiting/ pain Showers Uses regular cannabis
25/9/14	Vomiting/ pain Showers Both smoking marijuana
7/5/13	Vomiting Chest pain

X's Records:
13/10/13- Page 6 and 7 – positive for Cannabis in urine at birth

Notes

-Anxious

-Has a panic attack

-Vomiting à self induced

-Shower

-Chest pains

-Family in Brisbane is estranged

-She has disclosed physical abuse by maternal grandmother, drug and alcohol abuse, schizophrenia and bipolar

-If she is with her maternal grandmother she is likely to have a relapse