Ellison and Mallick

FEDERAL CIRCUIT COURT OF AUSTRALIA

ELLISON & MALLICK

[2018] FCCA 2250

Catchwords:
FAMILY LAW – Interim parenting – best interests of children – orders made.

Legislation:

Family Law Act 1975, ss.60B, 60CA, 60CC, 67U, 67V

Applicant:

MR ELLISON

Respondent:

MS MALLICK

File Number:

PAC 266 of 2018

Judgment of:

Judge Newbrun

Hearing date:

6 February 2018

Date of Last Submission:

6 February 2018

Delivered at:

Parramatta

Delivered on:

6 February 2018

REPRESENTATION

Solicitors for the Applicant:

Ms Creswell of Forshaw Lawyers

The Respondent appeared by telephone

ORDERS

Pending Further Order, The children [X] born 2011, [Y] born 2010 and [Z] born 2013 shall live with the father.
The mother shall cause the children to be returned to the father’s primary care at 10.00am 7 February 2018 at her residence being Suburb K New South Wales.
That in the event the mother does not cause the children to be returned to the father pursuant to the above order then a recovery shall issue for the children, pursuant to Section 67Q of the Family Law Act 1975.
That the Marshall, the Deputy Marshall, all officers of the Australian Federal Police and all officers of the State and Territory Police be authorised and directed with such assistance as they require and if necessary by force to:
(a)Stop and search any vehicle, vessel or aircraft and search the premises or place for the purpose of finding the children;
(b)Recover the children;
(c)Deliver the children to the father;
(d)Arrest, without warrant, the mother in the event that the mother again removes or takes possession of the children.
Leave to the parties and the Independent Children’s Lawyer to issue more than 5 subpoena for production of documents.
Pursuant to Section 68L of the Family Law Act 1975 the children [X] born 2011, [Y] born 2010 and [Z] born 2013 shall be independently represented and request that the Legal Aid Commission provide that representation.
The solicitors for the parties are to forward copies of all applications, responses, affidavits and any other relevant documents to Legal Aid NSW for the attention and use of the Independent Children’s Lawyer when appointed.
Proceedings are adjourned to 21 March 2018 at 9.30am for mention and the Independent Children’s Lawyer is requested to attend at this mention.
The mother to file and serve a Response, Affidavit and Notice of Risk within 21days.

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

FEDERAL CIRCUIT COURT
OF AUSTRALIA
AT PARRAMATTA

PAC 266 of 2018

MR ELLISON

Applicant

And

MS MALLICK

Respondent

REASONS FOR JUDGMENT

In this matter of Ellison & Mallick, the Applicant father has lodged an application for an urgent recovery order, and that application contained within his Initiating Application filed 23 January 2018 came before the Court a week ago, or 30 January 2018. There was no appearance by the mother initially on 30 January last, the father’s documents having been served upon her on 25 January 2018.
The Court on 30 January 2018 made telephone contact with the mother and she made brief oral submissions on 30 January 2018 in which she sought to defend the application for the recovery order. She sought an adjournment on 30 January last to put on her evidence in response to the father’s application for recovery order, and the Court granted her that adjournment, and adjourned the proceedings ultimately until today. So she has had about a week to put on her material.
Today the Court is speaking to the mother over the telephone. The mother resides in Suburb K with the children, and she has confirmed that she has not filed any material in response to the father’s Court material. She informs the Court today that she has not had sufficient time to contact a solicitor and she seeks further time, a further adjournment, to enable her to obtain legal advice and answer the father’s material. In the circumstances, noting the urgent nature of this application, in circumstances where the mother has had a week to put on her material in relation to this urgent application, the Court is not prepared to grant the adjournment.
The father’s material comprises his Initiating Application filed 23 January 2018, his Notice of Risk filed the same day, and his Affidavit filed the same day. He also relies upon a Child Dispute Conference Memorandum to the Court dated 30 January 2018. In that latter context the Court ordered the parties on 30 January last to attend a Child Dispute Conference, and the parties did attend that conference and a Memorandum to the Court dated 30 January 2018 is presently before the Court, and the Court has had regard to that document today in making its decision. The mother attended that Child Dispute Conference by telephone with the Family Consultant Ms J.
The mother opposes the making of the recovery order sought by the father in relation to the three children of the relationship, [Y] born 2010, [X] born 2011, and [Z] born 2013. The mother has made oral submissions to the Court by telephone from her residence in Suburb K, and the Court will refer to those oral submissions shortly.

Evidence

The father was born on 1981 and is currently 36 years of age. The mother was born on 1975 and she is currently 42 years of age. The parties commenced this relationship in 2007 and they separated in about December 2015.
The child, [X], has been diagnosed with cerebral palsy, which is treated and managed in Sydney. The mother has three children from a prior relationship: [A], [B] born 2002, and [C] born 2004. Since February 2017 the children have resided in the father’s full-time care in Sydney and have spent minimal time with the mother. After an agreement for the mother to spend time with the children during the Christmas 2017 holidays, the mother has not returned the children to the father’s care.
The child [X] was born in Queensland. He was diagnosed with cerebral palsy. As a result of his diagnosis the father made a decision to move the family back to Sydney so that he could access support and treatment for this child. The child [Z] was born in Sydney.
After the parties’ separation, in about December 2015, the mother initially left the family home with the children and resided in emergency accommodation. The father then heard from the mother about a couple of weeks later when she advised the father that she was returning to Sydney on Boxing Day. After some discussion between the parties, they came to a mutual agreement that the children would live with each of them on a shared-care basis; the mother and the father would each have the children for one week at a time.
In about February 2017, during a case work meeting with the Department of Family and Community Services (“FACS”), the mother advised FACS that she was relinquishing care of the children to the father, and since this time the children have been residing with the father full-time and have spent minimal time with the mother.
During the parties’ relationship before separation the parties cared for the children equally. They were not engaged in employment and shared the duties in caring for the children. Back in about November 2013 the middle child, [X], was removed from the parties’ care, the parties a short time previously having taken this child to Hospital as they were concerned that he was not gaining weight. At that time case workers from FACS attended and the parties entered into a safety plan.
[X] was placed in temporary foster placement, and was then placed with the paternal grandparents for a period of 14 months. The child [Y] was not removed from the parties’ care and continued to live with the parties. The child [X] was restored to the parties’ care and final Orders were made in May 2015 by the Parramatta Children’s Court. As a result of these Orders the children [Y] and [X] were under supervision Orders.
Following the parties agreeing to care for the children on a shared-care basis, the parties were still being supervised by FACS and the arrangement worked well. The parties lived close to each other and both of their homes were in the process of being modified to accommodate the child [X]’s wheelchair. This arrangement was in place from about December 2015 until about February 2017.
Since about February 2016, the father became aware that the mother had re-partnered with a man called Mr B. In about mid‑May 2016 the mother filed a section 90 application with the Children’s Court at Parramatta seeking to have the children reside with her. As a result of these proceedings, the FACS supervision Order was extended, and which ceased in about May 2017, and the children continued in a shared‑care basis until about February 2017.
In about February 2017, the mother, the paternal grandfather Mr R, and the FACS case worker Ms T, and manager case worker and the father, had a meeting. During the meeting the parties reviewed the current arrangements and agreed to continue with the shared-care arrangement. That afternoon the father was contacted by Ms T from FACS who said words to the effect:
Ms Mallick has advised us that she isn’t coping and that she has relinquished care of the kids. She is struggling mentally and the kids will be in your full-time care now.
After the above meeting the children began residing with the father full‑time and the mother stayed living in Suburb L but did not have the children. After the mother relinquished care she continued to live nearby but she did not stay in contact with the children. The mother did not call the children to speak with them. The mother did not talk or spend time with the children until July 2017 (see paragraph 38 of the father’s Affidavit).
Prior to the July school holidays the mother contacted the father and asked the father to spend time with the children during the school holiday period. The father agreed and the children spent time with the mother for the July 2017 school holiday period. On about August 2017 the mother moved to Suburb K, New South Wales, with her partner. Suburb K is about four and a half hours away from where the children and the father reside in Suburb M.
The father asserts – paragraph 42 of his Affidavit – that after the children returned to his care the mother did not stay in regular contact with him. The father did not hear from the mother until a week before the Christmas 2017 school holidays when she asked if she could spend time with the children during the Christmas break. The father advised the mother that she could have the children from 17 December 2017 for a period of three weeks.
The Court interpolates here that both today and on 30 January 2018, when the Court spoke to the mother over the telephone, she confirmed that she did in fact enter into an agreement with the father to spend time with the children from about mid-December 2017 for three weeks, and that she had agreed to return the children to the father, which agreement she had failed to honour.
In about December 2017 the father underwent micro surgery on his fingers due to an accident. During his recovery period the children resided with the paternal grandparents in their home. Whilst the children remained living in the father’s primary care, the child [Y] was enrolled in School A in Year 2. According to the father she had been struggling. He had been in contact with the school and they put additional supports in place to assist her.
In the father’s Affidavit, paragraph 44, he states that he seeks for the child [Y] to return to his care so that she can continue in her current school with her supports in place. The father asserts, paragraph 46 of his Affidavit, that the child [X] is a high-needs child who was diagnosed with dystonic quadriplegic cerebral palsy and has trouble gaining weight. He requires a lot of additional support, requires help to move around and to feed himself, basic communication and toilet training. The father states, paragraph 48 of his Affidavit, that [X] is under the care of Dr B, paediatrician at Hospital, with six-monthly reviews. His last review was on 3 November 2017 at Kids Rehab.
The child [X] previously attended Suburb L Kindergarten and Child Care five days a week and is ready to make a transition to kindergarten; see paragraph 49 of the father’s Affidavit. Since January 2017 the child [X] has been attending speech pathology at Clinic to prepare him for kindergarten in 2018.
In about mid‑November 2017 the father completed [X]'s NDIS application to be able to continue his speech pathology. The father is currently awaiting to hear the date of the planning meeting so that this service can recommence. The Clinic has recommended that the child [X] continue to receive speech pathology services and the father is concerned that this will not take place if the children remain in the mother’s care.
The father is seeking to enrol [X] in School B. The father has been told that School B would need to ensure they have the appropriate mobility equipment in place for this child.
The father states – paragraph 53 of his Affidavit – that once NDIS funding has been approved the child [X] will also be commencing occupational therapy with the Hospital.
In relation to the child [Z], the father states – paragraph 54 of his Affidavit – that the child [Z] has also been referred to Clinic for speech pathology services that were due to commence in February 2018. FACS has assisted in funding this, and the father is very concerned that the child [Z] will miss out on this important service if she remains in the mother’s care. The father has also applied for NDIS funding for this child [Z] to continue these services.
In about November 2016 there was a JIRT investigation as [Z]’s childcare had reported that she had gonorrhoea. As a result of this – paragraph 55 of the father’s Affidavit – the father’s family and the mother were tested. The father tested positive for gonorrhoea but he had a different strain. The father asserts that the mother’s eldest child [A] was identified as a person of interest, but he refused to be tested. The father states that the JIRT investigation was inconclusive and no one has been charged. The father is concerned that [A] may be residing with the mother presently.
The father states that during the above investigation the children resided with the paternal grandparents and that after the investigation concluded the children continued to reside with him. The father states that the child [Z] currently attends pre-school at Suburb L Kindergarten and Childcare five days a week, and is progressing well. The father states that he keeps in contact with the teacher and he is up to date on her progress.
During the time that the mother retained the children, from about mid‑December 2017, the father was eventually able to speak with the children on Christmas Day 2017. On about 7 January 2018 the father called the mother inquiring after the children. During the telephone conversation the mother said words to the effect, “I’m not giving the kids back; I’m keeping them.” After this the mother, according to the father, blocked her telephone number.
The father contacted FACS and advised them of what had taken place. FACS advised the father that they would be commencing conducting regular home visits and advised the mother to allow the children to speak with the father. The father states that after this, on about 17 January 2018, he received a call from the mother and was able to speak with the child [Y] very briefly.
The father alleges, or asserts – paragraph 64 of his affidavit – that on about 8 January 2018 the police completed a welfare check. They advised the father words to the effect, “The house is untidy but we have sighted the children. I’ve spoken with Ms T from FACS.” The father states – paragraph 65 of his Affidavit – that he currently resides in a Housing Commission home in Suburb M with a ten year lease. His home has been modified to accommodate the child [X]’s high needs, including ramps, bedroom changes and layout of the home.
The father states – paragraph 66 of his Affidavit – that he seeks to have the children returned to his care. He states that the school year is about to commence and he does not want the children to get further behind and lose the special supports they have in place. He states that the children have high needs and he is concerned that the mother will not be able to meet them. He asserts that the mother resides in Suburb K, which has limited support services for the children, and he does not believe it is in their best interests to reside there.
The father expresses his concern – paragraph 68 of his Affidavit – that the mother’s home in Suburb K has not been modified to accommodate the child [X]’s needs, in particular his wheelchair. He is concerned for the child [X]’s ongoing safety if he was to reside with the mother full-time.
The father further asserts – paragraph 69 of his Affidavit – that he is aware that the mother, her partner, her aunty, and her two eldest daughters, reside in her five-bedroom home. The father is concerned that the mother does not have appropriate furnishings for the children to cater for their needs full-time. He has also noticed that the house the mother is renting is on the market for sale with Real Estate. He states the sale advertisement notes that the current tenants are on a month-to-month lease. He is further concerned that once the property is sold the mother and the children may have to obtain emergency accommodation.
Annexed to the father’s Affidavit filed 23 January last, inter alia, are a letter from FACS dated 22 March 2017 from Ms T, child protection case worker, Suburb N Community Services, in which she states, inter alia, that the case has been allocated to her for ongoing child protection case work. She further states that the father has recently taken on full-time care of the three children, and she states that from what she has observed of the father’s financial management the father is capable of budgeting and providing for the children; that is Annexure B to the father’s Affidavit.
Annexure C to the father’s Affidavit is a school report for the child [Y], Year 2, Semester 2, 2017. Under the heading “General Comment” on the last page of the school report, in relation to [Y], the child’s teacher states inter alia that:
The child has made some pleasing progress this semester with the assistance of support staff.
Annexure D to the father’s Affidavit is a copy letter from Suburb L Kindergarten and Child Care, dated 23 January 2018, from Ms L, director. She states, inter alia, that the child [X] attends Monday to Friday and has been doing so at that kindergarten and childcare centre since 11 September 2015. She states further that when [X] began at the service, the father would drop off and pick up while the parents were still in a marital relationship. As the year progressed and the parents have separated, the parents have been caring for this child [X] on alternate weeks. She states that the child [X] then went into full-time care with the father as the mother had moved away.
She states that the father had sustained an injury close to Christmas, and as such, Ms L was under the assumption that the child [X]’s mother would care for the children for a three-week window. She states that as the children have not been returned this year, the child [X] has been missing out on many learning opportunities. She states that the father has been working very hard with Ms E from NDIS with the child [X] having regular visits and been making huge milestones developmentally.
She states that, as [X] has not been in Sydney, he has missed out on this opportunity and this is a concern as he is supposed to be starting school in 2018. She states that she was very surprised with the letter she received from the mother on 12 January 2018 in regards to the 100% care given to the child [X], given to [X]’s mother via SMS. She states that a letter was forwarded to her on this date, as she contacted the mother to find out when the children would be returning to care.

Ms L was informed that a letter was given to the mother stating that she would have 100% care, which she is concerned about. She states that whilst the children have been in the care of the father they have been clean, well fed, opportunities for learning and development have been provided, as well as showing them love and affection. She states she is concerned that the children have been removed from full‑time care from the father where they have flourished and have now been placed back in the mother’s care without any notification.
Annexure E to the father’s Affidavit is a letter from the Clinic’s speech pathologist Ms A, dated 18 January 2018, in which it is stated under the heading “Speech Pathology”, in relation to the children [X] and [Z], that the father referred the child [X] to the Clinic for speech pathology services with the aim of improving his expressive communication skills in preparation for school this year 2018. The letter states that:
[X] has been receiving ongoing speech therapy with Ms A since January 2017 under the Western Sydney funding associated with ADHC (Department of Ageing, Disability and Home Care).
She states that therapy sessions have occurred at home and at his childcare centre. She refers to the child [Z], who was also referred for speech pathology services with herself with the aim of improving her verbal language skills. This child’s speech therapy has been paid for by the Vulnerable Families Program associated with FACS (Family and Community Services) Western Sydney, and is due to begin in February 2018. Sessions will take place at home and childcare.
She states that both children currently attend childcare five days per week at Suburb L Kindergarten and Child Care Centre. [X] has one-to-one support from his teacher Ms D at the childcare; he is due to begin primary school at the end of this month. She refers to the child [X]’s speech therapy sessions which have occurred at home and at childcare.
She refers to the child [X]'s ADHC funded speech pathology, which has ceased, and he is now waiting for NDIS funding. The father has completed this child’s NDIS application and is waiting to hear the date for the planning meeting so that service can recommence. She states that:
[X] will require ongoing speech pathology services as well as occupational therapy and physiotherapy in the home and school environments.
She states that the child [X]’s future school has expressed an interest in working collaboratively with herself in the school environment to ensure that [X]’s communication is understood and well supported in his learning environment.
The Child Dispute Conference Memorandum to the Court dated 30 January 2018 states, inter alia, that the mother told the family consultant that the parties used to visit the child [X] each weekend while he was in the care of the paternal grandparents. The mother told the family consultant that FACS removed the child [X] from her care again in February 2017 and placed him with the father, and that this was the impetus for her relinquishing care of the children.
The mother told the family consultant that her other child [A] lives in Suburb O with his girlfriend and visits only occasionally. She stated that the child [Z] had just started talking and told the mother that the father was “playing with her down there”. The mother told the family consultant that she reported this on 29 January and has not heard anything yet from FACS.
The father told the family consultant that the child [Y] has told him that she does not like the mother’s partner, Mr B, because he smacks her and has a temper. He said that he has tried to raise this with the mother but that she does not respond. The mother told the family consultant that Mr B loves and adores the children and all his money goes towards them. She denied any violence on his part. The father told the family consultant that when he and the mother were looking after the children in a week-about arrangement, the child [X] would often come to him with sores on his arms and would have lost weight, and he was of the opinion that the mother was not looking after the child [X] properly.
Under the heading “Co-parenting relationship”, the family consultant stated that both parents reported that they had been able to speak with each other before recent events but that there is now no functional communication. The father told the family consultant that the mother was very inconsistent in contacting the children when they were with him and would ring at 8 pm when the children were already in bed and asleep. He said that she rarely came to Sydney and that he would send her messages asking if she would like to see the children at the weekend.
The mother told the family consultant that the father would try to control her contact with the children and would make it difficult for her to contact them. She said that she visited them “five or six times” when she came down to Sydney and would try to call “whenever I remembered” but that she was depressed at first.
The father asserted to the family consultant that he does not think that the mother is a fit mother and would not be able to coordinate the necessary services for the children given their additional needs. He said that he has been accessing services for the child, [X], and that this has been a major factor in his development. The father told the family consultant that when he was working he would come home to a house that was not in good order, and that he had care of the children, and that the mother struggled to create a routine for the children. The mother told the family consultant that she knows that the father loves the children but that he does not show any emotional warmth towards them.
Under the heading “Issues for the children”, the father told the family consultant the child [Y] is going into Year 3 and is enrolled at School A. The mother, for her part, said that the child [Y] has started at School C and she is looking forward to making new friends. The mother said that the child [Y] has trouble with reading and spelling but she is unaware that she is receiving additional assistance at school for this. The mother told the family consultant that she will be asking her teacher to find out if she needs extra help.
The father confirmed to the family consultant that the child [X] requires assistance in toileting, feeding and mobility, and that he has a wheelchair. He confirmed that this child will be going to School B. The father told the family consultant that he has recently received notice from the NDIS of the child [X]’s funding, and that he will be receiving assistance from a speech pathologist and an occupational therapist through the School.. He said that the occupational therapist will be working with him around toilet training [X] and also helping him to use his wheelchair more.
The mother told the family consultant that the child [X] requires assistance with feeding because he finds it difficult to get food into his mouth. She said that she and Mr B are looking now for a house which is more suitable for the child [X] because the one they have currently has stairs. The mother told the family consultant that [X] is still at Suburb K Preschool but that she is expecting that he will gain a place at Special School in Suburb P. She said that he will be transported there and back each day and that there is about a 45 minute driving time between Suburb K and Suburb P.
The father told the family consultant that the child [Z] was attending Suburb L Preschool and was due to commence speech pathology under FACS’ Vulnerable Families program. The mother, for her part, told the family consultant that the child [Z] is attending Suburb K Preschool and that she has spoken to Ms L, a local speech pathologist team in the early intervention team, regarding her needs.
Under the heading “Future directions”, the family consultant suggested the Court might be assisted by the appointment of an Independent Children’s Lawyer, by information from FACS, particularly regarding recent allegations made by the mother, and the Court may be assisted ultimately by a Family Report if the matter proceeds to a final hearing.
The mother, in her oral submissions to the Court on 30 January last and today, confirmed the comments she had made to the family consultant about her recent arrangements for the children to attend schooling in and around the Suburb K area.

Submissions

The mother submitted to the Court on 30 January last and today that JIRT had reopened an investigation in relation to the child [Z]. The mother asserted to the Court today that she is awaiting to hear from the JIRT team in relation to a possible investigation in relation to this child. In this context the Court refers to the mother’s statements to the family consultant that the child [Z] had allegedly told the mother in recent times that the father was “playing with her down there”.
The Court notes the mother told the family consultant that she reported this alleged conversation with the child [Z] on 29 January last to FACS but she had not yet heard anything from them.
The mother submitted that there was no risk to the children remaining in her primary care in Suburb K. She submitted that her current rental accommodation is satisfactory for the children’s physical needs. She confirmed there are no entrance or exit ramps at this particular residence. When the Court drew the mother’s attention to the father’s assertions in his Affidavit that the rental property was up for sale, the mother stated that the arrangements were being made for alternative accommodation for her family.

Relevant legal principles

Section 60B of the Family Law Act 1975 Commonwealth (“the Act”) sets out the objects of Part VII of the Act relating to children that inform the making of parenting Orders.
In deciding whether to make a particular parenting Order in relation to a child, the Court must regard the best interests of the child as the paramount consideration: section 60CA of the Act.
Section 60CC of the Act provides that in determining Orders in the child’s best interests the Court must consider the matters set out in subsections (2) and (3).
Section 67U of the Act provides that in proceedings for a recovery order the Court may, subject to section 67V, make such recovery order as it thinks proper. Section 67V of the Act provides that in deciding whether to make a recovery order in relation to a child, the Court must regard the best interests of the child as the paramount consideration.

The Best Interests of the Children

Section 60CC Considerations

Subsection (2)(a): the benefit to the child of having a meaningful relationship with both of the child’s parents: a primary consideration

The children would appear to have a meaningful relationship with both parents and would appear to benefit from a continuance of those relationships.
The father asserts that after the parties’ separation each of the parties cared for the children in a shared care arrangement; however, in about February 2017 the mother relinquished the care of the children to the father, she having become emotionally unwell, it would appear. The children have remained in the father’s primary care since February 2017 to about mid-December 2017 when, as previously discussed, the mother, in breach of an agreement with the father, unilaterally retained the children in her primary care in Suburb K. The father lives in Suburb M, Sydney.
Noting the father’s extensive and primary care of the children since February 2017 to recently, there is a real risk that the children’s meaningful relationship with him may be detrimentally affected should the children remain with the mother in Suburb K in her primary care.
Should the children be returned to the father pursuant to his recovery order application presently, the children’s apparent meaningful relationship with the mother should be able to be maintained if the mother is able to spend regular time with the children.
The Court gives significant weight to this meaningful relationship primary consideration.

Subsection (2)(b): the need to protect the children from physical or psychological harm from being subjected to or exposed to abuse, neglect or family violence

As referred to previously, the Court has before it the father’s sworn Affidavit and Notice of Risk document.
The mother was invited to file and serve an Affidavit in response but she has failed to do so. She has had a week to do this.
The Court has concerns in relation to the children remaining presently in the mother’s primary care. The Court has concerns in relation to the current situation with the mother’s mental health. It would appear from the father’s Affidavit that the mother relinquished the children to the father in about February 2017, by reason of her emotional unwellness at about that time. The father expresses his concerns in this context. There is no present objective material before the Court relating to what the mother contends is her emotional wellness. There is a reference in the father’s material, in the Child Dispute Conference, to the mother’s depression.
The father contends in his Affidavit and also in his statements to the family consultant at the Child Dispute Conference that he is concerned that the educational and other special needs services that he has set up for the children in Sydney, particularly since they have been in his primary care, will be placed in jeopardy if the children are permitted to remain in the mother’s primary care in Suburb K. The Court notes, for example, the father’s reference in his Affidavit to the child [X] having special supports and medical practitioners attending upon him in Sydney whilst he remains in the father’s care.
The Court is concerned, should the children remain in the mother’s primary care in Suburb K, that the children, all of whom have special needs and particularly the child [X], will lose the benefit of the special supports and other health treatment services set up in Sydney for the children by the father.
The Court has concerns in relation to the mother’s present accommodation for the children in Suburb K. The father asserts in his material that the family home in Sydney is specially designed in particular for the middle child who uses a wheelchair. The mother’s accommodation, according to the father’s Affidavit and to some extent confirmed by the mother, is somewhat uncertain at the moment because the mother’s rented premises in Suburb K is on the market for sale and the mother is apparently on a month to month lease. So the Court has some concern about the future accommodation position of the children should they remain living with the mother in Suburb K.
The Court refers to the father’s Affidavit evidence regarding the mother’s partner, Mr B, allegedly yelling and smacking one of the children. The mother denies this assertion in her oral submissions. Nevertheless, at this very early interim stage the Court has some concerns in relation to these allegations made against the mother’s partner.
The Court has not overlooked the allegation made to the family consultant that the mother has allegedly made a report to FACS on 29 January last in relation to the child [Z] and an alleged statement by this very young child, currently aged four years, to the mother that the father was allegedly inappropriately touching her.
So the Court has just inquired of the father’s solicitor at Court today in relation to that allegation made against the father by the mother in relation to the child [Z] and alleged inappropriate touching. It is noted that the father denies these allegations and, moreover, disputes that the child [Z] would have the capacity to orally communicate this alleged statement to her. In any event, the Court takes into account that the mother has made a report of this matter on 29 January last, about a week ago, yet despite this alleged report by the mother to FACS at this time the mother has not yet heard anything from FACS.
On the state of the very limited evidence on this topic presently, and noting the father’s denials in this context, the Court would expect that the Independent Children’s Lawyer (which the Court will appoint shortly) will consider this issue closely and no doubt bring any relevant matters to the attention of the Court when the matter is next before the Court in about four weeks’ time.
At this very early interim stage, based on the material before the Court on this topic relating to [Z], the Court is presently of the view that such allegations made by the mother do not warrant the Court declining to make the proposed recovery order.
The father asserts in his Affidavit that last year the children were being returned to him by the mother with sores on their body which required some treatment from him. The Court has some concerns in this regard.
Taking the above matters into account, the Court at this very early interim stage is of the view that there is a need to protect the children from the risk of physical or psychological harm, from being subjected to or exposed to abuse, neglect, or family violence. In relation to the Court’s reference to “family violence” the Court again refers to the father’s allegations in relation to the mother’s partner inappropriately yelling and smacking the child [Y]. The Court gives significant weight to this need to protect primary consideration.

Section 60CC(3) additional considerations

(a) Any views expressed by the children and any factors that the Court thinks are relevant to the weight it should give to the child’s views

The father contends that the child [Y] has been informing him that the mother’s partner has been inappropriately yelling and smacking her. In this regard the Court refers to paragraph 31 of the father’s Affidavit in particular. The Court notes the tender age of the child [Y] who is now seven years of age, turning eight years this year; the Court gives some weight to her statements to the father relating to the mother’s partner.

(b) The nature of the relationship of the child with each of the child’s parents; and other persons

The Court refers above to the meaningful relationship consideration. It would also appear that the child has positive relationships with the paternal grandparents. The mother asserted to the family consultant that her partner loves the children.

(c) The extent to which each of the child’s parents has taken or failed to take the opportunity; to participate in making decisions about major long term issues in relation to the children; and to spend time with the children; and to communicate with the children

The father would appear to have taken such opportunities. The father contends that the mother did not take up regular opportunities to spend time with the children in 2017.

(ca) The extent to which each of the children’s parents have fulfilled, or failed to fulfil, the parent’s obligation to maintain the children

The father would appear to have filled such obligations. The father made certain statements to the family consultant in relation to alleged shortcomings of the mother in maintaining the children and caring for them. At this interim hearing the mother makes oral submissions appearing to dispute such allegations.

(d) The likely effect of any changes in the children’s circumstances, including the likely effect on the children of any separation from either of his or her parents or any other child, or other person with whom he or she has been living

The Court refers to its discussion above under the meaningful relationship and need to protect primary consideration. Again, and in particular, the Court is concerned that should the children remain living in the mother’s primary care in Suburb K, they will not have the benefit of the educational and special needs services and accommodations that the father has established for the children whilst they have remained living with him in Sydney in his primary care since at least February of last year.

(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

There is a geographical issue of significance in these parenting proceedings at present. The father lives in Sydney and the mother is in Suburb K, some four and a half hours’ drive away. There are obvious practical difficulties and expenses relating to the mother spending regular time with the children should the Court make the recovery order in relation to the children.
However, at this very early stage, with the mother not having filed her own evidence, the Court cannot clearly determine the extent of such practical difficulties and expenses.

(f) The capacity of each of the children’s parents and any other person to provide for the needs of the children, including emotional and intellectual needs

The father would appear to have such capacities. The Court notes that the father has been prepared in both the July 2017 and Christmas 2017 school holidays to allow the children to spend time with the mother, and the Court would infer, taking these matters into account, that the mother may well have capacities to provide for the children’s emotional and intellectual needs.
However, as previously discussed above, the Court has concerns as to the children losing their educational and other special support services presently existing in Sydney should the children remain living in the mother’s primary care in Suburb K, and the Court notes the father’s concerns in this context that, should the children remain living with the mother in Suburb K, she may not be able to replicate the extent of the educational and special services accommodations that the father has been able to establish for the children, in relation to their special needs, whilst residing with him in Sydney.

(g) The maturity, sex, lifestyle and background of the children and ability of the children’s parents, and any other characteristics of the children the Court thinks are relevant

The Court refers to its discussion above in relation to the children’s special needs and the father’s evidence in this context.

(i) The attitude to the children, and the responsibilities of parenthood, demonstrated by each of the children’s parents

The father would appear to have demonstrated appropriate attitudes to the children and to his responsibilities of parenthood. The Court notes the mother’s statements to the family consultant in relation to steps that she has sought to take in Suburb K to provide for the children’s educational and special needs.

(l) Whether it would preferable to make the Order that would be least likely to lead to the institution of further proceedings in relation to the children

It is too early to consider this additional consideration properly, noting these proceedings are an application for a recovery order.
The Court refers to the oral submissions just made by each party in relation to the father’s proposed interim Order that the mother spend regular time with the children each alternate Saturday and Sunday from 10 am to 4 pm with changeover to occur at the father’s residence in Sydney.
At this very early interim stage the Court is not in a position to resolve this issue between the parties. The Court will be in a better position to deal with this issue, noting that it may well be that the mother files a Response seeking parenting Orders that the children live with her in the Suburb K area. This issue can be further determined in about four weeks’ time after the mother has put on her evidence and the father has considered it.
At this very early interim stage it will not be in the best interests of the children to make any interim Order in relation to the children spending time with the mother, noting the current impasse between the parties relating to the mother’s oral submission a moment ago that the father meet her halfway between Suburb K and Suburb M at Town A, noting that it appears that the drive time from Suburb K to Town A is about two and a half hours.
Evaluating the above discussed primary and additional considerations relating to the father’s application for a recovery order in relation to the children, the Court is of the view that it will be in the best interests of the children to make the father’s proposed recovery orders, and they are set out in paragraphs 4, 5 and 6 of his Initiating Application.
Further, it will be in the best interests of the children, so as to ensure that the children are not again unilaterally removed from the father’s primary care, at least at this interim stage, to make an Order that pending further Order the children live with him. That is referred to in his proposed interim Order paragraph 3.

I certify that the preceding ninety-nine (99) paragraphs are a true copy of the reasons for judgment of Judge Newbrun

Date: 16 August 2018

[2018] FCCA 2250

6 February 2018

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