Fanning and Kress and Anor
[2019] FCCA 1765
•27 June 2019
FEDERAL CIRCUIT COURT OF AUSTRALIA
| FANNING & KRESS & ANOR | [2019] FCCA 1765 |
| Catchwords: FAMILY LAW – Parenting – significant family violence – where applicant, a convicted murderer, seeks sole parental responsibility – where first respondent mother currently has significant issues as to parenting capacity – where second respondent grandmother provides stable care – whether applicant should have no spend time – spend time arrangements – supervision – applicable principles – whether spend time arrangements present an unacceptable risk to the child – family violence – illicit substance abuse – supervised time at contact centre. |
| Legislation: Family Law Act 1975 (Cth), ss.4, 4AB, 11F, 60, 60B, 60CA, 60CC, 65D, 69ZW, 70Q, 91B |
| Cases cited: A & A (1998) FLC 92.800 B & B (1993) FLC 92-357 Carpenter & Carpenter [2014] FamCAFC 100 Carpenter & Lunn [2009] FamCAFC 128 Cowling & Cowling (1998) 22 Fam LR 776 Farmer & Rogers [2010] FamCAFC 253 Jarrah & Fadel [2014] Fam CAFC 14 Makita (Australia) Pty Ltd v Sprowles(2001) 52 NSWLR 705 Oswald & Karrington [2016] FamCAFC 152 R v Fanning [1999] VSCA 135 Texts referred to: B. Mahendra, ‘Psychiatric Risk Assessment in Family and Child Law’ (2008) 38 Family Law 569 Guideline for Family Law Courts a Children’s Contact Services January 2007 |
| Applicant: | MR FANNING |
| First Respondent: | MS KRESS |
| Second Respondent: | MS SIMS |
| Intervener: | DEPARTMENT OF HEALTH AND HUMAN SERVICES |
| File Number: | MLC 6357 of 2018 |
| Judgment of: | Judge A Kelly |
| Hearing dates: | 17, 18 June 2019 |
| Date of Last Submission: | 18 June 2019 |
| Orders Pronounced: | 27 June 2019 |
| Delivered at: | Melbourne |
| Delivered on: | 27 June 2019 |
REPRESENTATION
| The Applicant: | In Person |
| Counsel for the First Respondent: | Mr Taghdir |
| Solicitors for the First Respondent: | Marcou & Associates |
| Counsel for the Second Respondent: | Ms Agresta |
| Solicitors for the Second Respondent: | Higgins Legal |
| Counsel for the Independent Children's Lawyer: | Ms Buchanan |
| Solicitors for the Independent Children's Lawyer: | Clark Family Law |
| Counsel for the Department of Health and Human Services: | Ms Benson |
ORDERS
The Department of Health and Human Services have leave to intervene in this proceeding.
All earlier parenting orders are discharged.
Until further order, the second respondent have sole parental responsibility for the child, [X] born … 2015 (Child).
Until further order, the Child live with the second respondent.
Until further order, the Child spend time with the first respondent on condition that such time be substantially supervised by the second respondent and in such manner as the second respondent may consider to be appropriate from time to time.
Subject to paragraphs 7 – 9 of this order, until further order the Child spend time with the applicant.
The time spent by the child with the applicant shall be subject to the following conditions:
(a)the time shall occur at monthly intervals;
(b)the time shall take place at Suburb B Contact Centre or such other centre as made accommodate the parties (Centre) for as long as that Centre is able to provide that service;
(c)the Centre is requested to facilitate time in the first week of each month commencing no earlier than August 2019 on such date as the Centre may nominate and for a period not exceeding three hours;
(d)the Centre is requested to provide a report in relation to such contact time;
(e)the applicant’s sister, Ms A, is to file and serve an undertaking that she shall take all steps as may reasonably be required to collect, deliver and return the Child to and from the second respondent’s residence and Centre respectively.
For the purposes of such spend time and changeover:
(a)the first respondent whether by herself her servants or agents shall facilitate delivery of the Child to the applicant’s sister, Ms A;
(b)Ms A shall collect, deliver and return the Child to and from the second respondent’s residence and Centre respectively.
The father be restrained, whether by himself his servants or agents or howsoever otherwise from communicating with or being within 200m of the second respondent or her residence.
The applicant and first respondent enrol in, undertake and complete a post separation parenting program and furnish a certificate of completion to the other.
The applicant and first respondent continue to consult and follow the recommendations of their respective psychologists.
The applicant undertake counselling on an intensive basis to address the matters considered in these reasons for judgment and is at liberty to provide a copy of these reasons for judgment to such psychologist as many provide such counselling.
The applicant and first respondent to all things as may reasonably be necessary to consult with a psychiatrist to be nominated by the Independent Children’s Lawyer in order that a psychiatric assessment and report may be obtained.
The Independent Children’s Lawyer be requested to seek financial assistance of Legal Aid Victoria for the purposes of obtaining a psychiatric assessment of each of the applicant and first respondent.
The proceeding be transferred to the Family Court of Australia.
These reasons for judgment may be provided by a party, the Independent Children’s Lawyer or the Department of Health and Human Services to a state court.
IT IS NOTED that publication of this judgment under the pseudonym Fanning & Kress & Anor is approved pursuant to s.121(9)(g) of the Family Law Act 1975 (Cth).
| FEDERAL CIRCUIT COURT OF AUSTRALIA AT MELBOURNE |
MLC 6357 of 2018
| MR FANNING |
Applicant
And
| MS KRESS |
First Respondent
And
| MS SIMS |
Second Respondent
And
| DEPARTMENT OF HEALTH AND HUMAN SERVICES |
Intervener
REASONS FOR JUDGMENT
Introduction
These reasons for judgment explain interim parenting orders that have been made following a two day hearing which was conducted in lieu of a final hearing that had been listed with priority. There have been previous proceedings in this court in which final parenting orders were made providing for the mother to have sole parental responsibility for the child and live with the mother. The order was made in the absence of the father as he had been in a serious motorcycle accident. The order included that the child should spend no time or communicate with the father.
In summary, I have determined that the following interim orders should be made. The second respondent, the maternal grandmother should have sole parental responsibility for the child the subject of the application, [X] born … 2015. The first respondent should spend time with the child on a supervised basis and upon such conditions as may be determined by the maternal grandmother.
The father has a lengthy criminal history involving serious violence. Equally, despite some denials to the contrary, it would also appear that the mother’s family have a criminal history of sorts.
The father will be restrained from having any contact with the maternal grandmother. While the mother and father should probably have no contact and spend no time together, I am not prepared to make such order as I suspect it will be breached by the mother and it would be unjust to expose the father to the risk of further complaints giving rise to further intervention proceedings. While I am satisfied that the grandmother is genuine in her need for protection by means of an intervention order (IVO), I am far less so in the case of the mother.
The child may spend time with the father on condition that it is supervised by an independent supervisor at a Contact Centre. Such spend time will at this stage be restricted to contact at monthly intervals not exceeding three hours per session. Although the issue has not been explored in any detail, it may be entirely appropriate that the father’s sister, Ms A, is a person who, despite the maternal grandmother’s objection, is quite appropriate to perform the role of supervisor. At this stage I also consider, again despite the maternal grandmother’s objection, that Ms A is a person who may appropriately discharge the function of receiving and returning the child to the maternal grandmother’s residence. This will necessitate that Ms A give an undertaking to the court that she will take all reasonable steps to ensure the care of the child while she is collecting, delivering and returning the child for the purposes of spend time and at changeover.
I consider that the identified risks which are presented in this case can be appropriately managed by providing for the child to spend time with her father on a supervised basis. Contextually, it is of some use to recognise the motivations of each of the parties. The father’s application for sole parental responsibility was made in circumstances where the mother had been involved in a serious car accident and then become a missing person. This incident served as the catalyst for the father taking the initiative to care for his child. In turn, the father made efforts to locate the child which he did, in part, by locating the residence of the maternal grandmother. Given the father’s serious criminal history, the maternal grandmother responded by contacting Police who obtained an IVO on her behalf. In turn, the mother reacted by threatening war if anyone, including the father, tried to obtain custody of ‘her child’. From her perspective, the child was her only reason to live, or so she said. The child reports that she does not know who her father is and that her mother is often missing from her life.
The father considers that the intervention proceedings are now being employed as a strategy to prevent him spending any time with the child in circumstances where he, in effect, stepped into the breach to provide for the child when the mother was unable to do so. Whether or not the father’s position is reasonable, it may be understandable in that the Department of Health and Human Services (DHHS) had approached the father in February 2017, despite knowing the final parenting orders then in place, requesting that he take care of the child for a time. The father did so with the knowledge of the Independent Children’s Lawyer (ICL).
While the maternal grandmother, mother, ICL and DHHS were united in opposing the child having any contact between or spend time with the father, they either ignored or were ignorant of the fact that on two occasions the mother and ICL had consented to orders for the father to spend time with the child three times per week for periods of about 5 hours. To some extent, those consent orders undermined submissions as to their perception of the risk posed by the father and were seemingly airbrushed out of the narrative as some kind of inconvenient truth.
Following the making of those interim orders, the father was involved in a serious motorcycle accident which left him in a wheel chair for some time. Moreover, since those final orders were made, the mother has agreed with Ms A that the child would spend time with the father. I am not satisfied that the mother’s stated fear of the father is such that she considers the father in fact presents a threat to the health and well-being of the child. I consider that with appropriate counselling it is quite possible the parties may in fact recognise that it is in the child’s interests to have a relationship with each of her parents. None of this is to gainsay the desirability of the father having no contact with the grandmother, something he does not want.
These reasons for judgment may be released to the court which considers any application for an IVO.
Background
The applicant father is now aged 50 years. He had worked as a tradesman until … 2017 when he was involved in a severe motorcycle accident following which he was hospitalised. He has been out of work since and is in receipt of TAC benefits.
The first respondent mother is presently aged 25 years. She is of aboriginal descent. The mother is on Centrelink benefits and resides with her mother. She has not re-partnered and consults a psychologist.
The second respondent maternal grandmother is nearly aged 70 years. She continues to work full time. In addition, she cares for a person with disabilities on one weekend per month. She has an extended family, some of whom have a criminal history which has not been fully explored by DHHS.
Earlier proceeding
On 12 October 2016, the mother filed an initiating application by which she sought parenting orders including that she have sole parental responsibility for the child. Notably, the mother sought orders that the child spend time with the father both by way of interim and final relief.
On 12 October 2016, a recovery order was made.
The matter returned to court on 17 November 2016. On that date, an order was made for the appointment of an ICL.
On 13 November 2016, orders were made that the proceeding be set down for trial on 16 May 2018.
By her Notice of Risk dated 19 December 2016, the mother stated (perhaps erroneously) that the child had not been abused or was at risk of being abused, including by a party to the proceedings. However, the mother further alleged that the child was at risk of being abused, by way of physical assault, serious psychological harm or serious neglect. Concerning allegations of family violence the mother’s Notice of Risk stated that “the respondent has been assaulted on numerous occasions by the applicant.” The Notice of Risk also identified as issues relevant to risk: mental ill-health, drug or alcohol abuse and parental incapacity. The notice identified a large number of persons (the mother’s family and boyfriend) who were said to be at risk.
On 21 December 2016, the parties were represented by counsel and the ICL, by her solicitor. Orders were made, by consent, for the parties to attend a family consultant for the purposes of a report pursuant to s 11F of the Family Law Act 1975 (Cth) (Act). Further consent orders were made, including that the child live with the mother, for the mother to attend her general practitioner to obtain referral to a psychiatrist for a mental health plan. In particular, consent orders were made that the child would spend time with her father at least three times weekly (from 10.00am until 4:15pm). Orders were made enabling the ICL to obtain a family report and information relating to the parties mental and physical health and, in the case of the father, his criminal history, together with supervised urine samples to test for the presence of illicit substances and for the parties to undergo psychiatric assessment.
On 19 December 2016, the father sought orders for equal shared parenting responsibility and for the child to live with the parties on a week about basis. Injunctions were sought to restrain the mother from ingesting illicit substances or consuming alcohol. Non-denigration orders were sought. The father also sought that the mother undertake supervised drug screen testing including for the presence of alcohol and that she attend a psychologist and undertake anger management.
The father’s Notice of Risk largely mirrored the notice that had been filed by the mother and made reciprocal allegations of drug and alcohol abuse, family violence and similar factors that were said to place the child at risk.
On 16 January 2017, orders were made pursuant to s 91B of the Act, requesting DHHS to intervene in the proceeding and that it provide documents pursuant to a request made under s 69ZW of the Act. A notation to the order stated that the parties were attempting a reconciliation and that “if there is a technical breach of orders made 19 December 2016, neither party shall issue enforcement or contravention applications.”
On 7 February 2017, the ICL advised that the parties had not reconciled, were smoking marijuana whilst caring for their infant and expressed concern about the baby’s health and welfare.
On 8 February 2017, the solicitor then acting for the father communicated with the court that his client had been requested by DHHS to take and retain the child in his care. The letter advised, as was the fact, that the ICL had been appraised of these developments.
To this point, solicitors acting for one or other of the parents had withdrawn in the proceeding. On 6 April 2017, orders were made by consent that the child live with the mother and, subject to certain conditions, that the child should spend time with her father three times per week between 11.00am and 3.00pm. The conditions stipulated in the order indicate the father had sustained serious injuries in a motorcycle accident as a consequence of which he was confined to a wheelchair.
On 14 July 2017, at a mention in the proceeding, orders were made (by consent of the mother and ICL), that the mother have sole parental responsibility for the child and live with the mother. The orders were made in the absence of the father. The orders included that the child should spend no time or communicate with the father.
No further event occurred in the first proceeding. In particular, there is no evidence that the parties attended a family consultant or that a s 11F report was obtained. Nor is there any evidence that the parties underwent psychiatric examination or that a family report was obtained.
Present proceeding
On 7 June 2018, the father, who was then self-represented, filed an Initiating Application seeking by way of final relief, orders that he have sole parental responsibility for the child, for the child to live with him and the child to spend time with the mother and in accordance with such orders as the court deemed appropriate. By his Initiating Application the father sought a recovery order.
On 19 June 2018, orders were made regulating the preparation of the trial including that the respondent mother file and serve a response and any answering affidavit. An order was made for the appointment of an ICL and for DHHS to furnish documents in relation to the child pursuant to s 69ZW of the Act.
On 7 September 2018, the parties again appeared before the court when further directions were made. On that date, the parties were variously represented by counsel (in the case of the father), a duty lawyer (in the case of the mother) and by the solicitor for the ICL (who had previously acted as ICL in the earlier proceeding). In addition, counsel appeared amicus curiae on behalf of DHHS. The matter was fixed for hearing on 25 March 2019. An order was made for the preparation of a family report.
On 7 September 2018, the maternal grandmother filed an Application in a Case that was prepared at a time when she was self-represented. The relief sought was broadly expressed as being for the maternal grandmother to have parental rights and custody of her grandchild so as to “assist [X]'s mother to make good choices on [X]'s behalf when or if she is unable [to do so].” The qualified nature of that relief spoke loudly of the maternal grandmother’s view of the current situation. The maternal grandmother sought that she be joined to the proceeding.
On 7 September 2018, further orders were made, by consent, including that the maternal grandmother be joined as a second respondent and that the maternal grandmother have sole parental responsibility for the child. The parties also consented in orders that the child should live with the maternal grandmother and spend time on a strictly supervised basis, as agreed from time to time between the mother and maternal grandmother. The parties were further agreed in orders that the father should spend no time with the child until the preparation of a report pursuant to an s 11F of the Act. No such report was prepared.
The parties agreed in orders that each of them should undertake random supervised urine screens and hair follicle analysis. This consent order made provision that, in default of compliance with supervised urine testing, the party in default would be required to undertake hair follicle analysis. To facilitate those orders, reciprocal injunctions were granted restraining both the father and mother from cutting shaving or colouring their hair without the express permission from the ICL or by court order. The mother consented to an order that she attend a medical practitioner and obtain referral to a psychiatrist so as to obtain ongoing therapeutic treatment. The parties were further agreed that they would attend a forensic psychiatrist as nominated by the ICL (with the costs of such report to be borne equally by the parties). Those orders were not complied with and the parties’ psychiatric state remains unknown.
Shortly before the proceeding was listed for hearing on 25 March 2019 it became apparent the family report writer would not be able to prepare a report in the available time. The proceeding was fixed for final hearing, with priority, on 17 June 2019 and directions were made for the filing of evidence and outlines of argument. In particular, an order was made that, not later than one month prior to the final hearing date, each party would file and serve an Outline of Case. This order was not complied with by any party. Although the order made provision for the parties to apply for the matter to be listed for mention if there was default in compliance with the orders for filing of evidence and Outlines of Case, no party adopted that course.
It was not until 10 May 2019 that the mother filed a Response in which she sought an order for equal shared parental responsibility of the child with the maternal grandmother and that the child continue to live with the maternal grandmother until the mother had completed a drug and alcohol course; completed three clear consecutive months supervised drug screens and obtained a letter from her treating psychologist that her mental health was stable and that her parenting ability was not impaired. The mother sought orders for spend time with the child on a supervised basis with the maternal grandmother. Other orders were sought, including that the father continue to attend upon a psychiatrist; that he attend an appropriately qualified drug and alcohol counsellor; that he furnish proof of his attendance and progress reports to the ICL; that he attend and complete as soon as practicable, a men's behavioural change program together with a post separation parenting program and “any other orders as deemed appropriate by the court.”
As the orders sought by the mother did not expressly address what spend time the father and child might have together, it was not clear why it was thought necessary in all the circumstances for those orders to be made. The mother’s Outline of Case did not illuminate the position.
On 31 May 2019, the maternal grandmother filed a Response in which she sought orders that she have sole parental responsibility for the child and that the child live with her and spend supervised time with her mother or as agreed from time to time between those parties. An order was sought that the child's spend no time with the father.
Outlines of Case were filed by the mother, the grandmother and the ICL on 12 June, 31 May and 14 June 2019 respectively. That there was serious default in compliance with the orders and directions for the filing of those documents is to be seen in the context that the matter had been set down for hearing for the second time and on an estimated duration of four days, a period longer than is usually allowed for a case in this court.
On 6 June 2019 the applicant's solicitor filed a notice of withdrawal as lawyer. Since that date, the father has been self-represented.
Adjournment
The applicant sought an adjournment of the final hearing, doing so in the circumstances described at [38] above. The applicant relied on his affidavit sworn the day of the hearing. The matter was stood down from 10.00am until 2.15pm by reason of the need to allow: (a) the parties to consider the most recent DHHS report; (b) the parties to examine the documents produced on subpoena; (c) the applicant to consider what he would wish to say in relation to the adjournment.
In short, the applicant submitted that having lost the services of his lawyer on 6 June 2019, he was not in a position to present his case. The adjournment was opposed. It was refused.
The important principles respecting the adjournment of parenting proceedings have been considered by the Full Court on many occasions. Suffice to say that such proceedings are not strictly inter partes and involve consideration of the child’s best interests. Other considerations such as case management are also in play. To those matters may be added the application of the principles in child related proceedings: see Act, Div 12A, Pt VII; Farmer & Rogers;[1] Jarrah & Fadel.[2]
[1] [2010] FamCAFC 253.
[2] [2014] Fam CAFC 14.
The father’s affidavit and oral submissions made plain that he was frustrated by the continuous lack of progress in the consideration of the matter. The failure to file and serve the Outlines of Case in accordance with the orders regulating the preparation for a final hearing meant that the father had not been afforded procedural fairness. It was in those circumstances that it was necessary to apply the principles of active case management of the proceeding and to do so by way of interim hearing.
Applicable principles
Part VII of the Act concerns the subject, Children. It is arranged in 16 Divisions comprising ss 60 – 70Q. Section 65D provides that the court may make such parenting order as it thinks proper. In Bondelmonte v Bondelmonte[3] the Court said of s 65D:
A parenting order made under s 65D involves the exercise of a judicial discretion because it is made by reference to a paramount consideration of a general kind, the best interests of the child, which involves an overall assessment of a number of other considerations, either statutorily prescribed or considered by the court to be relevant. The primary considerations in s 60CC(2) are matters to be borne in mind as consistent with the objects of Pt VII. The additional considerations in 60CC(3) require assessments of the matters there listed by reference to the circumstances of the case. They involve value judgments in respect of which there may be room for reasonable differences of opinion, as does the overall assessment of what is in the best interests of the child.
[3] [2017] HCA 8, [8].
The objects of Part VII are stated in s 60B(1). They include to ensure that the best interests of children are met by protecting them from physical or psychological harm, from being subjected to, or exposed to, abuse, neglect or family violence: s 60B(1)(b). The principles underlying those objects recognise the manifold rights of children with respect to their parents: s 60B(2). It must also be recognised that the principles in s 60B(2) are expressed as being subject to an exception: “except where it is or would be contrary to the child’s best interests”.
In determining the best interests of the children there are two primary considerations which must be taken into account. Those primary considerations are as set out in s 60CC(2). The court must consider:
(a)the benefit to the children of having a meaningful relationship with both of their parents; and
(b)the need to protect the children from physical or psychological harm, from being subjected to or exposed to abuse, neglect or family violence.
See ss 4(1) (abuse); 4AB(1) (family violence); 60B(1)(c), 60CC(1) (determining child’s best interests); 60CC(2) (primary considerations). Additional considerations are prescribed by sub-s.60CC(3)(a)-(m).
In addition, amendments to the Act effected by sub-s 60CC(2A) require that, in respect of proceedings instituted after 7 June 2012, the Court is required to give greater weight to the need to protect the children from physical or psychological harm, from being subjected, or exposed, to abuse, neglect or family violence. Where the circumstances require, the need for protection from harm as addressed by sub-s 60CC(2)(b) may well assume prominence over allowing for a meaningful relationship with both parents as addressed in sub-s 60CC(2)(a). Such a conclusion is reinforced by the exception provided for in sub-s 60B(2).
When deciding what parenting orders ought to be made in proceedings under Part VII of the Act, the best interests of the children are the paramount consideration: s 60CA. Accordingly, the principles contained in s 60B(2), which express rights of children in relation to their parents, may yield to the paramount consideration expressed in s 60CA that in deciding whether to make a particular parenting order, a court must have regard to the best interests of the child.
Interim orders
The principles in Goode v Goode[4] apply to the determination of an interim application for parenting orders. There, the Full Court drew attention to the amendments to Part VII of the Act, the objects of Part VII and the mandatory requirement expressed in s 60CC that the Court must have regard – as the paramount consideration – to the best interests of the child in deciding parenting orders.[5]
[4] (2006) 36 Fam LR 422.
[5] (2006) 36 Fam LR 422, [7]-[10].
Against this background, consideration was then given to the principles applicable to interim parenting proceedings.[6] The Full Court, recognising that interim proceedings were interlocutory in nature, confirmed some of the statements in Cowling & Cowling[7] as apposite, and accepted that the procedure in making interim parenting orders would continue to be an abridged process such that the scope of enquiry was, of necessity, to be significantly curtailed from that which obtained at a trial. Yet the Full Court recognised that that principle was constrained by the requirement “that the court must have regard to the best interests of the child as paramount in deciding what interim orders to make”.[8] In holding that Cowling’s case must be reconsidered in light of the amendments to the Act, the Full Court held:[9]
In our view, it can be fairly said there is a legislative intent evinced in favour of substantial involvement of both parents in their children’s lives, both as to parental responsibility and as to time spent with children, subject to the need to protect children from harm, from abuse and family violence and provided it is in their best interests and reasonably practicable. This means where there is a status quo or well settled environment, instead of simply preserving it, unless there are protective or other significant best interests concerns for the child, the court must follow the structure of the Act and consider accepting, where applicable, equal or significant involvement by both parents in the care arrangements for the child. (emphasis added)
[6] (2006) 36 Fam LR 422, [66]-[82].
[7] (1998) 22 Fam LR 776.
[8] (2006) 36 Fam LR 422, [69].
[9] (2006) 36 Fam LR 422, [72].
Goode’s case holds that the Act evinces a legislative intent that generally favours the substantial involvement of both parents in the lives of children, both as to parental responsibility and as to time spent with children. The Full Court’s holding was, however, expressed as being subject to: (1) the need to protect children from harm, from abuse and family violence; (2) the proviso, whether the substantial involvement of both parents would be in the child’s best interests and reasonably practicable. This reasoning echoes the text of ss 60B(2) and 60CA. The general legislative intention in favour of substantial parental involvement cannot then be read as being divorced from the mandate to observe the paramount consideration of the child’s best interests, the prescription to give greater weight to the need to protect children from harm, from abuse and family violence, or the exception to s 60B(2) that the child’s rights to parental involvement may yield as to what would otherwise be in their best interests or reasonably practicable.
The following principles stated in Goode’s case[10] are applicable when following the legislative pathway:
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);
[10] (2006) 36 Fam LR 422, [82].
(e)-(j) . . . ;
(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.
Relevantly, for the purposes of the present application, Goode’s case confirms that the abridged conduct of interim applications for parenting orders remains qualified by the need to protect children from physical or psychological harm, from being subjected to or exposed to abuse or family violence.
In the context of the present application for interim parenting orders, the court must have regard to the considerations in s 60CC(2)-(3), and, where the exception in s 60B(2) is engaged, that the rights of the child in relation to their parents should yield to the paramount consideration of what orders are in the child’s best interests: s 60CA.
Goode’s case holds[11] that in making interim decisions, the legislative pathway must be followed notwithstanding that the court will often be faced with conflicting facts, little helpful evidence and disputes between the parents as to what constitutes the best interests of the child.
[11] (2006) Fam LR 422, [81].
Issues arising
At an interim level, the question of the child remaining with the grandmother was not seriously in issue. Nor was it in contest that the grandmother should have sole parental responsibility for the child. Moreover, the parties were essentially agreed that the mother’s spend time with the child would be subject to the grandmother’s supervision and discretion. The issue in dispute was whether the child should spend any time with the father. It was not in dispute that if she should do so, such time should at this stage be at a contact centre. While the parties were largely in agreement that the father, mother and grandmother should not be in any form of contact at changeover, the evidence indicates that the mother and father covertly communicate behind the grandmother’s back. The fathers contact with the child is the real issue.
While Div 12A of Pt VII of the Act confers significant latitude on the court in the reception of evidence which would otherwise be inadmissible under the Evidence Act 1995 (Cth) or at common law, I express grave reservation, in this case, as to the weight to be given to the parties’ untested evidence in deciding the question of risk. The objective contemporaneous evidence is of greater significance. Having regard to the seriousness of the allegations, cogent evidence would ordinarily be appropriate in proceedings of this kind.[12]
[12] cf M v M (1988) 166 CLR 69.
The matters addressed below cannot, of course, represent final findings on any matters of fact. None of them have been tested by cross-examination and the demeanour of the witnesses has not been evaluated.
Documentary evidence
The independent children's lawyer issued a number of subpoenas being as follows: Victoria Police; adult parole board of Victoria; DHHS; … Health Centre; Suburb E Hospital. Below is a summary of some features of those documents.
The Police court outcomes reports indicate that the applicant has an extensive criminal history dating back to 1983. A non-exhaustive description of the offences recorded in that report include burglary, theft, going equipped to steal, indecent language and use of drugs of dependence.
However, on … 1998 the applicant was convicted of a charge of murder. The applicant was sentenced to 17 years imprisonment with a non-parole period of 13 years. On … 1999, the Court of Appeal dismissed appeals against conviction and sentence.[13] The Court of Appeal recorded the circumstances of the offending, including that the events had occurred in the early hours of the morning on … 1998. The victim, aged 15 years, was one of a number of youths who had been acting in an aggressive fashion at the rear of the applicant’s house shortly before the incident. Markedly different versions of the events giving rise to the offending were advanced by the prosecution and defence respectively. The victim’s family and the accused may have been known to each other. Somewhat unusually, the applicant gave evidence at his trial. On any view, the applicant had been involved in a fracas with a number of the youths whom he had ultimately pursued in a motor vehicle. The victim had been shot in the chest with a pistol which the applicant disposed of after leaving the scene. However, after disposing of the weapon, the applicant then returned to the scene where he was then taken into custody. The substantive issue at trial and on the appeal against conviction was whether the shooting had been a conscious, voluntary and deliberate act by the applicant.
[13] [1999] VSCA 135.
The only subsequent offence disclosed by the Police court outcomes report relates to offending that occurred on … 2012. On that date the applicant committed the offences of driving at dangerous speed, driving whilst his licence was suspended, possession of drugs of dependence, possession of amphetamines, cocaine and ecstasy. The relative severity of these offences may, however, be gauged from the fact that they were dealt with by the Suburb F Magistrates Court, the number of convictions which were recorded and the relatively limited periods of imprisonment which were imposed.
A large number of documents were produced by Victoria Police in answer to a subpoena, many of which duplicated the court outcomes reports. However, in addition were the Police LEAP records including an account of events occurring on 4 May 2012. These records describe the incident as involving family violence in Street G, Suburb M. A security guard called Police after they observed what appeared to be a domestic argument between a male and female outside the restaurant. Although the author of the recorded observations is not clear, it includes the following. First, that the applicant had approached and threatened security guards “what are you looking at, if you try and stop me I’ll smash you or if you try and stop me I’ll kill you.” Secondly, a security guard observed what he considered to be a heated domestic argument. He observed the applicant “to punch the female three – four times.” Thirdly, the applicant was observed at the intersection of Street H and Street G pushing the female into the front seat of his motor vehicle. The female was observed trying to get out of the vehicle. The conduct was such as to prompt the observer to call 000 a number of times. Investigations linked the owner of the vehicle to the Bandidos Motorcycle Gang. The owner of the vehicle was later identified as not being the person who had been involved in the domestic dispute outside the restaurant. After further investigations, the applicant was identified as the perpetrator of the impugned conduct. When interviewed the female acknowledged a verbal argument but denied any physical violence or abuse. In fact, the female declined to be taken by Police car to a station to be interviewed, instead drove her own vehicle and did make a Police statement. She made no complaint of any assault or kidnapping.
In a handwritten letter to the parole board dated … 2012, the applicant gave an account of certain domestic disputes with his then partner and in which he claimed that he wanted to “move on with my life and put closure to our relationship in which we resolved our issues without any violence or verbal abuse.”
Apart from historical offences, there is also a record of an event on … 2017. It appears that an interim IVO was struck out on that date. The incident is not specified but the records state that the applicant was served with an interim IVO on … 2017. As a result of a number of attempts to communicate with the applicant, it emerged that he had been involved in a motorcycle accident on … 2017. It further appeared that the applicant was still in the intensive care unit at the Hospital as at … 2017.
The police records also include a report of an incident on 10 July 2018, which resulted in Police applying for an IVO on behalf of the grandmother. It will be recalled that at this time the mother had been involved in a serious car accident and had, for a time, been a missing person. It will also be recalled that the father had instituted this proceeding seeking parenting orders in relation to the child.
The police report states that on the evening of 3 July 2018 the grandmother walked outside of her home address to have a cigarette. Whilst she was doing so she observed the applicant sitting in his vehicle watching her. The grandmother reported that once the applicant realised he had been identified, he had driven off at a high-speed. The grandmother then called 000, recounting her stress and major concerns for her safety, including that she had moved residence on three occasions and planned to move yet again as a consequence of her fear. The report states that there have been no earlier recorded incidents as between the grandmother and applicant. This final consideration places a question as to why she had moved residence on prior occasions. I decline, at this stage, to infer that it was by reason of earlier incidents as between the grandmother and applicant who seem to have had relatively infrequent contact.
The police records do not indicate any convictions in the period 2013 to date.
Family report
A detailed family report was prepared by family consultant, Mr D. Although I addressed counsel in relation to this expert none disavowed the proposition that Mr D is a highly experienced consultant with particular expertise in family law parenting issues. Mr D’s curriculum vitae attests to his significant experience. He interviewed the mother, grandmother and father on 29 March 2019. He again interviewed them (by telephone), in early April 2019. In addition, Mr D conducted discussions with the ICL, the father’s psychologist, Ms J, and his sister, Ms A. Mr D identified each of the documents to which he had had regard, including the available DHHS reports.
It is unnecessary to recount Mr D’s summary of the background, however, of some interest is that, when addressing the parties competing proposals, only the grandmother proposed that the father have “either no time or supervised time” with the child. Notably, the mother’s proposal was for the child “have time with the father on an agreed basis.”
Mr D correctly identified the several risk factors which were present.
Mr D reported that the mother now lived with the maternal grandmother and the child; that she is in recovery from substance abuse and “she is doing well". The report records that the child spends regular time with the mother's step-sister but that she (the mother) does not agree with this course. The step-sister who was present at the hearing so as to support the grandmother was somewhat taken aback at the revelation that the mother did not agree with those spend time arrangements. I infer that the mother had not disclosed her views of the matter to either the grandmother or step-sister.
Mr D reported in relation to the mother's attitude toward parenting orders as follows:
a)in terms of [X]'s time with her father, the mother was very clear that she was supportive of the relationship and believed [X] needs to have time with her father;
b)she noted that following her own parents separation, she had very limited contact with her own father and stated that this caused her great distress and she did not wish such on [X];
c)the mother believes the father could offer both real and emotional resources in [X]'s life that should not simply be shut off;
d)she stated that “every little girl needs her father” and felt that this continued to apply to [X].
Furthermore, while the mother remained, at times, fearful of the father including her concerns about how he treated women and his propensity for “outbursts” nonetheless the mother was quite clear that she does not have the same concerns regarding the father's care of [X] or the father child relationship. The mother was complimentary of the father's sister, Ms A, whom she believed had a lovely relationship with [X] and who had the capacity to monitor and manage the father should he do anything that may not be in [X]'s interests.
The mother, while grateful for the grandmother’s care and effort, stated she found it difficult at times and unable to parent the child “in the ways she wished, especially with the restrictions of care that DHHS and the court had placed.” The mother was non-specific in identifying any such restrictions and this was not explored by DHHS or any party at the hearing. In conclusion, the mother expressed the hope that such restrictions would be lessened by the recent hearing and stated that:
Overall, she would support the father having time with [X], even though she was less clear on how this may practically occur. She noted that she had always got on well with the father’s sister, Ms A, and believes that they would be quite capable of managing any potential changeovers” (emphasis added)
The mother’s stated position respecting Ms A’s capacity and the amenable nature of their relationship was completely glossed over at the hearing, by this stage the mother had moved to a lockstep position with the grandmother, ICL and DHHS.
The grandmother provided a detailed history to Mr D which it is largely unnecessary to recount as the parties were agreed that she should have sole parental responsibility at this stage and for the child to live with her. The grandmother’s history however confirms her deep-seated concern in relation to the mother’s parenting capacity. It also confirms that she remains fearful of the father. However, the parties are agreed that the father and grandmother should have no contact.
In addition, the grandmother expresses concern that the father may undermine her parenting responsibilities. As concerned, she was quite clear about spend time:
She accepts the father is likely to have some time but wants that insulated as [far as is] possible. She is fearful of the progress she believes the mother and [X] have made being undermined and hopes any changes will come in small steps and not overwhelm the balance that has been achieved. (emphasis added)
The grandmother’s stated position to Mr D makes clear that she accepts the father might have contact with the child and, equally, her desire that this should occur by small steps.
I have considered Mr D’s commentary respecting his interview of the father. It is sufficient for present purposes to note the father stated position:
If living with him were not an option, the father was very clear he would accept any time arrangement but wanted to play a part in [X]’s life. He stated he would “jump through any hurdle”and noted that he had been patient so far and done everything asked of him and would continue to be so if that was needed.
Overall the father was very clear that he also wanted what was in [X]’s interest and that he would work towards whatever was necessary so that her best interests would be served.
Mr D provided a summary of the adult relationships including that neither the maternal grandmother nor the mother had any contact with the father. As appears below that is simply untrue in the case of the mother. When Mr D discussed the topic of her father with [X], she replied on several occasions “I don’t have a dad.” By contrast, Mr D observed that, following initial hesitancy, [X] appeared to recognise her father and ran to him and then, unprompted, asked if she could go to his house again. After several further observations Mr D expressed the opinion that it was clear [X] not only recognised her father, but felt comfortable and at ease in his presence. Further Mr D considered that [X] clearly enjoyed the interaction and the focus of having an adult playmate and was happily engaged. Mr D observed:
The father spoke in a soft voice, asked appropriate questions and responded to [X]’s questions or conversations in an appropriate way. The father would compliment [X] on what she was doing and she would respond. The father appeared to be able to attune to [X]’s emotional level and there was a warmth and comfortability that was shared between the two.
Mr D correctly acknowledged that this was a complex matter. He noted that DHHS intervention has been significant in the life of this family and placed significant weight on their recent reports dated 11 July and 5 September 2018. Mr D was, understandably, not supportive of the father’s application that the child should live with him. Equally, Mr D noted that the father’s expressed concerns in relation to the grandmother, her parental capacity and home environment were not borne out by DHHS. He considered the father continued to display a lack of foresight. Accepting that this may be so, at the point where the matter proceeded to hearing before me, the father recounted the legal advice he had received from his former lawyer that he would not “get custody” and the father appeared to concede that this was so.
Mr D, while acknowledging DHHS’ view of the need for supervision, found the father’s presentation in interview to be in major contrast when he was with his daughter. Mr D reiterated that he observed the father’s interaction with [X] to be warm, considered, focused and relaxed. Nonetheless, Mr D recommended the father should engage in “intensive counselling in order to challenge his views on violence and appropriate parenting.” He also expressed some concern about the father’s ability to contain himself when needed.
In reference to the father and the child, Mr D made very clear his opinion that “there was a bond between the two which should be nurtured.” He recognise the need to facilitate the nurturing of such bond in a way that was protective in its broadest sense.
The family report writer considered that the child should spend time with her father and identified Suburb B Contact Centre as possibly being appropriate. While he recognised that there was a waiting time for weekends, he addressed the possibility of spend time during weekdays. Mr D was untroubled by the possibility that the child might miss time at daycare if she was to spend time with her father at a Contact Centre instead.
Although it is not a matter which I need to consider Mr D alluded to the practical difficulties which were entailed once and allotted period of time at a contact Centre had been exhausted. However, Mr D took the trouble to hold a discussion with Ms A who confirmed her preparedness to provide supervision. Mr D noted that the mother had been supportive of Ms A’s involvement including that together they would be able to facilitate change over.
Mr D made clear recommendations which I have considered.
DHHS
DHHS has filed reports dated 11 July 2018, 5 September 2018 and 14 June 2019 respectively. The parties were agreed that the contents of the earliest report was subsumed in the later reports. The report prepared on 14 June 2019 had been prepared on the business day before the commencement of the trial and was filed late on that day. Further, the report had been prepared after the family report had been prepared with the result that some of the contents of that report were not known to Mr D. While the generality of that proposition must be accepted, it does not identify particular matters that had not been known to Mr D. That said, it is clear that DHHS obtained some further disclosures from the parties and elsewhere in the course of their investigation. It has been necessary to examine these reports in detail.
DHHS report dated 5 September 2018
The structure of the DHHS first report addressed the following: (a) statement of child protection history; (b) investigation, January – June 2017; (c) investigation, June – October 2017; (d) current protective concerns and outcomes, and; (e) protective assessment. Upon the order being made pursuant to s 91B of the Act, DHHS indicated its intention to seek leave to appear amicus curiae at the hearing.
As to the child protection history, DHHS reported that its database revealed 10 previous reports raising concerns for the safety and wellbeing of the child, three of which had arisen in 2018.
DHHS noted that in 2015, two consultations with community-based child protection arose pursuant to s 38 of the Children, Youth and Families Act 2005 (Vic)[14] arising from concern respecting the mothers failure to engage with child services, including the child’s maternal health nurse. This consideration would vindicate the concerns held by the father, grandmother, DHHS and the ICL about the mother’s capacity to parent.
[14]Section 38 of that Act provides: A community-based child and family service may consult with the Secretary in relation to any matter relating to the purposes of the community-based child and family service as set out in section 22.” Sub-section 22(b) of that Act identifies as a purpose of a community-based child and family service that it receive referrals about vulnerable children and families where there are significant concerns about their wellbeing.
The investigation undertaken in relation to the period between January – June 2017 was carried out in consequence of the order made pursuant to s 91B of the Act. The Department ascertained from information supplied by Victoria Police that the father had been known to them by reason of his association with the Bandidos motorcycle group and was flagged in relation to “a history of significant violence, suicide attempts, family violence perpetrated towards [the mother], and aggression towards Victoria Police.” In the course of interview, the father had disclosed his periods of imprisonment and the alleged offences. He had also raised concerns with DHHS in relation to the mother’s use of methamphetamines, marijuana and Xanax. Furthermore, the father alleged the maternal grandmother misused alcohol.
When the father was interviewed by DHHS, the child was in his care. He stated that he was permitted to have contact with the child three days per week, however, DHHS ascertained that this was not the present position. The father’s statement may be understood as indicating his belief as to the status of the previous interim orders which had been made by consent permitting him such spend time with the child. I am prepared to infer that this may have been so, particularly in circumstances where he had not been present at the mention where further orders were made that he spend no time with the child.
When the mother was interviewed by DHHS she stated that the father had perpetrated significant family violence towards her, misused illegal substances and had guns in his home. The mother acknowledged that she smoked marijuana, identifying the father as her usual supplier. She alleged that the father had “pushed her down the stairs whilst she had been pregnant with [the child], and that when [the child] was six months old, [the father] had made threats towards her family, spat on her and [the child], and called her a ‘slut’.”
When the mother completed supervised urine drug screens, these tested positive for cannabis. However, and significantly, those tests were negative for all other substances.
To the observation of DHHS, the child presented as healthy and happy in the mother’s care, positive interactions were noted between mother and child, no concerns were raised in relation to the home environment or of the mother being substance affected (by DHHS, Berry Street Family Violence Services, child care or the maternal and child health nurse).
DHHS substantiated concerns of harm under subs 162(c) and 162(e) of the Children, Youth and Families Act in which the father had been listed as being responsible for harm. In addition, DHHS noted concerns were raised respecting the father’s aggression and threats towards DHHS staff.
Concerning the investigations undertaken in the period June – October 2017, DHHS noted its involvement arising from a family violence report made on 26 June 2017. This report arose from an incident involving the mother’s ex-boyfriend (i.e not the father), in which domestic violence had been perpetrated toward the mother whilst the child had been in her care.
DHHS identified the mother’s stated concern at having entered another relationship characterised by family violence and the use of illegal substances. The mother also expressed concern that the father would employ this report as a platform upon which to seek custody of the child. Thematically, this report identifies the mother’s concern at the possible loss of the child against the background of a series of investigations into her parenting capacity as undertaken by state protective authorities.
Addressing its current protective concerns and outcomes, DHHS noted a report received on 5 June 2018 which arose from the mother’s involvement in a serious car accident on 4 June 2018 and said to involve allegations of sleep deprivation and substance abuse by the mother. The allegations of substance abuse were confirmed with Victoria Police.
At the time of the 5 June 2018 report, DHHS was aware that: first, the operative family law order did not allow the father any time with the child or any contact and secondly, that despite this order the father was being allowed occasional contact with the child.
During this investigation, DHHS ascertained that the father had been involved in a serious motorcycle accident on … 2017, as a result of which he has suffered persistent pain, and was consulting with a psychologist who reported that he his engagement in an advanced health management program had been excellent and that “he had made positive progress towards recovery and reaching meaningful goals.” Notably, the treating psychologist recorded the father’s significant distress in relation to the child’s welfare and the possible impact of his injuries upon his capacity to care for her.
As significantly, the treating psychologist considered the father to be highly motivated (and I infer, in relation to his parenting responsibilities). DHHS ascertained that the father had attempted to take out an IVO against the mother naming himself and the child as protected persons. The foundation for the father’s application had been text messages sent to him by the mother stating:
All I know is that this girl gives me a reason to live, if I lose her because people say I smoke ice in front of her then I will kill. I will be on a war path and I will not stop.
The precise date of the transmission of this 2018 text is not known but may have occurred following DHHS’s investigation following the accident in which the mother sustained serious injuries.
The text message notwithstanding, Police declined to apply for the IVO, on the stated basis that to do so would have been contrary to an existing family law order and because they did not assess the father to be presenting as fearful of the mother. I interpolate that the decision of the Police not to apply for the IVO does not gainsay the accuracy or stated intention as expressed by the mother in this text message.
When interviewed, the mother restated that the child had not been in the car with her at the time of her accident (a fact confirmed by DHHS with the Police). The mother stated that the child was in the care of an undisclosed family member. The mother further stated that she had sustained significant injuries and was on ‘heavy’ pain medication. In particular, the mothers stated position was that she did not want to resume the care of the child until she had recovered from her injuries.
Relevantly, the mother also stated that she had allowed the father to have contact with the child and had done so in response to requests by the paternal aunt. Contextually, the mother had allowed that contact time between the father and the child despite her allegations raised with DHHS as to the father’s illegal substance abuse and his criminal history.
Again, the mother underwent two supervised urine drug screens which tested positive for morphine, oxymorphone, and other pain medication, but negative for all other substances. While DHHS accepted that these test results were consistent with the mother’s prescribed medication following her motor vehicle accident, it also noted that a second supervised screen produced results that were positive for cannabis.
Most concerning is that, following DHHS’ interview of the mother, Victoria Police informed DHHS that the mother had been reported as a missing person. In the meantime, the child had been placed in the care of an ‘undisclosed’ family member with whom DHHS had held discussions and confirmed that it had no concerns for the child’s welfare. Moreover, the mother’s family, while raising no concern respecting the mother’s illegal substance abuse (which they appeared to accept), instead raised significant concerns in relation to the mother’s mental health and suicidal ideation. DHHS was informed that the mother’s family attributed their concerns to a belief in the mother that the father was seeking custody of the child. Coupled with the matters addressed above, it is apparent that the mother may hold an ingrained concern that orders may be made that the child live with the father.
DHHS developed a safety plan with the undisclosed family member. Features of the plan included that the child not be permitted to have any contact with the father or the mother until her mental health had been assessed by a professional. The plan further provided that if the father attempted to have contact with the child, the family member would contact both the Police and DHHS. Contact by the mother with the child was made dependent upon her mental health stabilising and was conditioned upon any contact being supervised.
When DHHS interviewed the father on 3 July 2018, no concerns were raised in relation to his presentation; this was so notwithstanding his having presented aggressively to DHHS during an earlier phone call. It will be recalled that on 7 June 2018, the father had filed an initiating application seeking by way of final relief orders that he have sole parental responsibility for the child. He had done so following the mother’s involvement in a serious car accident on 4 June 2018 and after which she had been reported as a missing person.
The father raised concerns for the mother’s ability to care for the child particularly by reason of his belief that she uses methamphetamines. The father accepted he had never in fact observed her using that drug but expressed further concerns that the mother was misusing marijuana in combination with Xanax. By contrast, the father candidly admitted to occasional use of cannabis and (prior to the child’s birth), to a history of recreational use of cocaine and ecstasy. His supervised urine screen tested positive for cannabis and negative for all other substances.
DHHS recorded the father’s history that while he had been incarcerated he had completed a number of courses including for anger management, cognitive skills, violence and that he had actively engaged with a psychologist, Mr K. The father told DHHS that he had no current affiliation with any motorcycle group. Nor did he have any associations with any persons whom he considered dangerous. Remarkably DHHS recorded the father stating that “he had never killed someone, but said there was an occasion whereby he had pulled a gun on another person . . . [but] ‘I was protecting my family.’”
The father denied all historical concerns of family violence.
Later, DHHS received information from the Police in relation to an incident occurring at Suburb C station on 13 July 2018, which the father had attended for the purpose of being served with an IVO that had been taken out on behalf of the maternal grandmother. On this occasion, Police found the father’s behaviour to be extremely concerning, observing the father to be yelling and screaming and filled with rage, threatening Police who responded to the father’s conduct by attempting, over a period of one hour, to de-escalate his anger. DHHS record that Victoria Police have retained footage of his behaviour during this incident which they offered to share with the court. It is not clear whether the father knew if mother was still a missing person at this stage.
However, DHHS also ascertained that on 13 July 2018 the maternal grandmother advised that the mother had been located, had attended her general practitioner, been prescribed medication for depression and anxiety and was to consult a psychologist at weekly intervals. The maternal grandmother also advised DHHS that she was not, at that stage, allowing any contact between the mother and the child and would not do so until she was sufficiently reassured that the mother had been addressing her mental health for an extended period of time. The extent of the grandmother’s concern for the mother’s parenting capacity – even to spend time with the child on any basis – is self-evident.
Despite these events, the mother adduced no evidence from her treating psychologist as to her attendances or progress with respect to her anxiety and depression. In effect, the maternal grandmother, who has now permitted the mother to spend time with the child on a supervised basis, is doing so in circumstances where the court has no independent medical evidence as to the mothers present medical or physical condition or prognosis. This is not satisfactory. Equally unsatisfactory is that, despite DHHS’ best endeavours, it has not been possible to obtain a report from the mothers treating psychologist. Nor has any contact with the mother’s drug and alcohol counsellor yielded any response.
In terms of its protective assessment, as at 5 September 2018, DHHS identified its concerns in relation to both the father and mother and the care of the child. DHHS described its significant concerns for the mother’s mental health and her misuse of prescription medication. However, upon speaking with the mother’s general practitioner, DHHS understood that she was managing her medication usage appropriately and that the mother’s diagnosis of anxiety was tied to her historical substance abuse and the pending family law proceedings. DHHS noted positive aspects of the mother’s attempts to address her mental health including, her enrolment in an educational course. DHHS considered it imperative for the mother to continue to engage with her psychologist. While these matters were not addressed in submissions, this may be understood in the context that the focus of the interim hearing was upon the question of the child’s spend time, if any, with the father.
DHHS considered it a positive sign that the mother had begun spending time with the child on a supervised basis. DHHS considered the maternal grandmother was a protective figure in the child’s life.
DHHS identified the father’s historical affiliation with a motorcycle gang, his significant criminal history, apparent lack of respect for the law, lack of insight and aggression. DHHS acknowledged the father’s strong motivation to protect his family but considered that his views on protective behaviour indicated a potential that he might commit significant crimes in order to achieve such “protection”. DHHS were reinforced in that view by the father’s preparedness to threaten staff. Contrastingly, DHHS report that the father would do all he could to protect the child if he was to have contact with her and that he accepted such contact would be supervised and further:
. . . [he] would like not to have any contact with [the mother] or any of her family members during this contact. Mr Fanning engaged well in conversation with this author . . . And also during an office visit . . . However, [the father] uses bargaining and manipulation to ensure his point is made. [He] makes reference to, if he is granted visits with [the child] his colourful character will not surface but if he does not it will.
DHHS considered that the father displayed little insight into the need for the child to have a stable and secure base and that his threatened behaviour would not constitute this. DHHS also considered that if the father could acknowledge the need for behavioural change, this would put him in a position to provide stable and secure care for the child such that contact could proceed. The position adopted by DHHS appeared to be that until the father could acknowledge the need for behavioural change it would not support spend time with the child.
DHHS made, and reiterated, three recommendations in relation to any spend time by the father: (1) no contact; (2) alternatively, if any contact was considered, it should be fully supervised by a neutral party, such as a Contact Centre; (3) the mother and father should not have any form of contact on such occasions.
In relation to the child’s time with the mother, DHHS recommended that such time occur only on condition that the boundaries for such time were set by the maternal grandmother and conditional upon the mother’s mental health and continued engagement with support services.
As concerned parental responsibility, DHHS recommended that this be assigned to the maternal grandmother. This issue was not the subject of any real contest for the purpose of the interim application.
DHHS report dated 14 June 2019
DHHS prepared this report in response to a Notice of Risk received on 16 May 2019 together with a s 91B order received on 20 March 2019. On 7 June 2019, DHHS visited the grandmother’s residence and interviewed the grandmother and mother. The mother acknowledged her use of marijuana and expressed her desire to have the child in her primary care. She reported on her engagement with a psychologist and alcohol and drug counsellor. A repeated theme in her discussions with DHHS revolved around her concern of the apparent threat to her mental health posed by the extent family law proceedings. On this occasion, the mother wished to emphasise the father’s criminal history and involvement with a motorcycle gang together with a history of “physical, emotional and verbal family violence.” Those reports stand in contrast with the mother’s earlier very clear statements of support for the father to have a relationship with the child as expressed when she was interviewed by Mr D on 29 March 2019 for the family report.[15] DHHS noted its inability to communicate with the mother’s alcohol and drug counsellor. Quite remarkably, it was only as a result of DHHS’ interviews on 7 June 2019 that the grandmother became aware the mother and father had been engaging in “regular contact.”
[15] Compare family repot at [36]ff.
The grandmother reported to DHHS her concern at finding the father in a parked car outside her home in June 2018 (i.e. following the mother’s motor vehicle accident, her contacting the father for him to make arrangements to take care of the child, her becoming a missing person and the father’s institution of this proceeding for parenting orders). She explained that she had then obtained an IVO against the father.
DHHS interviewed the father on 11 June 2019 at which time he repeated his concerns in relation to the grandmother’s abuse of alcohol and the mother’s abuse of illicit substances. He identified that the mother regularly attended an area in Suburb N known to be frequented by heroin users. At interview, the father acknowledged his view that the mother was a “good mother.” The father produced text messages demonstrating that he was contacted at frequent intervals by the mother. The father stated that he did not wish to receive these messages and appeared frustrated by them. Despite his stated position, the text messages produced to DHHS showed that when the father responded, he frequently asked after the child. Another matter not disclosed earlier or known by the grandmother was that, in these text messages, the mother and father spoke of the grandmother in pejorative terms. At the interim hearing the grandmother was visibly surprised by this disclosure.
The father disavowed any ongoing affiliation with the Bandidos Motorcycle Gang. He continued to deny having never committed a murder. He denied any allegations of family violence. The father spoke of his regular engagement with a psychologist, Ms J, whom DHHS contacted. DHHS was able to confirm that Ms J considered the father’s engagement had been positive and that he appeared motivated to care for the child. Ms J also disclosed that the father’s apparent motivation in engaging a psychiatrist was to disprove allegations made against him.
Regrettably, the father presented at interview with DHHS in an aggressive manner to the point where his interview was terminated. It was in those circumstances that DHHS concluded, perhaps unsurprisingly, that the father demonstrated no insight. Given the father was pursuing an application for parenting orders he had done himself no favours on this occasion when dealing with DHHS. His conduct served to support a conclusion that he was prepared to show, as he called it, “his colourful side” if things didn’t go his way.
On 12 June 2019, DHHS consulted Victoria police in the course of which it confirmed the father’s conviction for murder and the later conviction for drug possession. It also confirmed that in the police system the father had a safety warning for violence and firearms. Equally, as concerned intelligence of any current involvement with Bandidos Motorcycle Gang, the notation was “status unknown.”
DHHS enquiries of both the child nurse and health care removed any significant concerns in relation to the grandmother’s care of the child. Child Care “advised that [X] does not have a ‘dad’ and that she seems confused about where her ‘mum’ is.” In submissions respecting this matter counsel appeared to emphasise only the first of those facts.
The protective assessment most recently made by DHHS was that the Department considered there were concerns in relation to the care of [X] with both the father and mother.
In relation to the mother, DHHS considered that she had presented well and appeared to be engaging well with support services; however, it considered there were ongoing concerns with the mother's mental health and, having regard to: (1) an inconsistent history of care of the child; (2) the mother's ongoing contact with the father. Having regard to all matters that it had considered, DHHS recommended that the mother's contact with the child continue to be monitored by the grandmother “meaning that there is less restrictive supervision however that contact will remain subject to [the grandmother’s] assessment of what may be appropriate at any given time.”
In relation to the father, DHHS maintained its concerns in relation to his “significant criminal history, serious allegations of perpetration of physical, emotional and verbal family violence to, and in the presence of, the child together with information suggesting recent affiliation with motorcycle gangs and recent aggressive behaviour in the presence of Victoria Police and child support.” DHHS noted that the father continued in making a clear and unsubstantiated allegations against the mother and maternal grandmother and that he appeared to foster a strong negative feeling toward the grandmother. DHHS considered that the father had demonstrated a lack of insight into his behaviour, and, despite engagement with support services, considered the available information did not suggest the father was able to ensure the child's best interests or to form a safe relationship with her. DHHS recommended that there be no contact between the father and child but if any such contact was to be considered by the court, that this be fully supervised in a Contact Centre and that the mother and father (not have any form of contact at such times). DHHS supported that the grandmother should have and maintain full parental responsibility for the child.
It will be recognised that in both of DHHS’ reports, it adhered to a primary position that there should be no contact between the father and child but on each occasion, excepted a ‘fall back’ position that allowed for spend time at a supervised Contact Centre. The primary position adopted by DHHS was no doubt informed, in part, by the father’s behaviour towards DHHS staff. While DHHS’ original report was not examined, it was accepted this report was subsumed in the later reports. By way of overview then DHHS had not once, but on three occasions maintained the position that there should be no spend time but allowed for the alternative position that the child might spend time with the father.
The father’s case
The father filed a Notice of Risk referring to an incident on 23 April 2015 alleged to involve the mother and the maternal grandmother being engaged in a heated argument whilst the child was in the mother's care. It also recounted allegations that the mother and maternal grandmother had entered the father's house and removed the child's belongings. A further incident, alleged to occur on … 2015 involved allegations that the mother (and perhaps the maternal grandmother) had stolen the father's motor vehicle which had later been found involved in a motor vehicle collision which involved a fatality on … 2015. Further allegations were made in relation to the mother’s misuse of drugs. It will be observed that all of these allegations pre-dated this proceeding.
However, the Notice of Risk also referred to the incident on 5 June 2018 in which, as was alleged, the mother had called the father on two occasions (first at 4:21am then at 8.00am) to tell him she had been in a motor vehicle collision and, as a consequence, of her request that the father take care of the child following her accident. The mother’s phone call was the catalyst for his decision to institute this proceeding. The circumstance that she made not one but two calls in a situation of such urgency may be indicative of the mother’s unvarnished view of the father’s parenting capacity and her perception of the risk he may pose.
The father's first affidavit, which had also been prepared at the time when he was self-represented was repetitious of much that was set out in his Notice of Risk, but added that on 30 January 2017, he received a call from DHHS expressing concerns in relation to the mother. The affidavit recounted further evidence suggestive of recriminations for the ensuing involvement of DHHS. On the father’s evidence, the mother (and perhaps the maternal grandmother) actively resented the threat posed by such intervention. Such resentment might be considered in the context that DHHS had been actively involved in monitoring the child’s care for some considerable time. This evidence serves to explain the view expressed, for example, in the mother’s text message in which she vowed extreme measures if anyone threatened to take her child. Against this background the father’s Initiating Application was as unwelcome as DHHS’ further involvement with her or her family.
The father’s affidavit recounted in general terms the stress which this proceeding was placing upon him. The father expressed grave concern that it would be only a matter of time before the child was either killed in an accident or physically abused whilst in the care of the mother. The facts giving rise to his application at least explain his view.
The father also affirmed an affidavit on 10 August 2018. This affidavit was prepared for him by his solicitor and demonstrated insight in relation to the issues that were presented for consideration in the proceeding.
The father’s August 2018 affidavit recounted the many occasions on which the father had spent time with the child in the period August 2017 to November 2017. He exhibited photos of such spend time which included images of the father and the mother with their child. The father deposed that spend time ceased in November 2017 by the grandmother who objected to the child spending time with her father.
The father deposed that he had also spent time with the child on 1 June 2018 and made arrangements for further spend time later in that month, including that they had spent three days together. His affidavit deposed to protective measures that he took in relation to events such as changeover. For example, when the father considered the mother was affected by drugs he made deliberate arrangements for changeover at the Suburb C police station and on occasion contacted that station and DHHS. He evidently chose to do so with the object of minimising the risk that he became the unwitting target of further allegations of domestic violence. Further, he recounted that when contacted by the mother on 5 July 2018 following her involvement in a car accident, it was he who had contacted the police and DHHS only to be advised they could be of no assistance while the existing family law orders were in place. His evidence explains the reason why he initiated this application.
The father’s affidavit also deposes in direct terms that on the date of the alleged offence giving rise to the grandmother’s application for an IVO he had an appointment with DHHS and he would be contesting the IVO. This is not a matter I need pursue.
The father also deposed that he was agreeable to abide by any reasonable terms in order to demonstrate that he is a responsible father and capable of caring for his daughter, expressing a desire to be a constant in her life.
Text messages exhibited to the father’s affidavit seem to confirm the mother’s serious drug usage. Other text messages confirm the mother’s view that the child loves her father and that the mother considers the child needs both of her parents as role models.
Also exhibited to the father’s affidavit are clinical notes of Suburb E Hospital relating to his motorcycle accident of … 2017. While those notes contain reference to extensive head, spinal arm and leg injuries, they do not, in my opinion provide a sound basis upon which the court might safely assess the father’s present condition or prognosis. I have, however, considered those notes in some detail. The discharge summary records that follow-up appointments and primary care of the father had been delegated to his treating general practitioner.
The mother’s case
The mother’s Response filed on 10 May 2019 relevantly proposed that final orders be made that “The Father spend time and communicate with the child as ordered by the Honourable Court.” By contrast, the mother’s Response proposed that interim orders be made that “The respondent spend no time and have no communication with the child.” This may in part explain why orders were made for the father to undergo a series of courses directed at anger management and counselling.
At the hearing, the father tendered a number of documents which I have considered, including (a) a Work Wise certificate certifying that Ms A has successfully completed training courses; (b) a DHHS Certificate provided to Ms A in recognition of her commitment and support in the Region L Community Care; (c) a letter from the father’s solicitors dated 8 February 2017 to the court advising that DHHS had requested that the father keep the child in his care; (d) a letter from the Adult Parole Board of Victoria dated 25 May 2012 advising the father of the Board cancelling hi parole order for failing to comply with its conditions; (e) a letter from the father’s treating psychologist, Piece by Piece attesting to his treatment (f) a bundle of text messages between the father and DHHS.
In his closing address, the father also tendered a statutory declaration which attests to his good relations with various people and to which I attach minimal weight.
On 10 May 2019, the mother also filed a Notice of Risk in which she alleged as follows:
1.Child has been exposed to serious family violence. The DHHS have intervened in the proceeding. The father has extensive criminal history, having been charged and convicted of murder;
2.The mother does not wish to participate particularise the family violence that the child and the mother have experienced and have been exposed to due to threats of retaliation from the father; and
3.There is sufficient information before the DHHS to substantiate such claims.
The mother's trial affidavit was also filed on 10 May 2019. It will be recognised that the mother’s Notice of Risk and trial affidavit were prepared after the release of Mr D’s family report but prior to release of DHHS report dated 14 June 2019.
The mother noted that she did not have an IVO protecting her, but that the grandmother did so.
The mother outlined the parties competing positions and deposed that “if [X] is to spend time with the father, the father’s time with [X] be supervised by an appropriate accredited children’s contact Centre.”
The mother recounted the troubled history of the matter and described the car accident in which she had been involved on 4 June 2018, noting that the child had not been in the car with her at the time. However she did not allude to the phone calls which she is said to have made to the father on that date. Nor does her affidavit recount that she had been a missing person.
The affidavit has the distinct quality of providing a selective chronology. However, the mother did depose that the father had a past affiliation with motorcycle gangs and to his use of illicit drugs. Her affidavit is conspicuous for its lack of detail respecting her own drug use. To the contrary, and despite the DHHS reports, the mother expressly denied allegations of using illicit drugs. There was an equal lack of detail as to her use of alcohol and drugs and other counselling and medical treatment.
The Maternal grandmother’s case
The grandmother’s Response was filed on 31 May 2019 and sought that the child’s spend no time with her father. The grandmother appeared not to have filed a Notice of Risk.
The grandmother made affidavits affirmed on 20 March and 30 May 2019. Her first affidavit provided a history of the matter sufficient to support her application for joinder as second respondent. Exhibited to her first affidavit was a police statement made on 12 July 2018. It recounts an incident following the child’s birth in 2015 when the mother was staying with the grandmother. The statement includes that the father came to the front door demanded the mother and dragged her, by the hair, from the house while she was holding the baby in her arms. The grandmother did not see the mother again until she visited the mother at her home on an occasion when the father was out ‘clubbing’ in … 2015. The grandmother observed what she described as a hydroponic marijuana enterprise and of her efforts to persuade the mother to leave. The statement was suggestive that the grandmother rarely had contact with the mother or of visiting her at this home. Equally, it was suggestive that when she had visited on this occasion she had been confronted by her daughter’s life and living conditions.
The grandmother’s statement described an incident in 2016 when the father arrived at her home making demands for keys during which the father spat in the grandmother’s face and, after an altercation with a family member, had then left.
The grandmother statement described the circumstances in which she observed the father in a parked vehicle outside her home on 3 July 2018.
The grandmother’s trial affidavit recounted the history of the matter and her opposition to the father having supervised time of the Contact Centre or to his sister, Ms A, fulfilling the role of supervisor. The grandmother deposed that in May 2019 the mother had gone to live with her father in Town O, NSW, and to a belief that she would return to live in Town O in due course. The grandmother’s affidavit provided her own account of her review of the subpoenaed material.
The grandmother’s affidavits did not disclose whether her family had any criminal history, however, in the course of submissions, it became clear that, contrary to earlier statements from the bar table, the grandmother conceded, at the least, that one of her sons was presently incarcerated in New South Wales. Nor did her affidavits descend to the detail of the statements made from the bar table of her working arrangements for the support which she provides as a client services officer.
Consideration
Interim parenting orders
I have outlined above the issues in relation to which there was substantial agreement and I will make orders that the child live with the grandmother who is to have sole parental responsibility for the child. The father appeared to accept the legal advice given to him by his lawyers, on the available evidence, only the grandmother was a suitable candidate for parental responsibility for the child. Likewise, it is unnecessary to address the mother’s spend time and that it should be supervised as considered appropriate by the grandmother. Allied to these matters, however, is that the father and mother have not adhered to the orders made earlier in the proceeding for psychiatric reports and otherwise for them to continue to attend and follow the recommendations of their treating practitioners. Directions to this effect will be made.
The question on the interim application is whether the child should spend time with her father and if so, on what basis.
While the legislature aspires to promote the benefit of a child having a meaningful relationship with both of her parents, it is plain that this primary consideration must yield in cases where it is outweighed by risk.
The need to protect the child from risk is a dominant consideration here. By whichever route the determination of a child’s best interest are to be evaluated, the question of unacceptable risk is a central issue in this case.
The assessment of the need to protect a child from risk is not confined to a determination of the occurrence, or risk of the occurrence, of events which may constitute abuse, neglect or family violence but must be undertaken within the broader context of the ultimate determination of what is in a child’s best interests when making a parenting order: M v M;[16] Slater & Light.[17] As those authorities hold, an assessment of the magnitude of risk is appropriately evaluated against a standard of ‘unacceptable risk’ upon a civil standard of proof: cfM v M;[18] Slater & Light;[19] Stott & Holgar & Anor.[20] In Harridge & Harridge,[21] Murphy J agreed that five questions were of assistance in the consideration of unacceptable risk:
[16] (1988) 166 CLR 69, 76-77.
[17] [2013] FamCAFC 4, [34] (May, Strickland and Forrest JJ).
[18] (1988) 166 CLR 69, 78.
[19] [2013] FamCAFC 4, [35]-[37].
[20] [2017] FamCAFC 152, [34]-[38].
[21] [2010] FamCA 445, [73].
(1) What harmful outcome is potentially present in this situation?
(2) What is the probability of this outcome coming about?
(3) What risks are probable in this situation in the short, medium and long term?
(4) What are the factors that could increase or decrease the risk that is probable?
(5) What measures are available whose deployment could mitigate the risks that are probable?
Citing B. Mahendra, ‘Psychiatric Risk Assessment in Family and Child Law’.[22] His Honour also endorsed a statement made extra-judicially by the late Hon John Fogarty AM that:
. . . unacceptable risk in the High Court’s formulation [in M v M (1988) 166 CLR 69] 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. 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”. It is, as I suggested earlier, calibrated to its use in individual cases. It is unrelated to the exoneration or otherwise of the alleged abuser; it is all about the bests interests of the child and protection from risk”. (Fogarty AM, Unacceptable Risks, (2006) 20 AJFL 249 at 261).
Murphy J’s analysis has been adopted repeatedly since: see eg, Rocacelli & Seles [2019] FamCA 105, [13]-[14] (Tree J).
Supervision
[22] (2008) 38 Family Law 569.
Supervision is also of particular relevance in this case.
The applicable principles were examined in detail by the Full Court in Slater & Light [2013] FamCAFC 4. There May, Strickland and Forrest JJ recognised that, in cases involving allegations of family violence, the need to determine the best interests of a child required the court to: (a) assess that risk: (b) evaluate the magnitude of the risk against the standard of whether there was an unacceptable risk; (c) consider the question upon the civil standard of proof having regard to the seriousness of the allegations raised; (d) consider the question of unacceptable risk in terms of its nature and degree and whether – with or without safeguards – the risk was acceptable; (e) to be cautious in arriving at a finding of unacceptable risk where none or some of the facts and circumstances alleged were made out.
The Full Court also recognised that cogent reasons were required for the making of an order which conditioned spend time as subject to supervision on an indefinite or perpetual basis. The reasons why the facts and circumstances of a particular case should provide cogent support for such orders include:
a)parenting orders made at a final hearing are final orders. The fact that such orders are final will present a barrier to any application for variation in relation to supervision because of the need to demonstrate a sufficient change in circumstances;[23]
[23][2013] FamCAFC 4, [40], [59]-[60] citing Moose & Moose (2008) FLC 93-375, Rice & Asplund (1979) FLC 90-725.
b)the undesirability of, and practical difficulties posed by, orders for supervision on an indefinite or perpetual basis are well recognised;[24]
[24][2013] FamCAFC 4, [40] citing Moose & Moose (2008) FLC 93-375, Guideline for Family Law Courts a Children’s Contact Services January 2007, Part C at 4.1.1, 4.1.2.
c)where, objectively, an unacceptable risk was found to exist if supervision was not imposed as a condition of spend time, a fine balance was to be drawn in the determination of the child’s best interests, having regard to the undesirability of, and practical difficulties posed by, orders for supervision on an indefinite or perpetual basis.[25] The caution required in relation to long term supervision orders could be addressed by the making of orders which appropriately addressed identified risks[26];
d)while the protection of the child from harm may be secured by the requirement of supervision, the court should not ignore the effect of spending time with a parent in such an environment may itself have an effect on the child’s well-being;
e)it was both legitimate and necessary that the court give consideration to:
i)any recommendations of a family report writer;
ii)the practical difficulties; and
iii)the long term effects;
of long term supervision upon a child (i.e. their best interests).
f)the court should also consider that as a child grows older their environment may stabilise and it may be in their best interests that they spend increasing time with their parent.
[25] Ibid.
[26] [2013] FamCAFC 4, [40], [56]-[57];
The Full Court endorsed[27] the view that final orders may contain mechanisms which would allow for review of the situation as suggested by a family consultant. By extension, the type of mechanism which might properly be provided for by a final parenting order would include allowance for review where a change, including a progressive change, in supervision was supported by appropriate medical opinion. The content of that opinion would of course be of substantial importance. For example, a properly detailed report which provided sufficient reasons for the opinions expressed would be required for the opinion to be relevant and admissible.[28] Contrastingly, a short form, or one-line, report of the kind that is commonly employed for a medical certificate would not do so. Furthermore, the parent being asked to agree to a change in the existing supervised spend time arrangement should not be expected to accede to such a proposal unless it had objective support. Finally, as in this case, the family report writer may have formed a view that one party does have the parental skills and insight to agree to a change in the spend time arrangements where medical or other relevant independent support had been provided. Of course, the foregoing accepts that the parties should not be required to return to court or make application for variation of final parenting orders where they are able to resolve such issues by agreement, in writing, or by a parenting plan.
[27][2013] FamCAFC 4, [39] citing Moose & Moose (2008) FLC 93-375, [10] (May J).
[28]Cf Makita Australia) Pty Ltd v Sprowles(2001) 52 NSWLR 705; Carpenter & Lunn [2009] FamCAFC 128, [214]-[221] (Finn, Boland and Thackray JJ).
Slater & Light has been considered in many authorities. More recently, in Betros & Betros,[29] Thackray, Murphy and Austin JJ stated:
It has long been recognised that the permanent imposition of supervision upon the interaction between children and a parent is undesirable, though sometimes warranted.[30] Consideration should usually be given to whether orders can be created to avoid the permanence of the supervision or, if that is not practicable in the circumstances of the case, whether the orders for permanent supervision are instead best made unconditionally, leaving the supervised party to decide if and when he or she might bring fresh proceedings to vary the orders upon proof of changed circumstances, in the manner envisaged by Rice and Asplund [1978] FamCA 84; (1979) FLC 90-725, as s 65D(2) of the Act ordinarily allows (see Gorman & Huffman and Anor [2016] FamCAFC 174).
See also Slater & Light;[31] Gorman & Huffman & Anor.[32]
[29] [2017] FamCAFC 90, [13].
[30]Citing Slater & Light [2013] FamCAFC 4;(2013) 48 Fam LR 573 at 583-584; Champness & Hanson [2009] FamCAFC 96; (2009) FLC 93-407 at [209]-[215]; Moose & Moose [2008] FamCAFC 108; (2008) FLC 93-375 at [119]; H & K [2001] FamCA 687 at [40]-[41]; B and B (1993) FLC 92-357 at [79,780].
[31] [2013] FamCAFC 4, [38]-[41] (May, Strickland and Forrest JJ).
[32] [2016] FamCAFC 174, [258]-[264] (Strickland J), [290]-[300] (Murphy J), [310], (Austin J).
Concerning the question of supervision, the authorities make plain that the court should exercise considerable caution in making an order for supervised time on terms which are of indefinite or permanent duration. The court has repeatedly affirmed that it is not in the long term interests of a child that their time spent with a parent should occur only within the confines of a supervised environment. The parties’ submissions do not appear to recognise the practical difficulties of long term supervision at a professional child care contact centre. Nor do they seem to consider sufficiently whether it would be in the child’s long term interests that she should only spend time with her father in such an environment.
Counsel for the ICL helpfully identified the discussion by the Full Court in A & A.[33] There Fogarty, Kay and Brown JJ identified the approach to be taken in cases where violence or abuse was relied upon as grounding a submission that a parent should have no time or only supervised with a child. Their Honours recognised that often it would not be possible to determine whether the anterior allegation of violence was established.[34] Here, there is no question of that. This evidence is clear to an incontestable degree. Their Honours emphasised that the court was also required to consider the whole of the evidence and determine whether, objectively, there is a risk that the parent may act in a similarly irrational or violent way toward the child or may do so unless strictly supervised.[35]
[33] (1998) FLC 92.800.
[34] (1998) FLC 92.800, 84,996.
[35] (1998) FLC 92.800, 84,995.
In A & A, the Full Court cautioned the approach to be taken in such cases required that the court was required to consider on the whole of the evidence whether contact, or strictly supervised contact, might expose the child to an unacceptable risk because the child might be placed in jeopardy in the future while in the care of the parent.[36] Further, in those cases where the court concludes that there is no unacceptable risk it may become necessary to consider whether the other parent holds a belief that there is a risk such harm might occur. The latter issue does not arise.
[36] (1998) FLC 92.800, 84,996.
Ms Agresta of Counsel made compelling submissions as to the severity of the violence that has been perpetrated by the father, on more than one occasion and, in light of his ongoing denial of having done so, his clear lack of insight as to the nature of that violence. As addressed with counsel in submissions, the father’s denial might be more precisely understood as his adherence, despite the decision of the Court of Appeal to the contrary that he did not intend to kill the boy who was one of a number of youths involved in the fracas on that day. To say as much does not dilute the importance of evaluating the father’s conduct in terms of the risk that he may pose to the child and others.
The circumstances described above confirm that there is a real risk of a potentially harmful outcome in particular to the mother and grandmother should the father become unable to control his emotions. There is good reason to accept the grandmother’s submission whereby she seeks to be protected from the father. However, the father stated that he did not wish to have contact with the grandmother and this at least establishes his primary position. It is reinforced by the evidence that, apart from his apparent motivation to locate the child following the mother’s car accident, he and the grandmother have had virtually no contact.
I also accept that as primary carer, the grandmother should not be placed under any pressure by the father and that if the current regime is not maintained in a stable environment, there is a risk that the child may be removed from the family and placed in foster care. The submission was properly made. I accept that in those circumstances, the grandmother and mother share significant concern for the child. Should the father or mother imperil that environment, they may bring about that result. Orders are required which so far as possible will protect the child at the grandmother’s home. Equally, these submissions reflect the mother’s apparent resentment that the current proceeding will attract the attention of DHHS and reintroduce the risk that the child may be removed. Seen from this perspective, the submissions of the grandmother, mother, ICL and DHHS share a common position that an order for the father to spend no time with the child might mitigate the risk of the child being removed into foster care under state laws. I am not certain that this motivation is a proper basis on which to decide a parenting application under the Act. However, it is a factor which puts the present application into sharp relief.
As stated at the outset, while orders will be made in relation to the grandmother, I am not prepared to make an order that the mother and father have no contact by reason that they evidently have covert communications including, it would seem, to facilitate the mother securing a supply of cannabis (for which she has invariably tested positive). As concerns the reality of the risk perceived by the mother, I note that the mother had been present in the courtroom during the mention (at which the first hearing was vacated), but at the hearing initially opted to be in a safe room. Later she attended in the court but came and went on occasion. It was not until late on the first day of the hearing that the mother’s counsel suggested that a video link should be established so that she could be in a space separate from the father.
As to the question of whether the father would act in a violent or abusive way toward the child, as the evidence stands, I do not consider that he would do so. Nor do I consider that he would that he wold consciously expose the child to family violence.
The further question then arises whether there is a risk that the child might be exposed to an unacceptable risk of harm if she was in the father’s care. The submissions echoed by all represented parties was that the physical risk could be addressed by spend time occurring in a supervised Contact Centre. I agree. However, they further submitted that there remained the risk that the child would be exposed to the risk of emotional harm by witnessing the father’s misbehaviour in a situation where he lost control of his emotions. An assessment of the existence and magnitude of that risk is required.
In my opinion and contrary to the submissions of all represented parties, the potential for harm to the child is of a markedly lesser magnitude. I have identified the shifting position of the mother since she filed her own proceeding and of her oft repeated view that the child should spend time with her father. This view was confirmed in orders, made by consent, for the child to spend time three days per week for about five hours on each occasion. This positon only changed after the father’s motorcycle collision and non-appearance at a mention at which ‘consent’ orders were made by the mother and ICL. Until that time the ICL had also expressed agreed, on at least two occasions, that the child should spend time with her father, unsupervised three times weekly.
It was remarkable that neither the mother nor the ICL was aware of those earlier orders having been made. They provided expressly that the child should spend time with her father three times each week.
As identified above, at one stage DHHS requested the father to take the care of the child. Again, the father’s evidence indicates the amount of spend time that the child had had with him in 2017 and 2018, including for a continuous period of three days in June 2018.
As I understood it, the father made a closing submission that he had also been to see the grandfather in Town O and had taken or collected the child from that location. The submission appeared to mean that the father had been relied upon by the mother to safely transport the child on this journey. There was a paucity of evidence to support the submission. However, if accepted it would speak loudly to both the question of risk, their perception of risk and perhaps to the mother’s parenting capacity. That is to say, if the father is now seen to present an unacceptable risk, it would seem at least questionable that the child had been voluntarily left in his care.
Again, when the mother sustained serious injuries in June 2018 she had turned to the father to take care of the child. Having been told by the Police and/or DHHS that the current operative orders prevented him from adopting that course, he initiated this proceeding. This conduct is at least consistent with the behaviour of a protective parent. However ill advised, so too, perhaps, was his decision to locate the child at the grandmother’s home. The rapid escalation of events thereafter, including the Police intervention on the grandmother’s behalf to obtain an interim IVO, and the mothers becoming a missing person served as the background against which the mother apparently expressed resentment that DHHS would once more become involved in her life. The mother’s change in position might be understood as reflecting her motivation to ensure that the child is not taken from her, as distinct from her view that the father poses an unacceptable risk to the child.
DHHS accepted that the risk of physical harm can be harnessed by supervision and spend time at a Contact Centre. DHHS’ objection to spend time was grounded on the risk of emotional harm. This submission was adopted by all other counsel. It is a submission that I have considered at length. The father’s outbursts including the manner in which he yells or abuses people, including those in authority, indicates his incapacity, on occasion, to control himself. Allegations that the father exhibited violence toward the mother and grandmother are serious and must be tested at trial. These allegations are denied. I do not discount the seriousness of those allegations nor that the incidents described in the affidavits and documentary exhibits may have occurred. However, the parties’ common position is that the risk of physical harm can be addressed by supervised time at a Contact Centre. The closely related question is whether the child is at an unacceptable risk from emotional harm by being witness to the father’s misconduct. At present, I am not wholly persuaded of such risk or of its magnitude. To the contrary, I consider that, in the life of this child and likely environment, she may well benefit from contact with her father to a degree that outweighs the risk of emotional harm by being in his care. I am not persuaded that the asserted risk of emotional harm is unacceptable.
I have also considered the parties’ submissions as to whether the father has an acquired brain injury as a result of his motorcycle collision. The parties had a good half day in which to examine the documents produced on subpoena. It was only in closing submissions that they discovered difficulty in accessing the documents produced by Suburb E Hospital on a compact disc. Other documents were also available from Suburb E Hospital and I have considered them earlier. As stated above, I am not prepared to infer what is the father’s current condition or prognosis on the basis of the documents that were available from Suburb E Hospital. If anything, they indicate that, on discharge, he was referred to his general practitioner.
Mr D’s report demonstrates that he has given particular attention to the nature of the child and father’s relationship toward each other and recognises the bond between father and daughter. It is clear that the child’s overall familial situation has involved the frequent involvement of DHHS and on one view, a child in such circumstances might well be assisted by a father’s protective instincts. She may at times in her life have little else to call upon by way of support. Insofar as reliance was placed upon the principle to be drawn from M & M that the court should weigh the risk of harm against the benefit of time being spent with the father, I am satisfied on balance that there is benefit in allowing the child to have the benefit of a relationship with both of her parents.
The submissions that the father has a propensity for violent outbursts warrant serious consideration. However, it is important to separate the father’s attitude toward adults and those held toward his daughter. Although there is a possibility that the father may find it difficult at times to control his emotions, I consider that because of his deep commitment to his daughter, he would do all in his power to control his emotions, conscious that if he were not to do so it would immediately imperil the prospect of long term contact with his child. I also consider, consistently with Mr D’s opinion and the qualified statements that have been made by DHHS in each of its three reports, that the probability of such risks coming about may be suitably contained by allowing the child to spend time with the father at a Contact Centre. The reports of that Contact Centre will be of assistance to evaluating the position at trial.
For the avoidance of doubt, on the principles stated in A & A and on the whole of the evidence I have not concluded that the child would face an unacceptable risk of physical or emotional harm if she was, in future, to spend time with the father which was less formally supervised. I am conscious that the mother has confirmed her view that Ms A would be a person who is suitable to provide supervision.
Other factors that will decrease the risk are that the father, mother and grandmother should have no contact, including at changeover. This was agreed. Other difficulties attend changeover. Despite her age, the grandmother continues to work. No doubt she does so through necessity. The grandmother works full time. She has other employment in perhaps two other jobs and it was submitted no financial assistance from the father or from DHHS. I accept that the grandmother cannot be called upon to facilitate changeover.
I am not satisfied that the mother cannot do so. She has lived at the grandmother’s house since 2017 and apparently has frequent contact with the father, despite protestations to the contrary. The mother considers it important that the child has a father and bases her view on her own experience. To the extent that the mother can be expected to discharge parental responsibility she should facilitate changeover.
The submissions that there should be professional changeover were problematic and seemed unrealistic. Contrary to the submissions of all parties save the father, I am satisfied that Ms A can properly discharge the role of facilitating changeover. During interviews the mother spoke well of Ms A. She is considered by the mother to facilitate the child’s time with the father in a positive way. Ms A attended court for some time. Although the grandmother submitted that she had no relationship with Ms A, she may not need to do so. Alternatively, it may emerge that the grandmother and Ms A can collectively bring some calm to an already difficult situation. I note the father also has an adult son, of whom he spoke proudly. It may be that the son can also facilitate changeover on occasion and that this could be done by agreement. It is not a matter that was explored at the hearing.
An undertaking by Ms A that she will facilitate the safe collection, delivery and return of the child to and from the grandmother’s home will be a condition upon which the child’s contact with the father may occur.
The father has largely accepted that he will not pursue his parenting application for sole parental responsibility of the child. Put another way, he accepts that the maternal grandmother will retain sole parental responsibility for the child. It is not necessary for me to decide that issue.
Properly understood, the mother’s newfound resistance to the father having any spend time with the child may well be explained by her apparent fear that the father will obtain custody of the child or that the child may be placed in foster care. Such a conclusion may be drawn from the combined effect of the mothers text messages and her family’s belief as to her fear that the father will obtain custody of the child in circumstances where her own ability to do so have been the subject of ongoing investigation by DHHS. On the whole of the evidence, the mother’s fear that the father proposes to pursue orders that the child should live with him permanently may be entirely misplaced.
Conclusion
The orders that are made are orders that, in my opinion, address the identified risk that is posed by the father’s nature and antecedents in a way that is consistent with the settled principles relating to the consideration of unacceptable risk, including by means of supervision.
Whether the regime that is put in place can be employed to build a platform for some different form of spend time with the child, including possible unsupervised time, remains to be seen. The reports of the Contact Centre may illuminate this issue. For the sake of comparison, I note that the grandmother, whose initial position in June 2018 was that the child should spend no time with the mother has moved progressively to a position that such supervision might be relaxed. The same might hold true for the father in due course, however, that is a matter for trial.
The parties were agreed that having regard to the nature of the allegations and the number of parties who are participating in the proceeding, the trial will be of more than five days duration. They do not oppose, but support, an order for the transfer of the proceeding. The court records its gratitude for the submissions and assistance of counsel.
I certify that the preceding one hundred and ninety-eight (198) paragraphs are a true copy of the reasons for judgment of Judge A Kelly
Date: 27 June 2019
0
14
3