Gehry & Martin

[2017] FamCA 94

FAMILY COURT OF AUSTRALIA

GEHRY & MARTIN AND ORS [2017] FamCA 94

FAMILY LAW – CHILDREN – Recovery Application – Best Interests of the child – Where the maternal grandparents have retained the child contrary to Court Orders – Where the father seeks the return of the child – Where the maternal grandparents have breached Court Orders – Where the maternal grandparents are undermining the father’s relationship with the child – Where the mother has drug and mental health issues – Where there is no unacceptable risk to the child in the father’s care – Where the child should be returned to the father – Where the mother and grandparents should spend supervised time with the child 

Family Law Act 1975 (Cth)ss 60B, 60CA, 60CC, 61DA, 61DB, 67U, 67V

Banks [2015] FamCAFC 36
Deiter [2011] FamCAFC 82
Goode & Goode (2006) FamCA 1346
Marvel v Marvel[2010] FamCAFC 101; (2010) 43 Fam LR 348
MRR v GRR [2010] HCA 4
SCVG & KLD(2014) FLC 93-582
SS & AH[2010] FamCAFC 13

APPLICANT: Mr Gehry

FIRST RESPONDENT: Ms Martin

SECOND RESPONDENT:

THIRD RESPONDENT:

Mr A Martin

Ms B Martin

INDEPENDENT CHILDREN’S LAWYER: Mr Christaki

FILE NUMBER: PAC 1064 of 2016

DATE DELIVERED: 24 February 2017

PLACE DELIVERED: Parramatta

PLACE HEARD: Parramatta

JUDGMENT OF: Foster J

HEARING DATE: 16 January 2017

REPRESENTATION

COUNSEL FOR THE APPLICANT: Ms Shearman

SOLICITOR FOR THE APPLICANT: Forshaw Lawyers

COUNSEL FOR THE RESPONDENT: Mr Vassili

SOLICITOR FOR THE RESPONDENT: Michael Vassili Barristers & Solicitors

COUNSEL FOR THE INTERVENOR: Mr Santisi

SOLICITOR FOR THE INTERVENOR: JN Legal

SOLICITOR FOR THE INDEPENDENT CHILDREN’S LAWYER: Mr Christaki of Legal Aid NSW Bankstown Family Law

Orders of 16 January 2017:

1. The maternal grandmother do all things necessary to present the subject child to the Manager of Child Dispute Services of the Family Court Parramatta Registry by no later than 4.15 pm this afternoon.

2. Pursuant to s 67Q of the Family Law Act 1975 a recovery order issue directed to the Marshal of the Family Court of Australia, all officers of the Australian Federal Police and all officers of the Polices Forces of all the States and Territories of Australia requiring them to find and recover the child,  C born … 2012, and to return/deliver the said child to the Applicant father, Mr Gehry and for that purpose to stop and search any vehicle, vessel or aircraft and to enter and search any premises or place in which there is at any time reasonable cause to believe that the said child may be found.

1. This Recovery Order is addressed to the Marshal, all officers of the Australian Federal Police, all officers of the State and Territory Police forces.

2. The recovery order lie in office until 4.30 pm today.

3. In the event that the subject child is not made available to the father at the Child Dispute Services Section of this Registry of the Family Court of Australia Parramatta by 4.30 pm today that the said recovery order shall issue forthwith.

4. Any previous orders made pursuant to which the child is to spend time with the maternal grandparents and the mother are suspended pending further order.

Orders pending further order:

1. That the applicant father and the first respondent mother and second respondent maternal grandparents shall as soon as practicable contact an agreed supervised Contact Centre and in default of agreement within 14 days from this date such Contact Centre as is nominated by the Independent Children’s Lawyer within seven days and:

   (a)arrange an appointment for assessment for suitability for supervision of the time the child spends with the mother and maternal grandparents, and

   (b)attend the assessment, and

   (c)thereafter comply with any appointments made by the Contact Centre for supervised time on not more than one occasion each month for a period of two hours, and

   (d)comply with all reasonable policies and rules of the Contact Centre, and

   (e)comply with all reasonable requests or directions of the staff of the Contact Centre.

2. If after assessment the mother and/or the maternal grandparents are accepted by the Contact Centre as suitable for supervised time, they are each to have contact with the child C born in 2012 once each month for a period of not more than two hours at times nominated by the Contact Centre and such contact is to occur at the Contact Centre.

3. The father must cause the child to be delivered to and collected from the Contact Centre at the times specified by the Contact Centre and on each occasion promptly leave the building and the vicinity.

4. The mother and the maternal grandparents must not attend the Contact Centre or its vicinity before the time with the children is to start and must promptly leave the Contact Centre and the vicinity at the time the time with the child is to end.

5. The time the child spends with the mother and maternal grandparents is to be supervised by the Contact Centre and the mother and maternal grandparents shall pay the reasonable fees for their respective supervision on each occasion of supervision.

6. The parties or either of them are to attend and undertake a course of therapy, counselling or intervention as is reasonably directed by the Manager or Director of the Contact Centre which could include referrals to other service providers.

7. If the Contact Centre during the currency of these orders declines or is unable to continue to provide its services, or the Director of the Contact Centre recommends in writing to the parties a variation of these orders, then either party (or the Independent Children’s Lawyer) may on seven days written notice to the other party and the Court restore the matter to the list. 

8. The period of contact provided in these orders may vary by reason of the closure of the Contact Centre’s services during school and public holiday periods, and in such event, contact shall occur at times when the services can be provided by the Contact Centre.

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

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

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

FAMILY COURT OF AUSTRALIA AT PARRAMATTA

FILE NUMBER: PAC 1064  of 2016

Mr Gehry

Applicant

And

Ms Martin

First Respondent

And

Mr A Martin
Second Respondent

And

Ms B Martin
Third Respondent

REASONS FOR JUDGMENT

1. For proceedings that commenced in March 2016 these parenting proceedings have occupied an inordinate amount of judicial time.

The Federal Circuit Court proceedings

1. The applicant father filed an Initiating Application in the Federal Circuit Court of Australia on 9 March 2016. In that application he sought orders in relation to his son C born in 2012 in summary as follows:

   a)that the father have sole parental responsibility for the child,

   b)that the child live with the father,

   c)that the mother spend defined time with the child substantially being alternate weekends and on other specific occasions or as otherwise agreed,

   d)that for the purposes of the mother’s time with the children the maternal grandparents collect the child from the father’s residence and the father collect the child from the maternal grandparents’ residence at the conclusion of the mother’s time,

   e)that the mother’s time with the child be at the maternal grandparents’ home.

2. More importantly by way of interim orders the father sought an order that a recovery order issue to procure the return of the child to his care and that pending further order the mother spend supervised time with the child at a contact centre.

Orders: March 2016

1. The father’s application came before Judge Newbrun on an urgent basis on 15 March 2016. Judge Newbrun made orders as follows:

   a)that pending further order the child live with the father,

   b)that pending further order the father have sole parental responsibility for the child,

   c)that a recovery order issue for the return of the child to the father and that in the event that the respondent mother again removes or takes possession of the child other than in accordance with orders she be arrested without warrant.

2. Otherwise Judge Newbrun granted leave to the maternal grandparents Mr A Martin and Ms B Martin to be joined as second and third respondents in the proceedings and proceedings were adjourned for further judicial mention to 21 June 2016.

3. On 27 June 2016 the maternal grandparents filed a Response that relevantly sought final orders in relation to the child in summary as follows:

   a)that the maternal grandparents have equal shared parental responsibility for the child,

   b)that the child live with the maternal grandparents,

   c)that the child spend time with the mother supervised by the maternal grandparents at such times as may be agreed.

4. The maternal grandparents relevantly sought interim orders as follows:

   a)that orders made on 15 March 2016 be discharged,

   b)that the maternal grandparents have equal shared parental responsibility for the child,

   c)that the child live with the maternal grandparents,

   d)that the child spend time with the father for two hours each fortnight in a contact centre,

   e)that the child spend time with the mother for six hours each alternate weekend supervised by the maternal grandparents.

5. The proceedings were once again before Judge Newbrun on 27 July 2016 and proceedings were adjourned for interim hearing to 16 August 2016. Directions were made for the filing of material to be relied upon.

Orders: July 2016

1. On 28 July 2016 further orders were made by consent that provided:

   a)that the respondent mother file and serve a Response, affidavit and Notice of Risk by 14 August 2016,

   b)that within seven days the father obtain a referral for the child to attend upon a specialist child paediatrician for the purpose of obtaining a full medical assessment and that the father do all things necessary to follow all recommendations and referrals of the child’s treating medical professionals,

   c)That the mother and father undertake urinalysis testing as requested by the Independent Children’s Lawyer,

   d)that the father within seven days enrol in a men’s behaviour change program as conducted by Relationships Australia,

   e)that the mother and father submit to hair follicle/strand testing,

   f)that the child spend time with the maternal grandparents alternate weekends from 5.00 pm Friday until 5.00 pm Sunday and for a period of one week in each six months,

   g)that the order for the child to spend time with the mother be varied to the effect that such time be supervised at all times by either of the maternal grandparents such that the child is in the care of one or other of the maternal grandparents throughout the child’s time with the mother,

   h)that arrangements for changeovers be amended to the effect that changeovers occur at the McDonald’s family restaurant at Suburb D,

   i)that the child’s time with the mother shall coincide with occasions on a Saturday that the maternal grandparents are spending time with the child,

   j)that the child have telephone communication with the maternal grandparents once a day and at any reasonable time that the child may request.

2. The proceedings were again before Judge Newbrun in the Federal Circuit Court of Australia on 16 August 2016 for interim hearing. The interim hearing did not proceed.  Certain administrative directions were made. It was noted by the Court on that day that the maternal grandparents did not wish to press interim orders sought in their Response filed 27 June 2016. The mother had failed to file any of the documents previously ordered by the Court. Otherwise an order was made for the preparation of a Family Report with proceedings to be relisted following release of the report.

Orders: October 2016

1. Subsequently on 20 October 2016 further interim orders were made by consent following the retention of the child by the maternal grandparents contrary to orders.  The matter had come back before the Court by reason of the maternal grandparents’ urgent interim application seeking orders to the effect that the child live with them. On that date the Court ordered by consent:

   a)that the maternal grandparents return the child to the father by no later than 3.00 pm on 20 October 2016,

   b)that without admission each party is restrained from physical chastisement of the child or allowing any other person to physically chastise the child,

   c)that the maternal grandparents’ interim application filed this day be dismissed,

   d)that each party is restrained from taking photos or videos of the child for the purposes of evidence gathering.

2. Otherwise on 20 October 2016 proceedings were transferred from the Federal Circuit Court of Australia to this Court.

In The Family Court: Further interim proceedings

1. Notwithstanding their retention of the child on two previous occasions after which it was agreed that the child should be returned to the care of the father the maternal grandparents filed an Application in a Case in this Court on 9 January 2017 seeking interim orders that in summary provided for:

   a)that all previous parenting orders in relation to the child be suspended,

   b)that the maternal grandparents have sole parental responsibility for the child,

   c)that the child live with the maternal grandparents,

   d)that the child spend supervised time with the mother each Sunday supervised by the maternal grandparents and at such other times as may be agreed,

   e)that the child spend supervised time with the father supervised by a commercial supervision agency for a period of not less than three hours and at other times as agreed with the father to pay the cost of supervision,

   f)that the mother and father undertake urinalysis testing as requested by the Independent Children’s Lawyer,

   g)that the mother and father be restrained from removing the child from any day care, preschool facility or school which the child attends,

   h)that the father and mother be restrained when spending time with the child or 48 hours before such time from consuming illegal drugs or substances.

2. The maternal grandparents’ application was made returnable on short notice before the Registrar on 10 January 2017.

3. The father for his part also filed an Application in a Case on 9 January 2017 seeking an interim order that a recovery order issue for the return of the child to him and that pending further order previous orders facilitating the maternal grandparents spending time with the child be suspended and that the mother and maternal grandparents spend time with the child on a supervised basis at the E Contact Service.

4. The mother notwithstanding that she had failed to file a Response in the proceedings filed a Response to an Application in a Case on 15 January 2017 seeking orders that in substance reflected the orders sought by the maternal grandparents.

5. The interim applications were then listed for hearing in the judicial duty list on 16 January 2017.

6. On 16 January 2017 agreement was reached that the appointment of Dr F for the purposes of providing a single expert report to the Court and orders facilitating that were made by consent.

7. The interim applications proceeded to hearing. Otherwise and reflecting the concerns of the Independent Children’s Lawyer that again the child had been retained by the maternal grandparents and that the child should urgently be restored to the primary carer of the father orders were made that in summary provided:

   a)that the maternal grandmother do all things necessary to present the child to the Manager of Child Disputes Services of the Family Court Parramatta Registry by no later than 4.15 pm 16 January 2017,

   b)that a recovery order issue for the recovery of the child and the return of that child to the father but that such recovery order lie in office until 4.30 pm 16 January 2017,

   c)that previous orders providing for the child to spend time with the maternal grandparents and the mother be suspended pending further order,

   d)that judgement be reserved to a date to be fixed.

8. These are those reasons for judgement.

Context

1. The father is aged 31 and is a tradesman. The mother is aged 28 and is presently unemployed.

2. The parties’ relationship seemed to commence in about April 2011 and ended with separation in January 2015.

3. The subject child is the only child of their relationship.

The father’s evidence

1. The father relied on his affidavit filed 9 January 2017 and the affidavit of his partner Ms G filed 12 January 2017.

2. Subsequent to the birth of the child the father began to notice behavioural changes in the mother. He says that she would become easily irritable and prone to angry outbursts; she would have significant mood swings and was unpredictable.

3. The mother to the father’s observation used methamphetamine during their relationship and as their relationship deteriorated the mother began to use the drug more frequently. The father had significant concerns about leaving the child in the care of the mother whilst he was at work and the mother herself commenced to leave the child often with her extended family.

4. The father acknowledges his occasional use of ice during the parties’ relationship but denies any use of the drug since about 2014.

5. Closer to separation the father says that the mother became more volatile and would isolate herself from him and her family and friends. She began to go out at all hours of the night and money began to go missing.

6. It appears that subsequent to separation the child remained living with the mother until November 2015 when the child commenced residing with the applicant father.

7. After separation the father moved to reside at his brother’s residence before commencing his present relationship in September 2015.

8. Subsequent to the parties’ separation the father has re-partnered with Ms G.  They reside in a three-bedroom home occupied by the father and his partner, the subject child C and the father’s partner’s daughter H.

9. The father works five days a week with hours generally from 6.00 am to 2.30 pm.

10. After separation there were ongoing difficulties in the father spending time with the child. Mediation in September 2015 was not fruitful with the mother disengaging.

11. On 8 November the father received a call from the mother asking him to care for the child for three days, thereafter he received a call from the maternal grandfather advising that the child has been “dumped on us”. The father commenced seeing the child.

12. The child was handed to the father by the maternal grandparents on about 20 November 2015.

13. The AVO: Subsequently a provisional apprehended domestic violence order was made against the mother for the protection of the father and the child. The order was confirmed by final order made on 2 December 2015 for a period of 12 months restraining the mother’s conduct in the standard statutory terms and otherwise restraining the mother from approaching or contacting the father and child except as agreed through legal representatives or court order under the Family Law Act 1975.  

14. The father thereafter agreed for the child to spend alternate weekends with the maternal grandparents.

15. On Saturday, 5 March 2016 the mother removed the child from the care of the maternal grandparents. The police attended and the Department of Family and Community Services (“the Department”) were notified.

1. The child was restored to the care of the father by reason of orders made on 15 March 2015.

2. The child spent time with the maternal grandparents on the weekend commencing 14 October 2016. The child was not returned as agreed and was retained by the grandparents who alleged physical abuse of the child in the father’s household. They notified the Police and the Department.

3. The father was not spoken to by the Police or the Department. His attempts to have the child retuned were of no avail. This lead to his second recovery application that was resolved by consent orders with the grandparents not pursuing their allegations. The return of the child in the court precincts to the father was marked by inappropriate conduct by the grandparents in the presence of the child.

4. The child C: After the child commenced in the care of the father he was seen by a Dr I for a bifid (webbed) toe and by Dr J, a general medical practitioner. In late June the father facilitated the child seeing an ENT specialist for issues with his grommets and shortly thereafter by Dr K for paediatric assessment. The child’s immunisations are up to date and the father has facilitated appropriate ongoing engagement for the child with medical practitioners.

5. In the father’s care the child has thrived. The child was enrolled initially in a toddler reading program at L School. The father then commenced the child at an Early Learning Centre in July 2016 one day a week and then two days per week in August at which time the child was nearly four years of age. The Centre reports positively as to the father and his partner’s engagement but expresses concerns as to the child’s reports as to the conduct of the grandparents and the mother (swearing and yelling at him). The Centre again expressed concerns as to the child’s behaviour in December 2016 and his reports as to the behaviour of the grandparents.

6. On 26 September 2016 the grandfather and mother (without the child) attended on the Police (Exh “D”) to complain of the grandfather’s observation of the child on 16 September 2016: scratch marks, bruising and “cigarette burns”. They were questioned as to the delay in the complaint, asserting they wanted to get legal advice.  The police attended on the father and reported no concerns for the child.

7. However, concerns developed over the child’s behaviour following visits to the grandparents where it became apparent that the grandparents were undermining the father’s relationship with the child. Concern as to this was expressed by the child’s psychologist in a short report dated 26 October 2016. The father invited the grandparents to engage with the child’s psychologist. They have not.

8. The father asserts that the child is struggling with the current interim arrangements particularly where he fears that the child is being pressured by the grandparents to express wishes to live with them.

9. To the father’s observation the child’s behaviour has deteriorated since the orders in October 2016 in that he has, to an extent, become defiant, oppositional and at times physical. 

10. The father has ongoing concerns as to the child spending time with the mother, who has not appropriately engaged in these proceedings. He asserts that the mother has mental health issues and is using methamphetamines (ice). The mother has failed to comply with requests from the ICL for urinalysis testing. He is unaware of the mother’s current residential circumstances. Notwithstanding orders for the grandparents to supervise the mother’s prescribed time with the child, the father asserts that they have permitted the mother to be in the presence of the child at other times including allowing the mother to be with the child overnight.

11. On 16 November 2016 the mother caused the Police to attend the father’s home to undertake a “welfare check” (Exh “D”). There was no concern held by the Police who noted “Police to consider validity of welfare check requests from (the mother) in future”.

12. On 2 December 2016 an Apprehended Domestic Violence Order for 12 months was served on the mother with the standard conditions and also that she not contact or approach the father or any person with whom he has a domestic relationship except as agreed through lawyers of court order.(Exh “D”)

13. During 2016 the mother has come to the attention of Police on a number of occasions relating to suspected drug activity (Exh “D”).

14. On 12 December 2016 the father was contacted by Police who has received a complaint from the grandparents. The father invited the police to attend, they did and were satisfied as to the child’s welfare. The police informed the father that the grandparents and the mother would be listed as “nuisance reporters”.

15. The current retention: The child spent time with the grandparents on 28 December 2016 to 4 January 2017 and then for the weekend commencing 6 January 2017. 

16. On 8 January the father was informed that the child would not be returned alleging “a breach of orders”. The father was informed that the Police and the Department had been notified.

17. The father’s application is supported by his partner who has an engaged relationship with the child. She expresses concerns as to what the child reports he is permitted to do in the grandparents’ household. Ms G expresses significant concern as to the grandparents putting pressure on the child regarding his living arrangements. She also reflects the father’s concerns as to the child’s behaviour after spending time with the grandparents (and the mother) and the child’s reports as to what is said to him at the grandparents’ home and the child’s oppositional and aggressive behaviour after return from time with the grandparents.

18. Ms G expresses concern as to the deterioration of the child’s behaviour since October 2016. The child has become oppositional, defiant and attempted to hurt himself, blaming Ms G and her daughter for his injuries. He  said “I have to tell my pop that you hurt me, my pop says I am going to live there”. The child told Ms G that he had been taken to the police station by his grandfather, that he “saw pop scream at his mum”.

19. After time with the grandparents in early January the child again was oppositional and defiant saying “call the police, tell the lady I’m scared, mum and pop said” and later when speaking to his father about the incidents “It was an accident, I didn’t realise, Mum and [Mr M] showed me how to hit”.

20. Understandably Ms G expresses concerns as to the grandparents undermining the child’s relationships in the father’s household, coaching the child and subjecting him to emotional abuse.

The maternal grandparents

1. The grandparents relied on their affidavits filed 12 January 2017 and the affidavits of Dr N filed 12 January and Ms O filed 9 January 2017.

2. They have been together for 43 years and were married in 1980. Their adult son Mr P resides with them. Mr P has come recently under Police attention for drugs, firearm offences (shortened shotgun), dishonesty, assault and malicious damage. Otherwise Police records are indicative of domestic violence issues between he and his father and his brother.

3. The grandfather is in full time employment.

4. The grandfather asserts observing a scratch mark under the left eye of the child when spending time with the child on 23 December 2016. He asserts that the child expressed a wish not to return to the father’s household and a fear of the father’s partner. The child was returned to the father later that day.

5. On commencing to spend time with the child after Christmas and on 29 December 2016 he again asserts that the child expressed concerns as to conflict in his father’s household and said: “[Ms G] flogged me, she screams at me, she locks me in a room”. Yet on 4 January 2017 the child was returned to the father’s care at McDonalds. The grandfather asserting that the child did so with reluctance.

6. On the child being made available for time with the grandparents on 7 January the grandfather again asserts that the child once in their car repeated assertions as to being struck and shouted at by the father’s partner and of being afraid. Again he asserts that the child expressed a wish not to return to the father’s household. The grandparents presented the child to Suburb Q Police on 8 January 2017 making complaint.  The Police incorrectly were informed that the child was to be with the mother each alternate weekend. The child makes no disclosures to the Police and was observed to be in good spirits with no visible markings or injuries.

7. Concerningly, the grandfather also presented the child to Dr N on 8 January 2017 in company with the mother. The mother’s attendance was in breach of interim orders. In a short report the doctor recorded his direct observation of the child was as to “two marks on the anterior aspect of the left leg”. He repeated the contents of a note provided by the grandparents of “what happened last night” that repeated the child’s asserted complaints set out above. They provided to the doctor photos of the child showing “marks on his face” from the cat at the father’s house and “what looks like a cigarette burn on the left arm”. The alleged photos are not in evidence.

8. The grandfather asserts that the child has been “withdrawn” on the last few visits. He expresses concerns as to child’s safety in the care of both parents.

9. Both grandparents then launch into a litany of complaints about the father and his household, all predating their previous consents to return the child to the father’s care. They did not agitate such issues earlier when the opportunity was there but conceded that it was in the child’s best interests to live substantially with the father. Matters of history will be subject to evidence at a final hearing where the relevant facts will be tested. The Court is concerned with the child’s present circumstances.

10. Police documents (Exh “D”) reveal the grandfather came under Police attention relating to a break-in to his gun safe at his R Town property. On 29 May 2016 Police searched his car and found shotgun ammunition and rifle rounds in the unlocked glovebox. The grandfather reported to Police that he had issues with the mother and her associates coming to the R Town property without his permission.

The mother    

1. The mother relied on her affidavit filed 12 January 2017.

2. The mother supports orders that would see the child live with the grandparents.

3. She repeats the circumstances of the child’s visit to the doctor with the grandfather.

4. She seeks to spend some unsupervised time with the child. Yet in May 2016 was the victim of an assault and robbery with the assailants armed with a pistol who demanded drugs and money from her whilst at the grandfather’s R Town property: (Exh “D”).

The ICL’s position

1. The Independent Children’s Lawyer was appointed in March 2016.

2. The ICL submitted that on balance there was no unacceptable risk in the father’s household where the child had been since November 2016. The ICL could not support orders sought by the grandparents.

3. If the child was withheld again the ICL supported no time with the grandparents. Concern was also expressed that the grandparents had facilitated the child’s contact with the mother in breach of court orders. The ICL contended that both the grandparents and the mother should have supervised time with the child to prevent the ongoing enmeshment of the child in the unresolved parenting issues.

4. The ICL was concerned that in circumstances where the father’s hair follicle testing was clear, that the mother had failed to undertake the test as required by court order. A further concern was the adult child that lived at times in the grandparents’ home.  

5. The ICL further contended that by reason of the new assertions made by the maternal grandparents, they were inappropriate supervisors for the child’s time with the mother.

6. The child had been in the primary care of the father since November 2015 and the father had the child engaged appropriately in early leaning and various medical practitioners including a paediatrician. There had been no assertions of risk to the child by any. The ICL considered that a restraint on the parties taking photos, video or audio of the child should be put in place.

7. The ICL expressed further concern as to the presence of the maternal uncle Mr P at the maternal grandparents’ home from time to time. He has been the subject of Police interest in relation to a spate of shootings in the local area and on 13 May 2016 was found in possession of a shortened firearm and other “prohibited items” (face mask, gloves and a pair of daggers) and drugs when stopped by police in the early hours of the morning (Exh “G”). He has previously come under police attention for possession of drug implements admitting that he was an “ice user”, issues of domestic violence, unauthorised attendance at his father’s rural property and physical conflict with his brother.

Recovery

1. The primary application is the recovery application of the father relating to the child.  The provisions in relation to recovery are set out in s 67U of the Act, which empowers the Court to make such recovery order as the Court sees as proper.

2. The determination as to whether to make a recovery order is governed by the provisions of s 67V, which relevantly provides that when deciding whether to make a recovery order in relation to a child, the Court must have regard to the best interests of the child as the paramount consideration. 

3. The best interests’ considerations are set out in the provisions of s 60CC of the Act. That section sets out the primary and additional considerations in respect of which the Court is required to have regard to.

4. The relevant principles in relation to parenting in interim proceedings are well settled in Goode & Goode (2006) FamCA 1346. The High Court in MRR v GRR [2010] HCA 4 affirmed those principles.

5. Section 60B of the Act outlines the objects and principles underlying Part VII of the legislation. Section 60CA provides that in deciding whether to make a particular parenting order, the Court is to regard the best interests of the child as the paramount consideration. 

6. Section 61DA of the Act provides that when making a parenting order, the Court must apply a presumption that it is in the best interest of the child for the child’s parents to have equal shared parental responsibility. There is presently an order that the father have sole parental responsibility for the child.

7. In Marvel v Marvel[2010] FamCAFC 101; (2010) 43 Fam LR 348 the Full Court, discussed the difficulties associated with making findings on contested evidence as follows:

   120. As has frequently been emphasised interim parenting proceedings, and orders made as a consequence, are a necessary but temporary measure until all the evidence can be tested, evaluated and weighed at a final hearing by the making of final parenting orders. Decisions judicial officers have to make in interim proceedings are difficult and, often for very good reason, a conservative approach, or one which is likely to avoid harm to a child is adopted. This is often to the understandable distress of a party who may not achieve the outcome he or she desires, or thinks to be in the best interests of their child or children. Interim parenting orders are frequently modified or changed after a final hearing, and any allocation of parental responsibility made at an interim hearing is disregarded at the final hearing (s 61DB).

   121.…………In SS & AH [2010] FamCAFC 13 the majority (Boland and Thackray JJ) discussed at paragraph [88] of their reasons the care necessary to be exercised in making findings in interim parenting proceedings. Their Honours said:

   “In our view, findings made at an interim hearing should be couched with great circumspection, no matter how firmly a judge’s intuition may suggest that the finding will be borne out after a full testing of the evidence.”

   122. Later, at paragraph [100] their Honours amplified their comments and said:

   “The intuition involved in decision-making concerning children is arguably of even greater importance when a judge is obliged to make interim decisions following a hearing at which time constraints prevent the evidence being tested. 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.”

8. In Deiter [2011] FamCAFC 82 the Full Court was particularly concerned with the situation where the contested facts related 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 on the evidence that is before the Court.

9. In Banks [2015] FamCAFC 36 the Full Court said:

   47. As the Full Court pointed out in Goode, the fact there will often be little uncontested evidence in interim proceedings means that only limited consideration may be able to be given to the relevant s 60CC factors.

   48. It should also be said that in parenting proceedings, as in all civil litigation, it will be the issues that are joined that will dictate which s 60CC factors are relevant. By their nature, interim parenting proceedings should be confined to those issues which, in the best interests of the child, require determination prior to a proper determination at a trial. The fact such disputes are commonly dealt with in overcrowded court lists makes it even more desirable to identify with precision those issues which can, or should, be resolved on an interim basis.

   49. Although the primary judge discussed all the potentially relevant factors in her ex tempore reasons, that luxury will not always be available. Furthermore, there is a risk that in discussing every s60CC factor, the judicial officer may lose sight of the forest for the trees. It is also important to stress here that the requirement to “consider” each factor does not mean each must be discussed, especially where the evidence leads inexorably to a particular conclusion: SCVG & KLD (2014) FLC 93-582.

   50. When it is obvious that the findings made as to some of the s.60CC factors will be determinative of the child’s best interests on an interim basis, it is a sterile and unnecessary exercise to address other factors. Moreover, it will be a sterile exercise to determine whether or not particular facts are disputed if they are relevant only to one of the non-determinative s 60CC considerations. Properly understood, we do not interpret what was said in Goode as meaning that in an interim case, each and every fact must be characterised as disputed or not; and that each s 60CC factor must be traversed where it is obvious on the facts and issues joined that there are only one or two decisive factors.

The Primary Considerations: s60CC (2)

1. The primary considerations are:

   a)the benefit to the child of having a meaningful relationship with both of the child's parents; and

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

2. The determination of this application can be resolved by a simple reference to the provisions of s 60CC(2) of the Act; that is the importance of the child having a meaningful relationship with his parents (in this case at present: the father) and the need to protect the child from physical or psychological harm or from being subjected to or exposed to abuse, neglect or family violence.  Subsection (2A) of that section was inserted by reason of the amendments to the Act in 2012 and the protective concerns in s 60CC(2)(b) are to be given greater weight in the context of the primary best interest considerations.

1. This is a circumstance where the subject child is of tender years with a most unsettled history before coming into the full time care of the father in late 2015. He has been in that care since, save for occasions that he has been retained contrary to orders as discussed above. The father and his partner have appropriately engaged the child in early learning and appropriate medical intervention in the context of which not one concern has been expressed in relation to the child. There is no evidence of the child being at an unacceptable risk, or any risk, of harm in the father’s household.

2. It is patently clear from the circumstances outlined above that to protect the child from harm the child should be in the primary care of the father.

3. The conduct of the grandparents, their continuing unfounded complaints to the police and the Department, the concerns as to their disregard for orders and the risk posed to the child in their household lead to the conclusion that any time they (and the mother) spend with the child should be supervised.

4. Orders will be made accordingly.

I certify that the preceding ninety four (94) paragraphs are a true copy of the reasons for judgment of the Honourable Justice Foster delivered on 24 February 2017.

Associate: 

Date:  23 February 2017