GILMORE & COWELL

[2017] FCCA 627

FEDERAL CIRCUIT COURT OF AUSTRALIA

GILMORE & COWELL [2017] FCCA 627

Catchwords:
FAMILY LAW – Interim parenting – significant disputed facts – children interviewed by JIRT – whether unacceptable risk of harm established – safeguards to be put in place – children to live with father and spend time with mother.

Legislation:

Family Law Act 1975, ss.60CC, 61C, 61DA, 68B

Cases cited:

Banks & Banks (2015) FLC 93-637
Goode v Goode (2007) 36 FamLR 422
Jopson & Lilwall (No.2) [2016] FamCAFC 262
Keats & Keats [2016] FamCAFC 156
Lang & Partington [2017] FamCAFC 40

Marvel & Marvel [2010] FamCAFC 101

Applicant: MR GILMORE

Respondent: MS COWELL

File Number: PAC 382 of 2017

Judgment of: Judge Obradovic

Hearing date: 10 March 2017

Date of Last Submission: 10 March 2017

Delivered at: Parramatta

Delivered on: 31 March 2017

REPRESENTATION

Appearing for the Applicant: Ms D’Addonna

Solicitors for the Applicant: Rafton Family Lawyers

Appearing for the Respondent: Ms Alouie

Solicitors for the Respondent: Gonzalez & Co

PENDING FURTHER ORDERS

1. That the children X born (omitted) 2008 and Y born (omitted) 2010 live with the father.

2. That the children spend time with the mother as follows:

   (a)Each Wednesday from after school or 3pm to 6:30pm;

   (b)Each Saturday from 10am to 2pm; and

   (c)At all other times as agreed to by the parties in writing.

3. For the purposes of Order 2 above, changeover is to occur at the children’s school or the father’s residence or such other place as nominated by the father no later than 2 hours before time is due to commence.

4. Pursuant to s68B Family Law Act1975 (Cth) the mother is restrained by injunction from:

   (a)permitting or allowing the children to be cared for by any other person; and

   (b)permitting or allowing the children to come into contact with her current partner, Mr L (surname unknown).

5. Within seven (7) days, each of the parents shall attend to provide a sample for forensic testing with respect to the presence of cannaboids, opiates, amphetamines, methamphetamines and benzoids and such sample shall be provided and testing shall occur in accordance with the appropriate Australian standard for supervised chain of custody testing and upon provision of a testing report arising from same, each parent shall cause and ensure that report to be provided to the other party within 2 days of its receipt by that parent.

6. In the event that the testing report discloses a reportable quantity of any of the above substances, that parent shall then continue to attend and provide a sample and cause such sample to be tested in accordance with the above order no less than each seven (7) days and until such time as a report is provided which discloses no reportable quantity of any of the tested substances.

7. In the event any test is positive as above, the parent who has been subject to a positive testing report shall then forthwith contact such service local to them as may be appropriate for the purpose of enrolling in a course or program designed to assist them in addressing their drug use and becoming and remaining drug free.

THE COURT FURTHER ORDERS THAT

1. Pursuant to s.11F of the Family Law Act1975, the parties are directed to attend with a Family Consultant for the purpose of a Child Inclusive Child Dispute Conference at 9am on 10 August 2017 and:

   a.The parties shall continue to attend at such times, dates and places as the consultant may advise;

   b.The parties and each of them shall do all things necessary to ensure the attendance of their children the subject of these proceedings to attend at the conference and to be available to meet with the Family Consultant;

c.The Family Consultant is requested to provide to the Court (and if, in the Consultant’s view it is appropriate to do so, the parties) a memo outlining and reporting on:

i.Any agreement reached between the parties;

ii.The issues raised by the parties and which will require determination by the Court;

iii.Any views or opinions expressed by the child/ren interviewed and any comment regarding the factors perceived to influence or impact upon those views and opinions or otherwise relevant to same;

iv.Any recommendations by the Consultant including as to Case Management, referral to external (community based or private) services and/or programs and resources to be allocated to the matter including but not limited to expedition, Independent Children’s Lawyer and/or full Family Report.

1. List the matter for directions at 11.30am on 11 September 2017.

IT IS NOTED that publication of this judgment under the pseudonym Gilmore & Cowell is approved pursuant to s.121(9)(g) of the Family Law Act 1975 (Cth).

FEDERAL CIRCUIT COURT
OF AUSTRALIA
AT PARRAMATTA

PAC 382 of 2017

MR GILMORE

Applicant

And

MS COWELL

Respondent

REASONS FOR JUDGMENT

Introduction

1. On 31 January 2017 the father commenced these proceedings by filing an Initiating Application, seeking interim and final parenting orders in respect of the two children of the parties:

   a)X born on (omitted) 2008; and

   b)Y born on (omitted) 2010.

2. Also included in that Initiating Application was an application for the matter to be dealt with ex-parte and for an urgent recovery order to be made.

3. The matter was listed at short notice on 13 February 2017. Both parties appeared on that day represented by lawyers. Interim orders were made by consent to the effect that the children live with the father and have telephone communication with the mother. The mother was also restrained from collecting the children from their school, except in the case of emergency and at the request of the father.

4. The mother filed a Response, Affidavit and Notice of Risk on 22 February 2017, contrary to the procedural orders made on 13 February 2017, which directed the mother to file such documents by 4pm on 17 February 2017.

Competing Proposals

1. At interim hearing, the father sought an order for the children to live with him and spend supervised time with the mother for no more than four hours per week at an appropriate contact centre.

2. Initially, the mother sought an order for sole parental responsibility, for the children to live with her and for the children to spend time with the father supervised for two hours per week at an appropriate Contact Centre. After some evidence came to light, the mother’s application changed for the children to spend time with the father unsupervised.

The Law

1. The central enquiry for the Court is to determine the outcome that will be best for the children the subject of these proceedings. The primary issue is whether the children are at an unacceptable risk of harm in the mother’s care and if so what, if any time, they should be spending with the mother. If the answer is that they are not, the issue then becomes a competing interim live with application, based on the determination of the relevant best interest considerations.[1]

   [1] see for example Lang & Partington [2017] FamCAFC 40 at [53]

2. The Full Court in Goode v Goode[2] mandated that the legislative pathway must be followed in all parenting cases, and in particular set out the procedural steps to be followed on an interim application, such as this one. The Full Court in Goode & Goode also said:

   … the procedure for making interim parenting orders will continue to be an abridged process, where the scope of the enquiry is ‘significantly curtailed’. Where the Court cannot make findings of fact it should not be drawn into issues of fact or matters relating to the merits of the substantive case where findings are not possible.

   [2] (2007) 36 Fam LR 422, (2006) FLC 93-286 at [81]

3. Further Full Court authority has expanded upon what was said in Goode & Goode. In Marvel & Marvel[3] the Full Court made the following obiter comments:

   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….

   [3] [2010] FamCAFC 101 at [120]

4. In Keats & Keats, the Full Court held in respect of the conduct of interim proceedings:[4]

   …the principles that emerge from cases such as SS v AH [2010] FamCAFC 13, [are] namely, that apart from relying upon the uncontroversial or agreed facts, a judge may 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.

   [4] [2016] FamCAFC 156 at [9]

5. A cautious or conservative approach is at times appropriate. Ultimately, any order must be one which the Court holds is in the children’s best interest.

Uncontested Relevant Facts

1. The father was born on (omitted) 1985.

2. The mother was born on (omitted) 1989.

3. The parties commenced their relationship in (omitted) 2008.

4. The parties’ children were born on (omitted) 2008 and (omitted) 2010 respectively.

5. In early December 2016, the mother left the relationship taking the children with her.

6. The children did not spend any time with the father until 26 January 2017, when they spent three nights with him. They next came into their father’s care on a 3 February 2017 and have remained in the father’s care since then.

7. The father and the children live in the former matrimonial home, which is a rental accommodation across the road from the paternal grandparent’s shop.  

8. On 7 February 2017 the father was contacted by JIRT. The contact was in response to an allegation of sexual misconduct by the father with X. The children were interviewed, as was the father. A report was released by JIRT, and they determined that the children were safe in the father’s care. The JIRT file was closed.

9. On 13 February 2017, interim consent orders were made as noted in paragraph 3 above. The matter was set down for interim hearing pending the mother filing her documents.

10. The father works full-time.

11. The mother works part-time. The mother is in a new relationship with a person referred to by the mother as Mr L.

Relevant Considerations

1. The protection of children from harm is an important matter for the Court’s consideration when weighing up the primary considerations.[5] Indeed, the Court must prioritise the need to protect the children from harm as against the benefit of the children having a meaningful relationship with the parents. The Court must also take into account the additional considerations if relevant.

   [5] S60CC(2)

2. The issue in respect of protection of children from harm is however not simply about the risk of harm, it is about the nature of the risk, the degree of risk, what might be done about the risk and the balancing of assessed risks against the benefit of the children having a relationship with the parent against whom the risk of harm is alleged to be unacceptable.[6] The issue is the extent of the risk and the things that might be done reasonably to alleviate (not eliminate, but alleviate) the risk.[7]

   [6] Jopson & Lilwall (No.2) [2016] FamCAFC 262 at [58]

   [7] Jopson & Lilwall (No.2) [2016] FamCAFC 262 at [56]

3. The history of the relationship and care of the children given by each of the parents differs considerably. It does seem though that the parties’ relationship was not particularly stable, and that the parties resided at various locations during their relationship.

4. The evidence of the father is that the paternal grandparents provided to the parties financial assistance over the years and that they were also involved in the children’s care.

5. Each of the parties makes a number of allegations against the other.

6. The father raises concerns about the mother’s parenting capacity and deposes to a belief that the mother lacks parental insight to be able to care for the children. He raises concerns that the mother does not adequately meet the children’s basic needs. The father asserts that he was the primary care giver together with his parents as the mother showed little interest in the children.

7. The father asserts that the mother’s brother and the maternal grandmother are heavily into the “drug culture” and deposes to witnessing the maternal grandmother and uncle engaging in the use of illicit substances. The father says that the mother admitted to him that her new partner is addicted to drugs.

8. The father’s evidence is that on 8 December 2016, he was at home when he saw the mother’s friend sitting in her car in the parties’ driveway. He saw the mother get out of her car with the children and put the children in her friend’s car. He observed that the children to be crying and they seemed extremely distressed. He heard the mother screaming at the children whilst forcibly pushing them into the car. He then saw the mother drive off with her friend and the children.

9. The father says that he then immediately telephoned the mother and spoke to her and that she indicated he could see the children on the following day. The father did not see the children until 26 January 2017.

10. On the 7 February 2017, the children were interviewed by members of the JIRT team. Documents produced under Subpoena from Family and Community Services were tendered in the proceedings. Exhibit 1 discloses the following:

    a)The children were able to identify their mother and where she lived;

    b)Y said that the mother had taken them from their father;

    c)X disclosed that the mother’s partner (Mr L) punched X in the face and that this had made him feel sad;

    d)Y also disclosed that X had been asleep on a chair and that Mr L pushed the chair over;

    e)The children both said that they wanted to live with their father;

    f)Neither child made any disclosure of sexual assault;

    g)The children were considered vulnerable, too young to care for themselves and requiring close supervision by a responsible person to ensure their safety; and

    h)“At the time of assessment, X and Y are residing with their father and paternal grandparents. There is no evidence that X (or Y) is a risk of harm in the care of their father or pgp’s. The report received on 3/2/17is considered to be malicious in nature and may be the result of the father commencing FLC proceedings for custody. The pgp’s have previously demonstrated their support of the children and present as very caring and loving to X and Y. Additionally the children have clearly stated that they wish to reside with their father and paternal grandparents, saying they do not feel safe with their mother or Mr L”.

11. It was submitted on behalf of the father that if the children were to either live with the mother or spend time with the mother on an unsupervised basis they would be placed at an unacceptable risk of harm of:

    a)physical abuse;

    b)neglect;

    c)exposure to drug paraphernalia; and

    d)exposure to use of drugs by the mother with consequential risks of the children ingesting the drugs themselves and the physical inability of the mother to provide for the needs of the children by virtue of being drug affected.

12. The mother alleges that the father was a regular smoker of marijuana until about July 2016. She recollects an occasion when she found Y with a ‘bong’ in his mouth trying to drink the water. The mother also alleges that the father has used cocaine and ‘ice’ in late 2016.

13. The mother alleges that the father was verbally and physically abusive towards her during their relationship. The mother provides a number of examples of such behaviour which she alleges the father engaged in.

14. The mother also says that she has concerns about the paternal grandmother, who she alleges has a history of alcohol abuse and driving under the influence. No independent or corroborative material was tendered in relation to this allegation[8].

    [8] A Subpoena to New South Wales police had been issued at the request of the father. The schedule of that Subpoena only relates to the parents and the subject children. No Subpoena was issued at the request of the mother which might have produced documents in support of that assertion

15. The mother also deposes to an understanding that the father’s stepfather has been charged with sexual assault in relation to his stepdaughter on two occasions. The mother says that she does not want the children around the father’s stepfather. No independent or corroborative material was tendered in relation to this allegation[9]. Apart from two lines in the Affidavit deposing to the mother’s understanding, there is no other evidence as to how the mother came to have that understanding. For example the Court does not have before it any evidence as to when the charges laid, the nature of the sexual assault alleged, whether the matter was ultimately determined by a Court and any outcome of such hearing.

    [9] A subpoena to New South Wales police had been issued at the request of the father. The schedule of that subpoena only relates to the parents and the subject children. No subpoena was issued at the request of the mother which might have produced documents in support of that assertion

16. The Court is significantly concerned by the disclosures made by the children during the interview with JIRT. Those disclosures echo the father’s concerns about the mother’s ability to care for the children and the children being at risk of harm in the mother’s household. The children also appear to have expressed a strong wish to remain living with the father and not be returned to their mother’s care. The various opinions contained in Exhibit 1 are also supportive of the Court acting cautiously in relation to the subject children.

17. The older child is referred to as exhibiting behaviours consistent with the autism spectrum. The opinions expressed in Exhibit 1 are supportive of a need for stability in that child’s life, particularly because of his vulnerabilities.

18. The children ought to be given the opportunity of maintaining a relationship with their mother, so long as they are not placed at an unacceptable risk of harm. While their views appear to be that they do not want to go back to the mother and want to live with the father, the Court does not consider such views determinative of the issue, and certainly not to the extent that the children would not be spending any time with the mother.

19. Both parents appear to have suitable accommodation to the children and the objective evidence appears to be that the father is able to meet the children’s physical and emotional needs. There is some uncertainty about the mother’s ability to meet such needs, which will no doubt be the subject of further evidence as these proceedings continue.

20. Both parents appear to be in good health.

21. The Court finds that unless there are safeguards put in place, the children are at an unacceptable risk of harm if living with the mother or spending significant and substantial time with her, at least on the basis of what the Full Court said in Keats & Keats. The Court does not find that the risks to the children are such that an order for supervised time between the children and the mother is warranted, given the safeguards which will be put in place by the making of these orders, which will ensure that the children are not placed at an unacceptable risk of harm. The Court is also comforted that the mother has demonstrated an ability to comply with Court orders to date.

1. The Court also finds that the children are settled and appear to be well looked after in their present environment. Furthermore, and given the recent turmoil to these young children’s lives, the Court finds that it is in the children’s best interest to remain living with the father on an interim basis.

Parental Responsibility

1. Section 61C of the Act provides that each of the parents of a child who is not 18 years has parental responsibility for the child. This section states the legal position that prevails in relation to parental responsibility to the extent to which it is not displaced by a parenting order.[10] Section 61DA provides for a presumption of equal shared parental responsibility that applies when the Court makes a parenting order and s65DAA applies in circumstances where a parenting order provides for the parents to have equal shared parental responsibility.

   [10] See note 1 s61C

2. At this very early stage in the proceedings, the court does not consider that any order for parental responsibility ought to be made, and as such it is the position under the Family Law Act that will prevail.

Conclusion

1. The absence of discussion of any particular s.60CC factor above does not reflect any failure to consider it. Rather, it is reflective of the Court’s assessment that such factor has no sufficient relevance in the circumstances of this case to displace the determinative significance of those factors which were specifically addressed[11].

   [11] Banks & Banks (2015) FLC 93-637 at [52]

2. In all of the circumstances and for all of the reasons set out above, it is in the children’s best for orders to be made as set out at the forefront of these Reasons.

I certify that the preceding forty-eight (48) paragraphs are a true copy of the reasons for judgment of Judge Obradovic

Date: 31 March 2017