HACHEY & WARD

[2016] FamCA 869

FAMILY COURT OF AUSTRALIA

HACHEY & WARD [2016] FamCA 869

FAMILY LAW – PARENTING – with whom a child lives with.

Family Law Act 1975 (Cth)

APPLICANT: Ms Hachey

RESPONDENT: Ms Ward

FILE NUMBER: CAC 1586 of 2016

DATE DELIVERED: 10 October 2016

PLACE DELIVERED: Canberra

PLACE HEARD: Canberra

JUDGMENT OF: Gill J

HEARING DATE: 10 October 2016

REPRESENTATION

SOLICITOR FOR THE APPLICANT: Phelps Reid Lawyers

COUNSEL FOR THE RESPONDENT: Mr Curtis

SOLICITOR FOR THE RESPONDENT: Leckie Law

Orders

1. The orders made in the Local Court at C Town on 4 October 2016 are discharged. 

2. The Recovery Order issued by the Local Court at C Town dated 4 October 2016 is discharged. 

3. Until further order, it is ordered that

   (a)The child, B, born … 2012, live with the applicant. 

   (b)The child spend supervised time with the respondent as agreed or ordered.

IT IS NOTED THAT

1. Arrangements for supervision have been conceded to be adequately met by nonprofessional supervision.

IT IS FURTHER ORDERED THAT

1. The supervisor in relation to the previous order shall be as agreed on the basis that the supervisor will be provided with a copy of the Reasons for these Orders. 

2. The parties are granted leave to relist this matter on 14 days’ notice in relation to the implementation of orders for the respondent to spend time with B. 

IT IS NOTED THAT

1. I have been advised that Ms D is available to undertake supervision on at least this coming Friday, 14 October 2016, and Monday, 17 October 2016, and may be available at an earlier time.

2. The respondent’s partner, Ms E, may attend during periods of time that the respondent spends with B.

IT IS FURTHER ORDERED THAT

1. The child, F, born … 2007, will live with the respondent and spend time with the applicant on a fortnightly basis from 12pm Friday until 4pm Tuesday commencing 21 October 2016. 

2. F will spend such further time with the applicant as may be agreed between the applicant and the respondent in writing. 

3. Changeovers to facilitate time in accordance with these orders are to occur with the applicant or respondent collecting the child from the applicant/respondent’s home at the commencement of their time, unless otherwise agreed.

4. The applicant and the respondent are to keep the other advised of all significant medical appointments arranged for the children and in the case of an emergency they are to advise the other as soon as is possible. 

5. This order is to act as an authority to the children’s treating medical practitioners to enable them to advise the parties of the children’s medical information. 

6. Neither party is permitted to denigrate the other parent in the presence of or within the hearing distance of the children.  In the event that a third party denigrates the other parent in the presence of the children the parent present is to remove the children from the vicinity of the denigrating third party. 

7. Neither party is to speak to either of the children in relation to the conduct of these Court proceedings other than to advise what the Court orders say can or cannot happen.

8. The applicant and the respondent are permitted to have liberal telephone and Skype communication with the children.

9. For the purposes of the telephone and Skype order the respondent will make F available for Skype communication with the applicant between 5:30pm and 6:00pm each day and the applicant will make B available for Skype communication with the respondent between 5:00pm and 5:30pm each day.

10. The applicant is restrained from leaving either of the children alone with her father Mr Hachey.

11. Pursuant to s 69ZW(1) of the Family Law Act 1975 the Court orders and directs the Department of Family and Community Services (“the agency”) provide to the Newcastle Registry of the Family Court of Australia within 14 days all documents and information in the agency’s possession or control about any the following:

    (a)Any notification to the agency of suspected abuse of the child/ren B, born … 2012, and F, born … 2007, or any of them:

    (b)Any notification of suspected family violence affected the above child/ren or any of them;

    (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;

12. In complying with this order it is not necessary that material identifying the person who made a notification be produced and to that end it is sufficient to produce documents and information with any material that may identify such a person being blanked out or otherwise made unreadable.

13. At the time of the delivery of the documents to the Court the Agency is to advise the Registry Manager in writing as to whether the documents contain material that may identify a person who made a notification.

14. In the event that the documents or information identifies the person who made a notification no access to the material is allowed pending further order of the Court.

15. In the event that the documents or information do not identify a person who made a notification, 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 otherwise than pursuant to an order of the Court;

    (b)The material may be photocopied on the basis that all copies are to remain within the control of the legal representatives of the parties, the Independent Children’s Lawyer and any report writer with such copies to be destroyed or returned to the Court at the end of the appeal period following the finalisation of the proceedings;

    (c)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.

16. Pursuant to s 69ZW(1) of the Family Law Act 1975 the Court orders and directs the New South Wales Police Service (“the agency”) (as a State Agency prescribed by Regulation 12CD/schedule 9 of the Family Law Regulations) 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 the child/ren B, born … 2012, and F, born … 2007, or any of them:

    (b)Any notification of suspected family violence affected the above child/ren or the parties Ms Hachey, born … 1973, and Ms Ward, born … 1970, or any of them;

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

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

17. In complying with this order it is not necessary that material identifying the person who made a notification be produced and to that end it is sufficient to produce documents and information with any material that may identify such a person being blanked out or otherwise made unreadable.

18. At the time of the delivery of the documents to the Court the Agency is to advise the Registry Manager in writing as to whether the documents contain material that may identify a person who made a notification.

19. In the event that the documents or information identifies the person who made a notification no access to the material is allowed pending further order of the Court.

20. In the event that the documents or information do not identify a person who made a notification, 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 otherwise than pursuant to an order of the Court;

    (b)The material may be photocopied on the basis that all copies are to remain within the control of the legal representatives of the parties, the Independent Children’s Lawyer and any report writer with such copies to be destroyed or returned to the Court at the end of the appeal period following the finalisation of the proceedings;

    (c)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.

21. Pursuant to s 68L of the Family Law Act 1975 an Independent Children’s Lawyer be appointed for the B, born … 2012, and F, born … 2007, and the Legal Aid Commission of New South Wales is requested to provide such representation.

22. The parties are to provide to the Solicitor in Charge of the Family Law Section, Legal Aid Commission of NSW (Newcastle Office) forthwith copies of all documents thus far filed by them in these proceedings together with all existing orders and copies of any relevant reports.

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

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

25. 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.

26. The costs of and related to the proceedings today are reserved. 

27. This matter be transferred to the Newcastle Registry of the Family Court of Australia to be listed on a date to be notified.

IT IS NOTED THAT:

1. Consideration is to be given on the next occasion as to the addition of another party, being the biological father of the children, Mr Bilson.

   
   
   

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

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

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

FAMILY COURT OF AUSTRALIA AT CANBERRA

FILE NUMBER: CAC 1586 of 2016

Ms Hachey

Applicant

And

Ms Ward

Respondent

EX-TEMPORE REASONS FOR JUDGMENT

1. The proceedings commenced, although it is uncertain precisely how, with an Application before the Local Court in C Town for parenting orders in relation to the two children of the relationship F, born in 2007, and B, born in 2012.  At about the same time documents were filed in the Canberra Registry of the Federal Circuit Court, although the Registrar of the Court determined that the proper court for that filing was the Family Court of Australia.  Orders issued from the C Town Local Court making interim arrangements in accordance with a parenting plan that the parties had previously entered into although not formulated into a binding form, and issuing a Recovery Order in respect of B, being a Recovery Order directed to the Applicant in these proceedings Ms Hachey.  It is unclear in which court proceedings were first filed.  Prior to the matter coming before me today, 10 October 2016, the matter came before Judge Hughes of the Federal Circuit Court.  Judges Hughes made what have been conceded to be temporary orders that dealt with the operation of the Recovery Order staying its operation. 

2. Before me today leave was sought, and not opposed, for the filing in this registry of an appeal against the orders made by the Local Court in C Town. Pursuant to s 69 of the Family Law Act 1975 such an appeal is conducted on a de novo basis and the parties have both agreed that I dispose of the appeal today on a de novo hearing of the matter that was before the C Town Local Court.  The orders made by the Federal Circuit Court in Canberra on 5 October 2016 are the subject of a question posed on behalf of the respondent as to whether or not they were ultra vires the authority of that Court.  Those orders will have run their course whether or not they were made without power, to come to an end upon the hearing of this appeal.  That is, once the appeal has been determined they will have no further effect, even without resolving the question as to whether or not they were made ultra vires in the first place.  I note that I am not hearing an appeal from Judge Hughes’ orders. 

3. The background of this dispute comes from a relationship between Ms Hachey and Ms Ward, being a relationship that occurred between 2002 and 2014. During this relationship each of the applicant and the respondent had a child to a common biological father. He has not as yet been joined in these proceedings which is a matter which will require further consideration. The applicant is the mother of B and the respondent is the mother of F. Each concedes that the other falls within the description set out at s 65C of the Family Law Act 1975 being a person concerned with the care, welfare or development of their respective biological child. On what I understand of the case to date each of the parties has functioned as a parent for each of the two children.

4. The parties have brought competing applications on the de novo hearing that involve procedural matters, the interim arrangements for each of the children and a question of whether or not a Recovery Order ought issue.  While the applicant sought no orders in respect of F it appeared common at the hearing of the matter that each of the parties thought that it was appropriate that F should spend substantial and significant time with the applicant.  Until recently the parties arranged their time with the children generally in accordance with the Parenting Plan they agreed to in March 2016 although it is unclear how closely they adhered to that Parenting Plan.  The affidavit for the applicant sets out some departure from that plan being a plan that would involve B spending six nights per fortnight with the respondent and the balance with the applicant and F spending eight nights per fortnight with the respondent and the balance with the applicant.  The arrangements as set out by the applicant in her affidavit indicated four nights per fortnight for B with the respondent and a seven / seven sharing of F.  The difference between the parties in relation to this particular matter is not a matter that I need to resolve at this interim stage of the proceedings, other than to say either is indicative that each of the parties spent substantial and significant time with each of the children. 

5. In September of this year the applicant retained B during a period of time that she was due to spend time with the respondent.  This is on the basis of matters that are principally set out at paragraph 16 of her affidavit, affirmed 29 September 2016.  The bulk of the matters that have been set out by the applicant involve an issue as to whether or not B has been sexually dealt with by the respondent.  A large number of the matters set out in the affidavit contain a level of ambiguity that potentially bear a quite innocent explanation, although could also be consistent with B being sexually dealt with.  However, one aspect of paragraph 16 of that affidavit, being paragraph 16(l) does not bear the same level of ambiguity.  I will set out that sub paragraph in full because of the importance that it bears in the resolution of today’s proceedings.  It is as follows:

   On 20 September 2016, at 9:00am, once again in the presence of my mother and with my mother listening, [B] and I had the following conversation:

   [Ms Hachey]: “Would you like to talk about the secret game again?”

   [B]:                “No”

   [Ms Hachey]: “It’s okay to tell.  Why don’t you show me what happens?”

   [B]:“I lie down on my side like this.”  I observed her to lie on her right hand side.

   “And [Ms Ward] licks here.”  She pointed to near the crack of her bottom.

   [Ms Hachey]: “Where do you play it?”

   [B]:“In the living room.”

   “[Ms Ward] takes my clothes off.”

   [Ms Hachey]: “All your clothes?”

   [B]:“Yes.  I lie on my side like this – ” indicating her right hand side “ – and [Ms Ward] licks here.”

   She pointed to the outside of her bottom crack.  She continued

   “Then I do this.”

   I observed her to lie on her belly.

   “[Ms Ward] licks here.”

   I observed her to point to the outside edge of her bottom crack and then point to between her legs, moving her hand from the crack to the anal area. 

   She then said

   “[Ms Ward] licks my head.  [Ms Ward] is cleaning me.”

   I stayed very calm and did not comment or ask her any further questions.

6. If paragraph 16(l) is accurate and truthful it raises a strong question of a risk of sexual abuse by the respondent upon B.  That is a risk that is highly contentious in today’s proceedings.  The respondent has denied conducting herself sexually towards B and has pointed to a series of innocent explanations.  The respondent has further pointed to significant questions about the veracity of the applicant in making the claims including the claims set out in paragraph 16(l).  In summary, these questions as to the veracity include questions raised by the timing of the making of the complaint, including its proximity to the period of time at which the parties were to review their arrangements for parenting, the failure by the applicant to raise the issues promptly, the taking of no issue in relation to F’s wellbeing at the hand of the respondent, the conduct of a JIRT interview of B which has resulted in no criminal proceedings being undertaken against the respondent and that there is no evidence to suggest that DOCS are taking any action in this matter. 

7. I was taken to a chronology of events by counsel for the respondent who carefully assessed the evidence before me.  That chronology is as follows:

   a.June 2016 constitutes a point at which B lay naked upon the applicant’s day bed in a manner troubling to the applicant that was not raised with the respondent.

   b.13 July 2016 B, on the description of the applicant, commenced licking toys apparently around the bottom area of the toys behind the tail.  Again this was a matter that was not raised with the respondent until September 2016. 

   c.On 7 September 2016 the applicant says that B licked a toy rabbit in that fashion.  Again that was not raised with the respondent.

   d.On 8 September 2016 the respondent says is the first occasion that the matters were raised with her, but that B suggesting that her own bottom be licked was not a matter that was raised with her.

   e.On 15 September 2016 the applicant sought some psychological advice followed on 17 September 2016 with further discussion by the applicant, but no report made by her to authorities.

   f.On 19 September 2016 F was sent home to the respondent ahead of time in spite of the allegations that ultimately were raised in respect of B’ wellbeing.  It is notable that there are still (at the time of the proceedings) no concerns expressed as to F’s wellbeing.  It was pointed that the absence of concerns, expressed in particular being due to F’s older age, (she is eight years old), and an ability to self-protect should not be accepted as reasonable explanations for the failure to exhibit concern about F in the light of the concerns expressed about B. 

   g. On 22 September 2016 the applicant sought further psychological advice and contacted lawyers.

   h.On 27 September 2016 JIRT conducted their interview, at which there was no disclosure.

   i.On 28 September 2016 there was an agreement on the part of the applicant to return B to the respondent. 

1. These chronological matters and, in addition, the assertions in relation to the applicant suffering from anxiety, were put to me to be matters which undermined the veracity of what was asserted by the applicant.  In addition to that, the respondent points to some counter-risks.  The first of these is the harm that may be occasioned to B by reason of her having her relationship with the respondent damaged and potentially having the respondent alienated from B and further, the effects upon both B and F of being separated from each other.  The respondent sensibly observes that if the disclosures outlined in particular the disclosure at 16(l) as outlined are in fact falsehoods that there is a grave risk of alienation of B from the respondent. 

2. Counsel for the respondent characterised the three key s 60CC issues as being a risk to the meaningful relationship between B and the respondent, secondly the risk of harm to B as alleged against the respondent and thirdly the risk to the sibling relationship. 

3. I pause here to note that in exchanges with counsel I identified the primary considerations as covering the first two of these matters. 

4. On reflection s 60CC(2)(a) refers to meaningful relationship with both of the child’s parents.  Parents there bears the meaning biological or adoptive parents. However given the background of the children in this case, while the respondent may not be the biological mother of B and the applicant may not be the biological mother of F, each has functioned as though they were a parent and so of the additional considerations the nature of that relationship looms as a large consideration under s 60CC(3)(b).

5. On hearing further submissions from counsel during the giving of the reasons, having identified that it did not strictly fit within s 60CC(2)(a), it remained that this threefold identification of issues from counsel for the respondent is a sensible characterisation of the issues and not one departed from by the legal representative for the applicant. 

6. For the applicant it was put that there is a need for the Court to act protectively.  This was a notion that was also supported by counsel for the respondent and is an implicit recognition of s 60CC(2A) which for the primary considerations mandates the Court giving greater weight to the consideration set out in paragraph (2)(b), that is the protection of children from harm.  For the applicant it was put that there could be supervised time spent between the respondent and B but that that would not require professional supervision although particulars of the arrangements could not be identified as enquiries are still being made at the time of the hearing.  It was conceded for the applicant that as early as the end of the week could mark a time at which time between B and the respondent could be facilitated via supervision in the C Town region. 

7. This is a de novo hearing of the interim arrangements that will govern both B and F.  I am to apply the principles under the Act as set out in the case of Goode and Goode.

8. Paragraph 82 of Goode and Goode sets out generally the procedure to be taken in relation to an interim hearing.  The first is the identification of the competing proposals of the parties.  I have already set these out.  For completeness I would note that the respondent seeks orders that would provide for, if I understand the orders correctly, approximately equivalent time being spent by both B and F with each of the applicant and respondent.  The applicant seeks orders that would provide for supervised time between B and the respondent and seeks a resumption of time with F. 

9. Secondly, I am to identify the issues in dispute at the interim hearing.  As I have said they primarily resolve down to three matters being the risk to the meaningful relationship between the respondent and B, the risk to harm to B and the risk to the sibling relationship between F and B.

10. I am to identify any agreed or uncontested relevant facts.  There are few such agreed matters, although it is clear that B and F were spending substantial and significant time both with each of the applicant and respondent and with each other prior to September of this year. 

11. I am to identify the matters in s 60CC that are relevant and if possible make findings about them, noting the character of interim proceedings which may allow little uncontested evidence to enable more than a limited consideration of those matters. 

12. Matters (e) to (j) of [82] of Goode sets out matters that relate to the pathway which is inapplicable in this case given that the parties are not the parents of one each of the children. 

13. Paragraph (k) of [82] of Goode sets out the general consideration of best interests and time that is to be spent.  In examining the facts Goode also cautions about the role that the Court can undertake at an interim hearing.  I quote from [68] of Goode

    68.      In our view some of the comments of the Full Court in paragraph 18 are still apposite.  For example, 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. 

14. This caution does not relieve me from determining orders that are in the best interests of each of the children in the interim.  However, those best interests are to be determined in the light of what are uncertain facts at this point. 

15. The pivotal matter in this case I have determined is the question of risk as exemplified by the contents at paragraph 16(l) that I have set out earlier.  If what is contained in that paragraph is correct and I note that I cannot at this stage determine whether or not it is correct, then despite the very careful submissions to contextualise what is put there, identifying potential weaknesses in the case, it is indicative of a strong, unacceptable risk of harm to B if there is unsupervised time between the respondent and B.  That is a risk which requires protection of B.  However, at the same time if what is put at paragraph 16(l) is not correct, in particular if it is a falsehood, then it strongly points to harm of the relationship between B and the respondent which in turn is likely to be harmful to B. 

16. As to the third element identified, that is the risk to relationship between B and F of them being separated this is a matter which appears to be ameliorated by the fact that each of the parties has indicated that there should be substantial and significant time between F and the applicant. 

17. On what are at this stage quite uncertain facts, I have determined that I need to give a heavy weight to the protection of B from potential harm but also to the preservation of the relationship between B and the respondent in the meantime.  The appropriate balance to be struck on interim proceedings is for supervised time. 

18. The concession has been made that professional supervision is not required, I accept that if it is an agreed person, that will provide sufficient protection under the current circumstances.  However, there is almost no evidence before me, if any evidence at all, as to what arrangements can be put in place in relation to supervision.

19. At present that limits the scope of the orders that can be made for supervision, however I note that what is being represented on the part of the applicant is that that supervised time can occur as early as the end of this week and no later than Monday of next week. 

I certify that the preceding twenty-six (26) paragraphs are a true copy of the reasons for judgment of the Honourable Justice Gill delivered on 10 October 2016.

Associate:

Date:  12 October 2016