Fairbank and Fairbank

[2020] FamCA 599

FAMILY COURT OF AUSTRALIA

FAIRBANK & FAIRBANK [2020] FamCA 599

FAMILY LAW – PARENTING – Urgent interim parenting orders – Where previous Orders were made for the children to live with the mother – Where the father seeks urgent orders dismissing those Orders – Where the father contends there is an unacceptable risk if the children continue to live with the mother – Where the Independent Children’s Lawyer agrees with the father – Where the single expert recommended that the mother engage in therapy – Where the mother did not attend the Court event – Orders made suspending previous Orders and providing for the children to live with the father and spend supervised time with the mother.

Family Law Act 1976 (Cth) pt VII, s 60CC(2), (2A), (3).

Banks & Banks (2015) FLC 93-637

APPLICANT: Mr Fairbank

RESPONDENT: Ms Fairbank

INDEPENDENT CHILDREN’S LAWYER: Kathryn Renshall Lawyers

FILE NUMBER: SYC 2952 of 2017

DATE DELIVERED: 26 June 2020

PLACE DELIVERED: Sydney

PLACE HEARD: Sydney

JUDGMENT OF: McClelland DCJ

HEARING DATE: 26 June 2020

REPRESENTATION

SOLICITOR FOR THE APPLICANT: Ms Phillips of Family Law Matters

NO APPEARANCE BY OR ON BEHALF OF THE RESPONDENT.

INDEPENDENT CHILDREN’S LAWYER Ms Renshall of Kathryn Renshall Lawyers

Orders

PENDING FURTHER ORDER THE COURT ORDERS THAT:

1. That the Orders made on 20 November 2018 be discharged suspended save in respect to Order 14 of those Orders.

2. That the children, X born … 2008 and Y born … 2011 (collectively the “children”) live with the father.

3. That the father have sole parental responsibility in respect to X and Y in relation to the issues of health and education and the father be at liberty to enrol the children, X and Y, in an appropriate school in his local area.

4. That the three children, including Z born … 2009, spend time with the mother and each other for two (2) hours each week, supervised by and at B Services in Suburb D, C Street Suburb D NSW.

5. For the purpose of Order 4, each party do all things and sign all documents necessary to complete the intake with B Services Suburb D.

6. That the mother be restrained from contacting the children, X and Y, at any time other than during contact in accordance with Order 4.

7. The mother is to ensure that at all times that Z is in her care, the mother uses her best endeavours to ensure that the maternal grandmother is also present at the home where they are currently living.

8. That the mother commence cognitive behavioural therapy with a registered clinical psychologist and, following four (4) sessions, the psychologist provide a report addressing the following:

   (a)The number of sessions attended by the mother and the mother’s engagement in those sessions;

   (b)A general diagnosis;

   (c)An evaluation of the mother’s current emotional and general mental health;

   (d)An evaluation of the mother’s ability to self-regulate and ability to appraise risk;

   (e)Recommendations for further treatment;

   (f)Whether the expert holds any concerns regarding the mother’s ability to provide care for the children.

9. For the purpose of Order 8:

   (a)The mother shall provide the name and contact number of her nominated psychologist to the father's solicitor and the Independent Children’s Lawyer within seven (7) days from the date of these Orders.

   (b)Leave be granted for the Independent Children’s Lawyer to provide the following documents to the psychologist:

   (i)a copy of Dr F’s report;

   (ii)a copy of the mother’s Affidavit filed and sworn 29 May 2020;

   (iii)a copy of any hospital report or discharge summary produced under subpoena relating to the mother's hospital admission in June 2020;

   (iv)a copy of the father’s Affidavit filed together with this Application.

   (c)The Independent Children’s Lawyer be at liberty to correspond with the psychologist.

10. The mother shall provide to the father's solicitor her current address together with details of any other person who resides with the mother and thereafter ensure the father has a current address for the mother at all times

11. This Application in a Case filed 24 June 2020 is adjourned for further hearing to 28 July 2020 at 10.30am.  

THE COURT NOTES THAT:

A.These Orders have been amended pursuant to rule 17.02 of the Family Law Rules 2004 (Cth).

Note: The form of the order is subject to the entry of the order in the Court’s records.

IT IS NOTED that publication of this judgment by this Court under the pseudonym Fairbank & Fairbank has been approved by the Chief Justice pursuant to s 121(9)(g) of the Family Law Act 1975 (Cth).

Note: This copy of the Court’s Reasons for Judgment may be subject to review to remedy minor typographical or grammatical errors (r 17.02A(b) of the Family Law Rules 2004 (Cth)), or to record a variation to the order pursuant to r 17.02 Family Law Rules 2004 (Cth).

FAMILY COURT OF AUSTRALIA AT SYDNEY

FILE NUMBER: SYC 2952 of 2017

Mr Fairbank

Applicant

And

Ms Fairbank

Respondent

And

Independent Children’s Lawyer

EX TEMPORE REASONS FOR JUDGMENT

1. This matter has been brought before the Court by Mr Fairbank (“the father”) for urgent orders, as set out in his Application in a Case filed on 24 June 2020, in respect of the children X born in 2008, Y born in 2011 and Z born in 2009.

2. By way of background to the matter, two (2) issues that have given rise to the father’s concern are set out in the evidence relied upon by Mr G, a senior Police Officer with H Region Police Area Command, dated in2020 in support of an application for a Provisional Apprehended Domestic Violence Order (“ADVO”) against Ms Fairbank (“the mother”), for the protection of the father (marked ‘Exhibit 2’ in the proceedings). Relevantly, that evidence so relied upon is set out on pages 5 and 6 of the provisional ADVO as follows:

   Grounds of the Application:

   Reasons for making this application and the duration sought:

   The applicant is seeking an apprehended domestic violence order for a period of: 2 Years

   The reasons the applicant is making an application for an apprehended domestic violence order and seeks the period specified above are as follows

   The defendant in this matter is [the mother] who resides at J Street Suburb K.

   The Protected Person is [the father].

   The defendant [the mother] was in a relationship with the PINOP [Person in need of protection] [the father] for about 12 years. During that period, they were married for 11 years. They have and three children; X (12 years old), Z (10 years old) and Y (8 years old).

   In March 2017, the defendant and PINOP separated. The PINOP moved to L Street, Suburb D. The PINOP currently resides with his current partner, Ms M.

   For about three years, the defendant and PINOP have been before the Family Law Court regarding child custody. At present, the children have shared custody of the three children.

   About 2:55pm on Thursday, the 11th June 2020, the defendant woke up the three children from the beds at the defendant's address at J Street Suburb K. The defendant removed the children from the house onto the front lawn. The eldest child, X contacted the PINOP via text message stating, "Dad Mum going crazy. I will call you tomorrow". The following day, the children X and Y were taken by their grandmother to the PINOP's home in Suburb D.

   The following day, the PINOP contacted his daughter, Z who remained in the care of her grandmother. The PINOP Z stated she was okay, however didn't want to return to the defendant's address as she was too scared.

   On Sunday, the 14th June 2020, the PINOP and defendant had a civil conversation. It was agreed at the time, the PINOP would take custody of the children X and Y until the defendant finds a new home.

   On Tuesday, the 16th June 2020, the defendant rang the PINOP and demanded he return the children, X and Y. The defendant was erratic, abusive and yelling. The PINOP refused after being advised by solicitors to keep custody of the children in fear of the defendant's current mental state.

   On Friday, the 19th June 2020, the defendant attended the PINOP's home in Suburb D demanding the the [sic] children, X and Y to leave in her vehicle. The eldest child, X was home and refused to leave as he was too frightened. Police attended however the defendant had left the premises.

   About 9:00pm on Tuesday, the 23rd June 2020, the defendant sent numerous text messages to the eldest child, X's mobile phone. These text messages were sent back and forth for about an hour and a half. The defendant continued to send text messages to the eldest child, X long after his last text message. The eldest child, X showed the text messages to the PINOP who was concerned and worried of the text messages:

   "I WANT TO FACE YOUR FATHER TO BE HONEST. YOU CAN RUN BUT YOU CAN'T HIDE SWEETY. WAITING VERY PATIENTLY. IS YOUR FATHER THAT GUTLESS HE CAN'T EVEN CALL ME? ASHAMED EMBARRASSED I GET IT. BUT I WANT ANSWERS NOW. THIS IS NOT A JOKE LAW AND ORDER. I CALL THE SHOTS NOT YOUR FATHER. HE HAS 2 CHOICES? THIS IS REAL LIFE. REALITY. I DON'T WANT YOUR FATHER SHOT. I WANT TO KNOW WHY? I HAVE A HEART. HE IS YOUR BLOOD".

   The PINOP decided he would report the text messages the following day to police.

   About 9:30am on Wednesday, the 24th June 2020, the defendant contacted police stating she had concerns for the welfare of the children X and Y. Police attended the PINOP's home address in Suburb D. Police were met by the PINOP who explained about his recent concerns for the mental state of the defendant. The PINOP also showed police the text messages sent to the eldest child's mobile phone the previous night. Police checked on the welfare of the children who were in good health, however visibly shaken and frightened. A short time later, the defendant arrived at the front of the property. Police spoke to the defendant who appeared erratic, pacing up and down the footpath. The defendant demanded the custody of the children, accusing the PINOP being a 'sexual abuser' to the children. The defendant eventually left the premises in her vehicle, staling "If I can't have the children, I'm going".

   Police later obtained a statement from the PINOP at Suburb N Police Station who expressed his fears for the safety of himself and children. He further stated that the defendant's current behaviour being erratic is frightening the children who are too scared to stay with the defendant. The defendant also fears for the children's mental state due to recent police presence due to false reports made by the defendant.

   Police believe an apprehended domestic violence order is required to protect the PINOP, his partner and the three children. It is evident that the defendant's behaviour is related to some type of Mental Health and the defendant is desperate to take custody of all children. From previous incidents including removing the children from the early hours, the intimidating text messages to the eldest child and observations made by police regarding the defendant's erratic and unusual behaviour police believe the defendant's behaviour is unpredictable. Police are unaware of any diagnosis relating to Mental Health. Police believe a Apprehended Violence Order will attempt to prevent any further or likely incident of violence towards the PINOP who has current custody of the children, X and Y.

3. In terms of relevant legal principles, in relation to exercising the Court’s power pursuant to Part VII of the Family Law Act 1975 (Cth) (“the Act”), the Court is required to consider the best interests of the children. In that respect, s 60CC of the Act sets out a number of considerations that the Court is required to have regard to, including the primary considerations in s 60CC(2):

   a)The benefit of the children having a meaningful relationship with each parent; and

   b)Protecting the children from an unacceptable risk of physical and/or psychological harm.

4. Section 60CC(3) of the Act sets out a number of additional considerations that the Court is required to have regard to. In the decision of Banks & Banks (2015) FLC 93-637, the Full Court indicated that, in circumstances where the Court is considering an interim application, it can be appropriate for the Court to focus on the more significant of those considerations in deciding what interim order is appropriate to be made.

5. In this matter, the issue that outweighs any other consideration is the potential issue of risk, having regard to the police statement to which I have referred. This is particularly so as s 60CC(2A) of the Act provides that the Court shall give issues of risk priority in deciding what parenting orders to make.

6. In circumstances where I have made Orders listing this matter for further hearing of the father’s Application in a Case on 28 July 2020, I am satisfied that, pending that further hearing, Orders are required as set out at the commencement of these reasons for judgment. Those Orders are made in the context where the two (2) children, X and Y, are currently living with the father, whereas Z is currently living with the mother who, it is understood, is, in turn, living with the maternal grandmother.

7. While the father sought, in these proceedings, orders in respect to Z, it is considered appropriate to defer consideration of the father’s Application, generally, and specifically, in respect to Z until the further hearing of the matter. In that context, the Court has been advised by the solicitor for the father and the Independent Children’s Lawyer that the maternal grandmother has shown responsibility and a preparedness to act in the best interest of the children, including by delivering the children to the father’s address in circumstances where she was concerned for the children’s welfare.

8. In those circumstances, while the maternal grandmother is not a party to these proceedings, I have made orders requiring the mother to take all reasonably available steps to ensure that, at those times that Z is spending time with the mother, the maternal grandmother is also present in the household which, it is understood, is the maternal grandmother’s home.

9. As I have made Orders providing for the two (2) children, X and Y, to live with the father, it is appropriate that Orders are made, consistent with that Order, facilitating the father enrolling those children in schools in his local area and, accordingly, I have made those Orders.

10. In terms of the Orders I have made requiring the mother to obtain appropriate therapy, I note that the orders proposed by the father are consistent with recommendations previously received from the single expert in these proceedings, Dr F, and they are also consistent with the report of Dr P, the clinical psychologist, who has provided a report which is attached to the father’s Affidavit filed 24 June 2020.

11. Consistent with the consideration set out in s 60CC(2)(a) of the Act, in order to provide for the children to continue to spend time with their mother, I have made orders proposed by the father for the children, X and Y, to spend time with the mother at B Services Suburb D for two (2) hours each week. I have further made orders requiring that their sister, Z, also be present on those occasions. I do so in the context where s 60CC(3)(b) requires the Court to have regard to the children maintaining other significant relationships in their life.

12. I have also made orders, sought by the father, restraining the mother from contacting the children other than through the contact centre. My reasons for doing so are related to the issues of risk as outlined in the evidence of the H region Police Area Command to which I have, earlier, referred.

13. I have also, on an interim basis, given the father sole parental responsibility for the children X and Y in respect to the issues of health and education in circumstances where it will be necessary to change the school of the two (2) children and there are potential health issues that may arise, including some current health issues impacting upon the children as well as issues in respect of therapy that may be required by Y.

I certify that the preceding thirteen (13) paragraphs are a true copy of the reasons for judgment of the Honourable Deputy Chief Justice McClelland delivered on 26 June 2020.

Associate: 

Date:  22 July 2020