Galloway & Duke

[2014] FamCA 569

FAMILY COURT OF AUSTRALIA

GALLOWAY & DUKE [2014] FamCA 569

FAMILY LAW – CHILDREN – Interim parenting – Where the parties have agreed to the child remaining in the father’s care on an interim basis – Whether the father be permitted to enrol the child in a different school – What time should the child spend with the mother – Where the child was previously in the primary care of the mother until the child made disclosures to the father of family violence and abuse of both the child and the mother in the mother’s home by a new partner – Protection of the child from risk of harm

Family Law Act 1975 (Cth) s 60CA

Dieter & Dieter [2011] FamCAFC 82

George & George [2013] FamCAFC 182
Goode & Goode (2006) FLC 93-286, (2007) 26 Fam LR 422, [2006] FamCA 1346
Rice & Asplund (1979) FLC 90-725
SS & AH [2010] FamCAFC 13

APPLICANT: Mr Galloway

RESPONDENT: Ms Duke

FILE NUMBER: PAC 1309 of 2009

DATE DELIVERED: 21 July 2014

PLACE DELIVERED: Suburb D

PLACE HEARD: Suburb D

JUDGMENT OF: Hannam J

HEARING DATE: 21 July 2014

REPRESENTATION

COUNSEL FOR THE APPLICANT: Mr Weaver

SOLICITOR FOR THE APPLICANT: Claremont Legal

SOLICITOR FOR THE RESPONDENT: Aboriginal Legal Service (NSW/ACT) Limited

Orders

(1)The handwritten document headed Minute of Order and signed by the parties shall become Court’s Exhibit “A” in today’s proceedings.

(2)By consent, orders are made in accordance with paragraphs 1, 2, 5 to 9 of Court’s Exhibit “A” as follows:

(1)      The orders made 25 May 2010 are hereby suspended.

(2)The child, B born … 2007 (“the child”) shall live with the father.

(5)Pursuant to Family Law Act 1975 (Cth), s68B, and for the personal protection of the child, Mr C born … 1966 is hereby restrained from communicating or approaching or remaining in the presence of the child.

(6)Pursuant to Family Law Act 1975 (Cth) s68C a police officer, including a member of the NSW Police, may arrest any person the police officer believes on reasonable grounds has act in breach of order 5 and such arrest may be made without warrant.

(7)The mother is hereby restrained from causing or permitting the child to communicate with or remain in the presence of Mr C born … 1966.

(8)Each party is hereby restrained from physically disciplining the child and shall not permit any third party to physically discipline the child.

(9)Each party is hereby restrained from denigrating the other parent within the presence of the child and shall remove the child from the presence of any third person who denigrates the other parent.

(3)That B born … 2007 (“the child”) spend time with her mother on each day of each weekend, that is, Saturday for six hours and on Sunday for 4 hours, and the times are to be as agreed between the parties, and failing agreement, between 10.00 am and 4.00 pm on Saturday and 12.00 pm to 4.00pm on Sunday.

(4)Changeover is to be effected by the father delivering and picking the child up at a place to be advised by text message by the mother to the father two hours prior to time together commencing.

(5)Pursuant to section 68L of the Family Law Act 1975 (Cth), interests of the child [B born … 2007] are to be independently represented by a lawyer in these proceedings.

(6)Leave is granted to the Independent Children’s Lawyer to relist the matter on short notice by arrangement with the Court in chambers in appropriate circumstances.

(7)Pursuant to Section 91B of the Family Law Act 1975 (Cth), the Secretary of the NSW Department of Family and Community Services is requested to intervene in these proceedings.

(8)Leave is granted to the mother to file an Amended Response and Affidavit.

ORDERS MADE IN CHAMBERS

(9)The Legal Aid Commission of New South Wales, Suburb D Office, is requested to make arrangements as soon as practicable to secure appropriate representation for the child’s interests.

(10)The parties are to provide to the Suburb D Office of the Legal Aid Commission of New South Wales, forthwith copies of all documents upon which the parties rely in these proceedings, together with all existing Orders and copies of any relevant reports.

(11)Leave is granted to the Independent Children’s Lawyer, when appointed, to issue such subpoena as he/she considers relevant to the issues before the Court.

(12)Leave is granted to the Independent Children’s Lawyer, when appointed, to have photocopy access to documents produced on subpoena in these proceedings.

(13)The Independent Children’s Lawyer is exempt from fees pursuant to Division 2.3 of the Family Law (Fees) Regulations 2012 (Cth).

(14)In the event that the Secretary intervenes, he/she is to file and serve a Notice of Intervention.

(15)Pursuant to Rule 24.13 of the Family Law Rules 2004 (Cth), leave is granted to the Secretary of the NSW Department of Family and Community Services, or his/her delegate, to inspect and copy any documents on the Court file forming part of the Court record.

(16)Pursuant to Section 65DA(2) of the Family Law Act 1975 (Cth), the particulars of the obligations these Orders create and the particulars of the consequences that may follow if a party contravenes these Orders are included in these Orders, annexed hereto.

Notations

(17)The father has given an undertaking in Court that he will not enrol the child in any other school.

(18)Mr C’s date of birth is … 1966 and has been inserted into paragraphs 2(5) and (7).

(19)An order was previously made by the Registrar for participation in the Magellan project.

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

FAMILY COURT OF AUSTRALIA AT SUBURB D

FILE NUMBER: PAC 1309 of 2009

Mr Galloway

Applicant

And

Ms Duke

Respondent

REASONS FOR JUDGMENT

Introduction and Background

1.This matter concerns the child, who is seven. the child’s parents were in a relationship between about early 2006 for two years and separated when the child was almost one.

2.Parenting Orders were made by consent in May 2010, providing for each of the parents to have equal shared parental responsibility for the child, that the child live with the mother and spend significant and substantial time with her father.

3.On 4 July 2014 the father retained the child in his care following her spending time with him in the school holidays as he alleged that the child made significant disclosures of violence perpetrated by the mother’s partner, Mr C, against the child and her two year old brother and against her mother, to which she was exposed.

4.Initially, the mother was seeking a recovery order for the child to be returned to her care, but has now agreed for the previous parenting Orders to be suspended and that the child live with her father. The parties have also agreed to an order restraining Mr C from communicating with or approaching the child, restraining the mother from permitting the child to remain in the presence of Mr C and restraining each of the parents from physically disciplining the child or allowing another person to do so, or from denigrating the other parent.

5.The only matters for me to determine in this interim application are an appropriate order, in the best interest for the child, for her to spend time with her mother and whether it is in the child’s best interest for her to be enrolled in a new school.

The Uncontested Facts

6.Orders were made by consent in the then Federal Magistrates Court in May 2010 for the parents to have equal joint parental responsibility for the child, that she live with the mother and spend time with her father in an increasing regime from the time of the father’s completion of a parenting course. The Orders at the time, as at today when the application was made, provide for the child to spend each alternate weekend with her father from the conclusion of school on Friday to the commencement of school on Monday, each Wednesday overnight and half of the school holidays as well as on special days.

7.Although the Orders provide for the child to spend time with her father mid-week that time has not in fact occurred and the usual pattern at the time of this application was for the child to spend every second weekend and half school holiday time with her father. It appears that the father also returns the child on a Sunday night, rather than Monday morning, after weekend time together.

8.Although the mother says in her affidavit that she has not re-partnered, there is no dispute that she resides with Mr C, who is the father of her younger child, E, who is two years old. the child attends F School, near where she lives with her mother.

9.The father has re-partnered with a Ms G and their child H, who is two, and Ms G’s child J, who is five, lives with them.

10.On 13 to 15 June 2014 the child spent time with her father and was returned to her mother but on 14 June 2014 the father and his partner had taken the child to Suburb I Police Station and made a report.

11.On 2 July 2014 when the child was spending time with her father during the school holidays, Ms G took the child to a general practitioner and the child reported violence perpetrated by Mr C against her, including hitting her with his hand, a belt and a wooden spoon and forcing her head under water. Reports were made to Community Services and the Police, who are, as I understand it, are currently investigating the matter.

12.The father sent a text message to the mother on 4 July 2014 informing her that although he was aware of the existing Orders, he was of the view that it was no longer safe for the child to be in her mother’s care. He wrote that the child was being exposed to an unacceptable risk of harm and he would be retaining the child in his sole care. The mother then tried to make contact with the father and subsequently sent 12 messages with words to the effect of “can you please tell me if the child is okay and tell her I love her.”

13.B was not taken to F School, where she is enrolled last week, and the father is currently endeavouring to enrol the child in K School near his home. Ms G’s child J attends the K School.

14.In addition to the uncontested facts, in accordance with the decision of SS & AH[1], the Court may have some regard to the matters in dispute.  In that case, their Honours said at [100]:

Apart from relying upon the uncontroversial or agreed facts, a judge will sometimes have little alternative than to weigh the probabilities of competing claims and the likely impact on children in the event that a controversial assertion is acted upon or rejected.  It is not always feasible when dealing with the immediate welfare of children simply to ignore an assertion because its accuracy has been put in issue.

[1] [2010] FamCAFC 13

15.The mere fact that matters are in dispute does not mean the Court can ignore concerns that are raised in the material before it (see George & George[2], a decision of the Full Court citing Dieter & Dieter[3].

[2] [2013] FamCAFC 182

[3] [2011] FamCAFC 82

16.In Dieter (supra) the Court was particularly concerned with the situation where the contested facts relate to an assessment of risk and where it was said at [61]:

… Risk assessment comprises two elements – the first requires prediction of the likelihood of the occurrence of harmful events, and the second requires consideration of the severity of the impact caused by those events.  In our view, the assessment of risk in cases involving the welfare of children cannot be postponed until the last piece of evidence is given and tested, and the last submission is made.  We accept, however, that it is always a question of degree depending upon the evidence that is before the Court.

17.In this matter, the father makes very serious allegations about physical assaults perpetrated against the child and the child’s two year old sibling and against the child’s mother in the family home. The father’s case is that the child has disclosed to him that the mother’s partner Mr C had slapped her on the top of the head with a belt, smacked her on the face and hit her with a wooden spoon. These allegations are said to have been repeated to the child’s grandmother and it is not disputed that they were made to the general practitioner. It is not disputed that they are currently being investigated by Police and Community Services. Although the mother disputes these allegations, she has consented to an order restraining Mr C coming in contact with the child.

18.As the mother disputes the allegations that Mr C has been violent towards herself and the child, she also disputes the allegation that she has failed to act protectively and thereby psychologically harmed the child.

The Law To Be Applied

19.In considering interim parenting decisions the Court must follow the procedures set out in Goode & Goode[4] and must uphold the relevant objects and principles in the part of the Family Law Act 1975 (Cth) (“the Act”) dealing with parenting, but must also regard the best interests of the child of the paramount consideration under section 60CA.

[4] {2006} FLC 93-286, (2007) 26 FamLR 422, [2006] FamCA 1346

Framework for interim applications

20.As noted, although there are a lot of matters in dispute, the only matters to be determined today are the issue of the change of the child’s school and the amount of time she should spend with her mother.

Section 60CC considerations – What order is in the best interests of the children?

21.In determining the child’s best interests, the Court must consider the matters set out in subsections (2) and (3) of s 60CC. The first matters are the primary considerations, being:

a)the benefit of the child of having a meaningful relationship with both of her parents; and

b)the need to protect her from physical or psychological harm from being subjected to, or exposed to, abuse, neglect or family violence.

22.In applying these considerations, the Court is to give greater weight to the latter.

23.Both of the primary considerations are significant in this matter as the father proposes that the child spend a number of hours one day per week with the parent that she previously lived with and significant issues, albeit disputed, arise in relation to the issue of protection from harm.

24.I have already indicated that the concerns that arise in relation to protection from harm are not only allegations in relation to Mr C himself but also in relation to the issue of the mother having failed to act protectively if it were to be the case that the allegations against Mr C were found to be true.

25.As far as the additional considerations are concerned, I will refer to those which, in my view, are directly relevant in this case.

26.B is seven and her views are unknown. Details about the nature of the relationship between the child and each of her parents are also, to a certain extent, unknown, though I do note that she has been in the primary care of her mother and spending substantial and significant time with her father for a number of years.

27.A significant issue in relation to the application to change the child’s school is the likely effect upon the child of this change in these circumstances. I am of the view that the child is being required to have significant changes in circumstances imposed upon her as a result of her father’s actions. As she is currently well settled in school, has a good relationship with her teacher and a circle of friends it would, in my view, be very disruptive for her to be moved at this stage. Spending a few hours with her mother one day a week also would amount to a significant change for the child, who was previously living with her mother.

28.There are some practical difficulties involved in the child attending her current school at the same time as living with her father, but these are not as significant and are less important than some of the other factors as they relate more to concerns for the parents, rather than really strictly focusing on the child’s needs.

29.Each parent has the capacity to care for the child’s needs, though there are some concerns about the mother’s capacity to protect her from harm on the father’s case. In my view the order which was proposed, in effect, by myself, that was accepted by the father, that time together occur between the mother and the child in a public place, will address most of those concerns about the issue of the mother’s capacity to provide for the child’s needs and also to protect her from harm.

30.B is an Aboriginal child through her maternal side, though there are no cultural factors which have been raised that are relevant in this interim application.

31.The most significant matter in the application is that serious allegations of family violence have been made. This is not simply a case of allegations which are denied in the sense that the child has repeated them to a general practitioner and they are currently under investigation.

Conclusion

32.Having regard to all of those considerations referred to, in my view, the most significant factor in relation to school is the issue of disruption and the likely effect of change. The concern about practical difficulties to adults yield to the concerns about the child’s best interests. In my view, it is not in the child’s best interests for her to change schools. If the father is prepared to give an undertaking that he will not change schools, I will be satisfied with that. Otherwise, I would make an order restraining him from changing schools.

33.In relation to the issue of time that the child spends with her mother, in light of the nature of the relationship between the mother and the child and the primary consideration of the child having the benefit of a meaningful relationship with both of her parents, in my view, an appropriate order is that the child spend time with her mother on each day of each weekend, that is, on Saturday for six hours and on Sunday for four hours. The times are to be as agreed between the parties, and failing agreement, between the hours of 10.00 am to 4.00 pm on a Saturday and 12.00 am to 4.00 pm on a Sunday.

34.As far as the issue of changeover is concerned, it does not appear to be one of these matters where there is a high degree of conflict between the parents. Bearing in mind that the father is the only one with a driver’s licence, as far as I understand it, changeover should be effected by him delivering and picking the child up from a place to be advised by text message from the mother to the father, say two hours prior to time together commencing.

35.As far as this being an application to vary existing Orders, I think that it is quite clear that there are significant change of circumstances in this case that the threshold issue in Rice & Asplund[5] has been overcome.

[5] (1979) FLC 90-725

36.The Orders of the Court are that in respect of the handwritten minute of order, which I mark as Exhibit “A”, orders are made by consent in terms of orders 1, 2 and 5 to 9, noting that Mr C’s date of birth is in 1966.

37.I also make the Orders that, as I indicated, time with the mother be six hours each Saturday and four hours each Sunday as agreed, but failing agreement, 10.00 am to 4.00 pm on a Saturday and 12.00 pm to 4.00 pm on a Sunday.

38.I note that the father has given an undertaking to not enrol the child in any other school.

39.I make an order for an Independent Children’s Lawyer to be appointed.

40.It is noted that an order has previously been made by the Registrar for this matter to be considered by the Magellan Registrar for participation in the Magellan project.

41.I also make an order that the Department of Family & Community Services be invited to intervene in the matter having regard to the serious allegations that are made.

42.I make further Orders that the mother is at liberty to file an Amended Response and Affidavit, and that leave is granted to the Independent Children’s Lawyer to relist the matter on short notice by arrangement with the Court in chambers in appropriate circumstances.

I certify that the preceding forty-two (42) paragraphs are a true copy of the reasons for judgment of the Honourable Justice Hannam delivered on 21 July 2014.

Legal Associate:       

Date:    25 July 2014