Fairbank and Fairbank & Anor

[2020] FamCA 644

FAMILY COURT OF AUSTRALIA

FAIRBANK & FAIRBANK AND ANOR [2020] FamCA 644

FAMILY LAW – PARENTING – Interim parenting orders – Where Orders were made ex parte on an urgent basis on a previous occasion for two of the children to change residence such that they now live with the father – Where the third child currently resides with the maternal grandmother – Where the mother has suffered an acute mental health episode and scheduled for involuntary admission to care pursuant to the Mental Health Act 2007 (NSW) – Where the mother has since been released and seeks to reside with the maternal grandmother and child – Where the maternal grandmother has, by consent, been joined to the proceedings – Where the parties are in agreement with the proposal of the Independent Children’s Lawyer that the two children continue to reside with the father and the third continue to reside with the maternal grandmother – Where the mother has made untested allegations of sexual misconduct of the father to the third child – Where the father seeks the mother be restrained from residing with the maternal grandmother and child due to the risk of the child being exposed to psychological harm – Where the maternal grandmother has given an undertaking to the Court that she ensures the mother will not discuss with the third child alleged sexual conduct between the father and the child and will insist on the mother leaving her home in the event the mother acts contrary to the interests of the child – Orders made in accordance with those proposed by the father to the extent that they are consistent with the orders proposed by the Independent Children’s Lawyer – No Order is made for the mother to be restrained from residing with the maternal grandmother and the third child.

Family Law Act 1975 (Cth) pt VII, ss 43(1)c), 60B, 60CA, 60CC, 65DAA
Mental Health Act 2007 (NSW)

B and B (1993) FLC 92-357
Cowling v Cowling (1998) FLC 92-801
GO v CS [2005] NZFC 1
Godfrey & Sanders (2007) 208 FLR 287
Goode and Goode (2006) FLC 93-286
M & S (2007) FLC 93-313
M and M (1988) FLC 91-979
Masson v Parsons (2019) 368 ALR 583
Mazorski & Albright (2007) 37 Fam LR 518
Sigley v Evor (2011) 44 Fam LR 439

The Hon. John Fogarty AM, ‘Unacceptable Risk: A Return to Basis’ (2006) 20 Australia Journal of Family Law 249

APPLICANT: Mr Fairbank

FIRST RESPONDENT: Ms Fairbank

SECOND RESPONDENT Ms Edney

INDEPENDENT CHILDREN’S LAWYER Kathryn Renshall Lawyers

FILE NUMBER: SYC 2952 of 2017

DATE DELIVERED: 6 August 2020

PLACE DELIVERED: Sydney

PLACE HEARD: Sydney

JUDGMENT OF: McClelland DCJ

HEARING DATE: 28 July 2020

REPRESENTATION

SOLICITOR FOR THE APPLICANT: Ms Phillip of Family Law Matters

THE FIRST REPSONDENT IN PERSON.

THE SECOND RESPONDENT IN PERSON.

SOLICITOR FOR THE INDEPENDENT CHILDREN’S LAWYER: Ms Renshall of Kathryn Renshall Lawyers

Orders

1. That the living arrangements for the children be as follows:

   (a)Noting the undertaking provided by Ms Edney (“the maternal grandmother”), the child, Z born … 2009, live with the maternal grandmother; and

   (b)The children, X born … 2008 and Y born … 2011 continue to live with Mr Fairbank (“the father”) in accordance with Order 2 of the Orders made on 26 June 2020.

2. That any time the children are to spend with each other be subject to the discretion of the father and the maternal grandmother.

3. The maternal grandmother shall facilitate Z attending upon child psychologist, Dr P (or any other psychologist as agreed between the father and the Independent Children’s Lawyer), on a weekly basis, the costs of which shall be borne by the father;

   AND IT BE NOTED that such payments may be claimed by the father as non-agency payments for the purpose of reducing the father’s child support liability.

4. For the purpose of Order (3), the father’s solicitor shall write to the child psychologist and provide a copy of these Orders and thereafter the maternal grandmother and the father shall communicate by text message for the purpose of arranging appointments at a mutually suitable time.

5. That, upon Z commencing weekly therapy, the father shall spend time with Z as follows:

   (a)       Initially during the therapy sessions; and

   AND IT BE NOTED that Z is to be reintroduced to the father during therapy.

   (b)At any or other time as recommended by the child psychologist and agreed to by the father and Z.

   AND IT BE NOTED that it is hoped time will progress at the father’s home together with X and Y.

6. The parties are restrained from discussing the alleged allegations of sexual abuse relating to Z and Y to any person other than a medical practitioner or therapist provided or for a lawful purpose such as reporting to an authority, in accordance with an order of this Court.

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 and Anor 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  

First Respondent

And

Ms Edney 

Second Respondent

And

Independent Children’s Lawyer 

REASONS FOR JUDGMENT

Introduction

1. This matter concerns the further hearing of an Application for interim parenting orders that was adjourned from 26 June 2020, in circumstances where Ms Fairbank (“the mother”) was unable to appear on that day. The parties are in agreement that the Orders I made ex parte on 26 June 2020 should continue. Most relevantly, those Orders provided for two (2) of the parties’ children, X born … 2008 and Y born … 2011, to change residence such that they now live with Mr Fairbank (“the father”). Orders were not made in respect to the place of residence of the parties’ third child, Z born … 2009, other than to require the mother to ensure that, at all times that Z was in her care, the mother used her best endeavours to ensure that Ms Edney (“the maternal grandmother”) is also present in circumstances where the mother and Z were living in the home of the maternal grandmother.

2. The parties are in agreement that both X and Y should continue to live with the father, on an interim basis, and that Z should continue to live with the maternal grandmother. A significant issue in the proceedings, before me on 28 July 2020, was whether the mother, who has recently suffered an acute mental health episode requiring involuntary admission to care, should be permitted to also live with Z and the maternal grandmother at the maternal grandmother’s home.

3. For reasons which I explain, in circumstances where the maternal grandmother, who has, by consent, been joined to these proceedings, unhesitatingly offered a comprehensive undertaking, I am satisfied that it is appropriate that Z continues to live with the maternal grandmother on an interim basis and that the mother also be permitted to reside at that residence.

Relevant background

1. The relevant background to this matter is helpfully set out in a chronology prepared by the Independent Children’s Lawyer. Accordingly, I will now set out the relevant facts and procedural history of the matter in accordance with the Independent Children’s Lawyer’s chronology.

2. The parties were in a relationship for approximatively 12 years prior to separation.

3. On … 2008, X was born. He is currently aged 12 years.

4. On … 2009, Z was born. She is currently aged 10 years.

5. On … 2011, Y was born. She is currently aged eight (8) years.

6. In March 2017, the parties separated.

7. On 18 May 2017, the father commenced proceedings in this Court by filing an Application for Final Orders.

8. On 8 February 2018, Dr F released a single expert report prepared in respect to these proceedings.

9. On 20 November 2018, Senior Registrar Campbell made Orders by consent that provided, inter alia, that all the children, that is X, Y and Z, live with the mother and spend time with the father each alternate weekend and school holidays, and that the parties be subject to the following restraint:

   14. The parties are restrained from discussing the alleged allegations of sexual abuse relating to Z and Y to any other person other than in accordance with an order of this Court, a medical practitioner or therapy provider or for a lawful purposes such as reporting to an authority.

10. In April 2020 to May 2020, the father contends that the mother did not facilitate the children spending time with him in accordance with the 20 November 2018 Orders.

11. On 5 April 2020, Dr P, the parties and children’s family therapist, released a brief therapy treatment report. The report makes mention of the historic and ongoing allegations that the mother has made of sexual misconduct by the father to Z. As set out in the report, the father denies any allegations of this kind.

12. On 25 May 2020, the parties were scheduled to participate in a mediation facilitated by Legal Aid NSW.

13. On 4 June 2020, the matter was listed before me for call over whereby I made Orders, inter alia, listing the matter for final hearing for five (5) days commencing 8 March 2021.

14. On 7 June 2020, the mother sent a text message to Y saying that, “no one can touch you until you are 18”.

15. On 11 June 2020, X sent a text message to the father at 3am saying, “mums going crazy I will call you tomorrow”. Later in the day, X telephoned the father and informed him that the mother had woken the children at 3 am and taken them outside as she feared an intruder was in the house. The police were called and attended the mother’s home. That same day, the mother was taken to hospital. X and Y were delivered by the maternal grandmother to the care of the father and Z remained in the care of the maternal grandmother.

16. On 12 June 2020, the mother advised that she was not admitted into hospital on 10 June 2020 and was sent home from the emergency room.

17. On 16 June 2020, the mother telephoned the father demanding that the children be returned to her care.

18. On 18 June 2020, the father was advised by a Department of Communities and Justice worker that the mother had taken Z to the police station the day before to report allegations of sexual misconduct by the father to Z.

19. On 19 June 2020, the mother attended the father’s home and demanded that the children, X and Y, be returned to her care. The police were called and attended the father’s home.

20. On 23 June 2020, the mother sent the following text message to X:

    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.

21. On 24 June 2020, the police attended the father’s home after the mother called to request a welfare check of the children. On the same day, a Provisional Apprehended Violence Order (“PAVO”) was made against the mother for the protection of the father.  

22. On 24 June 2020, the father filed an Application in a Case seeking that the matter be heard on an urgent basis.

23. On 25 June 2020, the mother was involuntarily admitted into R Hospital and scheduled pursuant to the Mental Health Act 2007 (NSW).

24. On 26 June 2020, the matter came before me and there was no appearance by the mother. I made the following Orders ex parte:

    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.

25. On 3 July 2020, the mother went before a Registrar at the Mental Health Review Tribunal whereby it was Ordered that the mother was required to remain in hospital until no longer than 31 July 2020.

26. On 7 July 2020 and 9 July 2020, the mother sent many text messages to X and Y and contacted the father repeatedly by telephone demanding the children be returned to her care.

27. On 9 July 2020, the father attended a police station reporting that the mother had breached the PAVO.

28. On 21 July 2020, the father received a telephone call from the Principal of Z’s school in respect to “strange” Tiktoks, a video social media platform, which Z had been posting.

29. On 22 July 2020, the father filed an Application in a Case.

30. On 24 July 2020, the mother was released from hospital. The mother advises that she has been living in hotels since this time, however, would like to reside with the maternal grandmother at her residence with Z. 

31. On 28 July 2020, I made an Order, by consent, for the maternal grandmother to be joined to the proceedings.

Applications

Orders sought by the father

1. The father seeks that orders be made in accordance with his Application in a Case filed 22 July 2020, as follows:

   1. That leave be granted for short service of notice of this application.

   2. That the Applicant Father be granted leave to join Ms Edney (the "Maternal Grandmother") and Mr Edney (the "Uncle") as a party to these proceedings pursuant to Rule 11.02 of the Federal Circuit Court Rules [sic].

   3. That if leave is granted in accordance with order 1, then:

   a. The child, Z born … 2009, live with the Maternal Grandmother and the Uncle; and

   b. The Father have sole parental responsibility for Z in relation to long term care, welfare and development; and

   c. The Grandmother and Uncle has parental responsibility for day to day care and decisions for Z at all times she is in their care;

   d. The Maternal Grandmother and the Uncle shall facilitate Z attending upon child psychologist, Dr P (or any other psychologist as agreed between the Father and the ICL) on a weekly basis, the costs of which shall be borne by the Father;

   AND IT BE NOTED that such payments may be claimed by the Father as non-agency payments for the purpose of reducing the Father's child support liability;

   e. For the purpose of order 2 d, the Father's solicitor shall write to the therapist and provide a copy of these orders and thereafter the Maternal Grandmother, the Uncle and the Father shall communicate by text message for the purpose of arranging appointments at a mutually suitable time;

   4. That upon Z commencing weekly therapy, the Father shall spend time with Z as follows:

   a. initially during the therapy sessions; and

   AND IT BE NOTED: Z is to be reintroduced to the Father during therapy.

   b. at any other time as recommended by the therapist and agreed to by the Father and Z.

   AND IT BE NOTED it is hoped time will progress at the Father's home together with X and Y.

   5. That the Mother be and is hereby restrained from residing at the Maternal Grandmother and the Uncle's residence at any time while Z resides at that residence.

   6. That the Mother be restrained from approaching, communicating with or spending time with Z except during supervised contact as provided for by order 4 of the orders made on 26 June 2020 and amended on 30 June 2020.

   7. That the Maternal Grandmother and/or the Uncle shall advise the Father and the ICL at all time[s] the Mother contacts Z in breach of order 6.

2. The father does not press for Mr Edney (“the uncle”) to be joined to the proceedings as, at the time of the interim hearing, the uncle was no longer residing at the residence of the maternal grandmother. 

Orders sought by mother

1. As will be discussed, the mother has been receiving therapy and, in those circumstances, has been unable to file court documents. 

Orders sought by the maternal grandmother

1. The maternal grandmother was only joined to these proceedings by Order made on 28 July 2020. She extended the courtesy to the Court of appearing on that day but she has not been required to file documents in these proceedings to date.

Orders sought by the Independent Children’s Lawyer 

1. The Independent Children’s Lawyer sought orders, as outlined in the case summary document, to the following effect:

   a.  That the maternal grandmother be joined to the proceedings;

   b.  That X and Y live with the Father;

   c.  That Z live with the maternal grandmother;

   d.  That any time the children are to spend with each other be subject to the discretion of the Father and maternal grandmother;

   e.  That the Father and Z continue to see upon Dr P and follow her recommendations in relation to any time Z is to spend with the Father.

2. Both the mother and the maternal grandmother indicated their consent with the substance of the orders proposed by the Independent Children’s Lawyer but oppose the orders sought by the father which would impose a restraint on the mother being permitted to live with the maternal grandmother and Z at the maternal grandmother’s home.

Evidence

1. The father relied upon the following documents:

   a)Application in a Case filed 24 June 2020;

   b)Application in a Case filed 22 July 2020;

   c)Affidavit of the father filed 24 June 2020;

   d)Affidavit of the father filed 22 July 2020; and

   e)Single expert report of Dr F dated 8 February 2018.

1. The Independent Children’s Lawyer relied upon the following documents:

   f)Single expert report of Dr F dated 8 February 2018; and

   g)Subpoena material produced to the Court.

2. The mother and maternal grandmother did not rely upon any documents.

3. The following exhibits were relied upon:

   a)Email from the mother dated 24 June 2020 acknowledging service of the Application in a Case filed 24 June 2020 (marked ‘Exhibit 1’); and

   b)PAVO issued on 24 June 2020 against the mother for the protection of the father (marked ‘Exhibit 2’).

Relevant legal principles

1. The decision of the Full Court in Goode and Goode (2006) FLC 93-286 usefully sets out the approach which should be taken in considering an application for interim parenting orders. At [81]-[82], under the subheading “How should interim proceedings be conducted?”, the Full Court said:

   81. In making interim decisions the Court will still often be faced with conflicting facts, little helpful evidence and disputes between the parents as to what constitutes the best interests of the child. However, the legislative pathway must be followed.

   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.

2. In Cowling v Cowling (1998) FLC 92-801 at [18], the Full Court said:

   The issue for determination at an interim hearing involves a consideration of what orders should be made to properly regulate the position of the children pending the final determination of the matter. Such proceedings are an abridged process where the scope of the inquiry is necessarily significantly curtailed. As a consequence, the Court needs to exercise considerable caution against being drawn into matters properly dealt with in the trial process. Ordinarily, at interim hearings, the Court should not be drawn into issues of fact or matters relating to the merits of the substantive cases of each of the parties.

3. Part VII of the Family Law Act 1975 (Cth) (“the Act”) sets out the relevant statutory provisions applicable to proceedings in relation to children. Section 60B of the Act sets out the objects and principles of Part VII. These 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.

4. Significantly, in Masson v Parsons (2019) 368 ALR 583 at [8], in their joint judgment, their Honours Kiefel CJ, Bell, Gageler, Keane, Nettle, and Gordon JJ gave emphasis to the fact that:

   Subdivision B of Div 1 of Pt VII [of the Act], which is headed "[o]bject, principles and outline", provides, inter alia, in s 60B(1) that the objects of Pt VII include "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"

   (Emphasis in original)

5. More generally, the Act makes clear that, in exercising its jurisdiction, the Court has a responsibility to “protect the rights of children and to promote their welfare”: ss 43(1)(c) of the Act (Emphasis added). Those rights include:

   ·The right “to know and be cared for by both their parents”: s 60B(2)(a) of the Act;

   ·The 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)”: s 60B(2)(b) of the Act; and

   ·The right to “maintain personal relations and direct contact with both parents on a regular basis”: s 60CC(3)(e) of the Act.

6. Section 60B(4) of the Act provides that an additional object of Pt VII “is to give effect to the Convention on the Rights of the Child done at New York on 20 November 1989”.

7. In GO v CS [2005] NZFC 1 at [38] it was noted that:

   …cases have generally referred to Article 9.3 of the Convention which provides "states parties shall respect the right of the child who is separated from one or both parents to maintain personal relations and direct contact with both parents on a regular basis, except if it is contrary to the child's best interests". Article 9 cannot however, be looked at in isolation by reason of interactions with Articles 7 & 18 of the Convention. The UNICEF "Implementation Handbook for the Convention on the Rights of the Child" 2002 Edition states at page 250 that "This [Article 9.3] together with Article 7 (Child's Right to Know and be Cared for by Parents) and Article 18, implies that the law should presume that, unless it is proved to the contrary, the continued involvement of both parents in the child's life is in his or her best interests"

Consideration

Competing proposals of the parties

1. I have earlier set out the proposed orders sought by the father and the Independent Children’s Lawyer. The mother and the maternal grandmother agree to orders in the form of those proposed by the Independent Children’s Lawyer save to the extent that both contend that, in the mother’s current circumstances, it would be in the interests of the child for the mother to be permitted to continue to live with the child and the maternal grandmother at the maternal grandmother’s home. In that respect, it was contended by both the mother and the maternal grandmother that it is in the best interests of Z that she continue to have contact with the mother. It was further contended that permitting the mother to live with the maternal grandmother would provide greater security for the mother and enhance her ability to recover from mental health issues from which she has recently suffered with a view to, ultimately, resuming her full parenting responsibilities.

2. The father, however, opposes the mother living with Z and the maternal grandmother in circumstances where the mother may pose a risk of physical and psychological harm to the child.

Objectively verifiable facts

1. The father and the Independent Children’s Lawyer referred to the material of the New South Wales Department of Communities and Justice (“NSW DCJ”), material of the New South Wales Police Force (“NSW Police Force”) and material from R Hospital produced on subpoena to the Court.

2. Specifically, a Helpline Assessment dated 16 June 2020 in the notes of the NSW DCJ recorded that:

   On 16/06/2020 mother has shared that on the night of a recent Police callout 11/06/ 2020 the girls had shown their mother what their father does to them when sexually abusing them; mum went to bed and woke up at 1:10 am having a nightmare describing that she was in a panic, sweating – that scared – and petrified that she grabbed her kids to leave the house to get them to safety until police arrived. Mum and kids went to a neighbour’s house and the Police were called. They then went to their maternal grandmother’s house and have been there since and not returning to live in their house because mother says its not safe and that’s what the kids want.

   Mother went to see her GP the following day and was advised to present at the hospital for a mental health assessment; did so and was released.

   Concerns that mothers mental health is declining and that she is not making the right choices when it comes to the safety of her children because she is tired and stressed.  Concerned that mum has said that if her ex-husband went to jail for the sexual abuse of the girls that it “would kill him” when discussing how her 12 year old son would react to the news.

   …

   Police sighted children who were upset that they were removed from their beds for no apparent threat.

3. The notes produced by the NSW Police Force state that, on 17 June 2020, the mother took Z to the Suburb T Police Station and advised police that she found the child’s diary which had recorded entries of sexual abuse. The police notes record that the mother’s complaints are similar to those which have been previously made. The notes further record that:

   When [the child] was asked why she had attended the police station this day, she stated that she didn’t know. She looked at her mum and said, ‘What’s going on?’.  [The mother] stated, ‘I found your diary, you need to tell the police what happened’. The [child] became visibly upset, crying, covering her face and stating ‘No mum.  I don’t want to go through this again. I don’t want to talk about it. I hated. Take me home’.

4. The notes of the NSW DCJ further included a Helpline Assessment dated 25 June 2020. When responding to a subpoena, the NSW DCJ is legally prevented from disclosing the identity of persons who report abuse against children. The notes produced record a reporter repeating allegations that Z has been sexually assaulted by the father and that the mother is also concerned about Y having been similarly sexually assaulted. The notes record that:

   During the conversation with the mother, she alleged that the father has “done things” to Y also.  However [the reporter] noted that the mother was in a state that she was unable to provide further information.  The mother was said to be very unhappy had made issues with the [Apprehended Violence Order dated 24 June 2020] not having a cover letter and made fun of the [redacted].

5. As set out in my ex tempore reasons for judgment dated 26 June 2020,[1] the father relied upon evidence provided by Mr G, a senior Police Officer with H Region Police Area Command, in support of the father’s PAVO application. Relevantly, that evidence so relied upon is set out on pages 5 and 6 of the PAVO, as follows:

   [1] [2020] FamCA 599

   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 23^rd 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

6. The material produced by R Hospital includes an “Ambulance Electronic Medical Record” dated 25 June 2020 which, relevantly, records:

   37 [year-old] female [patient] standing outside the home she shares with her mother with Police from Suburb U mother and brother in attendance also. …Brother called 000 due to concern for [patient] safety (at risk of harm by misadventure) due to > situational and emotional stresses in past 1/12 months. Family have been unable to access perceived adequate or effective support in the community … [patient has a history] of anxiety depression and PTSD. Recent change of meds from Sertraline to Lovan. Family have attempted to engage [mental health] via V Hospital … GP referrals for counselling… Family reports > risk taking behaviours, e.g driving at 140 km/hr in 100km zone, changing down to first gear at speed and revving engine [with] brother in the car, also reported sexualized behaviour- disrobing at inappropriate time/ location. This morning [patient] became so overwhelmed whilst driving her ex-partner’s car that she pulled to the side of the road blocking a private driveway and throwing car keys into shrubbery… [Patient] appears agitated, restless, irritable.  [Patient] unable to concentrate, short attention span, lacks insight.  [Patient] appears thought disordered.

7. The “Ambulance Electronic Medical Record” dated 25 June 2020 further records, under the subheading “Initial Assessment”, reference to “psychiatric episode; emotional distress”.

8. It is acknowledged that, on 25 June 2020, the mother was scheduled under the Mental Health Act 2007 (NSW). The “Clinical Report As to Mental State of a detained person” dated 26 June 2020 reports:

   [patient] is very evasive about the documented concerns about her recent behaviour and is unable to give a rational or coherent account of those concerns.

9. A document also produced by R Hospital titled “MH Current Assessment Final Report”, in respect to a mental health assessment of the mother on 25 June 2020 at 12.38 pm, records:

   [The mother] is a 37 yr old female, mother of 3 children (12, 10, 8 years). She has been residing with her Mother for the last 3/52 following a relationship breakdown-she ended same due to paranoia. She has quit her job at around the same time, she was working in freight forwarding. She has a History of Depression, Anxiety and PTSD.

   Today her brother has called an Ambulance due to concerns about a significant deterioration in her Mental state. She has been very disorganised in her behaviour at home.  Her Ex-Husband took out an AVO against her yesterday secondary to her frequent phone calls and her persecutory delusions about him sexually assaulting the children. He has 2 of the children in Suburb D, the 12 yr old and the 8 yr old.  The 10 yr old Z is staying with her Mother and Nan.  She is at school today. [NSW] DCJ have been involved secondary to concerns raised by the children about their mother.

   …

   She has not been sleeping much 3-4 hours only, not been eating very much, she has lost approximately 10kg in the last 3/52 [3 weeks].

   Driving erratically in her car and at significant speeds-states Brother got her to pick him up the other day and she started driving at 140+km/hour in an 80 zone, then dropped it into 1st gear and was revving the shit out of the car.

   Today she has had a panic attack in her car-states she has pulled up on someones driveway, throwing the keys into the bushes and walked home.

   Told her Brother via phone she no longer wants the car as it belongs to her Ex-Hb. She has no idea where the keys are.

   In the recent days/weeks she has been running down the road, stripping off her clothes feeling there is something wrong. She reports feeling paranoid she is being followed, scared for her children safety. Reporting that her children have been assaulted believes there is a court case going on but this was all dismissed 3 yrs ago.

   Currently the only thing going on through the courts is custody battle as her Ex-hub is trying to get full custody of the kids.

   [NSW DCJ] were at the house to speak with her yesterday but she believes she spoke to detectives, misinterpreting things, not taking things on board

   She has been so profoundly impaired she has not been able to function

   She has been irritable and she was screaming at her daughter and in her face in an intimidating manner yesterday.

   Both report this to be very out of character for her.

   She is pressured in her speech, erratic, highly disorganised she cannot cook, clean or even do were washing currently let alone drive a vehicle.

   [The Uncle (her brother)] reports she has recently left her most recent relationship secondary to paranoia, he was a good guy.  She thought he might have been having an affair with a neighbour

   She quit her job when this happened and has essentially become homeless so is back living with her Mother

   She has also recently tried to punch her mother, she is very argumentative again out of character.

   Brother has tried to [comfort] but has not had any improvement.

   Mother has taken her to her GP got a referral to a psychologist, and for her to have some bloods.  Have a form but have not managed to get there yet.

   Mother and Brother are worried about her every time she leaves the house

   They are worried for her safety and feel she currently needs to be admitted to hospital.

1. In his Affidavit filed on 22 July 2020, the father attests, at paragraph 7, that, “On and from around 7 July 2020 [the mother] began contacting X and Y repeatedly on their mobile phones. [The mother] was texting and calling the children constantly”. Text messages set out in Annexure B to the father’s Affidavit corroborate his assertion to that effect. This is despite the fact that Order 6 of the Orders made on 26 June 2020 provided that:

   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.

2. Order 4 restricted the time that X and Y spend with the mother to professionally supervised time at B Services in Suburb D.

Presumption of equal shared parental responsibility

1. Section 61DA of the Act relevantly provides:

   (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.

2. In this case, a significant issue that the Court will be required to determine at final hearing is the extent to which the mother has acknowledged, sought appropriate assistance and effectively addressed her current mental health challenges. Determination of that issue will inevitably influence the Court’s consideration regarding the mother’s current and future parenting capacity. The evidence in these proceedings is not such that it is possible to determine that issue and, in those circumstances, it is not appropriate for the presumption of equal shared parental responsibility to apply at this stage of the proceedings. I have, however, for reasons outlined in my ex tempore decision dated 26 June 2020, determined that the father should have sole parental responsibility in respect to X and Y in relation to issues of health and education, including enrolling the children in an appropriate school in his local area. I do not propose, in this decision, to vary that Order to address the issue of parental responsibility in respect to Z in circumstances where she will be residing with the maternal grandmother. That issue should appropriately be determined at final hearing. It will be the case that both the maternal grandmother and the father will have responsibility in respect to day-to-day issues which are other than major long-term issues at those times that the children are in their respective care.

3. In circumstances where I have determined that the presumption of equal shared parental responsibility does not apply, the pathway set out in s 65DAA of the Act for the determination as to whether the children should spend equal or substantial and significant time with a parent does not apply.

4. The Court is, therefore, at large in making orders that it considers to be in the best interests of the children in the context of the issues raised in these interim proceedings.

Determining what is in the best interests of the child

1. Section 60CA of the Act provides that, in deciding whether to make a particular parenting order in relation to the children, the Court must regard the best interests of the children as the paramount consideration. This is also confirmed in s 65DAA of the Act.

2. Section 60CC of the Act sets out the list of matters that the Court must consider in determining what is in the children’s best interests. The primary considerations set out in s 60CC(2) of the Act are, as follows:

   (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.

3. In balancing these considerations, s 60CC(2A) of the Act requires the Court to give greater weight to the need to protect the child from physical or psychological harm from being subjected to, or exposed to, abuse, neglect or family violence: ss 60CC(2)(b) of the Act.

Meaningful relationship

1. In this matter, both parties acknowledge that it is in the child’s best interests to have a meaningful relationship with both of her parents, in terms of s 60CC(2)(a) of the Act.

2. In Sigley v Evor (2011) 44 Fam LR 439 at [132], the Full Court, quoting Brown J in Mazorski & Albright (2007) 37 Fam LR 518, confirmed that the concept of a meaningful relationship is one which is “important, significant and valuable to the child”. The consideration of how a “meaningful relationship” is defined needs to be determined in the circumstances of each case: Godfrey & Sanders (2007) 208 FLR 287 at [36]; M & S (2007) FLC 93-313 at 81,387.

3. Subject to appropriate measures being put in place to address any risk of harm to the children, all parties are in agreement that the children will benefit from having a meaningful relationship with both parents.

Unacceptable risk

1. Determining whether a child would be at an unacceptable risk with a parent involves a balancing exercise. In B and B (1993) FLC 92-357 at 79,778, the Full Court described the task of determining whether a child would be at an unacceptable risk in spending time with a parent is to “achieve a balance” between the risk of detriment to the child from abuse and “the possibility of benefit to the child from parental access”. Specifically, the Full Court said it is necessary to determine whether “the risk of harm to the children in having access with a parent outweighs the possible benefits to them from that access”.

2. In M and M (1988) FLC 91-979 at 77,081, the High Court said:

   To achieve a proper balance, the test is best expressed by saying that a court will not grant custody or access to a parent if that custody or access would expose the child to an unacceptable risk of [harm].

3. Writing extra-judicially, the Honourable John Fogarty AM, a former judge of this Court, in ‘Unacceptable Risk: A Return to Basis’ (2006) 20 Australia Journal of Family Law 249, said:

   …unacceptable risk in the High Court’s formulation [in M and M (supra)] requires two separate steps.  Is there a risk, and is it unacceptable?  The concentration by the High Court is upon both the nature and the degree of risk in the particular case.  Its formulation is all about balance.  In some cases a risk is ‘acceptable’ when balanced against other factors and other orders.  

4. Where an unacceptable risk is alleged, the Court must give consideration to the facts of the case and decide whether or not those facts could reasonably be said to raise an unacceptable risk of harm. If a determination is made that such a risk exists, the Court is then required to consider whether that unacceptable risk could be ameliorated by safeguards.

5. In the article referred to above, the Honourable John Fogarty AM wrote:

   The object of safeguards is to convert an unacceptable situation to an acceptable one where that is feasible and is of ‘benefit to the child’.

6. All parties are in agreement that, as a result of the mother’s current mental health challenges which gave rise to her recently being involuntarily scheduled at the R Hospital, it is necessary to put measures in place to mitigate against the risk of the children being exposed to dysregulated conduct on the part of the mother in circumstances where she may suffer a further mental health episode.

7. In that context, all parties agree, pending further order of the Court, that it is appropriate for X and Y to continue living with the father.

8. All parties agree that, in circumstances where Z wishes to continue to attend her current school and she has lived with the maternal grandmother during the period subsequent to the mother being admitted to R Hospital, it is appropriate for Z to continue to live, on an interim basis, with the maternal grandmother. 

9. The fundamental issue to be determined in these proceedings is whether the Court should make orders, as sought by the father, preventing the mother from residing with the maternal grandmother in circumstances where Z is also living in the maternal grandmother’s home.

10. Relevant to that issue, both the Independent Children’s Lawyer and the father expressed concern that the mother has repeatedly contacted the children by telephone and text message despite current Orders directing that should not occur other than in the context of supervision at a contact service.   

11. Both the Independent Children’s Lawyer and the father also expressed concern that the mother is continuing to agitate her allegation that Z has been sexually abused by the father including, on 17 June 2020, taking Z to the Suburb T Police Station and pressing Z to report further allegations of that nature to the police. The notes record Z as being reluctant to do so. Relevant extracts from the Police Note of that attendance have been set out above.

12. The father and the Independent Children’s Lawyer have also generally expressed concern that, in the event of the mother living in the household of the maternal grandmother, there is an unacceptable risk of Z being exposed to dysregulated conduct on the part of the mother resulting from her current mental health challenges. Instances where that has occurred in the past few months have been set out above.

13. Both the mother and the maternal grandmother submit that the mother has been appropriately treated in respect to her mental health condition and has been released from the R Hospital into the care of her treating specialists. They also contend that the mother’s medication has been adjusted such that she is no longer experiencing acute mental health episodes.

14. In response, both the father and the Independent Children’s Lawyer noted that a difficulty for the Court, at this point in time, is that the Court is without updated reports from the mother’s treating mental health specialists. The Court recognises that legitimate concern.

15. In considering whether it is necessary to make orders placing restraints upon the mother and, specifically, restraining the mother from attending the home of the maternal grandmother at those times that Z is also living there, the Court notes an undertaking offered by the maternal grandmother. The undertaking sets out measures that the maternal grandmother is prepared to put in place to avoid Z being adversely impacted in the event that the mother may experience a mental health episode/s in the future. The Court noted that the maternal grandmother unhesitatingly agreed to and did provide to the Court the following undertaking:

    The maternal grandmother undertakes to ensure that the mother does not discuss these proceedings with Z or act contrary to Order 14 of the Orders made on November 2018, that is, by discussing any alleged sexual conduct between the father and Z. The maternal grandmother undertakes that she will insists that the mother leave her home in the event that she either became unwell or acted in a manner that is contrary to the interests of Z including by discussing these proceedings with her or by discussing an alleged sexual contact by the father against her.

16. Having regard to that undertaking and the fact that the mother and the maternal grandmother have stated that the mother has no other reasonably practicable alternative accommodation, I am not satisfied that it is necessary and appropriate to make orders imposing the restraints upon the mother, as sought by the father, preventing the mother from residing with the maternal grandmother.

17. It should be made clear, however, that the Court’s decision, in that respect, would change in the event that it received evidence of the mother continuing to make inappropriate comments to Z regarding these proceedings and/or revisiting the mother’s assertion that the father has sexually abused Z. It goes without saying that the Court would also be of a different view if evidence came to light that, as a result of the mother also residing with Z and the maternal grandmother, Z was exposed to dysregulated conduct on the part of the mother. Such conduct would include the mother exhibiting signs of irrational thought patterns and/or behaviour, engaging in shouting or aggressive behaviour, or otherwise engaging in conduct that causes distress to Z.

Secondary considerations

Section 60CC(3)(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.

1. The Court notes that the Independent Children’s Lawyer has spoken to the children and reported to the Court that “all three children have instructed that they want to remain in their current arrangements; that is, X and Y reside with their Father and Z reside with her maternal grandmother”.

2. The Independent Children’s Lawyer further notes that both X and Y have further disclosed to NSW Police Force that, as of 20 June 2020, they want to stay with their father. In that respect, reference was made to material produced to the Court on subpoena by NSW Police Force being sleeve numbers 40-42 of the subpoenaed material. 

Section 60CC(3)(b) – the nature of the relationship of the child with each of the child’s parents and other persons (including any grandparent or other relative of the child).

1. I respectfully agree with the submission of the Independent Children’s Lawyer that the evidence establishes that, to their credit, particularly in challenging circumstances, the father and maternal grandmother have maintained a positive relationship with each other and also with the children. I am further satisfied that the father and the maternal grandmother will facilitate the children spending time with each other even in circumstances where X and Y will continue to live with the father and Z will continue to live with the maternal grandmother.

Section 60CC(3)(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 child, to spend time with the child, and to communicate with the child; and

Section 60CC(3)(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; and

Section 60CC(3)(f) – the capacity of each of the child's parents, and any other person, to provide for the needs of the child, including emotional and intellectual needs; and

Section 60CC(3)(g) – the maturity, sex, lifestyle and background (including lifestyle, culture and traditions) of the child and either of the child’s parents, and any other characteristics of the child that the Court thinks relevant; and

Section 60CC(3)(i) – the attitude to the child and parental responsibilities by each of the child’s parents.

1. I am satisfied that, since the interim arrangements have been in place, the father has taken appropriate steps to care for X and Y, including taking steps to enrol them in local schools near his place of residence.

2. All parties recognise that, currently, the mother is challenged in terms of her ability to make decisions about long-term issues in relation to the children and spending time with and communicating with the children in the absence of appropriate supervision.

Section 60CC(3)(d) – the likely effect of any changes in the child’s circumstances, including the likely effect on the child of any separation from either of his or her parents, any other child or other person (including any grandparent or other relative) with whom the child has been living.

1. Both the Independent Children’s Lawyer and the father submitted that there will not be significant impact on the children’s circumstances as the proposed interim orders closely align to the existing interim orders. This was not challenged by the mother or the maternal grandmother and I accept that is the case.

Section 60CC(3)(e) – the practical difficulty and expense of a child spending time with and communicating with a parent and whether that will substantially affect the child’s right to maintain personal relations and direct contact with both parents on a regular basis.

1. A problem identified in the current proceedings is the waiting list to access the services provided by B Services at Suburb D. As a result, all parties, appropriately, agreed to modify the existing order in respect to supervision such that the parties are able to agree on an alternative provider that may be able to facilitate the provision of supervision at an earlier time.

Section 60CC(3)(h) – issues pertaining to the culture of the child if the child is Aboriginal or a Torres Strait Islander.

1. This consideration is not relevant in these proceedings.

Section 60CC(3)(j) – any family violence involving a child or a member of the child’s family.

1. The mother alleges that the father is a perpetrator of sexual abuse towards the children. The father denies that he has engaged in such conduct. For reasons which have previously been explained, it is not, in these interim proceedings, possible to make factual findings in respect to disputed factual contentions. Those competing contentions of the parties will be heard and determined at the final hearing of the matter. 

Section 60CC(3)(k) – any family violence order that applies or has applied involving the child or a member of the child’s family and if applicable, taking into account a number of stated matters.

1. The father contends that the mother has contacted him in breach of the PAVO made on 24 June 2020. At paragraph 15 of his Affidavit, the father deposes that it is his understanding that the police would locate the mother and discuss the breach with her.

2. Any breach of a PAVO is a serious matter. However, in the context of the mother’s current mental health challenges, that response on the part of the father and the police appears to be appropriately measured.

Section 60CC(3)(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.

1. These are interim proceedings pending final hearing. As earlier indicated, a significant issue in that final hearing will be determining the extent to which the mother has acknowledged her current mental health challenges and taken appropriate steps to receive appropriate treatment in order to address the concerning behaviour that has adversely impacted upon the children.

2. The Court’s satisfaction in respect to that issue will, of course, also be highly relevant in the Court’s assessment of the mother’s parenting capacity and, in that context, future living arrangements for the children.

Section 60CC(3)(m) – any other facts or circumstances the Court considers relevant.

1. The Court has previously made Orders suspending existing parenting orders other than Order 14 of orders made on 20 November 2018. In circumstances where those Orders are not readily available to the parties, that Order 14 of the Orders made on 20 November 2018 has been included as a specific Order in the Orders made in these proceedings.

Conclusion

1. For the reasons which I have set out above, to the extent that they are compatible with the substance of the Orders proposed by the Independent Children’s Lawyer, I make orders as sought by the father other than to the extent that the Court does not, at this stage, make orders imposing the restraints sought by the father preventing the mother from living with the maternal grandmother in circumstances where the parties’ child Z is also living at that same home.

I certify that the preceding one hundred and six (106) paragraphs are a true copy of the reasons for judgment of the Honourable Deputy Chief Justice McClelland delivered on 6 August 2020.

Associate: 

Date:  6 August 2020