Gladwell & Gladwell
[2022] FedCFamC2F 985
FEDERAL CIRCUIT AND FAMILY COURT OF AUSTRALIA
(DIVISION 2)
Gladwell & Gladwell [2022] FedCFamC2F 985
File number(s): SYC 2527 of 2015 Judgment of: JUDGE ELDERSHAW Date of judgment: 28 June 2022 Catchwords: FAMILY LAW - PARENTING – CHILDREN – INTERIM PROCEEDINGS – Best interests – Risk – Views of the child – Effect of change of circumstances – Untested evidence - Where the father seeks return of the child to his care – Where the father seeks to reinstate previous orders made – Where the mother seeks a dismissal of the father’s application – Where the mother alleges risk in the father’s care – Where the mother seeks to reopen the proceedings – Where the child shall be returned to the care of the father – Where the mother is restrained – Where the previous orders made are reinstated pending further order Legislation: Family Law Act 1975 (Cth) ss 60CC, 67U, 67V, 68B, 68L, 69ZW(1)
Children and Young Persons (Care and Protection) Act 1998 (NSW) s 245D,
Cases cited: Banks & Banks (2015) FLC 93-637; [2015] FamCAFC 36
Goode & Goode (2006) FLC 93-286; [2006] FamCA 1346
Division: Division 2 Family Law Number of paragraphs: 86 Date of hearing: 28 June 2022 Place: Sydney The Applicant: The Applicant appeared in person Solicitor for the Respondent: Perin Legal ORDERS
SYC 2527 of 2015 FEDERAL CIRCUIT AND FAMILY COURT OF AUSTRALIA (DIVISION 2)
BETWEEN: MR GLADWELL
Applicant
AND: MS GLADWELL
Respondent
ORDER MADE BY:
JUDGE ELDERSHAW
DATE OF ORDER:
28 JUNE 2022
THE COURT ORDERS THAT:
1.The child, X born 2012 (“X”) shall be returned to the care of the father.
2.The father shall forthwith leave Courtroom 3A and go directly to the Court Children’s Services on level 2 of the Lionel Bowen Building to collect X.
3.The father shall leave the Lionel Bowen Building with X by no later than 1.40pm.
4.The mother shall remain on level 3 of the Lionel Bowen Building until 1.45pm.
5.Order 5(a) of the Orders made by the Honourable Justice Gill on 14 October 2019 shall be reversed with respect to the forthcoming school holiday period only, that is, X shall:
(a)Spend the first week of the school holidays commencing 4 July 2022 with the father; and
(b)Spend the second week of the school holidays with the mother.
6.Pending further Order, pursuant to s 68B of the Family Law Act 1975 (Cth), the mother is restrained from causing or permitting X to come in to contact with Ms W of S Health Services, and/or Ms Y (who may be the same person).
Consent Orders
7.By consent, except in the case of a life threatening emergency, the parties shall communicate with each another about X’s care, welfare and development, and the implementation of any parenting Orders, via the “Our Family Wizard” App (and not SMS or email).
File and Serve Material
8.The Amended Response to a Case Application filed by the mother on 27 June 2022 shall be treated as an Initiating Application.
9.Within 28 days from the date of these Orders, the father is to file and serve a Response to the mother’s (deemed) Initiating Application.
Appointment of an Independent Children’s Lawyer
10.Pursuant to s 68L of the Family Law Act 1975 (Cth) an Independent Children’s Lawyer be appointed for the child X born 2012.
11.Legal Aid New South Wales is requested to make arrangements as soon as possible for appropriate representation for the child and forthwith upon such appointment, the Independent Children’s Lawyer file a Notice of Address for Service.
12.The Court requests that a senior Independent Children’s Lawyer be appointed to this matter.
13.Within seven (7) days of notification of the Independent Children’s Lawyer appointment or the filing of the Notice of Address for Service by the Independent Children’s Lawyer, each party make available to the Legal Aid NSW (Sydney Office) forthwith copies of all applications, Notices of Child Abuse, Family Violence and Risk, and affidavits upon which that party relies together with any existing orders and copies of any relevant reports.
14.Each party facilitate attendance upon the representative of the child at times and dates requested by that representative.
15.The Independent Children's Lawyer fulfil the requirements set out in 'Guidelines for the Child's Representative' as published at guidelines-independent-childrens-lawyers
16.Leave is granted to the Independent Children's Lawyer to issue such subpoenas as he or she considers necessary for the orderly conduct of the proceedings.
Section 69ZW – Department of Communities and Justice and NSW Police
17.Pursuant to s 69ZW(1) of the Family Law Act 1975 (Cth), I order and direct the Department of Communities and Justice (NSW) and NSW Police Service (“the agency”) (as a State Agency prescribed by Regulation 12CD/schedule 9 of the Family Law Act Regulations) to provide to this Court by 29 July 2022 with all documents and information held by them about one or more of the following limited from 15 October 2019 to present:
(a)Any notification to the agency of suspected abuse of or by the following:
(i)Mr GLADWELL born 1975 (Father);
(ii)Ms GLADWELL, who may also be recorded by the surname GLADWELL, born 1974 (Mother); and
(iii)Master X born 2012 (Subject Child)
(b)Any notification of suspected family violence affecting the above persons or any of them;
(c)Any assessment by the agency of investigations into a notification of suspected abuse or family violence and/or the findings and outcomes of those investigations; and
(d)Any reports commissioned by the agency in the course of investigating a notification.
and provided that no document need be provided which identifies directly, indirectly or by reference the identity of any notifier or witness (unless a party to the proceedings or a Police Officer) and to achieve compliance with this order and with section 69ZW(3) the entirety of documents in the possession or control of the agency are to be produced to the Court and prior to production any names of notifiers or any material that would infer, suggest or disclose the identity of a notifier or witness is to be blanked out or otherwise removed or obliterated from the document/s so produced.
18.Neither party shall cause any subpoena or further subpoena to be served upon the Department of Communities and Justice and NSW Police, with respect to the period of time that has been dealt with pursuant to the Order herein, without the Court’s leave.
Section 245D – NSW Police
19.Pursuant to s 245D of the Children and Young Persons (Care and Protection) Act 1998 (NSW), the Court (as a prescribed body under the Act authorised to request information) requests that the NSW Police Force provide to this Court by 29 July 2022 the following material for the below listed persons, limited from 15 October 2019 to present:
(a)A list of COPS events that relate to the safety, welfare and wellbeing of the subject child listed below;
(b)The corresponding event reports or cases; and
(c)Their Criminal History/Bail Report.
20.For the purpose of Order 19 herein, the persons listed is:
(a)Mr GLADWELL born 1975 (Father)
(b)Ms GLADWELL, who may also be recorded by the surname GLADWELL, born 1974 (Mother)
(c)Master X born 2012 (Subject Child)
Dismissal of Applications
21.All extant interim applications are dismissed.
Transfer of Proceedings
22.This matter is otherwise transferred to Federal Circuit and Family Court of Australia (Division 1) with the parties to be contacted directly confirming the next listing date.
THE COURT NOTES THAT:
A.The matter will require a determination of the threshold question of whether the final Orders made on 14 October 2019 by the Honourable Justice Gill should be re-opened.
B.X attends Suburb C School.
C.X has attended on the Suburb C Medical Centre at AA Street at Suburb C.
D.X has also attended the D Hospital on or about 26 May 2022.
E.The Department of Communities and Justice may have interviewed X in March 2022.
F.The former Independent Children’s Lawyer appointed in these proceedings was Ms Z and the Court requests that should Ms Z still be available she again be appointed as Independent Children’s Later in the proceedings.
G.The father indicated to the Court that X’s usual general practitioner is at Suburb J Medical Centre.
H.The father further indicated that X has from time to time attended on Mr BB at the CC Centre at Suburb DD.
Note: The form of the order is subject to the entry in the Court’s records.
Note: This copy of the Court’s Reasons for judgment may be subject to review to remedy minor typographical or grammatical errors (r 10.14(b) Federal Circuit and Family Court of Australia (Family Law) Rules 2021 (Cth)), or to record a variation to the order pursuant to r 10.13 Federal Circuit and Family Court of Australia (Family Law) Rules 2021 (Cth).
Section 121 of the Family Law Act 1975 (Cth) makes it an offence, except in very limited circumstances, to publish proceedings that identify persons, associated persons, or witnesses involved in family law proceedings.
IT IS NOTED that publication of this judgment by this Court under the pseudonym Gladwell & Gladwell has been approved pursuant to s 121(9)(g) of the Family Law Act 1975 (Cth).
EX TEMPORE REASONS FOR JUDGMENT
JUDGE ELDERSHAW:
This matter comes before me today on return of the father’s application for a recovery order for the child X born 2012 (“X”). X is 11 and a half years of age.
Final parenting Orders were made after a defended hearing of some nine days between 22 October 2018 and 13 September 2019. The Honourable Justice Gill of now Division 1 of this Court delivered judgment and made final Orders on 14 October 2019, and those Orders remain in effect as of today.
Those Orders, amongst many other things, provide for X to live with Mr Gladwell (“the father”), for the father to have sole parental responsibility for X, for the father to inform Ms Gladwell (“the mother”) of decisions, and for X to spend time with the mother five nights per fortnight during school terms and half of the school holidays.
There are many other Orders which I do not need to advert, but I note that Order 11 permits X to communicate with each parent, Order 14 enables the mother to obtain information about X’s progress and information about school, and Orders 30, 31 and 32 of those Orders impose particular restraints, being:
(a)Order 30: Except in the case of an emergency, the mother is hereby restrained from presenting X to police or to welfare authorities for interview without the father’s written consent;
(b)Order 31: The mother is hereby restrained from making a complaint to police about the father in the presence or hearing of X, or causing X to attend or be present at a police station or otherwise be cared for by a police officer at any time at which she makes such complaint; and
(c)Order 32: That except in the case of an emergency, the mother is hereby restrained from facilitating X’s attendance upon a medical or allied health practitioner without the father’s prior written consent.
There is no dispute that X has been in the care of the mother continuously since 6 June 2022, and that during this time the mother did not communicate with the father, and I thank Ms EE for her concession on behalf of her client that she could have done better in this regard.
Turning to the proposals of each party on this limited issue before me today, the father seeks an Order that would result in the return of X to his care forthwith and that the 2019 Orders continue to apply, save that the first week of the forthcoming school holidays which begin this weekend would be spent with him and the second week with the mother. That represents an inversion of the arrangement in the 2019 Orders, but, other than that, they would continue as written.
The mother seeks a dismissal of the father’s application for the recovery order. She further seeks to reopen the 2019 Orders and says that, as I understand her, that X should remain in her care for the time being.
I clarified at the beginning of this morning’s proceedings if I am being asked to make a recovery order or to dismiss that application as the case may be. I did that to clarify the power that I am being asked to exercise under the Family Law Act 1975 (Cth) (“the Act”).
THE EVIDENCE
In terms of the evidence, the father relies upon his Application in a Proceeding filed 21 June 2022 and his affidavit filed on 21 June 2022. The mother relies on her Amended Response to an Application in a Proceeding filed 27 June 2022, her affidavit filed 27 June 2022 and the affidavit of Ms W also filed 27 June 2022.
The power to make a recovery Order is contained in s 67U of the Act, and in making such an order the child’s best interests are the paramount consideration. That is contained at s 67V. The factors to which I have regard in arriving at a conclusion as to what is in the child’s best interests are found in s 60CC of the Act.
These proceedings today are essentially interim in nature. There is no cross‑examination or ability to test the evidence. The scope of the evidence is limited to that which is on the papers. Given the nature of the proceedings, being interim child‑related proceedings, I have, of course, given both parties liberty to lead evidence from the bar table, but I understand the weight that I can apply to that and I also understand the circumstances in which this matter has come before me today.
The procedure for conducting an interim hearing has been authoritatively established by the Full Court of the Family Court of Australia in Goode & Goode (2006) FLC 93-286 at [68] which states:
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. The Court also looks to the less contentious matters, such as the agreed facts and issues not in dispute and would have regard to the care arrangements prior to separation, the current circumstances of the parties and their children, and the parties’ respective proposals for the future.
The decision of the Full Court of the Family Court of Australia in Banks & Banks (2015) FLC 93-637 (“Banks”), noted that a paucity of uncontested evidence means that only limited consideration may be given to the factors in s 60CC of the Act.
Interim proceedings should be confined to only those issues which, in the best interests of the child, require determination prior to a proper determination at trial, and not every s 60CC factor of the Act need be discussed in that process. That is another way of saying that these proceedings can be determined with short reasons.
In matters concerning issues of risk, as both parties contend in this case, I would, in accordance with the authorities, exercise a high degree of circumspection as to untested evidence; I would err on the side of caution. The fact that evidence is untested and facts cannot be found determinatively does not mean that the evidence would be rejected, as my task is to evaluate risk on the available evidence.
BACKGROUND
I turn to the parties’ affidavits and that of Ms W filed on behalf of the mother, and I note this chronology which I will traverse before I go onto its consideration and findings.
On 6 August 2020, the father engaged in an exchange of communication with X’s school principal. It was in relation to X’s religion on his record. The school principal, Ms FF of Suburb C School, replied to Mr Gladwell:
He [[X]] wanted it “documented” that he is tired because you are giving him the medicine he’s not supposed to have. He also said he was scared to go home with you so I reminded him that he was going up with mum today. I said I would talk about it with you. He said he has also missed a tele appointment with his doctor? I had a bit of a chat with him about the role that mum and dad play when there is a breakup and I explained to him that parents may disagree.
And it goes on, with Ms FF saying at the end:
I hope [X] is continuing to have psychological support outside the family.
The next piece in the chronology, as I have it in the material, occurs on 3 May 2021, and here, at paragraph 6 of the father’s affidavit, what I have most probatively and usefully is a business record from NSW Police procured under Freedom of Information.
It is a COPS entry concerning 3 May 2021 and there was a report it would appear of common assault by the father of X. X is named as the victim, and the person named as the perpetrator is the father. The GG Region branch of NSW Police investigated this matter and without traversing all of the things in the COPS record, the police advert to current orders of October 2019, the person named has sole parental responsibility of the child, the victim; the mother has visiting rights, but is not able to take the victim, being X, to a hospital or doctor without the permission of the father.
At page 15 of the father’s affidavit, which is part-way through that COPS entry at the bottom of the page, it reads, of the most recent incident detailed:
There are ongoing disputes between the person reporting (PR) and the person named (PN) in relation to the care of their son [X]. The person named, the father, has custody of the child, with the person reporting, the mother, having him five nights per fortnight.
After speaking with the supervisor, police took the child back to Suburb C School and spoke with the principal regarding this matter. Police were advised by the principal that there was an ongoing issue about complaints by the mother of the child and about the father abusing the victim, and in reading this, I am substituting as I go, “PN” for “father”, “PR” for “mother” and “victim” for “X”.
Police have other reports that have been “made up”, as it reads, with no evidence of domestic violence. Police spoke to the father regarding the incident and were informed that this had been an ongoing issue with the mother of the child; that is why there are orders by the Court that she cannot attend a police station with the child. Police did not identify any issues relating to the welfare of the child, but a further interview with the child can be done with a support person to clarify the matter at a later date. And it goes on:
Police believe that the mother has dropped the child to [Suburb C] Station to report the incident so to use the incident for custody issues.
And then, further and lastly:
Police believe that she is making the child report an incident when there is no incident, to get custody. The event rejected. No further action is required.
On 18 October 2021, a Professor HH of JJ Consulting (“the professor”), in Country KK it would seem, prepared a report about the examination of hair of X, then aged nine. The report is dated 18 October 2021.
The qualifications and experience of the professor are that he has a number of high-level scientific and professional certifications and qualifications from both Country KK and Country LL.
From the report, it does seem that the professor received a hair sample from the mother posted to an address in Country KK for analysis. It was a seven strand centimetre of hair in length. There is no evidence in the report, that I can discern, as to the chain of custody in relation to the provision of the hair sample. The purpose of the report was at the request of the mother; the hair was examined with the aid of scientific support staff for any substance with active properties, i.e., psychoactive or cardiac effects.
The laboratory results obtained from the whole of the specimen were doxylamine of 10 picograms per milligram and doxepin 24 picograms per milligram plus desvenlafaxine. Doxylamine is a sedative antihistamine, it reads, and doxepin is proposed to treat depression and anxiety. I do not know from reading this report whether 10 picograms per milligram or 24 picograms per milligram is a high dose, low dose, incidental or otherwise. As I indicated to the parties during submissions, particularly in the next report, I would need some toxicology evidence to explain those reports to me.
The next document that I have by way of the chronology, that I have been able to construct relatively, and that I trust reliably, is an email from Ms MM, the general manager of the NN Agency at Suburb OO in New South Wales, dated 30 December 2021, concerning X’s hair drug test results. The email, I should say, was addressed to a Ms PP, who I see from further in the same email chain found at pages 21 and following of the father’s affidavit, is a Sergeant at the Domestic Violence Crime Prevention Unit at Suburb QQ Police Station.
Ms MM informs Ms PP of the test results of X dated 16 December 2021 and the report, as it reads in the email, at page 22 of the affidavit of the father, is:
The report provided to police suggests the presence of doxylamine and doxepin in the hair sample [Dr RR] confirmed that doxylamine is a short term sedative that is available over the counter and doxepin is a tricyclic antidepressant commonly used to treat insomnia and is only available by prescription.
The father tells the Court that he was called upon by NSW Police to provide a chain of custody hair sample of X in late December for the purpose of their investigations into this matter. He also says in his affidavit at paragraph 7 that the mother made allegations to police that he was drugging X and this is in late or mid‑December 2021.
I have within the evidence of Ms MM, the NN Agency officer, notification of hair results and I see at pages 25 and 26 of the father’s affidavit those results appear as a relatively long list, maybe 40 substances. I have not counted them, but something in that range of drugs for which testing was undertaken, the result screening cut offs and the like. All of the drugs for which testing was undertaken returned a negative result.
The mother’s legal representative correctly identifies that in that list there is no reference to the two drugs in question, being doxylamine and doxepin. Certainly, the document reads in that way and I accept her submission that they are not listed, nor are they listed in the very small print, which is probably no more than 9 point font, across the top of the drug report where classes of drugs are identified: amphetamine, methamphetamine, MDMA and so on.
I am not able to say, similarly with the Country KK Professor HH’s report, what I can take from these reports, because I do not know, or at least I certainly cannot inform myself of, whether the drugs listed are classes of drugs within which the substances in question may belong or whether those substances were not tested for. I well and truly receive and understand the submission by the mother’s legal representative in that regard, but I am not confident that I can simpliciter accept the submission as being one which conclusively takes me to the point that those drugs were not tested for. It is possible that those drugs were tested and fall within, as I say, a class of drug which is reported, I just do not know. I would need a toxicologist or a pharmacologist to tell me.
On 20 January 2022, the father received an email from Ms PP, amongst other things, reporting the negative test results and notifying him that police will not be proceeding with any criminal investigation regarding the mother, misnamed as Gladwell by surname, but clearly intended to be the mother in these proceedings. All police reports have been shared with the Department of Communities and Justice, and the most appropriate course of action now should be the welfare of X.
The sergeant continues that the Acute Care Team have suggested that X be offered support via the SS Service with a telephone number, the address is the corner of TT and UU Streets at Suburb C, and further information about the officer‑in‑charge.
Again, the mother’s legal representative identified the need for X to receive appropriate support, and those submissions I do not think fall on deaf ears, because the father himself says that X has been receiving support from time to time from a psychologist, and earlier in the morning I made an Order for the appointment of an Independent Children’s Lawyer.
On 17 March 2022 – and I am now looking at the affidavit of Ms W, although this is also in the mother’s affidavit to some extent – Ms W, who is, by her own description at paragraphs 1 and 2 of her affidavit, “a child advocate” and member of the “WW Body”. No more information is really known about the WW Body except that it is a charity with the primary objective of providing support to Australian children who are the subject of abuse, violence and sexual violence by a parent or close family member.
Ms W deposes in her affidavit that she is a member of the community and a stakeholder in the Victims of Crime forums hosted by Victims Services through the Department of Communities and Justice. She also tells the Court, at paragraph 41 of her affidavit, that she is a “former [public servant]”. She says she has many years’ experience in domestic and family violence including frontline operations, investigations and policy.
And it is against that background that I then see at paragraph 6 of her affidavit, that on 15 March 2022 she says she received an email for a request of assistance in regard to nine-year-old boy, X, who was being interviewed by the Department of Communities and Justice. That interview was said to have been scheduled for 17 March 2022 and Ms W says that she attended the home of the mother, where the interview was arranged to take place. Upon arrival she was advised by the mother that the interview had been cancelled by the Department of Communities and Justice in the previous hours. What she does not say, and I pause to note, is how she came to receive an email, from whom and in what context.
At paragraph 9 of her affidavit, Ms W goes on and says that she introduced herself and spoke to X. X, she says, shared with her what he wanted to say in the interview and from this, though it is not said what X in fact said, she developed concerns about his physical safety, and after their conversation made some contemporaneous notes. Those notes are not annexed to her affidavit as one might have expected.
Ms W says that X’s mood was low and agitated. I do not know what I can take from that because she does not appear to have any clinical qualifications.
He [X] appeared upset and said, “I don’t want to live with my Dad, I want to stay with my Mum”.
Again, there is no context to any of this. I do not know if X was questioned by Ms W. She says:
I [Ms W] spoke with the mother about my role. I recorded some notes –
Again, the same notes that are not annexed to her affidavit, nor before me.
Ms W then gave X her phone number. She then says – and we are still in March – that she left the house and drove straight to Suburb QQ Police Station where she was asked to wait before speaking to a Sergeant YY. She introduced herself and she says this:
I introduced myself to Sergeant [YY] as [X’s] advocate and explained that I was an experienced domestic violence investigator.
She goes on at paragraph 14 that she:
…has since been informed that there was no event created.
Then at paragraph 15, on 19 March 2022:
I [Ms W] followed up my concerns with the supervisor at [Suburb ZZ] Police Station.
And then at paragraph 16:
I [Ms W] made it very clear that I was [X’s] advocate for the DCJ interview and that I held independent concerns for his safety.
And then it goes on through paragraphs 17, 18, 19, 20 and 21 about what she has said to and from a Detective VV who has had carriage of the matter. In those exchanges with Detective VV, of whom she is highly critical, she talks about X being abused, threatened and assaulted, being scared of not having a voice. However, nowhere in her narrative to Detective VV, as extracted in her affidavit, are there any particulars. She said:
I [Ms W] appreciate your perspective that these allegations of assault have not been reported to or investigated by police.
And Detective VV said:
If you can send through the Court Orders, that would help me.
Then, at paragraph 22, Ms W goes on and says that:
On 24 March 2022, [X] called me using the respondent’s phone.
Again, no context:
And he [[X]] told me that police had come to speak to him on 22 March.
Then, no context.
He [[X]] said that they introduced themselves and asked if they could speak to him, but [X] said he was scared to speak to the police directly, but they had not done anything to help him in the past and asked me to be there when he did.
I am mindful of those restraints that were made by the Honourable Justice Gill. X may have been worried what would happen if the mother would find out the police had come to see him at school, perhaps because of those restraints, I do not know.
But, at paragraph 24, noting that Ms W tells me she is a former public servant and so I would anticipate that in the course of her training and professional responsibilities as a public servant she would be skilled at taking down direct speech and reporting it appropriately, Ms W tells the Court that X said – and this is in inverted commas as direct speech –
I told them, I don’t want to speak to you [the police] unless my advocate [Ms Y] is here.
[X] said the police immediately turned off the video camera and they responded:
Okay, we will contact her.
[X] then added:
The police then spoke to the assistant principal at my school. The police told him they would contact me and organise to talk to me then they left.
[X] sounded very upset [says Ms W] and says:
They are not going to believe me, [Ms Y]. No‑one believes me. If Dad finds out he will kill me.
Pausing there, I have this fundamental difficulty. X is there saying, “They are not going to believe me, [Ms Y],” but the name of the deponent of the affidavit is Ms W, and when I turn to the emails that are annexed to Ms W’s affidavit, I find this at page 8, an email dated 12 April 2022 from “Kind regards, Ms W” described as “DV Advocate and DVF Investigator”.
Then I find – and I do not know what to make of it – at page 12 of that same affidavit, at exhibit PS-3, an email dated 30 May 2022 from a Ms Y, again a DV Advocate and DVF Investigator for S Health Services, the same organisation with which Ms W works. I am confused; after all, Ms W has said through her affidavit to me, “I am the advocate. I am the person with whom X spoke. I am the person who should be involved in X’s arrangements.” But there is X himself saying he wants to speak to “Ms Y”.
I do not know if “Ms Y” and Ms W are the same person. I know nothing about “Ms Y” or any involvement that she has had with X, how that involvement came to be, or whether “Ms Y” and Ms W are one another’s aliases, and it concerns me greatly.
Going on, Ms W strenuously denies, at paragraphs 38 and 39, and around that part of her affidavit, that she is conducting an investigation on behalf of the mother or had previously done so. That only leads to more questions because if she is not conducting an investigation, or otherwise acting as the mother’s agent, then I do not know what she is doing. It leaves more questions unanswered than answered.
On 12 April 2022, Ms W sent an email to Detective VV, the investigating officer within NSW Police:
I was disappointed to hear that the police attended [X’s] school without contacting me first, but understand and have given the benefit of the doubt that it was for the purpose of a welfare check.
She goes on:
As I have indicated, there are grave concerns for [X’s] health and wellbeing and I hope that you would attend to this matter as soon as possible. I have not been advised of the date for the interview with the Child Abuse Unit and would like to reiterate that [X] has asked that I be present as his advocate in accordance with his child and human rights.
While reflecting on the paragraph of her affidavit, X indicated he in fact wanted “Ms Y” to be present.
On 26 April 2022, the father says that he received – and he did because I can see the email at page 38 of his affidavit – an email from NSW Police to the father’s solicitor. In that email, Detective VV emailed to Ms AB, known to be the father’s solicitor at the time, requesting information about the family law proceedings and a copy of Dr R’s earlier report, and also outlining the seven allegations that X had made about the father and the paternal grandmother, and we understand that these allegations have not been investigated, as I will come to, it seems to have been put to one side.
The first of the incidents is an alleged assault of X by the father in mid-2020 and late 2020, and it seems to have involved X being hit. The second incident is an assault of X by the paternal grandmother, who made him do his homework by pushing him down to sit back down on a chair during home schooling, and that was said to have occurred in late 2020. These are all some 18 months before.
The third is an alleged assault of X by the paternal grandmother, “who hit me [X] once on my back, I was too scared to tell anyone, without an open hand”, and this was said to have occurred in early 2021, a year before.
Incident 4 was that X was sunburnt in the summer of 2020.
Incident 5 was that the father threw or smashed plates at Ms AC – I am not sure who Ms AC is – but threw items at Ms AC in the kitchen, and this was said to have occurred in mid-2021.
Incident 6 was said to have occurred in mid-2021, a threat of serious harm if X went back to the police station. Again, a year before.
And Incident 7 is that Ms AD, the paternal grandmother, threatened, in mid-2021, to hit X. And these matters have been brought forward in early 2022.
On 26 May 2022, the mother took X to D Hospital, this is notwithstanding the restraint made by Justice Gill. The father inquired about that on 27 May 2022 through the OurFamilyWizard app and it seems that X had been checked over by the doctor and was fine.
On 30 May 2022, at PS3 of Ms W’s affidavit, we see the email from “Ms Y” to NSW Police Detective VV complaining about issues of procedural fairness. It is not clear to me why procedural fairness needs to be owed to Ms Y in these circumstances, but that might be clarified at a final hearing.
From 3 June 2022 to 6 June 2022 and 8 June 2022 there are OurFamilyWizard messages in which the father inquired as to X’s whereabouts, he having not been returned and not going to school.
On 7 June 2022, there is a medical certificate annexed to the mother’s affidavit from Dr RR of Suburb C Medical Centre. The father told me from the bar table, and I have no reason to not accept it, that X normally attends the Suburb J Medical Centre, and given there is an Order, in the Honourable Justice Gill’s Orders, for the father to decide on the general practitioner, that would no doubt be correct.
But, nevertheless, the mother took X to the Suburb C Medical Centre on 7 June 2022 and Dr RR confirmed in a medical certificate that X has medical conditions of chronic pain, bleeding, fatigue and anxiety, and so will be unfit for school for some three weeks, with a medical review to occur on 14 June 2022. None of this was told to the father, despite his texts via the OurFamilyWizard app.
On 14 June 2022, Dr RR again reviewed X, again reaffirming medical conditions of chronic pain, bleeding, fatigue and anxiety and so would be unfit for school until effectively the end of term, being 1 July 2022.
That seems to be the chronology as we have it to this point, other than to note that the father filed an Application for a Recovery Order in early June.
CONSIDERATIONS
The question for me today is whether or not there is an evidentiary basis to disturb, on an interim, the 2019 Orders of the Honourable Justice Gill. In so doing, as indicated, I have regard to the s 60CC factors of the Family Law Act 1975 (Cth) (“the Act”) of best interests.
The two primary considerations of s 60CC(2)(a) of the Act, the benefit of a meaningful relationship with each child’s parent. There can be no dispute that it would be of benefit for X to have a meaningful relationship with each of his parents. That is the father’s position in that he wishes to reinstate, with a small modification for the forthcoming school holidays, the 2019 Orders which provide for substantial and significant time with the mother. The mother’s proposal to amend those orders would, although having X live with her, spend substantial and significant time with the father. She does not seek, for instance, to discharge the half school holiday Order, or any of the other Orders concerning significant occasions. She would instead have it that X would live with her and spend significant time with the father.
The other primary consideration is that of risk pursuant to s 60CC(2)(b) of the Act, and s 60CC(2A) tells me that where there is a tension between these things, then the risk issue would prevail.
And so I ask myself these two questions: is there a risk of harm in the father’s care as to warrant me not reinstating the Orders of the Honourable Justice Gill and, similarly and conversely, is there a risk of harm in the mother’s care, and what does that look like, bearing in mind that the father does not seek to suspend or otherwise vary those Orders made by the Honourable Justice Gill?
Turning to the risk of harm in the father’s care, the mother leads evidence through her own affidavit and that of Ms W about things such as safety concerns, records that X says, “No‑one is listening to me,” that X says, “I will run away,” and that X says, “I will kill myself”, if made to return to the father.
That is an important statement that no doubt weighs heavily on everybody, that a child would say, “If you make me go back to my father, I will ‘kill myself’,” and I take that very seriously, albeit untested. But the thing about that statement, as it appears in the mother’s affidavit, is that it is without context. It is, as it were, evidence untethered, and, without context, it is very difficult for me to know what to make of it.
I note the contents of the mother’s evidence at paragraphs 17, 20, 21, 24, 25, 49 and 50 of her affidavit, and in all of those paragraphs, though I have read them carefully and twice, I do not see particulars that would enable me to put my hands around the evidence in such a way on an interim basis as to evaluate the risk at such a level so to justify departure from Justice Gill’s Orders.
Similarly, Ms W in her affidavit speaks about abuse and threat and harm and words of that kind. However, those words are conclusions, they are opinions, they are findings, but, again, they are not particularised into evidence that could enable me to understand with the necessary degree of granularity, albeit at an evaluative and interim stage, the material that would have me depart from the Orders of the Honourable Justice Gill. There is simply no evidence at this point that rises to a level, and I so find this, that would cause me to disturb the operation of those 2019 Orders.
I questioned the mother’s solicitor as to why the mother, if so concerned for X’s welfare, did not seek to reopen the proceedings at any time in the last 12 months since, for example, she has been recounting concerns as to give an evidentiary underpinning to those concerns. Ms EE, to her credit, did not seek to give evidence that she could not give or make a submission that was not founded in the evidence.
There simply was not an answer that could be given, but it raises in my mind then why it was that these steps have not been taken. Ms EE did say that the mother was concerned that she could not bring an application because perhaps – and these are my words, but my understanding – that she would not be believed, but I question that because this is the Court, other than the Children’s Court, that is reposed with responsibility for the welfare of children.
Is there a risk of harm in the mother’s care. Firstly, the father, as I have indicated, does not seek to disturb the Orders of the Honourable Justice Gill other than to invert the school holiday Orders, which is more of a pragmatic consideration than much more. He does not, for example, seek to suspend the time Orders.
But what I am concerned about, and I do take his point, is the extent to which X has been involved with third parties with police and with Ms W, or Ms Y if they are different people.
The Honourable Justice Gill, as I have indicated, made Orders at orders 30, 31 and 32 with respect to restraints. He also made Orders that the father have sole parental responsibility with respect to health and that the father have the decision making as to which medical services X is to use. Those orders were made for reasons that are set out in detail in Justice Gill’s decision.
Those Orders have not been disturbed. The facts merge in that judgment. As far as I understand, nobody ever appealed them and if they did, they have withstood the appeal. It is not for me, on an interim basis, to drill into them, nor do I need to make further Orders to prevent the mother, for example, from taking X to the police because those Orders have already been made.
But, having regard to the evidence of Ms W, I am minded to make an Order restraining the mother from causing or permitting X to come into contact with Ms W or Ms Y, if they be different people. The reason for making that Order is my concern as to the role and influence that Ms W and/or Ms Y may occupy.
Having heard from the parties about the possibility of making the restraint, the mother has indicated to me that X has himself requested to have that communication and contact with Ms W or Ms Y (who I understand she may be the same person). That is something to which I have regard, because the views of a child are a relevant consideration under s 60CC(3)(a) of the Act and is a matter to which I must take account.
The weight that I would apply to those views is the question. In this instance, without the benefit of expert evidence; without the benefit of yet seeing subpoenas from police, the Department of Communities and Justice, the school, doctors, counsellors, no doubt a range of people; without the assistance of an Independent Children’s Lawyer; and I think also in fairness to the mother and the father, Ms EE, without the benefit of a fully-fledged affidavit as these truncated proceedings necessarily produce, I would err on the side of caution in respect of X as I am effectively directed to do by the Full Court, and to take a precautionary stance in this respect.
There has been a certain amount of evidence, that I have traversed already, about Ms W. I am concerned about the extent to which she might understand the role of police. For example, I note the email on 12 April in which she basically criticised the police for doing their work without telling her first. She is, on her own account, a retired or former public servant – and we do not know why she is a former public servant, not a current public servant – and I do not have a proper context of her engagement with X. For example, I do not know how her involvement came to be, or any of the particulars of what she has discussed with him apart from those passages that she has extracted, but they are passages extracted without context.
CONCLUSION
In those circumstances, and given the fact that Orders have already been made by the Honourable Justice Gill, after nine days of hearing, that the mother would not bring X into contact with police and the like at Orders 30, 31, 32. This has a feeling of being a quasi police matter, particularly with Ms W’s own background. It seems to me that Ms W’s involvement could simply be one step removed from the very thing that the Honourable Justice Gill was seeking to prevent, and so for that reason I will make the restraint.
Consistent with the principles of Banks that I earlier cited, I only need to traverse the factors of s 60CC of the Act as arise in these proceedings. No party made any submissions to me about other s 60CC factors, and so I understand from that that they are not considered to be relevant.
I am also mindful of the effect of a change of circumstances on a child, and absent any evidence as to how X would cope with a change of circumstances, I am encouraged to reinstate effectively the Honourable Justice Gill’s Orders.
I certify that the preceding eighty-six (86) numbered paragraphs are a true copy of the ex tempore Reasons for Judgment of Judge Eldershaw. Associate:
Dated: 28 June 2022
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