Gorman and Gorman & Anor

[2016] FamCA 454

FAMILY COURT OF AUSTRALIA

GORMAN & GORMAN AND ANOR [2016] FamCA 454

FAMILY LAW – CHILDREN – Interim Orders - with whom a child lives non parent - parental responsibility non parent - where consideration is given to the best interests of the child - where need to protect the child from harm - orders made for the father to spend professionally supervised time with the child

Family Law Act 1975 (Cth)

APPLICANT: Ms Gorman

FIRST RESPONDENT: Mr Gorman

SECOND RESPONDENT: Ms Fuller

DATE DELIVERED: 7 June 2016

PLACE DELIVERED: Canberra

PLACE HEARD: Canberra

JUDGMENT OF: Gill J

HEARING DATE: 7 June 2016

REPRESENTATION

SOLICITOR FOR THE APPLICANT: Mr Marsh, Robinson & McGuinness

SOLICITOR FOR THE FIRST RESPONDENT: Self-represented

SOLICITOR FOR THE SECOND RESPONDENT: No attendance

Orders

1. Pursuant to s 65C of the Family Law Act 1975 (Cth) (the Act) the applicant be declared to be a person concerned with the care, welfare or development of the child, B, born … 2014 (the child).

2. Pursuant to s 91B of the Act the Court requests that the Director-General of the Australian Capital Territory Community Services Directorate intervene in these proceedings.

3. Pursuant to s 69ZW(1) of the Act the Court orders and directs the Director-General of the ACT Community Services Directorate and the Department of Family and Community Services (New South Wales) to provide to this Court within 14 days all documents and information held by them about one or more of the following:

   (a)Any notification to the agency of suspected abuse of B, born … 2014.

   (b)Any notification of suspected family violence involving the above child.

   (c)Any assessment by the agency of investigations into a notification of suspected abuse or family violence, and the findings and outcomes of those investigations.

   (d)Any reports commissioned by the agency in the course of investigating a notification.

4. To comply with this order and with s 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 is to be blanked out or otherwise removed or obliterated from the document/s to be produced.

5. That material produced to the Court pursuant to any order under s 69ZW is to be produced to the Chambers of Justice Gill and will thereafter be held in the subpoena and exhibits section of the Canberra Registry of the Family Court of Australia and the legal representatives for the parties, any self-represented party and any Independent Children’s Lawyer or report writer appointed pursuant to s 62G or Chapter 15 of the Family Law Rules 2004 are authorised to inspect such material subject to the following:

   (a)       The material cannot be photocopied without specific order of the Court;

   (b)Any use or disclosure of the information contained within the documents produced, other than use in the conduct of the case before this Court, is not permitted.

6. For the purposes of Order (3) the names and birth dates of the parties and the child are:

   (a)       The applicant, Ms Gorman, born … 1971

   (b)       The respondent father, Mr Gorman, born … 1991

   (c)       The respondent mother, Ms Fuller, born … 1992; and

   (d)       The child B, born … 2014.

7. Pursuant to s 68L of the Act an Independent Children’s Lawyer be appointed for B, born … 2014 and the Legal Aid Commission of the Australian Capital Territory is requested to provide such representation.

8. The parties are to provide to the Canberra office of the Legal Aid Commission of the Australian Capital Territory at 2 Allsop Street Canberra City ACT 2601 or GPO Box 512 Canberra ACT 2601 forthwith copies of all documents thus far filed by them in these proceedings.

9. Leave is granted to the Independent Children’s Lawyer to issue such subpoena as they consider relevant to the issues before the Court.

10. Leave is granted to the Independent Children’s Lawyer to have photocopy access to all documents produced on subpoena in these proceedings.

11. Leave is granted to the Independent Children’s Lawyer to re-list the matter on short notice by communication with the Court in Chambers in appropriate circumstances.

12. The applicant and the father attend the Canberra Registry of the Family Court for a Child Dispute Conference at 9:30am on 28 June 2016.  I direct that the mother, Ms Fuller, may attend the Child Dispute Conference by telephone and I request that the NSW Correctional Authorities make such facilities available to her in order to enable her to attend in such a manner.

IT IS ORDERED, UNTIL FURTHER ORDER, THAT:

1. The applicant have sole parental responsibility for B. 

   (a)The applicant is to advise the father in writing (which may be by text message) of any significant health issues involving the child or of the placing of the child into day care.  The applicant is not required to disclose the name or location of the day care.

   (b)It is noted that the terms of the Domestic Violence Order do not prevent the father from responding to such communications in writing as long as they are in relation to the welfare of the child.

2. The child shall live with the applicant.

3. The applicant shall make the child available to spend professionally supervised time with the father once per week, or as otherwise agreed in writing between the applicant and the father.  This order does not require the applicant to fund professionally supervised time, nor to organise professionally supervised time. 

IT IS NOTED THAT:

1. A suggestion has been made that Children and Youth Services may be able to provide some form of supervision facility. 

IT IS ORDERED, UNTIL FURTHER ORDER, THAT:

1. The father is prohibited from consuming any alcohol or illicit drugs while spending time with the child and in the 24 hours prior to spending time with the child.

IT IS ORDERED THAT:

1. The matter is otherwise adjourned to 5 July 2016 at 10am for further directions.  I direct that the mother may attend the directions listing by telephone and I request that the NSW Correctional Authorities make such facilities available to her in order to enable her to attend in such a manner.

2. I direct that the father file and serve a Response and any material he seeks to rely upon by close of business Thursday 30 June 2016.

3. I direct that the mother file a Response and any material she proposes to rely upon by close of business Monday 4 July 2016.

4. Pursuant to s 62B and s 65DA(2), the particulars of the obligations these orders create and the particulars of the consequences that may follow if a person contravenes these orders, and details of who can assist parties to adjust to and comply with an order, are set out in the document entitled Parenting orders - obligations, consequences and who can help, a copy of which is annexed to these orders.

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

FAMILY COURT OF AUSTRALIA AT CANBERRA

FILE NUMBER: CAC 854 of 2016

Ms Gorman

Applicant

And

Mr Gorman

First Respondent

And

Ms Fuller
Second Respondent

REASONS FOR EX TEMPORE JUDGMENT

1. These proceedings have been commenced by Ms Gorman and concern the child, B, born in 2014.  The child is almost two years old.  The other parties to the proceedings are Mr Gorman, the child’s father. 

2. Mr Gorman appeared on these proceedings having been served with documents the previous week.  The further party is Ms Fuller, the mother of the child.  The evidence indicates that Ms Fuller is currently at C Correctional Centre. 

3. Ms Fuller was not present however Exhibit A1 provides evidence suggestive that she is aware of the proceedings.  I am prepared to accept on the strength of Exhibit A1 that Ms Fuller has notice of the proceedings.  I make no findings as to whether or not she was able to participate in these proceedings today. 

4. In order for the applicant to properly be an applicant in the proceedings it is necessary that she fall within s 65C of the Family Law Act 1975 (the Act) as a person concerned with the care, welfare or development of the child. 

5. The evidence suggests that she has been involved at least intermittently with the child since he was born, although for a period of time the child lived outside the Australian Capital Territory (the ACT).  Since July 2015 the child has returned to the ACT and it appears that again Ms Gorman has been intermittently involved. 

6. From the evidence contained in her affidavit she has been supportive of the father in his care of the child (I do not yet know whether this is accepted by the father or not) having assisted in the provision of accommodation.  In particular since 8 February 2016 she has been involved primarily in the care of the child that is the child has lived with her since that time.  Accordingly, I find that she is a person concerned with the child’s care, welfare or development and is a proper applicant in this case.

7. The matter comes before the Court at reasonably short notice, the father having very little notice of the proceedings.  Ms Gorman’s proposal are set out in Minute of Orders Sought by the Applicant, that was handed up to me today and marked Exhibit A2, she seeks that the Director-General of the Australian Capital Territory Community Services Directorate intervene in the proceedings, seeks orders pursuant to s 69ZW and importantly seeks orders that she have sole parental responsibility for the child (until further order) that the child lives with her (until further order) and that he has professionally supervised time with his father.  She further seeks restrictions on the father’s consumption of alcohol or illicit drugs. 

8. The father does not oppose the child living with the applicant temporarily.  He articulates a longer term position that he should have full custody of the child, meaning that he wants the child to live with him.  He further accepts that in the short term the applicant can exercise sole parental responsibility for the child, although he wishes to be notified of matters concerning the child’s health and issues such as attendance at day care. 

9. While the applicant suggests that there be fortnightly time between the child and his father she has indicated through her solicitor that she is content with a higher frequency than this.  The father would like to see the child weekly (that is not to say he would not like to see the child more than that), the father does not want that time to be supervised and does not appear to have the capacity to fund supervision. 

10. The father is agreeable to an order preventing him from the consumption of alcohol or illicit drugs while he is spending time with the child and for a period of 24 hours prior to spending time with the child.  He asserts to the Court that he is currently clean, which I understand to be an assertion that he is not currently using illicit drugs. 

Parental Responsibility

1. I am required to consider the allocation of parental responsibility on an interim basis.  Section 61C of the Act provides that each parent has parental responsibility subject to orders from the Court.  The applicant seeks that I vest her with sole parental responsibility.  Section 61DA provides for a presumption of equal shared parental responsibility when making parenting orders.  This presumption does not apply, pursuant to s 61DA(2) if there are reasonable grounds to believe that a parent of the child has engaged in abuse of the child or family violence.  The presumption also does not apply if I consider that it would not be appropriate to apply it in the circumstances of these interim proceedings. 

2. At present I am unable to determine whether a parent has engaged in abuse of the child or has engaged in family violence.  However, the material filed on behalf of the applicant raises the issue.  In particular paragraphs 20 and 76 of the applicant’s affidavit and paragraph 44 of that affidavit raise the issue of family violence directed towards the mother, other family members and the child.  At present given the nature of the proceedings I am unable to determine if this raises reasonable grounds to believe that this behaviour has been engaged in.  However, given the interim nature of these proceedings, the circumstances of this case, in particular being that primary care has been effected by the applicant for some months, material including annexed Facebook posts and text messages which are suggestive of a high degree of instability on the part of the father I determine that it is not appropriate to apply the presumption in the circumstances of these interim proceedings. 

3. I note that this determination is made in a context that this matter will return shortly to the Court once the father and mother have been given further opportunity to participate in the proceedings. 

4. I turn to s 60CC factors.  The primary factors deal with the child having a meaningful relationship with both of his parents and the protection of the child from physical or psychological harm from being subjected to or exposed to abuse, neglect or family violence.  Given the short term nature of these orders, I do not regard them as having deleterious effect on the maintenance of a meaningful relationship between the child and either of his parents.  That is, even if the child was to spend no time with either of his parents for the duration of these Orders it would not impact upon the meaningfulness of his relationship with his parents.  In any event, it appears unlikely that even absent orders the mother would be able to spend time with the child.

5. The key issue is the protection of the child as set out in s 60CC(2)(b) and as prioritised in s 60CC(2A) of that provision.  The matters that I have set out in relation to the non-application of the presumption of equal shared parental responsibility I also rely upon in assessing the need for the protection of the child.  While these matters are unresolved on an interim basis, in particular the annexed Facebook posts and text messages lead me to conclude that the protection of the child has priority at this stage.  In turning to the balance of the s 60CC factors the most prominent of those at this early stage of the proceedings is s 60CC(3)(d) which relates to the likely effect of any changes in the child’s circumstances.  He is presently separated from each of his parents but consistently in the care of the applicant.  A change to that arrangement at this point in time, where there is no clear alternative is not in his interests. 

6. Section 60CC(3)(e) is also significant which relates to the practical difficulty and expense of the child spending time and communicating with a parent.  The applicant has sought orders for supervised time.  The matters referred to in relation to s 60CC(2)(b) lead me to conclude that supervision is appropriate at this point.  This may change dependant on further material which comes before the Court on the next occasion.  However, the nature of the material, in particular the nature of the uncontrolled aggression described in relation to the father leads me to conclude that professional supervision is required at this point.  I am concerned that there is little capacity to fund such professional supervision although it appears on the material that Children and Youth Services have previously provided a supervision for the father.  I cannot determine whether the applicant has capacity to pay and I cannot determine whether the father has capacity to pay.  However I do not place the burden of funding professional supervision upon the applicant at this stage.

7. Sections 60CC(3)(j) and (k) also have applicability to the interim disposition of these proceedings.  In particular there is a family violence order as annexed to the applicant’s affidavit which is directed to the father for the protection of the applicant.  It does not, at this stage, involve the child directly.   I have noted that it would accommodate the father’s concern to be kept in the loop regarding the health and care arrangements for the child, as long as these are affected in writing. 

8. I find that at present it is in the child’s interests that the applicant have sole parental responsibility.  I will place an obligation upon her to keep the father advised in writing (via text message) of significant health issues for the child and as to the fact that the child may have been placed in day care.  I do not require the applicant to advise the location of the day care. 

9. It is also in the child’s best interests to live with the applicant at this stage.  The evidence raises the risk that the father is at present highly unstable, although I concede that this is an interim determination made without having heard from the father precisely what his circumstances are.  I anticipate that the father will bring evidence before me on the next occasion to advise precisely what his circumstances are in terms of his stability. 

10. Likewise it is in the child’s interests to spend some time with his father, if this can be organised, but subject to it being professionally supervised.  Further, it is in the child’s interests that any such time he spends with his father be under the condition that the father not consume alcohol or illicit drugs at that time or for a period of 24 hours prior to that. 

I certify that the preceding twenty (20) paragraphs are a true copy of the reasons for judgment of the Honourable Justice Gill delivered on 7 June 2016.

Associate:

Date:  8 June 2016