HADEN & PAGET

[2018] FCCA 2511

FEDERAL CIRCUIT COURT OF AUSTRALIA

HADEN & PAGET [2018] FCCA 2511

Catchwords:
FAMILY LAW – Interim parenting – orders in the best interests of the children.

Legislation:

Family Law Act 1975 (Cth), ss.60B, 60CA, 60CC, 61DA, 65DAA, 69ZW

Cases cited:

Goode & Goode [2006] FamCA 1346

MRR v GR [2010] HCA 4

Applicant: MS HADEN

Respondent: MR PAGET

File Number: WOC 538 of 2018

Judgment of: Judge Altobelli

Hearing date: 6 July 2018

Date of Last Submission: 6 July 2018

Delivered at: Wollongong

Delivered on: 10 July 2018

REPRESENTATION

Solicitors for the Applicant: Reid Legal Pty Ltd

Solicitors for the Respondent: Willis & Bowring Solicitors

ORDERS

THE COURT ORDERS PENDING FURTHER ORDER THAT:

1. The Child [X] born 2015 (“the Child”) live with the Mother and that the Father return the Child to the Mother by no later than 6:00pm today.

2. The Child spend time with the Father at the Paternal Grandmother’s home each alternate weekend from Friday 5:00pm to Sunday 5:00pm.

3. Changeover for the purposes of Orders 2 occur at Suburb A McDonalds.

4. The first such contact visit will commence on Friday 20 July 2018.

5. The Child have telephone communication with the Father each Monday, Wednesday and Friday at 6:00pm when the Child is not already in his care, with such calls to be facilitated by the Mother telephoning the Paternal Grandmother’s telephone and handing the phone to the Child, such communication to commence 18 July 2018.

6. Each party refrain from making critical or derogatory remarks in relation to the other parent in the presence or hearing of the Child and that each party do all things necessary to ensure that no third party makes critical comments about the other party in the presence or hearing of the Child.

7. Both parents be restrained from consuming alcohol in the presence of the Children or for 24 hours before and during any period the Child is in their respective care, nor bringing the Child into contact with any other persons consuming or under the effect of alcohol or a prohibited drug.

8. For a period of 12 months from the date of these Orders and no more than once monthly the Mother shall submit to random supervised urine analysis within 24 hours of receiving a request from the Father, and to facilitate this Order:

   (a)Such urine analysis shall be conducted in accordance with the Australian/New Zealand Standard 4308:2008: Procedure for the collection, detection and quantitation of drugs of abuse in urine;

   (b)The urine analysis may screen for alcohol ETG and/or drugs of abuse including amphetamine-type substances and metabolites, cannabis and metabolites, cocaine and metabolites, opioids and metabolites and any other drug specified in this Order as required;

   (c)The Mother shall provide a copy of the results of such testing to the Father within 7 days of receipt of same.

   (d)Such request may be sent to the Mother care of her email address or text and shall be deemed received by the Mother at the date and time it was sent by email or text. The Mother is to provide the Father with her current telephone number and email address and any change to those contact details within 24 hours of the change.

9. The Mother, at the Father’s request, make an appointment and attend for hair collection at an Australian Workplace Drug Testing Services (“AWDTS”) Clinic or nominee for hair drug purposes. Collection is to be conducted by a qualified and certified collector. Chain-of-custody procedure is to be applied to the sample. Testing is to be conducted at an approved laboratory, accredited to conduct hair drug testing to the recognised International Standard ICO/IEC 17025:2005 by the relevant national accreditation body for that laboratory. Either head or body hair may be collected for testing. To give effect to this Order:

   (a)The Mother is required to maintain her head hair at a length of not less than 4 centimetres. Neither head hair or body hair is to be cut, bleached or dyed between the date of the Order and the time of collection of hair;

   (b)Within 72 hours of receiving the request by the Father, the Mother is required to make an appointment with AWDTS by telephoning for the purpose of providing a hair sample for hair drug and/or testing purposes;

   (c)Each party or their legal representative is at liberty to provide AWDTS with a copy of these Orders;

   (d)The Mother is to attend an AWDTS Clinic or nominee and submit to the supervised collection of a hair sample from the Mother at the earliest available appointment time within 7 days of receiving written notice to undertake hair collection for drug testing purposes from the Father or his legal representatives;

   (e)Written notice to undertake hair collection for hair drug testing purposes may be sent to the Mother care of the email address and/or text and shall be deemed to have been received by the Mother at the date and time it was sent via email or text;

   (f)The Mother is to provide the collector with photographic identification to be recorded before each hair collection and authority, with this order also hereby authorising AWDTS or nominee to provide the results of each test to both parties, the Father and the Mother and/or their legal representatives upon receipt of such test results;

   (g)The hair drug and/or alcohol test may screen for alcohol ETG and/or drugs of abuse including amphetamine-type substances and metabolites, cannabis and metabolites, cocaine and metabolites, opioids and metabolites and any other drug specified in this Order as required;

   (h)AWDTS is required to utilise the testing services of an appropriate laboratory accredited to conduct hair drug testing to the recognised International Standard ISO/IEC 17025:2005 by the relevant National Accreditation body; AWDTS selection is to be based on the type of test required, the specific drug to be tested, the laboratory’s compliance level with International Society of Hair Testing (“SOHT”) guidelines, cost and time required for results to be made available;

   (i)The cost of the hair alcohol and/or drug tests is to be met by the Mother;

   (j)The Mother is required to submit to hair alcohol and/or drug testing not more frequently than twice a year from the commencement of these Orders.

10. In the event that:

    (a)A hair alcohol and/or drug test or urine analysis of the Mother detects a substance referred to in these Orders other than a lawfully obtained current prescription or over the counter medication; or

    (b)The Mother fails to provide a hair sample or urine sample in accordance with these Orders within the time frame provided in these Orders; or

    (c)The Mother’s hair is not maintained as referred to in Order 8(a), then the matter is to be forthwith relisted by communication with Chambers.

11. The Mother do all things necessary to authorise Laboratory collection worker to immediately provide to the Father or his nominated Legal Representative, a copy of all reports setting out the details of the attendance by the Mother for analysis, any failure to attend by the Mother or to submit to any test and an indication of whether the test provided a positive or abnormal alcohol and/or drug screening result.

12. For a period of 12 months from the date of these Orders and no more than once monthly the Father shall submit to random supervised urine analysis within 24 hours of receiving a request from the Father, and to facilitate this Order:

    (a)Such urine analysis shall be conducted in accordance with the Australian/New Zealand Standard 4308:2008: Procedure for the collection, detection and quantitation of drugs of abuse in urine;

    (b)The urine analysis may screen for alcohol ETG and/or drugs of abuse including amphetamine-type substances and metabolites, cannabis and metabolites, cocaine and metabolites, opioids and metabolites and any other drug specified in this Order as required;

    (c)The Father shall provide a copy of the results of such testing to the Mother within 7 days of receipt of same.

    (d)Such request may be sent to the Father care of his email address or text and shall be deemed received by the Father at the date and time it was sent by email or text. The Father is to provide the Mother with his current telephone number and email address and any change to those contact details within 24 hours of the change.

13. The Father, at the Mother’s request, make an appointment and attend for hair collection at an Australian Workplace Drug Testing Services (“AWDTS”) Clinic or nominee for hair drug purposes. Collection is to be conducted by a qualified and certified collector. Chain-of-custody procedure is to be applied to the sample. Testing is to be conducted at an approved laboratory, accredited to conduct hair drug testing to the recognised International Standard ICO/IEC 17025:2005 by the relevant national accreditation body for that laboratory. Either head or body hair may be collected for testing. To give effect to this Order:

    (a)The Father is required to maintain his head hair at a length of not less than 4 centimetres. Neither head hair or body hair is to be cut, bleached or dyed between the date of the Order and the time of collection of hair;

    (b)Within 72 hours of receiving the request by the Mother, the Father is required to make an appointment with AWDTS by telephoning 1300 37 84 83 for the purpose of providing a hair sample for hair drug and/or testing purposes;

    (c)Each party or their legal representative is at liberty to provide AWDTS with a copy of these Orders;

    (d)The Father is to attend an AWDTS Clinic or nominee and submit to the supervised collection of a hair sample from the Father at the earliest available appointment time within 7 days of receiving written notice to undertake hair collection for drug testing purposes from the Mother or her legal representatives;

    (e)Written notice to undertake hair collection for hair drug testing purposes may be sent to the Father care of the email address and/or text and shall be deemed to have been received by the Mother at the date and time it was sent via email or text;

    (f)The Father is to provide the collector with photographic identification to be recorded before each hair collection and authority, with this order also hereby authorising AWDTS or nominee to provide the results of each test to both parties, the Mother and the Father and/or their legal representatives upon receipt of such test results;

    (g)The hair drug and/or alcohol test may screen for alcohol ETG and/or drugs of abuse including amphetamine-type substances and metabolites, cannabis and metabolites, cocaine and metabolites, opioids and metabolites and any other drug specified in this Order as required;

    (h)AWDTS is required to utilise the testing services of an appropriate laboratory accredited to conduct hair drug testing to the recognised International Standard ISO/IEC 17025:2005 by the relevant National Accreditation body; AWDTS selection is to be based on the type of test required, the specific drug to be tested, the laboratory’s compliance level with International Society of Hair Testing (“SOHT”) guidelines, cost and time required for results to be made available;

    (i)The cost of the hair alcohol and/or drug tests is to be met by the Father;

    (j)The Father is required to submit to hair alcohol and/or drug testing not more frequently than twice a year from the commencement of these Orders.

14. In the event that:

    (a)A hair alcohol and/or drug test or urine analysis of the Father detects a substance referred to in these Orders other than a lawfully obtained current prescription or over the counter medication; or

    (b)The Father fails to provide a hair sample or urine sample in accordance with these Orders within the time frame provided in these Orders; or

    (c)The Father’s hair is not maintained as referred to in Order 8(a), then the matter is to be forthwith relisted by communication with Chambers.

15. The Father do all things necessary to authorise Laboratory collection worker to immediately provide to the Mother or her nominated Legal Representative, a copy of all reports setting out the details of the attendance by the Father for analysis, any failure to attend by the Father or to submit to any test and an indication of whether the test provided a positive or abnormal alcohol and/or drug screening result.

16. The Mother and the Father attend upon a Drug and Alcohol Counsellor and attend any treatment prescribed by such Counsellor for as long as the counsellor deems fit and provide evidence of attended to the other party at their own costs.

17. The Mother and the Child are to remain living in the home of the Maternal Grandmother.

THE COURT FURTHER ORDERS THAT:

1. Pursuant to section 68L of the Family Law Act 1975 an Independent Children’s Lawyer be appointed for the Child [X] born 2015 and the Legal Aid Commission of New South Wales is requested to provide such representation. 

2. The parties are to provide to the Legal Aid Commission at PO Box K847, HAYMARKET NSW 1238 or DX 5 SYDNEY forthwith all documents thus far filed by them in these proceedings together with all existing orders and copies of any relevant reports.

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

4. Leave be granted to the Independent Children’s Lawyer to inspect and photocopy any documents produced on subpoena in these proceedings. 

5. Leave be granted to the Independent Children’s Lawyer to relist the matter on short notice by communication with Chambers in appropriate circumstances.

6. The matter be adjourned to 7 September 2018 at 9:30am for Mention.

7. Within 72 hours, the Maternal Grandmother is to provide a written undertaking to the Court that she will forthwith notify the Independent Children’s Lawyer and remove the Child from the Mother’s care if:

   (a)The Mother is under the influence of drugs or alcohol; or

   (b)The Mother brings the Child into contact with Mr S.

THE COURT NOTES THAT:

(A)These Orders have been amended on 20 August 2018 pursuant to rule 16.05(2)(g) of the Federal Circuit Court Rules 2001 (Cth) to show in order 13(i) the word “Father” in lieu of the word “Mother”.

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

FEDERAL CIRCUIT COURT
OF AUSTRALIA
AT WOLLONGONG

WOC 538 of 2018

MS HADEN

Applicant

And

MR PAGET

Respondent

REASONS FOR JUDGMENT

Introduction

1. The matter before me relates to [X], who was born on 2015. [X] is 3 years old.

Background

1. The Applicant in this case is [X]’s Mother. The material that she relies on is referred to in the case outline document that she filed in support of the Interim Hearing on 6 July 2018. In that case outline, quite apart from referring to the relevant documents that the Mother relies on, there is a useful chronology that sets out basic and relatively non-contentious biographical material which I will not read onto the record, but which I will simply incorporate into my Reasons for Judgment [at schedule one].

2. The Father likewise caused to be filed a case outline document. His was filed on 5 July. It, too, refers to the documents that the Father relies on. Both of those case outlines contain a number of submissions by way of outline. I have referred to all of those submissions. I have referred, of course, to the documents that have been filed by the parties. The matter came before me for Interim Hearing on 6 July 2018. Ms Reid appeared for the Mother, and Mr Fowler of Counsel appeared on behalf of the Respondent Father.

3. They both made very helpful submissions. A significant quantity of documents was tendered in evidence.

The Evidence

1. In the Mother’s case she relied on the following documents:

   a)Initiating Application filed 1 June 2018;

   b)Affidavit of Ms Haden filed 4 July 2018;

   c)Affidavit of Ms Haden filed 15 June 2018;

   d)Affidavit of Ms Haden filed 1 June 2018;

   e)Affidavit of Ms N filed 4 July 2018; and

   f)Notice of Risk filed by Ms Haden 4 July 2018.

2. In the Father’s case he relied on the following documents:

   a)Response filed 4 July 2018;

   b)Affidavit of Mr Paget filed 4 July 2018; and

   c)Affidavit of Ms A filed 4 July 2018.

3. The following documents were tendered as evidence during the proceedings:

   a)Documents produced in answer to s.69ZW Family Law Act 1975 (Cth) request on New South Wales Police.

4. What the Court has to decide is where [X] is going to live. She presently is with her Father, and in short, the Father’s proposal is that [X] continue to live with him and spend time with the Mother. Historically, though, there is no doubt that [X] has been primarily cared for by her Mother, and it is her Mother’s application that this is the order that the Court should make, that is to say return [X] to her care so that she can then resume spending time with the Father.

5. Briefly stated, this evidence is extensively set out in the materials before the Court. [X] made some disclosures in relation to what could be described as either sexual abuse or possibly a more benign interpretation is inappropriate behaviour that was perpetrated on her by a named person, Mr S, who was, it would seem, at the relevant time, the Mother’s partner. As a result of those disclosures, in short and without descending into the detail of how exactly it happened, [X] ended up in her Father’s care.

6. When all the evidence is considered very carefully, this case, even on an interim basis, is largely determined by reference to the two primary considerations, that is, protecting [X] from the risk of harm and ensuring that she has a meaningful relationship with both parents.

The applicable law

1. The applicable law is found in Part VII of the Family Law Act 1975 (Cth) (hereafter referred to as ‘the Act’). In determining parenting matters under Part VII of the Act the Court must regard the best interests of the child as the paramount consideration: s.60CA.

2. The objects and principles of Part VII are set out at s.60B:

   60B  Objects of Part and principles underlying it

   (1)     The objects of this Part are to ensure that the best interests of children are met by:

   (a)     ensuring that children have the benefit of both of their parents having a meaningful involvement in their lives, to the maximum extent consistent with the best interests of the child; and

   (b)     protecting children from physical or psychological harm from being subjected to, or exposed to, abuse, neglect or family violence; and

   (c) ensuring that children receive adequate and proper parenting to help them achieve their full potential; and

   (d)     ensuring that parents fulfil their duties, and meet their responsibilities, concerning the care, welfare and development of their children.

   (2)     The principles underlying these objects are that (except when it is or would be contrary to a child’s best interests):

   (a)     children have the right to know and be cared for by both their parents, regardless of whether their parents are married, separated, have never married or have never lived together; and

   (b)     children have a right to spend time on a regular basis with, and communicate on a regular basis with, both their parents and other people significant to their care, welfare and development (such as grandparents and other relatives); and

   (c) parents jointly share duties and responsibilities concerning the care, welfare and development of their children; and

   (d)     parents should agree about the future parenting of their children; and

   (e)     children have a right to enjoy their culture (including the right to enjoy that culture with other people who share that culture).

   (3)     For the purposes of subparagraph (2)(e), an Aboriginal child’s or Torres Strait Islander child’s right to enjoy his or her Aboriginal or Torres Strait Islander culture includes the right:

   (a)     to maintain a connection with that culture; and

   (b)     to have the support, opportunity and encouragement necessary:

   (i) to explore the full extent of that culture, consistent with the child’s age and developmental level and the child’s views; and

   (ii)     to develop a positive appreciation of that culture.

1. At the very core of Part VII of the Act is the creation of a presumption of equal shared parental responsibility in s.61DA. Section 61DA provides:

   61DA  Presumption of equal shared parental responsibility when making parenting orders

   (1)     When making a parenting order in relation to a child, the court must apply a presumption that it is in the best interests of the child for the child’s parents to have equal shared parental responsibility for the child.

   (2)     The presumption does not apply if there are reasonable grounds to believe that a parent of the child (or a person who lives with a parent of the child) has engaged in:

   (a)     abuse of the child or another child who, at the time, was a member of the parent’s family (or that other person’s family); or

   (b)     family violence.

   (3)     When the court is making an interim order, the presumption applies unless the court considers that it would not be appropriate in the circumstances for the presumption to be applied when making that order.

   (4)     The presumption may be rebutted by evidence that satisfies the court that it would not be in the best interests of the child for the child’s parents to have equal shared parental responsibility for the child.

2. If the presumption applies, the Court is required to consider certain things:

   65DAA Court to consider child spending equal time or substantial and significant time with each parent in certain circumstances

   Equal time

   (1)     If a parenting order provides (or is to provide) that a child’s parents are to have equal shared parental responsibility for the child, the court must:

   (a)     consider whether the child spending equal time with each of the parents would be in the best interests of the child; and

   (b)     consider whether the child spending equal time with each of the parents is reasonably practicable; and

   (c) if it is, consider making an order to provide (or including a provision in the order) for the child to spend equal time with each of the parents.

   Substantial and significant time

   (2)     If:

   (a)     a parenting order provides (or is to provide) that a child’s parents are to have equal shared parental responsibility for the child; and

   (b)     the court does not make an order (or include a provision in the order) for the child to spend equal time with each of the parents; and

   the court must:

   (c) consider whether the child spending substantial and significant time with each of the parents would be in the best interests of the child; and

   (d)     consider whether the child spending substantial and significant time with each of the parents is reasonably practicable; and

   (e)     if it is, consider making an order to provide (or including a provision in the order) for the child to spend substantial and significant time with each of the parents.

   (3) will be taken to spend substantial and significant time with a parent only if:

   (a)     the time the child spends with the parent includes both:

   (i) days that fall on weekends and holidays; and

   (ii)     days that do not fall on weekends or holidays; and

   (b)     the time the child spends with the parent allows the parent to be involved in:

   (i) the child’s daily routine; and

   (ii)     occasions and events that are of particular significance to the child; and

   (c) the time the child spends with the parent allows the child to be involved in occasions and events that are of special significance to the parent.

   (4)     Subsection (3) does not limit the other matters to which a court can have regard in determining whether the time a child spends with a parent would be substantial and significant.

   Reasonable practicality

   (5)     In determining for the purposes of subsections (1) and (2) whether it is reasonably practicable for a child to spend equal time, or substantial and significant time, with each of the child’s parents, the court must have regard to:

   (a)     how far apart the parents live from each other; and

   (b)     the parents’ current and future capacity to implement an arrangement for the child spending equal time, or substantial and significant time, with each of the parents; and

   (c) the parents’ current and future capacity to communicate with each other and resolve difficulties that might arise in implementing an arrangement of that kind; and

   (d)     the impact that an arrangement of that kind would have on the child; and

   (e)     such other matters as the court considers relevant.

3. Because s.65DAA refers to the best interests of the child, the Court must then go back to consider s.60CC which specifies how the Court must determine what is in a child’s best interests.

   Determining child's best interests

   (1)  Subject to subsection (5), in determining what is in the child's best interests, the court must consider the matters set out in subsections (2) and (3).

   Primary considerations

   (2)  The primary considerations are:

   (a)  the benefit to the child of having a meaningful relationship with both of the child's parents; and

   (b)  the need to protect the child from physical or psychological harm from being subjected to, or exposed to, abuse, neglect or family violence.

   Note:         Making these considerations the primary ones is consistent with the objects of this Part set out in paragraphs 60B(1)(a) and (b).

   (2A)  In applying the considerations set out in subsection (2), the court is to give greater weight to the consideration set out in paragraph (2)(b).

   Additional considerations

   (3)  Additional considerations are:

   (a)  any views expressed by the child and any factors (such as the child's maturity or level of understanding) that the court thinks are relevant to the weight it should give to the child's views;

   (b)  the nature of the relationship of the child with:

   (i)  each of the child's parents; and

   (ii)  other persons (including any grandparent or other relative of the child);

   (c)  the extent to which each of the child's parents has taken, or failed to take, the opportunity:

   (i)  to participate in making decisions about major long-term issues in relation to the child; and

   (ii)  to spend time with the child; and

   (iii)  to communicate with the child;

   (ca)  the extent to which each of the child's parents has fulfilled, or failed to fulfil, the parent's obligations to maintain the child;

   (d)  the likely effect of any changes in the child's circumstances, including the likely effect on the child of any separation from:

   (i)  either of his or her parents; or

   (ii)  any other child, or other person (including any grandparent or other relative of the child), with whom he or she has been living;

   (e)  the practical difficulty and expense of a child spending time with and communicating with a parent and whether that difficulty or expense will substantially affect the child's right to maintain personal relations and direct contact with both parents on a regular basis;

   (f)  the capacity of:

   (i)  each of the child's parents; and

   (ii)  any other person (including any grandparent or other relative of the child);

   to provide for the needs of the child, including emotional and intellectual needs;

   (g)  the maturity, sex, lifestyle and background (including lifestyle, culture and traditions) of the child and of either of the child's parents, and any other characteristics of the child that the court thinks are relevant;

   (h)  if the child is an Aboriginal child or a Torres Strait Islander child:

   (i)  the child's right to enjoy his or her Aboriginal or Torres Strait Islander culture (including the right to enjoy that culture with other people who share that culture); and

   (ii)  the likely impact any proposed parenting order under this Part will have on that right;

   (i)  the attitude to the child, and to the responsibilities of parenthood, demonstrated by each of the child's parents;

   (j)  any family violence involving the child or a member of the child's family;

   (k)  if a family violence order applies, or has applied, to the child or a member of the child's family--any relevant inferences that can be drawn from the order, taking into account the following:

   (i)  the nature of the order;

   (ii)  the circumstances in which the order was made;

   (iii)  any evidence admitted in proceedings for the order;

   (iv)  any findings made by the court in, or in proceedings for, the order;

   (v)  any other relevant matter;

   (l)  whether it would be preferable to make the order that would be least likely to lead to the institution of further proceedings in relation to the child;

   (m)  any other fact or circumstance that the court thinks is relevant.

The Case Law

1. In MRR v GR [2010] HCA 4, the High Court referred to s.65DAA(1) and said

   9.  Each of sub-ss (1)(b) and (2)(d) of s 65DAA require the Court to consider whether it is reasonably practicable for the child to spend equal time or substantial and significant time with each of the parents.  It is clearly intended that the Court determine that question.  Sub-section (5) provides in that respect that the Court "must have regard" to certain matters, such as how far apart the parents live from each other and their capacity to implement the arrangement in question, and "such other matters as the court considers relevant", "[i]n determining for the purposes of subsections (1) and (2) whether it is reasonably practicable for a child to spend equal time, or substantial and significant time, with each of the child's parents".

2. A little later in the judgment the High Court said:

   13.    Section 65DAA(1) is expressed in imperative terms.  It obliges the Court to consider both the question whether it is in the best interests of the child to spend equal time with each of the parents (par (a)) and the question whether it is reasonably practicable that the child spend equal time with each of them (par (b)).  It is only where both questions are answered in the affirmative that consideration may be given, under par (c), to the making of an order.

3. At [15] the High Court emphasised the need for a practical approach:

   15.    Section 65DAA(1) is concerned with the reality of the situation of the parents and the child, not whether it is desirable that there be equal time spent by the child with each parent. The presumption in s 61DA(1) is not determinative of the questions arising under s 65DAA(1). Section 65DAA(1)(b) requires a practical assessment of whether equal time parenting is feasible.

4. The Full Court’s decision in Goode & Goode [2006] FamCA 1346 provides some guidance about the interpretation of Part VII and the way to proceed in interim hearings.

   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.

   …

   72. In our view, it can be fairly said there is a legislative intent evinced in favour of substantial involvement of both parents in their children’s lives, both as to parental responsibility and as to time spent with children, subject to the need to protect children from harm, from abuse and family violence and provided it is in their best interests and reasonably practicable. This means where there is a status quo or well settled environment, instead of simply preserving it, unless there are protective or other significant best interests concerns for the child, the Court must follow the structure of the Act and consider accepting, where applicable, equal or significant involvement by both parents in the care arrangements for the child.

   …

   82. In an interim case that would involve the following:

   (a) identifying the competing proposals of the parties;

   (b) identifying the issues in dispute in the interim hearing;

   (c) identifying any agreed or uncontested relevant facts;

   (d) considering the matters in s 60CC that are relevant and, if possible, making findings about them (in interim proceedings there may be little uncontested evidence to enable more than a limited consideration of these matters to take place);

   (e) deciding whether the presumption in s 61DA that equal shared parental responsibility is in the best interests of the child applies or does not apply because there are reasonable grounds to believe there has been abuse of the child or family violence or, in an interim matter, the Court does not consider it appropriate to apply the presumption;

   (f) if the presumption does apply, deciding whether it is rebutted because application of it would not be in the child’s best interests;

   (g) if the presumption applies and is not rebutted, considering making an order that the child spend equal time with the parents unless it is contrary to the child’s best interests as a result of consideration of one or more of the matters in s 60CC, or impracticable;

   (h) if equal time is found not to be in the child’s best interests, considering making an order that the child spend substantial and significant time as defined in s 65DAA(3) with the parents, unless contrary to the child’s best interests as a result of consideration of one or more of the matters in s 60CC, or impracticable;

   (i) if neither equal time nor substantial and significant time is considered to be in the best interests of the child, then making such orders in the discretion of the Court that are in the best interests of the child, as a result of consideration of one or more of the matters in s 60CC;

   (j) if the presumption is not applied or is rebutted, then making such order as is in the best interests of the child, as a result of consideration of one or more of the matters in s 60CC; and

   (k) even then the Court may need to consider equal time or substantial and significant time, especially if one of the parties has sought it or, even if neither has sought it, if the Court considers after affording procedural fairness to the parties it to be in the best interests of the child.

Discussion

1. There are obvious limitations in an Interim Hearing, and yet the material before the Court is quite extensive. From that material, it’s possible to make the following observations. Firstly, there is a final ADVO in place against the Father. It was certainly a Final Order as at the date of the Hearing. There is no doubt that the Mother is the primary caregiver of [X] and has been since she was born, and this only changed on 29 May 2018. Each parent makes very serious allegations against the other about drugs and alcohol and family violence.

2. The Court notes that many of these allegations are inconsistent with the parties’ behaviour, particularly in the post-separation period where there was a spends time with arrangement that seems to have been implemented as if the issues about drugs and alcohol and family violence were of little consequence to the parents. Nonetheless, as I said in my first point, the fact that there is an ADVO made on a final basis is an objective fact that the Court must take into account. The Court notes that even though each parent raises quite serious issues about drugs and alcohol, the fact is that this can be managed by way of making orders for testing during the course of the conduct of this matter.

3. It is an objective fact that [X] has, in fact, made disclosures of sexual abuse or inappropriate conduct by a named person, that is, Mr S. The truth of those allegations cannot be determined, and, indeed, in accordance with the established law, it is not necessary for the Court to establish the truth. What the Court is dealing with and seeking to manage is risk to [X]. It should be noted, though, that the evidence before the Court establishes that Mr S denies those allegations.

4. The Mother asserts that her relationship with Mr S has ended. That is her evidence. Whilst the Father doubts this, there is actually no cogent evidence contrary to the Mother’s assertion. That which the Father refers to in his case as being information suggesting the relationship has continued is material in respect of which the Court can place no weight whatsoever. The significance of the continuation of the Mother’s relationship with Mr S is to be noted. If she continues in that relationship, the Father’s case for risk of harm to [X] is much stronger than it is if she has, as she asserts, ended that relationship.

5. It must be noted that there is no suggestion that the Mother herself presents a risk of sexual harm or inappropriate behaviour. That part of the risk was attributed to the former partner only. Amongst the evidence before the Court are documents produced under s.69ZW of the Family Law Act (supra). These documents are produced by the Department of Family Community Services and New South Wales Police and includes, for example, documents from the Child Abuse Squad that were prepared in the course of the JIRT investigation that was undertaken after [X] made her disclosures.

6. What is interesting about these documents is that they are not conclusive on the issue of whether the Mother continues the relationship with Mr S. At very best, they record an impression by one person, probably a JIRT officer, that the Mother had not ended her relationship with Mr S as at a certain time which was probably shortly after the disclosures were made. The representation of this person that is recorded in the documents does not speak of the present or the future, and it is, at its highest, a view that is based on knowledge held at a fixed point in time which has now passed.

7. The Court makes this observation because it was a significant part of the Father’s case that the Court needed to be concerned about the Mother’s ongoing relationship with Mr S, and the reference that I have just referred to in the documents seem to be basically the only independent material to support this contention. Firstly, in the orders proposed, there are restraints preventing the Mother coming into contact with Mr S. There is the fact that the Mother is living at the Maternal Grandmother’s home and that an order for [X] to live with her can be conditioned on the same. There is the fact that the Maternal Grandmother offers an Undertaking to the Court. All of these factors are protective factors against the risk of the Mother re-establishing her relationship with Mr S. The other protective factor must surely be that the Mother is to know that this Court would have no hesitation removing [X] from her care if she re-establishes any relationship or indeed contact or communication with Mr S.

8. The Mother must above all else prioritise protection of [X]; whatever reservations she might have about the truth of the disclosures. Another relevant factor is that both JIRT and the Department have closed their files. Another protective factor is that [X] is protected by an AVO against Mr S. The Court notes and does nothing more than simply note an hypothesis that the disclosure was, in fact, prompted by the Father or Paternal family.

9. This suggestion certainly permeates the Mother’s evidence. All the Court can say at this stage is that it cannot be excluded. The Court notes with interest, however, that the records suggest that [X] was experiencing a sore vagina due to a possible UTI, urinary tract infection, and possibly as a result of an injury that she suffered in a fall whilst jumping on a bed at home. That would explain part of [X]’s statement, and I quote, “wee hurts.” There is a plausible alternative explanation that has not been explored and the Court recognises indeed may not need to be explored. But the point is in the present context that even though disclosures have factually been made, the truth has not. And alternative hypotheses are available. 

10. There is a real risk in this case of elevating allegations against Mr S into something that it is not, namely, a proof. The records indicate indeed that it would be unfair to characterise [X] going into her Father’s care as a placement of some sort by the Department. The reality seems to be on a closer inspection of the relevant documents that the Mother could not be contacted at the relevant time. The Father was the authorised contact person, and hence, he picked her up from her pre-school.

1. The Court must, of course, undertake a risk assessment exercise. There are many potential risk factors in this case. But on an interim basis it would seem that the most significant risk that needs to be managed is the risk that is posed by Mr S rather than the Mother herself, except to the extent that the Mother would allow Mr S back into her life. But as recorded above, the protective factors in place or that can be put in place by orders are such that that risk, the Court believes, is a manageable one. All of these facts accumulate to lead to a conclusion that the risk to [X] is adequately met by returning her into the Mother’s care with the safeguards in place of the Orders that the Court will make.

2. There are sufficient concerns about both parents that warrant the appointment of an Independent Children's Lawyer, and I will make that Order. But also warrant a more fulsome consideration of the Father’s claims in this case. The Court wishes to emphasise to the parents that all it has decided is that for the time being [X] should be returned into the Mother’s care. That does not mean that the Father’s case has no merit. It just means that for the time being the Court regards that to be the best outcome for [X], having undertaken the risk assessment that it has. I will just make sure that we issue this order within the next hour.

3. And I am going to make the first such contact visit to commence on Friday 20 July. In other words, I am going to make sure that [X] stays with her Mother this weekend and then the contact resumes from there. I am then going to make Orders about telephone contact, derogatory remarks, drug testing, etcetera. I am going to bring you back for Mention in 8 weeks’ time, and I will get my Associate to get us a date for that. On that date we will have the Independent Children's Lawyer and we can talk about the future conduct of this case.

I certify that the preceding thirty-two (32) paragraphs are a true copy of the reasons for judgment of Judge Altobelli

Date: 11 September 2018

Schedule One – Mother’s Chronology

Date

Event

1993

Respondent Father born.

1993

Applicant Mother born.

2013

Parties commence a relationship

2015

[X] is born

December 2015

Mother alleges Father takes Mother’s car and refuses to return

It

September 2017

Parties separate after mother alleges father makes threats to kill

mother and child

29 October 2017

Father spends first time with child since separation at Paternal Great Grandmother’s home

Father makes threats to jump off a bridge

5 November 2017

Mother charged with driving unlicensed after her licence was

suspended due to unpaid fines, father attends mother’s home demanding to see evidence

8 November 2017

Mother alleges Father makes further threat to kill himself

3 December 2017

Mother alleges Father sends mother snapchat video of child
making threats mother is not going to see child again

7 December 2017

Mother and father discuss parenting arrangements but again Mother alleges father makes inappropriate comments to child
about going far away and not seeing her

20 December 2017

Mother asks father to sign a parenting plan, father refuses

Christmas 2017

Father due to have child 1pm Christmas Day until 26 December
2017 but refuses to return the child and mother finally able to collect the child on 29 December 2017

16 April 2018

Mother advises father she is in a new relationship

3 May 2018

Mother attends father’s home to collect child and Father notes
Mr S is in the car and does not like it

29 May 2018

JIRT investigate possible sexual abuse of the child by Mr S.
Child is sent home with father after child care centre fails to be
able to reach the mother

30 May 2018

Mother terminates relationship with Mr S

14 June 2018

Mother obtains referral for drug and alcohol counselling

19 June 2018

Provisional AVO made for the protection of the mother against
the father.

20 June 2018

Mother receives phone call from Mr J, mutual friend
of the parties offering to get the father to return the child if the ADVO is dropped

21 June 2018

Interim Orders made

21 June 2018 to 2 July
2018

Mother only able to speak with the child 4 times instead of each
night in accordance with the Interim Orders

23 June 2018

Mother spends time with child for the first time since 29 May 2018, child is sick with a cold
Mother receives a strange phone call from one of the father’s
friends asking to come over at 2am, mother refuses

27 June 2018

Final ADVO made ex parte for 2 years against the father in
favour of the mother in terms of Orders 1 (a), (b), (c), 2 and 7.

The father did not appear for the ADVO hearing. There is to be
no contact from the father to the mother and the father is unable to live in the same premises as the mother.

28 June 2018

Mother receives a phone call from police as the father has alleged she is harassing him, police take no action as mother is
able to make telephone calls as per Interim Orders

30 June 2018

Mother spends second of her allocated weekends with child,
child still sick

1 July 2018

Father sends paternal grandmother to collect child