Gonzales & Gonzales (No 2)
[2023] FedCFamC1F 438
FEDERAL CIRCUIT AND FAMILY COURT OF AUSTRALIA
(DIVISION 1)
Gonzales & Gonzales (No 2) [2023] FedCFamC1F 438
File number(s): BRC 5595 of 2020 Judgment of: SCHONELL J Date of judgment: 30 May 2023 Catchwords: FAMILY LAW – PARENTING – Interim Orders – Where the children currently live with the paternal aunt and uncle – Where the father has withdrawn from the proceedings – Where orders have been made for the children to spend supervised time with the mother – Where the mother seeks orders that will allow her to eventually spend unsupervised time with the children – Where the Independent Children’s Lawyer proposes that time move to unsupervised time subject to the mother complying with drug testing – Where there is no change and the risks identified by the experts remain – Where the Court needs to act cautiously in interim proceedings when there is a risk of harm – Orders made for the children to spend supervised time with the mother once a month. Legislation: Family Law Act 1975 (Cth) Pt VII, ss 60B, 60CA, 60CC, 69ZL Cases cited: Adamson & Adamson [2018] FamCA 523
Eaby & Speelman (2015) FLC 93-654; [2015] FamCAFC 104
Freeman and Freeman (1987) FLC 91-857; [1986] FamCA 23
Gonzales & Gonzales [2023] FedCFamC1F 406
Goode & Goode (2006) FLC 93-286; [2006] FamCA 1346
Marvel & Marvel (No. 2) (2010) 43 Fam LR 348; [2010] FamCAFC 101
Mazorski & Albright (2007) 37 Fam LR 518; [2007] FamCA 520
Miller & Harrington (2008) FLC 93-383; [2008] FamCAFC 150
Mulvany & Lane (2009) FLC 93-404; [2009] FamCAFC 76
Rice and Asplund (1979) FLC 90-725; [1978] FamCA 84
Sigley & Evor (2011) 44 Fam LR 439; [2011] FamCAFC 22
Division: Division 1 First Instance Number of paragraphs: 50 Date of hearing: 26 May 2023 Place: Sydney Counsel for the Applicant: Mr Alexander Solicitor for the Applicant: Hennikers Solicitors The Respondents: Litigants in person The Intervener: Did not participate Counsel for the Independent Children’s Lawyer: Ms Shea Solicitor for the Independent Children’s Lawyer: Legal Aid NSW ORDERS
BRC 5595 of 2020 FEDERAL CIRCUIT AND FAMILY COURT OF AUSTRALIA (DIVISION 1)
BETWEEN: MS GONZALES
Applicant
AND: MS FLORES
First Respondent
MR AQUIRRE
Second Respondent
DEPARTMENT FOR CHILD PROTECTION SOUTH AUSTRALIA
Intervener
INDEPENDENT CHILDREN’S LAWYER
order made by:
SCHONELL J
DATE OF ORDER:
30 MAY 2023
THE COURT ORDERS THAT:
1.Orders 6 and 7 of the orders made 17 September 2020 be discharged.
2.The children, X born 2015 and Y born 2017 shall spend time with the applicant mother (“the mother”) for a period of four (4) hours once per month, commencing in June 2023, such time to occur in Adelaide and to be supervised by a contact service agreed between the parties in writing or otherwise nominated by the Independent Children’s Lawyer (“the ICL”), with the mother to bear the costs of supervision.
3.The children have facetime video contact with the mother every second Wednesday of each month from 5.00 pm until 5.30 pm with the mother to initiate the call to the respondents’ telephone, and the respondents to do all such things to facilitate the children speaking with the mother.
4.The time between the children and the mother in accordance with Order 2 is conditional upon the mother submitting to hair drug testing for illicit drugs and alcohol once every three (3) months with the first test to occur no later than 8 June 2023.
5.The mother is to provide a copy of each hair drug test result to the respondents and to the ICL within 7 days of receipt.
6.The parties advise one another of any change of telephone numbers and/or email address within 24 hours of such change occurring.
7.The mother inform the respondents of her current postal address or any change to her postal address within 24 hours of such change occurring to enable the children to send cards, letters or gifts in accordance with their wishes.
8.The respondents keep the mother informed of the children’s current treating health providers and inform them of same within 48 hours, and the respondents’ are to advise the mother of any illnesses and/or medical issues as they arise.
9.The respondents keep the mother informed of the children’s education progress and provide copies of school reports, circulars and other relevant information as they arise.
10.Each party be restrained from making critical or derogatory remarks in relation to the other parent or party or their partner in the presence or hearing of the children and that each party shall do all things necessary to ensure that no third party makes critical comments about the other party in the presence or hearing of the children.
11.The parties be and are hereby restrained from discussing any aspects of these proceedings or prior proceedings with the children, or showing the children any document connected with the proceedings (including these orders) and will use their best endeavours not to permit any third party to discuss these proceedings within the sight or hearing of the children and should any third party do so, the party shall remove the children from that environment.
12.The hearing listed to commence on 15 April 2024 is vacated.
13.The hearing in this matter will commence on 18 December 2023 for four days.
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 Gonzales & Gonzales has been approved pursuant to s 121(9)(g) of the Family Law Act 1975 (Cth).
REASONS FOR JUDGMENT
SCHONELL J:
These are interim parenting proceedings involving two children, namely: X born 2015, aged 7 years; and Y born 2017, aged 5 years. The current parties to the proceedings involve the children’s mother and the children’s paternal aunt (“the first respondent”) and her partner (“the second respondent”) (collectively “the respondents”). There are currently orders in place in relation to the children, such orders having been made on 17 September 2020. Those orders provide that the children’s parents and the respondents are to have equal shared parental responsibility, with the respondents to have sole parental responsibility in relation to the children’s health and education. The orders also provide that the children are to spend supervised time with their parents, and that such time is to be supervised by either the respondents or a children’s contact service.
These reasons for judgment need to be read in conjunction with the reasons for judgment delivered by me on 22 May 2023 where I adjourned the final hearing of the matter. The current applications before the Court seek to vary the orders made in September 2020 to provide more specificity in relation to the children’s time with the applicant mother (“the mother”).
For the reasons that are set out below, the children’s father no longer takes part in the proceedings.
In that respect, the mother sought orders that will provide for her to spend unsupervised time with the children between now and when the matter is listed for hearing next year. The time would occur on a monthly basis between 10.00 am and 4.00 pm on a Saturday but with such time to increase to overnight blocks of time on four separate occasions. In addition, the mother sought orders for access to school reports, that she be informed about any incidents that occur at the children’s school, and that she be informed about medical matters relating to the children.
The respondents sought orders that the mother have specific time with the children and that it be supervised by a professional agency on two occasions, namely the first Saturday of June and the first Saturday of December in each year from 10.00 am until 4.00 pm, with the mother to meet the costs of the supervision. The respondents also sought orders for the mother to have contact with the children by telephone once a month as well as various other orders including drug testing of the mother.
The Independent Children’s Lawyer (“the ICL”) proposed a continuation of the mother’s time with the children on a supervised basis once a month for a further four months with it then moving to unsupervised time subject to compliance with orders regarding drug testing.
The mother relied upon the following documents:
(1)Affidavit of mother filed 1 May 2023;
(2)Affidavit of mother filed 24 May 2023;
(3)Affidavit of Mr O (the mother’s partner) filed 25 May 2023;
(4)Affidavit of Ms P (the children’s maternal grandmother) filed 24 May 2023;
(5)Affidavit of W (the mother’s daughter) filed 24 May 2023; and
(6)A Minute of Order.
For their part, the respondents relied upon an affidavit of the second respondent filed 25 May 2023 and a Minute of Order.
The Court has also had regard to the Family Report of Ms E dated 28 January 2022 as well as a psychological report in relation to the mother of Mr Q dated 18 July 2022.
BACKGROUND
Some context to the current dispute is apparent from my reasons for judgment delivered 25 May 2023, which have been published as Gonzales & Gonzales [2023] FedCFamC1F 406. I incorporate into these reasons the following paragraphs from that judgment:
4.The parents of the children were in a relationship between 2006 and 2018, marrying [in] 2015. Each of them had a child of a prior relationship.
5.The parties’ relationship was tumultuous. There are allegations of alcohol abuse and the use of illicit drugs […]. The mother contends the father was the perpetrator of family violence, including physical assaults and emotional abuse. The father asserts that the mother abused alcohol and used drugs at times including during pregnancy.
6.During the course of the parties’ relationship, the mother’s daughter, [W], a child of a previous relationship, lived with the parties.
7.Upon the separation of the parties, the children remained living in the father’s care and, according to the mother, the father prevented her from spending time with the children.
8.In May 2020, the mother commenced proceedings seeking orders for the children to be placed in her care. At that stage, the mother lived in Queensland, and the father and children were in Sydney. The father in an affidavit filed 8 May 2023 says the following:
63. On 26 August 2020, [the mother] filed recovery orders and these orders were granted by Her Honour Judge Purdon Sully. Unfortunately, the strict border restrictions meant that travel between states was near impossible. At this time breaches of closures could result in fines of up to $10,000.00 for crossing borders.
64. This was a very difficult time as I had no home to return to, no business to earn any form of revenue and I was the sole carer for two young children under three years of age.
Disclosure to the Department of Justice
65. When the orders were made by her Honour Judge Purdon Sully, I was under an immense amount of pressure as I was so stressed about the border closures. The orders sought for the boys to be returned and whilst I was trying to comply with the orders I was encountering hurdles such as the fact that no one was allowed to cross the New South Wales border at the time. This meant that it made it impossible for me to get the boys back to Queensland.
66. During this time, my sons were attending day care in [Suburb B] and I maintained the routines they were accustomed to, including their eating and sleeping schedule. I was working as hard as I could to sustain our living and I was on a spiritual path of redemption.
67. It was during this time that I felt a compelling urge to disclose behaviour I had witnessed, (but not participated in) between my ex wife [the mother] and her daughter [W] while still a minor under the age of six. Being so involved with the daily care of my young children awakened a protective instinct inside of me. I am a religious man with a conscience and felt that I had to disclose certain facts to the Department.
68.I also took this opportunity to disclose and to take responsibility for the actions that occurred post [the mother] leaving the family home in 2018.
69. I was aware at the time of the disclosure that I was exposing myself and nevertheless I would always put my sons’ well being above my own. With respect to making such a disclosure, I knew I needed to correct the course of life that I was on. I decided to phone the Department of Communities and Justice in Queensland and inform them that both [the mother] and I had participated in conduct that lead to the sexual abuse of [W] at the time that she was residing with us. This phone call occurred around a week after the return orders were granted.
70. Approximately one day after I made the disclosures to the Department of Communities and Justice in Queensland, I was contacted by the police from either NSW or OLD I cannot recall which state they were in at the time they made the call. I received a call from a female officer who asked if [W] was in my care. I informed the police that [W] was not in my care and that was the only contact I have had from the police regarding the matter. I have had no further request for interviews from the police nor have I had any contact from the police in regard to the charges.
71. I do not know if [W] has been questioned by the police nor have I been told that the investigation has been closed or terminated. It has been in excess of 2 years since I made the disclosures to the police and neither [the mother] or I have been charged.
72. I further note that the family report was released to the police in Queensland 12 months ago and there has been no further contact by the New South Wales Police or the Queensland police regarding the charges.
73. At the same time I made the disclosures to the department, I told both [the first respondent] and [the second respondent] and [Ms C] about what I had told the department in Queensland and when [the respondents] found out about the disclosure that I had made they were disappointed in me and disgusted in both [the mother] and I. [The respondents] never condoned our behaviour and they informed me that they would be contacting a solicitor to get advice about taking the care of the boys as they did not want either myself or [the mother] to have care of the boys until the there was appropriate intervention by the courts.
74. [The respondents] instructed [D Lawyers] and an application was brought on an urgent basis for them to be the sole carers of the boys and for [the mother] to have supervised time with the boys.
9.On 17 September 2020, orders were made placing the children in the care of the father’s sister and her partner, the [respondents]. Orders were also made for the mother and father to spend supervised time with the children.
10.In November 2021, the Court ordered the preparation of a Family Report. On 28 January 2022, a Family Report was prepared by [Ms E]. [Ms E] records the following in that report:
8. After the business folded, [the mother], [the father] and [W] moved to [Suburb F]. [The mother] said that [the father] was violent toward her when they lived there. She said that he dragged her by the hair and threw her across a room. [The father] said that, when they lived in [Suburb F], both he and [the mother] sexually abused [W] but that [the mother] was the instigator and main abuser. [The mother] said that she and [the father] separated many times, including when they lived together in [Suburb F]. She denies ever having sexually abused [W]. [The father] and [the mother] reunited after about six months.
…
11. [The mother] said that she and [the father] argued about his drinking and him not working. She said that [the father] threw her out of their home in 2018 but that she visited the house daily to breast feed [Y]. [W] remained in the home with [the father]. [W] was interviewed by the [a] Child Abuse unit in 2020. She denied having been sexually abused by her mother but did disclose sexual abuse by her stepfather [the father]. NSW police transferred the matter to Queensland. Queensland police advised that the matter is ongoing. They have asked for a copy of this report.
11At the time of the report, [Ms E] records the then living arrangements of the parties and the children to be as follows:
16. The subject children live with their paternal aunt [the first respondent], her partner [the second respondent] and their son [[G], aged 14 years] and [the first respondent’s] older children [[Mr H] 29 and [Mr J] 25] in [Suburb K], Sydney. [The mother] lives in [M Town] with her partner and [W]. [The father] lives on his own […] in [Suburb L].
17. The children speak to their mother by phone/facetime twice per week and spend face to face supervised time with their father three times per week.
12. She records the proposals of the parties in following terms:
22. [The mother] proposes that she have sole parental responsibility for the children and that the children live with her, spending time with [the father] under supervision. She said that she would agree to the children spending time with [the respondents] in school holidays.
23. [The father] proposes that he and his sister [the first respondent] share parental responsibility for the children. He proposes that the children live with him near the [Suburb N] area and continue to spend time with [the first respondent] and her family and any time that they spend with [the mother] be supervised.
24. [The respondents] propose that they have parental responsibility for the children and the children live with them. They said that if the Court finds that the allegations about sexual abuse are true, the children should spend no time with [the mother] as they feel that [the mother] undermines the children’s placement.
13. Under the heading of “evaluation”, she records the following:
223. There has been a great deal of focus on allegations of sexual abuse in this matter. It is the single expert’s opinion that, some of that abuse has been substantiated through this process by way of admissions made by [the father] during interview. Allegations about sexual abuse of [W] by [the mother] have not been substantiated. Although [W] is not a subject child, her treatment in the care of [the mother] and [the father] is relevant. Queensland police advise that the sexual abuse allegations involving [W] are still under investigation.
224. There have been no allegations made about either of the subject children having been sexually abused. [The first respondent] appears hypervigilant about that possibility, but the single expert has found no evidence to suggest that has happened.
…
230. The benefit of the children having a meaningful relationship with both of their parents and carers;
There are three options for [X] and [Y’s] future care [with their mother, or their father, or their paternal aunt and uncle]. It will be important for [X] and [Y] to understand their family of origin, but who they live with will significantly impact the sort of relationships they will have with each party.
…
240. Any recommendation as to the live with and spend time with arrangements which may be appropriate.
It is recommended that [X] and [Y] continue to live with [the respondents].
…
It is recommended that [the mother] and [the father] participate in a mental health assessment and that any treatment plan identified through that process be included in orders in relation to spend time arrangements.
It is important that the purpose of spend time arrangements is clear. Currently [the father] is spending time with the children three times per week and [the mother] is supposed to be speaking to the children twice per week. This sort of arrangement is appropriate for an interim, while live with arrangements are being assessed but is onerous for the carer and confusing for the children if ongoing. If the Court places [X] and [Y] with [the respondents] permanently, the spend time arrangements will be for the purpose of identity and maintaining links to siblings. As a guide, monthly phone calls and quarterly or biannual face to face visits will assist [the respondents] to focus on their family responsibilities and allow the children time to immerse in their surroundings without the instability of the question of whether they are staying or not. This arrangement should be the same for [the mother] and [the father].
…
241. Any other matter the Single Expert considers relevant.
The single expert is concerned about the contents of this report being made available to the parties prior to the final hearing. There is personal information about [W] that may need to be redacted and information that, if made available, may interfere with criminal proceedings.
As noted previously, the single expert is concerned that [the respondents] are not aware of the potential risk that [the father] poses to the subject children or their friends and the children of their own friends. There appears to be a culture within the paternal family that excuses or turns a blind eye to inappropriate male behaviour, and places blame on women. [The respondents] appear to be unaware of the extent of the abuse that [the father] is responsible for. They appear committed to the children’s safety and may be more careful if they are made aware of the facts once the facts are determined.
14.As a consequence of the recommendations of [Ms E], psychological assessments were directed to be undertaken in relation to both parents.
…
16A report was also undertaken by the same psychologist in relation to the mother. The expert opined in that report as follows:
14.3.3… At my examination, [the father] expressed guilt and shame for his sexual abuse of [W] and his previous lifestyle, whereas [the mother] did not express guilt, shame or regret about her poor care of the children, and attempted to minimise her drug and alcohol use and denied sexual abusing [W].
…
14.3.5 [The mother] attempted to re-establish regular contact with. the children by moving to New South Wales for 5 months but reported that access to the children was being obstructed by [the first respondent]. She now resides in Queensland with her partner and has regular supervised access to the children. [The mother] reported at examination that she expects to have the children return to her care but has recently returned a positive drug screen […], whereas [the father] has returned no positive drug screens recently.
14.3.6 It appears that [the mother] remains at greater risk of relapse […] and relies on [prohibited substances] to cope with stress yet denies having any symptoms currently and she returned normal profiles on the DASS-21 and PCL-5 rating scales.
14.3.7 It appears unlikely that [the mother] will return to New South Wales permanently. I agree with the recommendation by [Ms E] that the children should remain in the care of [the first respondent] and her partner. I have no concerns about [the father] harming the children via neglect, drug and alcohol abuse, or sexual abuse and would recommend that he have unsupervised access to his children on Wednesdays, Fridays and Sundays, which are his current visit days.
14.3.8 I would recommend that [the mother] continue to have supervised access until she provides consistently clear drug screens.
17.On 21 September 2022, I directed that the matter be listed for hearing for five days commencing today. I made a series of directions for the preparation of affidavits. In accordance with those directions, the mother filed her affidavits.
18.On 2 May 2023, my chambers was contacted by the Independent Children’s Lawyer (“the ICL”) seeking that the matter be relisted as the [respondents] had filed a Notice of Discontinuance. The ICL raised concerns that the father had not filed his affidavits and queried whether the matter could proceed to a final hearing.
19.On 5 May 2023, the matter was relisted and the [respondents] indicated that they had not filed their affidavits, and that they could no longer work with the mother and sought leave to withdraw from the proceedings. The father also sought an extension of time in which to file his affidavits. Leave to withdraw was granted to the [respondents].
20.On 16 May 2023, the father’s solicitors wrote to my associate advising of a new development, that the father had filed a Notice of Discontinuance and sought an urgent relisting. The matter was relisted on 17 May 2023. On that occasion, the father’s counsel indicated that his client was withdrawing from the proceedings. He indicated that documents produced under subpoena from Queensland Police revealed that there was a warrant for the father’s arrest for multiple charges arising out of the sexual assault of [W]. The father’s counsel indicated that the father had been unaware of the warrant or the charges.
21.At that same mention, the father’s sister and her partner indicated that they were reconsidering their position in relation to the hearing.
22.On that date, I made orders pursuant to s 91B of the Family Law Act 1975 (Cth) directed to the Department for Child Protection of South Australia (“the Department”) seeking that they intervene in the proceedings.
23.On 19 May 2023, the Department contacted my associate and indicated that they had no record in relation to the children but would need an adjournment of four to six weeks to make enquiries and provide information to the Court.
24.On that same day, the [respondents] contacted my associate and indicated that they intended to make an application to “rejoin the matter”.
CONCLUSION
25.The current situation for these children is very unsatisfactory. There is no evidence from the people who have been their primary carers for the last three years. The untested expert evidence from the Family Report writer and psychologist both recommend that the children remain in their care. They both express concerns in relation to both parents’ capacity. I note at this stage that evidence is clearly the subject of contest as far as the mother is concerned.
26.The relationship between the children’s carers and the mother has broken down. She asserts that they have denied her contact with the children between August 2022 and March 2023. In her Amended Initiating Application filed 1 May 2023, she seeks final orders for sole parental responsibility and that the children live with her. Her application also seeks various orders in relation the second and third respondents.
27.The mother has re-partnered. She says that she has commenced studying […] and that she has had a series of drug tests between August 2022 and March 2023, all of which have returned a negative result.
28.It would appear also that the [respondents] have relocated to Adelaide. This brings into focus the practicality of spending time arrangements between the children and the mother and the father.
SUBMISSIONS OF THE ICL
Counsel for the ICL submitted that the Court could not find that the mother posed an unacceptable risk of harm on the basis of the sexual assault allegations; that she has undertaken drug tests which would appear to indicate that she has been drug free for a substantial period of time; and that there has been some stabilisation in her personal life. She submitted that it is in the best interests of the children to move to an unsupervised time arrangement but that it occur in Adelaide subject to the mother’s compliance with testing. The testing, so it was submitted, ameliorated the risk in relation to drug use.
Counsel for the ICL submitted that the twice yearly proposal of the respondents’ was inconsistent with the children’s welfare at this stage.
SUBMISSIONS OF THE MOTHER
Counsel for the mother submitted that she has been prevented from communicating with the children because of the conduct of the respondents, that she has not used a certain illicit drug since September 2020, a different illicit drug since 2007 and that she has never used any other form of illicit drug. The mother said that she was, following the birth of the children, diagnosed with postnatal depression and did become depressed but has since ceased taking any medication, consistent with the psychological treatment of her health professionals. The mother takes issue with many of the factual conclusions reached by the psychologist in his report. She otherwise contended that it is the children’s best interests for them to resume a regular relationship with her outside the confines of supervision.
Counsel for the mother submitted that the Court could have no basis for concluding that she poses any risk of harm to the children from the sexual abuse allegations made by the children’s father. He submitted that the respondents previously agreed that a move to Adelaide would not impact on the mother’s time with the children and that they had agreed to travel to Sydney to ensure that it occurred.
SUBMISSIONS OF THE RESPONDENTS
The respondents submitted that the changes proposed by the mother would substantially unsettle the children from their current stable routine. They submitted that their proposal is in line with the recommendations of the single expert, Ms E, as well as with the report of the psychologist. They submitted that there has been no change in the current circumstances sufficient to warrant a departure from the existing regime at this stage. The respondents submitted that they have kept the mother regularly advised of the children’s progress by sending school reports and parent-teacher information as well as information as to when the children are sick. They dispute the mother’s allegations of parental alienation. They contended that it would not be appropriate for the mother’s time to be supervised by a family member.
The respondents contended that the mother has been disruptive in relation to their settled home life and that her demands have impacted considerably upon the stability of the children. They identified a number of occasions where they contended that they have been harassed by the mother. It is apparent from their affidavits that they do not accept the negative drug tests that the mother has submitted.
APPLICABLE LAW
Consistent with the provisions of s 69ZL of the Family Law Act 1975 (Cth) (“the Act”), I set out in short form my reasons.
This is an interim hearing and there has been no cross-examination. By virtue of that fact, I am unable to make findings in relation to the disputed facts. However, just because I am unable to determine or resolve a disputed fact and/or assertion does not mean that I ignore the allegations of risk.
In Marvel & Marvel (No. 2) (2010) 43 Fam LR 348 (which has been cited with approval by the Full Court in Eaby & Speelman (2015) FLC 93-654), the Court observed:
122.In SS & AH [2010] FamCAFC 13 the majority (Boland and Thackray JJ) discussed at [88] of their reasons the care necessary to be exercised in making findings in interim parenting proceedings. Their Honours said:
[88] 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.
123. Later, at [100] their Honours amplified their comments and said:
[100] 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.
In Adamson & Adamson [2018] FamCA 523, McClelland J (as he then was) observed:
50.It is to be observed that that reference in SS v AH to “probabilities” does not mean that the Court must find the probable existence of an unacceptable risk of harm before implementing measures to protect a child from that risk. It is clear that in assessing whether there is a risk that something may happen, “possibilities” are a legitimate basis for finding that there is such a risk, as long as there is a proper basis for those “possibilities”.
Parenting proceedings are governed by Pt VII of the Act.
Section 60CA of the Act provides that the Court is to regard the best interests of the child as the paramount consideration. Section 60B of the Act outlines the objects and principles underlying Pt VII.
In determining what is in a child’s best interests, the Court must consider the matters set out in s 60CC of the Act. Section 60CC outlines the primary and additional considerations that the Court is to take into account in determining what is in the best interests of a child.
The Full Court in Goode & Goode (2006) FLC 93-286 (“Goode”) set out the procedural steps in an interim application, noting that in interim proceedings there may be little uncontested evidence. Consistent with the guidelines outlined in Goode and to the extent relevant and necessary, I have in these reasons identified the competing proposals of the parties, the issues in dispute, and the contested facts.
PRIMARY AND ADDITIONAL CONSIDERATIONS
In applying the primary considerations, the benefit to the children of having a meaningful relationship with both parents is subservient to the need to protect the children from the risks and harms identified in the subsection.
A meaningful relationship “is one which is important, significant and valuable to the child” (Mazorski & Albright (2007) 37 Fam LR 518 at [26], cited with approval by the Full Court in Sigley & Evor (2011) 44 Fam LR 439).
Each of the parties would contend that the proposals they advance are such as to permit the children to have a meaningful relationship with the mother consistent with the children’s welfare. They differ as to how this can occur.
I am not satisfied that the respondents’ proposal is such as to enable the children to have a meaningful relationship with their mother. I am satisfied that the orders that I make for the time in which they will be operative are such as to ensure that the children are able to maintain a meaningful relationship with their mother.
In that respect, I am required when applying the primary considerations to give greater weight to the need to protect the children from risk and harm than to the benefit of the children having a meaningful relationship with their mother.
The risks of harm to the children are identified in the matters to which I have referred to earlier and in the following paragraphs of the Family Report:
223.…
[The mother] lives with her partner and daughter, [X] and [Y’s] half-sister. [The mother] said that the children have met [Mr O] and said that they got along well with him in the past. That was a long time ago and the children have never lived with [Mr O] before. They did not mention [Mr O] during interview. It would be an adjustment for everyone and the potential for success is unknown. Should the introduction of two small children in the home destabilise [the mother] and [Mr O’s] relationship, [the mother], [W] and the subject children’s housing stability would be at risk.
…
Added to the risk to the children’s housing stability, is the risks related to drug and alcohol use and the mental health of each parent.
…
225. …
[The mother] showed poor judgement in leaving [W] with [the father] and subjecting [W] to the dysfunction of the relationship for many years. She has used drugs and alcohol at the very least while breast feeding, and it is likely she did that while pregnant with [Y]. Her lifestyle has been unstable and while that seems harsh, given that her instability relates to the allegations made against her and her attempts to see the subject children, her future is uncertain, or at least not as certain as the children’s future might be with [the respondents].
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235. …
a. …
[The mother] tested positive for [a drug] in December 2020. She said during interview that she last used [an illicit drug] in September 2021. [The mother] may not have been honest about her drug use during interview, and if not, that does indicate future risk. The dysfunction of the relationship and historical deficits to parenting appear to have been exacerbated by drug and alcohol abuse.
One of the central issues in the determination before me is whether the order for supervision should be varied.
It has been clearly articulated it numerous authorities that the Court should not “lightly entertain an application to reverse” an earlier order unless it is satisfied that there are changed circumstances (in the sense that a new factor has arisen or some material factor was not disclosed at the previous hearing) which would justify the reversal (see Rice and Asplund (1979) FLC 90-725 (“Rice and Asplund”) at 78,095). It is sometimes inelegantly described as the rule in Rice and Asplund.
In Freeman and Freeman (1987) FLC 91-857, Strauss J said at 76-470–76-471:
… Once the court … has settled the question of custody, it is usually in the interests of the children that the order made by the court is treated as determining the dispute and be given the necessary support. Stability in the lives of children and also in the lives of adults is an essential prerequisite to their well-being. …
The Full Court considered the so called rule in Miller & Harrington (2008) FLC 93-383. Relevant passages from the majority judgment are set out in full below.
72. It may be, however, that neither the expressions “summary dismissal” or “striking out” is the best term to describe the procedure when, in a parenting case, the rule in Rice and Asplund is considered at a preliminary stage. This is because, as we seek to emphasise, at whatever stage the rule in Rice and Asplund is applied, the court is bound to take into account best interests considerations and also because specific requirements, including legislative requirements, apply.
73. The application of the rule occurs within proceedings to which the provisions of Division VII of the Act apply. More specifically, the application of the rule occurs as part of “child related proceedings” within the meaning of s 69ZM. Accordingly, the court hearing argument as to the application of the rule at a preliminary stage is bound to apply the provisions of Division 12A of the Act.
74. Included among the mandatory requirements upon a court are: the obligations to (as seen) “decide which of the issues in the proceedings require full investigation and which may be disposed of summarily” (s 69ZQ(l)(a)) and to “deal with as many aspects of the matter as it can on a single occasion” (s 69ZQ(l)(g)).
75. The provisions of s 69ZR(I ), empower the court to “make a finding of fact in relation to the proceedings”, to “determine a matter arising out of the proceedings” and to “make an order in relation to an issue arising out of the proceedings” if the court considers that “it may assist in the determination of the proceedings”. The section goes on to provide (s 69ZR(2)) that the court may do any of the matters mentioned “… at the same time as making final orders”.
76. The terms of s 69ZN of the Act, which set out the “principles for conducting child related proceedings” also apply to a hearing in which the rule in Rice and Asplund is applied at a preliminary stage. In particular, s 69ZN(3) and (5) provide:
(3) The first principle is that the court is to consider the needs of the child concerned and the impact that the conduct of the proceedings may have on the child in determining the conduct of the proceedings.
…
(5) The third principle is that the proceedings are to be conducted in a way that will safeguard:
(a) the child concerned against family violence, child abuse and child neglect; and
(b) the parties to the proceedings against family violence.
77. In SPS and PLS (2008) FLC 93-363, Warnick J held:
64..... in strict logic, if a judge is unable to determine on the papers if a change of circumstances, sufficient to embark on a fresh hearing of a parenting issue exists, then what the judge should embark upon is a hearing directed to that question, not one directed to “how the welfare of the children should best be served”.
65. However, ellipsis in logic or not, subsequent authority has clearly reiterated that if the rule is not applied as a preliminary matter, then the hearing that follows is a full hearing of the “custody dispute”.
78. Those statements can be seen to be supported by the earlier authorities referred to by his Honour. (See paras 66 - 68 of Warnick J’s judgment). Warnick J goes on to say:
69.… In reality, the facts that relate to the best interests of children per se and to the determination of such questions as whether there has been a change of circumstances of sufficient magnitude to justify a fresh consideration of parenting arrangements are likely to be identical or at least intertwined and to the extent that the facts are otherwise, they may well not be susceptible of identification or assessment for weight until all of the evidence bearing upon factors that relate to a child's best interests are before a court. The nature of the hearing that follows if the Rice v Asplund rule is not applied as a preliminary matter, as described by authority, may well be the wise and practical choice.
79. Later, Warnick J says:
81. Thus, in my view, when the threshold question described in Rice and Asplund is determined as a preliminary matter, it remains a determination “on the merits”. Where an application is dismissed at a preliminary stage, it is not dismissed for some technical reason, such as the failure of the party to appear or some lack of compliance with form and procedure, but rather because, assuming the evidence of the applicant is accepted, there is an insufficient change of circumstance shown to justify embarking on a hearing. Though sometimes unstated, the underlying conclusion will, or ought be, about the interests of the child in not being subjected to further litigation, is more powerfully in the child's welfare, than to allow the application to continue.
80. In our view, that passage need not be taken as saying that the only way in which the rule in Rice and Asplund can be applied at a preliminary stage is on the basis that the case of the applicant for parenting orders is taken at its highest.
81. Nor, as presently advised, do we think that the authorities cited by Warnick J in SPS preclude the possibility that, in a “preliminary” hearing for the purpose of ascertaining if an application for parenting orders should go no further because of the rule in Rice and Asplund, some resolution of factual disputes may occur, for example, whether a change of circumstances has or has not occurred.
82. However, the qualitative question of whether a change that has occurred is or is not sufficiently significant to justify a full further hearing of a parenting issue may be one much more difficult to answer in a preliminary hearing involving resolution of only some disputed facts.
83. This observation may be behind the approach that either the case of the applicant for parenting orders is, at a preliminary stage, taken at its highest, or the hearing embarked upon is an enquiry into all matters relating to the best interests of the child or children.
84. On the other hand, there is authority to suggest that these are not the only legitimate procedures. In Collivas & Cassimatis [2007] FMCAFam 293, Wilson FM, after noting that one party submitted that the other's application should be summarily dismissed as it did not overcome the threshold imposed by cases such as Rice and Asplund, said:
… questions arise as to the procedure to be adopted on this application. The first question is whether the threshold question should be decided as a preliminary issue, or whether there should be a full hearing of the evidence. The second question is, assuming that the threshold question is decided separately how the evidence adduced by the parties should be treated for the purpose of determining that issue. For example, if the Court looks only to the affidavit evidence adduced by the applicant and determines whether, on that material, the case should be allowed to go forward, then it seems to me that there is no point allowing the respondent to put on further affidavit evidence. On the other hand, if in determining the threshold issue the Court effectively conducts a mini-trial, then the respondent should be afforded the opportunity she seeks to adduce further evidence in reply to that served late by the applicant.
85. Among the authorities to which Wilson FM referred was King & Finneran (2001) FLC 93-079 at p 88,367 where Collier J said:
44. To apply the test in Rice and Asplund is to make an assessment on the material then available to the court as to whether or not the matters raised in that material make it necessary or proper in the best interests of the children, the subject of litigation, to allow further proceedings. …
86. Wilson FM also said, of the decision in L & L (1992) FLC 92-274, that the Full Court of the Family Court approved of the judge at first instance dealing with a question of whether to permit a re-opening of parenting issues as a preliminary issue and to restrict cross-examination accordingly. He said that, in that case, evidence was adduced from a court counsellor who was cross-examined and that the Full Court endorsed the approach taken in that case.
87. However, the learned Federal Magistrate continued:
18. What the cases do not make clear is the process that the court should follow if it decides the threshold question in advance on a preliminary basis. That is, should the application be dealt with as on a demurrer or strike out application, and the court only look at the material of the applicant and decide, on that material alone, whether, assuming it is accepted, there is sufficient evidence to warrant the earlier orders being revisited. Or should the court treat the application similarly to a summary judgment application, and look at the material of both sides, and decide whether there is a serious issue raised which justifies the earlier orders being revisited. Or should the court effectively conduct a trial on the preliminary issue, with evidence and cross examination on the alleged change in circumstances.
19. There is some guidance as to the approach to be adopted. In R & B H, supra, the use of language that the court should be left in no doubt that it is necessary to revisit the parenting orders supports a critical analysis of the applicant's material. Although the passage from King & Finneran seems to suggest that court looks at all material then available to the court, which encompasses the material from both sides, it seems to me that the court should logically follow a three step process, sequentially dealing with the three questions articulated in paragraph 18 above. Each case will vary of course as to the stage at which the decision can be made that there is/is not sufficient evidence to warrant a re-opening of the parenting issues. As the learned authors of Australian Family Law & Practice, Brown (sic) & Fowler, observe at [ 16-360], the Full Court of the Family Court has made it clear that the question of whether there were circumstances which required a reconsideration of a parenting issue might, but need not, be determined as a preliminary issue. However, the court may consider that in light of the alleged changed circumstances, it was more appropriate to consider all the facts of the case before deciding whether the changes (sic) circumstances existed. An applicant’s material might disclose no change in circumstance such that the application can be summarily dismissed without a respondent being required to put on evidence. An applicant’s material might raise the suggestion that there is a changed circumstance which requires investigation but after reading the respondent's material the court might be satisfied that there is nothing in the point raised. The court may, as a matter of discretion determine the threshold issue without testing the evidence. Alternatively there maybe contested issues of fact as to whether there are changed circumstances in which case a court may need to hear from witnesses and allow cross-examination.
88. In the following paragraph, Wilson FM set out passages from the decision of the Full Court of the Family Court in Saad and Saad (1993) FLC 92-332.
89. We refer to several of the paragraphs quoted, as they bear on the question under discussion:
(3) Although it may be inappropriate, and is often unhelpful, in proceedings in relation to the guardianship and custody of or access to a child, to treat either party as bearing an onus of proof in relation to the welfare of the child, where a party applies for the variation or discharge of an existing order of that kind that party bears at least a forensic onus of placing before the Court sufficient evidence of changed circumstances since the making of the existing order upon which the Court could be satisfied that it is in the interests of the welfare of the child to vary or discharge that order. (Rice and Asplund (1979) FLC J90- 725; Freeman and Freeman (1987) FLC 9 l-857.)
(Emphasis in original)
I am not satisfied in light of the expert evidence and all that has happened to these children in the last three years that there has been a change of circumstances that would warrant a reconsideration of the issue in relation to the supervision of the children’s time with their mother at an interim hearing. There is no new consideration that warrants a discharge at this stage of the supervision order. Even the proposal of the ICL contends that supervision should continue for a further four months. Implicit in that submission is that there remains a risk of harm that requires supervision.
In circumstances where I am compelled to act cautiously, I cannot ignore in this interim hearing the clear recommendations of the experts. I am not able to make findings in the absence of hearing from each of the experts that the lifting of supervision at this stage would be in the children’s best interests. I am not in a position whereby I am able to confidently disregard such risk of harm. As the authorities make clear, possibilities are a legitimate basis for a finding of risk.
One must always be cautious in interim proceedings about unintended consequences. It is for good reason that the authorities direct judges to act with caution. I am concerned about the degree of risk that is attenuated by the orders as proposed by the mother. I am concerned about matters in relation to the mother’s parenting capacity in light of the expert evidence. It may well be that the mother is able to demonstrate that there is no foundation for the concerns set out in the expert evidence. However, that will not be able to be substantiated until such time as there is a fulsome opportunity to address the expert evidence through cross-examination.
I am not, for the above reasons, satisfied that the children’s time should progress to unsupervised time in four months. Nor am I satisfied that at this stage there should be a lifting of professional supervision. It has the benefit of provision of a report which will be of importance at the final hearing in relation to the children’s relationship with their mother, their views, and her attitudes and parenting capacity.
In determining what is in the best interests of the children, I will now turn to the additional consideration so far as they are relevant.
The children are of an age where their views are not such to be able to be given weight.
I accept that both children have a relationship with their mother. They are clearly, at this stage, in a settled living arrangement with the respondents. There is a tacit admission by the mother of that event in circumstances where she seeks time only on a monthly basis. I also have to have regard to the consequence of the orders in circumstances whereby the children reside in Adelaide and the mother resides in Queensland. The orders therefore clearly have to be crafted to ensure that there is a practicality to them. In that respect, it is not practical that the children should have to travel to Sydney to spend time with the mother.
I am not satisfied that the respondents’ proposal of time with the children is in their best interests. It would appear from the evidence that the mother was seeing them through much of 2022 on a monthly basis. In the letter from their then solicitors dated 3 February 2023, the respondents said that they would continue to facilitate time for four hours each month (Exhibit 1). There is nothing that has changed since that date which suggests that such an arrangement should not otherwise continue.
A considerable focus for the purposes of interim proceedings is a consideration of the factors identified in s 60CC(3)(f) and (i), calling into focus the insight and capacity of the parties to place the children’s needs above their own and the attitudes of the parties to the responsibilities of parenthood. I have addressed this by reference to some of the evidence contained in the expert reports.
In Mulvany & Lane (2009) FLC 93-404, the Full Court constituted by May and Thackray JJ stated as follows:
76.It is important to recognise that the miscellany of “considerations” contained in ss 60CC(2) and (3) is no more than a means to an end. Self evidently, they are only matters to be considered. Of course, we accept they are of great importance, being the factors identified by Parliament as those the Court must take into account (when they are relevant). However, they must be applied in a manner consistent with the overarching imperative of securing the outcome most likely to promote the child’s best interests.
77.It needs also to be remembered that the importance of each s 60CC factor will vary from case to case. …
(Emphasis in original)
I am satisfied on the material before me that the primary consideration of the need to protect the children from a risk of harm is the most pressing and prevailing consideration and overwhelms any of the other matters that might otherwise be a relevant consideration within the terms of s 60CC(3).
This is a case all about risk. There is an extremely poor relationship between the parties, a high level of distrust and there are allegations of risk. I am not, within the confines of this hearing, able to resolve the competing allegations.
Consistent with the obligation to act cautiously, for the above reasons, I decline at this stage to make the orders the mother seeks for parenting orders. These matters will have to await a final hearing, which I note, as I indicated to the parties, will take place in December this year.
I am satisfied, however, that there needs to be made more specific orders for the children’s time with their mother. In that respect, I am satisfied that the children should see their mother on a more regular basis but that it should be supervised by a professional agency. I am satisfied that the orders of the ICL dealing with supervised time most accommodate that arrangement and so I propose to make such an order. I will also adopt the ICL’s recommendation and make an order for contact with the children every fortnight by video.
The mother was not opposed to the ICL’s orders for drug testing and I will make those orders. I regard the orders of the respondents as to the provision of information as appropriate and will make them.
For the reasons set out above, primarily addressing the question of the risk of harm, I am satisfied that the orders that I make are in the children’s best interests.
I certify that the preceding fifty (50) numbered paragraphs are a true copy of the Reasons for Judgment of the Honourable Justice Schonell. Associate:
Dated: 30 May 2023
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