HARDIN & GIFFORD

[2019] FCCA 1110

FEDERAL CIRCUIT COURT OF AUSTRALIA

HARDIN & GIFFORD [2019] FCCA 1110

Catchwords:
FAMILY LAW – Interim parenting – risk of harm to child.

Legislation:

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

Cases cited:

Goode & Goode [2006] FamCA 1346

Insley & Insley [2018] FCCA 438

MRR v GR [2010] HCA 4

Applicant: MS HARDIN

Respondent: MR GIFFORD

File Number: WOC 543 of 2017

Judgment of: Judge Altobelli

Hearing date: 5 April 2019

Date of Last Submission: 5 April 2019

Delivered at: Wollongong

Delivered on: 11 April 2019

REPRESENTATION

Solicitors for the Applicant: Williamson Isabella Lawyers

Solicitors for the Respondent: RMB Family Lawyers Wollongong

Solicitors for the Independent Children's Lawyer: Acorn Lawyers

ORDERS

1. The Child [X] (born … 2009) live with the Respondent Father.

2. The Child [Y] (born … 2001) live with the Applicant Mother.

3. The Child [X] have telephone contact with the Mother once per week for a period of 4 weeks, on a day and time agreed between the parties, and failing agreement between 5:00pm - 8:00pm on a Tuesday with the Mother to contact the Child on the Father’s mobile phone.

4. After 4 weeks of consistent telephone contact in accordance with Order 3 above, the Child [X] spend supervised time with the Mother in accordance with this Order and Orders 5 – 6 below, provided that the Mother is not under the influence of any illicit drug(s) or alcohol:

   (a)Once per fortnight for a period of one hour, on a day and time agreed between the parties or as nominated by the supervised Contact Centre, and failing agreement between 10:00am - 11:00am on a Sunday; and

   (b)For a period of one hour on special occasions including the Child’s birthday, Easter, Mother’s Day and Christmas at a time agreed between the parties and failing agreement between 5:00pm - 6:00pm; or

   (c)At other such time as agreed between the parties in writing (including by SMS).

5. Pending the availability of CatholicCare Town A, the Child’s time with the Mother in accordance with Order 4 above be supervised by:

   (a)Contact Services in Town A (at the expense of the Mother); or

   (b)the Respondent’s parent/s (Mr B and/or Ms C).

6. Upon CatholicCare Town A’s ability to act as supervisor, the Child’s time with the Mother take place in accordance with that availability for one hour per fortnight in accordance with Order 4 above.

7. Within 7 days, the Mother and Father do all things necessary, sign all documents required and attend all assessments required to undertake the intake assessment for Contact Centre.

8. To facilitate the Mother spending time with the Child pursuant to Order 4 and 6, the Mother and the Father are each to:

   (a)Contact CatholicCare at Town A, within 48 hours of the making of these Orders and make an application for CatholicCare's supervised children’s contact service;

   (b)Provide all information and complete all necessary paperwork as may be requested by CatholicCare;

   (c)Attend any intake or assessment appointments as may be requested by CatholicCare on such days and times as nominated by CatholicCare; and

   (d)Comply with any other reasonable request or direction of CatholicCare for the purpose of implementing these Orders.

9. To facilitate the Mother spending time with the Child pursuant to Order 4 and 6, the Father is to:

   (a)Ensure that the Child attends any intake or assessment appointments as requested by CatholicCare on such days and times as nominated by CatholicCare (including on school days); and

   (b)Ensure that the Child attends on each occasion that the Child is scheduled to spend supervised time with the Mother as nominated by CatholicCare.

10. The Mother and the Father are to share equally any costs of CatholicCare’s supervised contact service (at the relevant concession or non-concession rate) including, but not limited to, any costs associated with their initial intake assessments and any intake assessments or appointments attended by the Child.

11. These Orders operate as the authorisation of both parents to CatholicCare to provide any Independent Children's Lawyer that has been or may be appointed in these proceedings with any information about the parents’ engagement with their supervised contact service or the progress of supervised time that the Independent Children’s Lawyer may require.

12. In the event CatholicCare cannot provide a supervised contact service to the parents and/or service is refused or sought to be varied, the Independent Children’s Lawyer has liberty to re-list this matter upon 7 days’ notice to the other parties and to the Court.

13. The Mother undertake (by provision of urine screen in accordance with the Australian/NZ standard 4308:2008 or any subsequent approved standard) chain of custody urinalysis for drug screening on no more than one occasion each calendar month and within 48 hours of receipt of a request to do so from the Independent Children’s Lawyer with such request to be communicated by email, SMS communication or facsimile transmission to the Solicitor for the party or the party directly and provide copies of the results of the tests to the other party and the Independent Children’s Lawyer within 48 hours of receipt of same. For the purposes of this order each party if unrepresented shall within 24 hours provide to the Independent Children’s Lawyer details of their mobile phone number, email address if available and facsimile phone number if available.

14. The Applicant Mother be restrained from collecting the Child [X] from school.

15. The paternal grandparent/s will bring and return the Child [X] to the required location for the purpose of the Child spending time with the Mother.

16. The parties communicate only by email or text message except in the case of an emergency.

17. Each of the parents are permitted to liaise directly with the Child’s school(s), sporting bodies and/or extra-curricular organisation to obtain any necessary information about the Child’s progress, copies of school reports and that both parents are to authorise the school(s), sporting bodies and/or other organisation to facilitate this.

18. The parties sign all documents to allow the school to provide copies of all school reports, newsletters and other information to both parents.

19. The Father shall ensure the Mother is kept informed as soon as is reasonably practicable of:

    (a)Any medical problems or illness suffered by the Child [X], whilst in the care of the Father;

    (b)Any medication that has been prescribed for the Child [X];

    (c)Any specialist medical appointments with any medical doctor, psychiatrist, psychologist, counsellor or therapist regarding the Child [X];

    (d)Any social, school or religious functions which the Child [X] is to attend;

    (e)The residential address of the Father;

    (f)The telephone contact number of the Father;

    (g)Any other matter relevant to the welfare of the Child [X].

20. The Mother shall ensure that the Father is kept informed as soon as is reasonably practicable of:

    (a)Any medical problems or illness suffered by the Child [X], whilst in the care of the Mother;

    (b)Any medication that has been prescribed for the Child [X];

    (c)Any specialist medical appointments with any medical doctor, psychiatrist, psychologist, counsellor or therapist regarding the Child [X];

    (d)Any social, school or religious functions which the Child [X] is to attend;

    (e)The residential address of the Mother;

    (f)The telephone contact number of the Mother;

    (g)Any other matter relevant to the welfare of the Child [X].

21. The parties shall enrol and attend a Parenting After Separation course as provided by Relationships Australia or Unifam or such other suitable provider and provide a Certificate of completion.

22. Neither party be permitted to remove the Child [X] from the Commonwealth of Australia.

23. Both parents are to refrain from making critical or derogatory remarks about each other or members of each other’s families in the presence or within the hearing of the children; and both parents are to do all things reasonably necessary to ensure that no other person makes any critical or derogatory remarks about either parent or members of their families in the presence or within the hearing of the Child [X].

24. Each party is restrained from discussing with the Child the Court proceedings, adult issues and issues regarding the parenting arrangements.

25. The matter be adjourned to 25 July 2019 at 9:30am for Mention.

THE COURT NOTES THAT:

A.The purpose of the Mention is to review the progress of the Mother’s time with [X] and to consider the issue of Expert evidence.

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

FEDERAL CIRCUIT COURT
OF AUSTRALIA
AT WOLLONGONG

WOC 543 of 2017

MS HARDIN

Applicant

And

MR GIFFORD

Respondent

EX TEMPORE REASONS FOR JUDGMENT

1. This case is about [X].  [X] is 9 years old.  He currently lives with his Father and has limited time with his mother.

2. The Applicant is [X]’s mother.  She is 36 years old.  She describes herself as a tradesperson and she lives in Town D.  The Respondent is [X]’s father.  He is 37 years old.  He describes himself as a professional and lives in Town E.  They commenced cohabitation in 2000 and separated in 2009. 

3. [Y] is their other child.  She is 17 years old and lives with the Mother.  There is no dispute about [Y] continuing to live with her mother.

4. On 21 November 2018, I suspended the Orders that were made on 10 July, which provided that [X] was to spend time with his father, and I instead ordered that [X] live with his father.  This reversed the existing Orders and arrangements that saw [X] living with his mother since the date of separation in 2009.

5. The competing proposals are as follows:  the Mother seeks the Minute of Order that is set out in her solicitor’s Case Outline, dated 4 April 2019.  She proposes that [X] return to live with her and spend time with the Father alternate weekends, on school holidays and special days, as set out in her Minute. 

6. The Father proposes the Orders set out in his Response to an Application in a Case, filed 29 November 2018.  Those Orders propose that [X] lives with the Father and spends supervised time with the Mother. 

7. The proposal advanced by the Independent Children’s Lawyer at the interim hearing basically was to support the Orders proposed by the Father. 

8. The issue for the Court is where should [X] live and what time he should spend with the other parent.  There was a substantial body of evidence before the Court.  The Mother’s Case Outline refers to the materials that she relied on.  The Father’s did likewise.  The Independent Children’s Lawyer’s Case Outline also set out the materials relied on and a substantial volume of documents have been subpoenaed and tendered in evidence.  I mention that it took many hours to review the materials relied on by the parties.    

9. An important preliminary observation needs to be made about the evidence before the Court.  The Father’s affidavit of 29 November 2018 and the maternal grandmother’s affidavit, filed in support of the Father’s case, contain many serious allegations against the Mother and [Y].  Despite the fact that the Mother filed an affidavit on 5 March 2019, no attempt is made by the Mother to respond to these allegations.  It is a peculiar – indeed perhaps extraordinary – feature of this case. 

10. The maternal grandmother and Father gave evidence about certain key events that explain how and why [X] came into the Father’s care, and events subsequent to that, which explain why he remained there.  As it turns out, the Father and the maternal grandmother’s allegations received quite a measure of support from the subpoenaed documents.  But even if that were not the case, the Court would be entitled to place reliance on the facts asserted by the Father and the maternal grandmother, on the basis that they were not put into contest by the Mother.

11. Moreover, documents produced by New South Wales Housing and the Department of Family and Community Services indicate that the Mother was evicted from Property D, the address that she gives on all of her affidavits, including the latest affidavit, that is 5 March 2019, with such eviction having taken place on 31 January 2019. 

12. The appalling conditions in which the Mother lived immediately prior to her eviction are manifest from this material.  And yet nowhere on the Mother’s evidence does she refer to this, nothing at all.  On 5 March 2019, she represented to the Court that she lived in a property that she had been evicted from.  The essence of the Mother’s case is that the Court should order [X] to return to her care, in circumstances in which the Court knows absolutely nothing about where [X] would be living if that order were made.

13. These are serious omissions in the Mother’s case.  No explanation is given on her behalf.  No adjournment was sought on her behalf.  She persisted, nonetheless, in an application which, given the gross deficiencies in her evidence, was probably doomed to fail.  Indeed, as will become apparent, it did fail.

14. The applicable law is contained in part VII of the Family Law Act. I will set out some of the relevant provisions here. The Full Court’s decision in Goode & Goode and my own decision in a matter called Insley & Insley [2018] FCCA 438 sets out a number of relevant paragraphs that I will simply incorporate into these, my reasons for judgment.

15. The applicable law is found in Part VII of the Family Law Act (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.

16. 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.

17. 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.

18. 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.

1. 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.

2. 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".

3. 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.

4. 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.

5. 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.

6. The relevant paragraphs in Insley are as follows: 

   [61] This Court is in a very difficult position.  Whilst all the material before the Court can be closely scrutinised, the fact is that the evidence has not been tested and, in reality, cannot be tested for many months, simply because of the demands on the Court’s time from other cases.  The Supplementary Written Submissions proposed by Mr Knox SC highlight the evidentiary issues and emphasise the importance of credit, even in an interim hearing. 

   [62] If the Court believes that there is substance to the Mother’s concerns, it is more likely to accept her proposal to remain in Melbourne, and to thus focus on what is the most appropriate arrangement for X to spend time with his Father and paternal family, but in Melbourne.  If the Court accepts the Mother’s concerns about family violence and abuse, it is unlikely to accede to a proposal that involves the Mother and X to the (omitted), even if all the financial issues are satisfactorily addressed by the Father.  The Court accepts that whether there is an objective basis for the Mother’s fear or not to bring her back to the (omitted) where she would be alone, and completely financially dependent on the Father, is merely likely to re-traumatise her, at least from her perspective.

   [63] In Goode & Goode the Full Court warned against making findings of fact where findings are not possible.  The Court did not rule out making findings of fact and, it must be remembered that findings can be made on the basis of uncontested matters, or admissions.  To the extent, moreover, that findings may be differentiated from inferences, inferences may certainly be drawn from all of the material available before the Court.

   [64] Senior Counsel for the Father quite properly referred the Court to the Full Court’s decision in Goode & Goode.  Of course there have been later Full Court decisions that suggest in that, particularly in cases where there are allegations of family violence, a more nuanced approach is warranted.  For example, the Full Court in SS & AH [2010] FamCA 13 at [100] noted that sometimes judges will have little alternative but to weigh the probabilities of competing claims and the likely impact on children in the event that a controversial assertion is acted upon or rejected.  The Full Court stated that it is not always feasible when dealing with the immediate welfare of children simply to ignore an assertion because its accuracy has been put in issue.  Nonetheless, the Full Court warned, findings must be couched with circumspection. 

   [65] The Full Court in Marvel & Marvel (No.2) [2010] FamCAFC 101, in referring to its earlier decision in SS &AH stated at [120] that decision-making in interim proceedings is difficult, and thus a conservative approach is warranted, or one which is likely to avoid harm to a child.

   [66] In Reece & Reece [2011] FamCAFC 24, the Full Court warned at [76] about the consequences of failing to have regard to expert evidence simply because it was untested in cross-examination.  In that case the evidence was a Family Report.  In this case, of course, it is a Child Dispute Conference Memorandum.

   [67] In Deiter & Deiter [2011] FamCAFC 82, at [54] the Full Court suggested that s.60K (now s.67ZBB) of the Act signalled a clear policy imperative of ensuring that allegations of family violence are treated seriously and dealt with expeditiously.  In an ideal world, these allegations could be dealt with at a discreet issues hearing, or an expedited final hearing.  In reality, in a registry of this court where almost all of the cases involve allegations of family violence, neglect, abuse, drugs or alcohol and mental health, neither a discreet issues hearing, nor expedition is possible.  It is nonetheless imperative that allegations of family violence are treated seriously.

   [68] At [61] in Deiter, the Full Court discussed risk analysis:

   The assessment of risk is one of the many burdens placed on family law decision makers.  Risk assessment comprises two elements – the first requires prediction of the likelihood of the occurrence of harmful events, and the second requires consideration of the severity of the impact caused by those events.  In our view, the assessment of risk in cases involving the welfare of children cannot be postponed until the last piece of evidence is given and tested, and the last submission is made.  We accept, however, that it is always a question of degree depending on the evidence that is before the Court.

   [69] The Full Court at [77] noted that it is not open to a trial judge to simply ignore an allegation because it had not been tested.

   [70] The Full Court in Enmore & Smoothe [2014] FamCAFC 131 at [39] explained that a finding of risk of abuse may be reached on the basis of evidence which falls short of that required for a finding that abuse has occurred.  However, that is not to suggest that evidence aimed at establishing a possible risk of abuse should not be subject to careful scrutiny, since serious consequences can also flow from a finding that a child is at risk of abuse.

   [71] In 2015, the Full Court in Eaby & Speelman [2015] FamCAFC 104 at [18] expressly stated that the comments of the Full Court at [68] in Goode did not mean that merely because the facts are in dispute the evidence on the topic must be disregarded and the case determined solely by reference to the agreed facts.  Moreover, at [21] the Full Court recognised:

   Much of what occurs in families takes place in private, as a consequence of which corroboration is often not available.  It follows that the absence of corroborating evidence does not necessarily undermine a person’s evidence on that topic.

   [72] In Salah & Salah [2016] FamCAFC 100 the Full Court in 2016 focused on s.60CG, which requires a Court when considering what parenting order to make, to ensure that whatever order is made, it does not expose a person to an unacceptable risk of family violence.  Again, trial judges were reminded in that judgment that corroboration or objective support for allegations is not always necessary, especially because family violence often takes place in private in circumstances where no corroboration is available.

7. I turn now to discuss the evidence and how the law applies to the same.  The case against the Mother was neatly summarised by the Independent Children’s Lawyer.  There are significant concerns about the Mother’s drug use, and real issues about her capacity to meet the physical needs of [X], all of which are simply unaddressed in the Mother’s evidence.  Moreover, there are real concerns about returning [X] into an environment where he would not only be cared for by his mother, but live in the same accommodation, whatever that is, as his sister [Y], who, to use the colloquial, appears to be out of control and seemingly egged on by her mother, rather than sought to be controlled.

8. The objective evidence adequately supports the submission made by the Independent Children’s Lawyer.  When the chronology contained in the Independent Children’s Lawyer’s Case Outline, dated 22 March 2019, and the summary of subpoenaed documents prepared by the Independent Children’s Lawyer and marked ICL2, are cross-referenced to the source documents and the affidavits of the Father and the maternal grandmother, the following strong impressions are created: 

   a)The maternal grandmother had reasons to be concerned for the welfare of [X] when she retained him on 11 November 2018.

   b)The Mother and [Y] used physical violence, intimidation and abuse in order to try to get [X] back into the Mother’s care. 

   c)[X] was exposed to appalling violence and bad behaviour in the case of both his mother and his sister, [Y]. 

   d)[Y] damaged and stole property of the Father’s and the maternal grandmother.

9. It creates a picture of both the Mother and [Y] being quite out of control, all in a background where there are proceedings pending and where there are longstanding concerns about the Mother’s mental health and drug abuse.  In all of this, the Mother does absolutely nothing to assist herself.  She shows no restraint.  She makes no attempt to curtail [Y].  She does not respond to the allegations.  She fails to disclose her residential arrangements.  And she does not strictly comply with orders for drug testing.

10. The Mother’s case at the interim hearing was, with respect, naïve:  that [X] should be returned to her care because she had always cared for him, blithely ignoring the serious allegations made against her.  For example, rather than seek to engage with the maternal grandmother’s very serious allegations against her, the Mother’s case was an attempt to undermine the maternal grandmother’s credibility by alleging that the maternal grandmother was abusing prescription medication, as if that fact on its own meant that the Court would place no weight on the maternal grandmother’s evidence. 

11. In short, the totality of the material before this Court establishes that there is a risk of harm if [X] were to be returned into his mother’s care.  In the circumstances, whilst there are other considerations that are taken into account, and in particular the fact that coming into his father’s care was a very major change in his life, nonetheless safety is paramount.

12. In the circumstances, the interim orders sought by the Father and supported by the Independent Children’s Lawyer will be made, with the following exceptions:  firstly, that all drug testing is to be requested by the Independent Children’s Lawyer, not the Father.  Secondly, that the Mother’s time should be at CatholicCare.  But until that facility becomes available, the supervisor should either be Contact Service Centre or the paternal grandparents.  In relation to Contact Service Centre, it would be on the same basis as the existing orders.

13. This is a matter that I believe, should funding become available, needs an Expert Report.  I am going to bring the matter back before me on 25 July at 9:30am.  The purpose of the mention will be to review the progress with the Mother’s time with [X] and to consider the issue of expert evidence.

I certify that the preceding thirty-one (31) paragraphs are a true copy of the reasons for judgment of Judge Altobelli

Date: 16 May 2019