Harvey & Harvey
[2024] FedCFamC2F 1431
•17 October 2024
FEDERAL CIRCUIT AND FAMILY COURT OF AUSTRALIA
(DIVISION 2)
Harvey & Harvey [2024] FedCFamC2F 1431
File number(s): ADC 4124 of 2024 Judgment of: JUDGE TURNBULL Date of judgment: 17 October 2024 Catchwords: FAMILY LAW – REVIEW – Whether interim orders made by a Senior Judicial Registrar should be varied by changing the living arrangements of the children – Whether it is in the bests interests of the children to live with the Father and/or spend significant time with him – Whether either party poses an unacceptable risk to the children. Legislation: Family Law Act 1975 (Cth)
Federal Circuit and Family Court of Australia (Family Law) Rules 2021 (Cth)
Cases cited: Denton & Denton (No 3) [2024] FedCFamC1F 476
Eaby & Speelman[2015] FamCAFC 104
Hansen & Kane [2022] FedCFamC2F 949
Marvel & Marvel[2010] FamCA 240
SS & AH[2010] FamCAFC 13
Division: Division 2 Family Law Number of paragraphs: 58 Date of hearing: 9 October 2024 Place: Burnie via Microsoft Teams Counsel for the Applicant: Mr Bowler Solicitor for the Applicant: Randle & Taylor Counsel for the Respondent: Mr Roberts Solicitor for the Respondent: Mills Oakley Adelaide ORDERS
ADC 4124 of 2024 FEDERAL CIRCUIT AND FAMILY COURT OF AUSTRALIA (DIVISION 2)
BETWEEN: MR HARVEY
Applicant
AND: MS HARVEY
Respondent
ORDER MADE BY:
JUDGE TURNBULL
DATE OF ORDER:
17 OCTOBER 2024
THE COURT ORDERS THAT:
Appoint of the Independent Children’s Lawyer
1.Pursuant to Section 68L(2) of the Family Law Act 1975 (Cth) the children X born in 2018 and Y born in 2020 be independently represented AND IT IS REQUESTED that the Legal Aid Commission of South Australia arrange such independent representation.
2.Forthwith upon appointment by the said Legal Aid Commission of South Australia or otherwise the Independent Children's Lawyer ("the ICL") file a Notice of Address for Service.
3.Within 48 hours of notification of such appointment the parties or their solicitors must provide to the independent children's lawyer copies of all relevant documents relied upon.
4.The ICL fulfil the requirements set out in 'Guidelines for the Independent Children's Lawyer' as published on the website of the Federal Circuit and Family Court of Australia, and in particular carry out the tasks set out in clauses 5, 6.2, 6.3, 6.5 and 6.7.
5.The ICL prepare a minute of the orders they will recommend be made as final orders.
6.Upon their appointment, and after filing of an Notice of Address for Service, the ICL may INSPECT and COPY:
(a)All documents previously produced to the court in response to a subpoena issued in the proceedings and released to the parties. The ICL may provide a copy of any such material to any expert, person or agency who is preparing a report or treating the parties or children, for the purposes of assisting them to do so;
(b)Material produced by Child Protection Services and/or South Australia Police in response to the notification made under s 67ZBD; and
(c)Documents produced by the Child Protection Services and/or South Australia Police in response to the order to provide documents or information (s 67ZBE Order).
7.All parties are directed to attend all conferences as scheduled by the ICL from time to time.
8.The Mother will ensure that the children are available to meet the ICL as and when directed by that person.
Further Orders
9.The ICL has leave to seek clarification, from Dr B, of any aspect of her report dated 24 September 2024, and to that end has leave to provide to Dr B:
(a)A copy of the parties’ affidavits, including the annexures to the Father’s affidavits showing the Mother’s social media posts;
(b)A copy of the affidavit of Ms C;
(c)A copy of the police statement relating to police interaction with the parties in late 2024, as found in the section 67ZD notice from SA Police.
10.By consent, Order 7 of the Orders made 30 August 2024 be discharged and replaced with the following order:
‘Where changeover does not occur at school, and unless otherwise agreed in writing, changeover shall occur at McDonalds [Suburb D] South Australia with:
(a)The changeover to occur inside the restaurant, with the Fathers agent receiving or returning the children to the Mother;
(b)The receiving party to remain in the restaurant with the children for 10 minutes after the changeover, to allow the other party time to depart the vicinity of McDonald’s. [Suburb D]’
(c)Unless otherwise agreed, the Father to remain in his vehicle while the changeover at Mc Donald’s occurs pursuant to this Order.
11.Pursuant to section 68B(2) of the Family Law Act 1975 (Cth) both parties are restrained from:
(a)Making any post on any social media platform that directly or indirectly identifies or makes reference to the other party, or these proceedings;
(b)Behaving in any manner at changeover that has the potential of causing the children fear or anxiety or bringing them into a situation of conflict between the parties or anyone assisting either of the parties at changeover;
(c)Consuming alcohol to excess while the children are in their care.
12.The Application for Review filed 6 September 2024 is otherwise dismissed.
Note: The form of the order is subject to the entry in the Court’s records.
Note: This copy of the Court’s Reasons for judgment may be subject to review to remedy minor typographical or grammatical errors (r 10.14(b) Federal Circuit and Family Court of Australia (Family Law) Rules 2021 (Cth)), or to record a variation to the order pursuant to r 10.13 Federal Circuit and Family Court of Australia (Family Law) Rules 2021 (Cth).
Part XIVB of the Family Law Act 1975 (Cth) makes it an offence, except in very limited circumstances, to publish an account of proceedings that identify persons, associated persons, or witnesses involved in family law proceedings.
IT IS NOTED that publication of this judgment by this Court under a pseudonym has been approved pursuant to subsection 114Q(2) of the Family Law Act 1975 (Cth).
REASONS FOR JUDGMENT
JUDGE TURNBULL
Introduction
This is an Application for Review filed by Mr Harvey (‘the Father’) on 6 September 2024 seeking the review of Interim Orders made by Senior Judicial Registrar Tran (‘SJR Tran’) on 30 August 2024 (‘the Interim Orders’). Specifically, the Father sought to review Orders 4, 5 (inclusive), 6, 23, 24 and 25 (inclusive). He was seeking the review of Orders 1, 2 and 3, but this were abandoned at hearing.
In essence, the Interim Orders provided that the children live with the Mother in the former matrimonial home and spend time with the Father each Sunday from 9.00 am until 6.00 pm commencing 1 September 2024 to be followed by each Wednesday from after school or 3.00pm until 6.00 pm commencing 4 September 2024. The Father’s time is conditional upon it occurring within the presence of ‘a suitable adult.’
Pursuant to Rule 14.07(1) of the Federal Circuit and Family Court of Australia (Family Law) Rules 2021 (Cth), an Application for Review is to be heard as an original hearing. In Hansen & Kane [2022] FedCFamC2F 949, DCJ McClelland explained the approach to be taken with a Review:
43.The effect of these rules is that the review of a registrar’s determination is an original hearing, in the sense that error does not need to be established: see Feiteiro & Feiteiro [2019] FamCA 647 at [17] referring to Henley & Henley [2019] FamCA 101 at [7]. Thus, the review is taken to mean a re-examination of the matter afresh: see Tomko v Palasty (No 2) [2007] NSWCA 369; (2007) 71 NSWLR 61 at [43].
44.As Hallen J observed in Noble Earth Technologies Pty Ltd v Hampic Pty Ltd trading as Cyndan Chemicals [2012] NSWSC 935 at [39]:
Although on review, the Court should consider the matter afresh, it does not follow that the reasoning of the registrar should be ignored, or that variations in the material presented to her, or him, and the evidence that was adduced are irrelevant. The starting point is, therefore, the decision that is to be reviewed. The court does not merely cast that decision to one side and proceed as if it had never been made. The court will have regard to the basis on which the decision was made and the material placed before the court itself on the application for review: Wily re LED (South Coast) Pty Ltd [2009] NSWSC 946 at [24] – [26].
Orders sought
The Father sought that the children live with him and spend supervised time with the Mother, or, in the alternative, should the Court not find that to be in the best interests of the children, the Father sought an equal shared time arrangement.
The Mother, Ms Harvey (‘The Mother’), sought that the Review be dismissed.
The parties did, however, agree to orders for the appointment of an Independent Children’s Lawyer (ICL) and for order 7 to be varied to ensure changeover occurs inside the McDonalds at Suburb D, with a third party undertaking the changeover for the Father and for the party receiving the children is to remain in the McDonalds for ten minutes before leaving.
Background
The Father was born in 1979 and is currently self-employed managing a business which I am told he operates from home.
The Mother was born in 1984 and is currently self-employed as an allied health worker.
The parties commenced cohabitation in 2014 and married in 2016. They separated on or about October 2022.
There are two children of the marriage, X born in 2018 and Y born in 2020.
The Father initiated proceedings on 26 August 2024. The interim orders were made on 30 August 2024 and a Child Impact Report (CIR) was ordered at that time, with the interviews to occur in mid-November 2024. The matter is next listed before SJR Tran on 18 December 2024 for a further interim hearing.
The Father’s submissions
The Father relied upon all documents outlined in his case outline filed 24 September 2024, with the addition of his affidavit filed 3 October 2024 and some subpoenaed notes from the Mother’s psychiatrist.
Mr Bowler, Counsel for the Father, submitted that SJR Tran ignored the significant attachment between the Father and the children, derived from the shared care arrangement that existed during the relationship and after separation. Mr Bowler submitted that to order limited semi‑supervised time was to remove the children from a shared care environment of which they have known their whole lives.
The Father adamantly denied the family violence and sexual assault allegations raised against him by the Mother, arguing that her allegation of sexual assault should be dismissed as a lie because she failed to mention the same, including the alleged use of a weapon, to her treating psychiatrist, as evidenced by her subpoenaed notes. She also failed to mention this to police when they came to the home at her instigation in mid-2024. As a result, the Court cannot be satisfied that the Father has such a violent nature as to pose an unacceptable risk to the children.
Mr Bowler submitted that it is the Mother who poses an unacceptable risk to the children, such that her time should be fully supervised. The Mother, it was argued, has long suffered from severe mental illness, and her recent erratic behaviour towards police officers, the Father and Ms C at changeover, together with her defamatory posts on social media, demonstrate that she is unable to control her emotions, is prepared to lie to authorities to suit her agenda, and is likely to place the children at a psychological risk. The concerns regarding the Mother’s mental health were echoed by her parents who both provided affidavits in support of the Father’s case. As such, it was argued, her time should be supervised or at worst there should be a shared care arrangement imposed.
The Mother’s submissions
The Mother relied upon all documents outlined in her case outline filed 26 September 2024, with the addition of two affidavits of the Mother filed 4 October 2024 and the affidavit of Ms E filed 4 October 2024.
The Mother also relied upon an expert report from her treating mental health practitioner, Dr B, which was annexed to the affidavit of Ms F filed 8 October 2024.
Mr Roberts, Counsel for the Mother, submitted that it would not be in the best interests of the children to vary the Interim Orders and place the children with the Father, or increase his time.
He submitted that the children have been in the primary care of the Mother since birth, and their primary attachment is with her. Conversely, the children have had no time alone with the Father since separation. Further, the Father has a violent nature and his time should be restricted to protect the children. The Mother’s most serious allegation was that in mid-2024, the Father sexually assaulted her by pinning her to the bed with a weapon to her throat and engaging in sexual intercourse without her consent.[1] This was first reported by her a month later, with the Mother explaining that she ‘was afraid of the police not believing [her] because [she] was previously silenced by the police […].’[2]
[1] Affidavit of Ms Harvey filed 29 August 2024 [25]-[34] (‘Mother’s Affidavit).
[2] Ibid [35].
The Law
Children’s matters are governed by part VII of the Family Law Act 1975 (Cth) (‘the Act’). Section 60CA of the Act states that in deciding whether to make a parenting order in relation to a child, the Court must have regard to the best interests of the child as the paramount consideration.
When determining the parenting arrangements, the Court must consider the factors in section 60CC(2), known as the "general considerations":
2) For the purposes of paragraph (1)(a), the court must consider the following matters:
(a) what arrangements would promote the safety (including safety from being subjected to, or exposed to, family violence, abuse, neglect, or other harm) of:
(i) the child; and
(ii) each person who has care of the child (whether or not a person has parental responsibility for the child);
(b) any views expressed by the child;
(c)the developmental, psychological, emotional and cultural needs of the child;
(d) the capacity of each person who has or is proposed to have parental responsibility for the child to provide for the child’s developmental, psychological, emotional and cultural needs;
(e) the benefit to the child of being able to have a relationship with the child’s parents, and other people who are significant to the child, where it is safe to do so;
(f) anything else that is relevant to the particular circumstances of the child.
(2A) In considering the matters set out in paragraph (2)(a), the court must include consideration of:
(a) any history of family violence, abuse or neglect involving the child or a person caring for the child (whether or not the person had parental responsibility for the child); and
(b) any family violence order that applies or has applied to the child or a member of the child’s family.
In considering section 60CC(2)(a)(i) and (ii), the Court must also consider any history of family violence, abuse or neglect involving the child or a person caring for the child (whether or not the person had parental responsibility for the child) and any family violence order that applies or has applied to the child or a member of the child’s family.[3]
[3] Family Law Act 1975 (Cth) s 60CC(2A) (‘FLA’).
In Marvel & Marvel[2010] FamCA 240, the Full Court of the Family Court of Australia discussed the problems associated with making findings on disputed evidence as follows:
as has frequently been emphasised interim parenting proceedings, and Orders made as a consequence, are a necessary but temporary measure until all the evidence can be tested, evaluated and weighed at a final hearing by the making of final parenting Orders. Decisions judicial officers have to make in interim proceedings are difficult and, often for very good reason, a conservative approach, or one which is likely to avoid harm to a child is adopted. This is often to the understandable distress of a party who may not achieve the outcome he or she desires, or thinks to be in the best interests of their child or children. Interim parenting Orders are frequently modified or changed after a final hearing, and any allocation of parental responsibility made at an interim hearing is disregarded at the final hearing (s 61DB).[4]
[4] Marvel & Marvel [2010] FamCA 240 [120].
In SS & AH[2010] FamCAFC 13, the majority (Boland and Thackray JJ) discussed the care to be exercised in making findings in interim parenting proceedings. Their Honours said:
In our view, findings made at an interim hearing should be couched with great circumspection, no matter how firmly a judge’s intuition may suggest that the finding will be borne out after a full testing of the evidence.[5]
[5] SS & AH[2010] FamCAFC 13 [88].
Their Honours amplified their comments and said:
The intuition involved in decision-making concerning children is arguably of even greater importance when a judge is obliged to make interim decisions following a hearing at which time constraints prevent the evidence being tested. Apart from relying upon the uncontroversial or agreed facts, a judge will sometimes have little alternative than to weigh the probabilities of competing claims and the likely impact on children in the event that a controversial assertion is acted upon or rejected. It is not always feasible when dealing with the immediate welfare of children simply to ignore an assertion because its accuracy has been put in issue.[6]
[6] Ibid [100].
Of this, the Full Court in Eaby & Speelman[2015] FamCAFC 104 said:
As would be immediately apparent, this approach enables the court to appropriately and carefully deal with contentious issues relevant to the welfare of the child, and for those issues to not be ignored.[7]
[7] Eaby & Speelman [2015] FamCAFC 104 [19].
Recently, Justice Altobelli in Denton & Denton (No 3) [2024] FedCFamC1F 476, examined the approach to be taken in interim hearings given the recent changes to the legislation:
29. Pursuant to subsection 60CC(2)(a) of the Act the Court must have regard to what arrangement would promote the “safety” of a child and each person who has care of the child (whether or not a person has parental responsibility for the child).
30. “Safety” is not defined in the Act. It is often said that words in a statutory context are to be given their ordinary or natural meaning (Momcilovic v The Queen (2011) 245 CLR 1 at [56]). This Court is drawn to a view that “safety” is a state in which hazards or conditions leading to physical, psychological, or material harm are controlled in order to preserve the health and wellbeing of an individual. It is not the complete elimination of risk of harm, but rather making such order as affords the child the most optimal protection from harm.
31. In contemplating the child’s safety, or by natural implication any risk of an unacceptable nature to that safety posed by a proposal, the Court is mandated to consider any history of family violence, abuse or neglect involving the child or a person caring for the child, together with any family violence order previously or currently in place.
32. The assessment of risk, or the existence of indicators of potential harm, is an evidence-based conclusion referable to the statutory framework and is not discretionary (Illes & Nelisson [2022] FedCFamC1A 97 at [84]). The finding about whether an unacceptable risk to safety exists, based on known facts and circumstances, is either open on the evidence or it is not (Evidence Act 1995 (Cth) s 140(2)).
33. The central task of the Court is to assess the risk of harm posed to the child and to determine what orders should be made to ameliorate that risk. Intrinsic to that process is the need to assess the strength of the evidence from which it is said the risk should be inferred (Cao & Cao [2018] FamCAFC 252; (2018) FLC 93-880 at [46] (“Cao”)). Inconsistencies and anomalies can reduce the weight given to evidence (Cao at [56]).
34.Serious allegations cannot be ignored at interlocutory events simply because they have been put in issue and are lacking in corroboration (Marvel at [122]–[123]; Salah & Salah [2016] FamCAFC 100; (2016) 56 Fam LR 299 at [33]–[45]; Eaby & Speelman [2015] FamCAFC 104; (2015) FLC 93-654 at [18]–[19]).
35.The Court’s function is discharged by examining the evidence carefully to determine whether it establishes an unacceptable risk of harm (M v M (1988) 166 CLR 69 at [25]). Some risk arising to a child’s safety may be capable of amelioration by further order of the Court (Keane & Keane [2021] FamCAFC 1; [2021] 62 Fam LR 190 at [84]; Kozma & Bielen [2022] FedCFamC2F 1003). A risk of some occurrence may be tolerable, but an unacceptably high risk of the same occurrence is not (Fitzwater v Fitzwater [2019] FamCAFC 251 at [148]– [149]).
The children’s best interests
a) what arrangements would promote the safety (including safety from being subjected to, or exposed to, family violence, abuse, neglect, or other harm) of: (i) the child; and (ii) each person who has care of the child (whether or not a person has parental responsibility for the child)
The Mother’s main contention was that the Father’s time should be restricted and subject to observation, as he poses an unacceptable risk to the children by virtue of his violent and controlling nature, and his excessive use of alcohol and drugs. The Mother claimed that his erratic behaviour increased after the death of one of his close friends. In mid-2024, the Mother alleged that the Father violently assaulted her while holding a weapon.
Notwithstanding the alleged assault, the parties remained living under the same roof until 20 August 2024. The Mother then changed the locks but the Father entered the home the following day. The police were called as a result. The Mother claimed that she was silenced by police, and they did not ask him to leave the home. The alleged assault was reported to police a few days later, with the Mother making a statement.
The Father denied the allegation that he had been violent or controlling during the relationship, denied the assault and denied that he had substance abuse issues. He countered that it was the Mother, by virtue of her significant mental health problems, that was the aggressor toward him.
In relation to the allegation of drug misuse, the Father undertook hair follicle testing that delivered a negative result. He also undertook testing for alcohol misuse and produced an elevated reading. He consequently conceded that he would agree to an order not to drink to excess when the children are in his care. He submitted that there was no evidence to show that he has ever placed the children at risk due to him being inebriated. The Mother maintained that he remained a risk to the children because of substance abuse.
The Father submitted that the allegation of sexual assault was a lie. He referred to the fact that the Mother did not report the matter to anyone until a few days later, a day after the Father filed proceedings. Further, it was argued that the Mother had ample opportunity to tell police about this serious matter and crucially, she gave a very different version of events to her psychiatrist, Dr B, when she saw her in August 2024, whose notes record:
…
Argument where [Mr Harvey] forced himself on her, pinned her on to the bed with his whole body, said he would make her life hell
…
He stated in his August affidavit — filed prior to the Mother reporting her allegation of rape to the police — that there was an incident in mid-2024, when he had to restrain the Mother when she was being violent towards him. He also agreed that the police attended the home but stated that he was calm and, as stated, the police notes evidence that the Mother’s behaviour was challenging and difficult. He also noted that the Mother did not mention to police at that time, even when very distressed and wanting him removed from the home, that she had been sexually assaulted by him — let alone with him holding a weapon.
The Father claimed that it is the Mother who poses an unacceptable risk to the children due to her significant history of mental illness, including stays in hospital in 2019. He argued that her volatile behaviour observed by police, her abusive behaviour towards Ms C in the presence of the children at changeover, and her inability to stop posting derogatory information pointed at the Father, demonstrated a lack of impulse control and suggested that her mental health is not well managed. He also referred to the affidavits filed for his case by her parents, showing their concern regarding her unpredictable behaviour.
The Mother countered that the recent jointly obtained report form her psychiatrist, Dr B, confirmed that her diagnosed condition of Major Depressive Disorder with psychotic features is currently “well controlled by her long-term medications.” Dr B went on to opine:
2) Prognosis and abilitv to maintain anv required medication, treatment and/or therapv
I opine that [Ms Harvey]'s prognosis is very good. Since her discharge from hospital in 2020 her mental state has remained stable overall and she has been able to continue to build on her functional gains over this period of time. She is now working part-time, running her household and parenting her two young children.
[Ms Harvey] has demonstrated good ability to maintain her required medication since her discharge from [G Centre] in 2020. After her initial admission in 2019 she elected to cease all of her medications (unbeknownst to me, as she had disengaged from my care at this time), and this led to the deterioration of her mental state which led to her re-admission in 2020. Since this time [Ms Harvey] has received her medications packed in a Webster pack by her pharmacy and this, as well as increased insight into the supportive role of medication, has assisted with adherence. [Ms Harvey] has reported adherence with medications since discharge in 2020 and my clinical observations during out reviews, namely the absence of breakthrough symptoms of depression or psychosis, supports this.
Since mid 2023, at [Ms Harvey]'s request, we have been working together to slowly reduce one of her medications (the [prescribed antidepressant]). This has been done in a gradual, step-wise fashion with regular reviews to continue to monitor for the emergence of breakthrough symptoms.
At present [Ms Harvey]'s medications are an antidepressant […] and [another medication].[8]
(Original emphasis)
[8] Affidavit of Ms F filed 8 October 2024, 10.
She concluded:
4) Whether any treatment or therapy is recommended and the nature of same : and
My recommendation, as has been discussed with [Ms Harvey], is for ongoing reviews with myself for cont i nued mon itoring of mental state and medication oversight. The recommended frequency of these reviews may vary, but as a general rule I would recommend reviews every 1-3 months . I recommend continuation of [Ms Harvey]'s current med i cations at present but this may be reviewed in the future if clinically indicated .
5) Any recommendations and ongoing therapeutic intervention that could be engaged by [Ms Harvey] in order to assist with any mental health condition, or mental illness, if diagnosed.
As above, my recommendat ions are for cont i nued reviews with myself and continuation of psychotropic medication.[9]
(Original emphasis)
[9] Ibid 11.
The Mother also dismissed her parents’ evidence, claiming that they had always minimised the Father’s treatment of her — emanating from a traditional and old fashioned world view.
The Mother submitted that there is no objective evidence to suggest that the children have not fared well in her care post separation. Further, the Father seemed to accept, post separation, that she would be their primary carer, notwithstanding his claim that he would check in with the family every day, before returning fulltime to the home. She also claimed that the Father had not cared for the children on his own since separation.
Consideration of the risk issues
The Mother’s allegations of controlling behaviour and violent sexual assault are very serious. It is not possible, at an interim hearing, to make findings of fact — to do so is discouraged when there is little ability to test the evidence.
That said, the fact that the Mother did not mention the violent sexual assault to police when they attended her home, when she was in a distressed state, may raise a level of doubt as to the truthfulness of the claim, as does the fact that the Mother did not mention this to her psychiatrist. Her psychiatrist did use the words “forced himself on her” in her notes, but there is no mention of a sexual offence or a weapon. Dr B may need to shed some further light on what she was told by the Mother, but that is a matter for trial. I also note form the police material that there is an ongoing investigation in relation to an alleged “DV assault”. No mention was made of an allegation of violent sexual assault, although it was certainly alleged by the Mother in her police statement.
The Mother did not explicitly set out the danger the Father allegedly poses to the children in her affidavit but did so in her Notice of Risk:
The father drinks daily and is suspected of drug use, meaning that there is no stability in the home
I am concerned that the father may neglect the children if the children are in his sole care given his daily alcohol consumption and potential drug usage.
When we lived separately for 2 years in 22/23, the father would take weekdays and weekends of to go out and drink and do drugs so we wouldn't hear from him for 2 days at a time.
Lifting the children up in the air when they don't listen and standing over them while crying I have to pull him away from them, to stop intimidation.
He has begun hitting the children, as his brother condones this
He discusses drugs and drug use around the children, and I have found [illicit drugs] in the house when I returned from hospital in or around 2018
Very recently, recently he said he had ADHD and had borrowed drugs from his friend "I have [drugs] in the car."
He erratically changes work plans and will say he has a meeting at a pub or venue with alcohol.
Psychological abuse and arguments, he treats me with disrespect at all times, if I ask him to do anything, for example reading the kids a book, he declines defensively and loudly... this modelling of male behaviour has had a direct impact on the way my son respond to me and teachers at school,
I'm working hard to correct this behaviour as he is already behind in reading compared to his peers, which was discussed with his teacher.
On his […] birthday he had a large […] party and came home high on drugs chattering his teeth, he left to go back out, we had very young children at this stage.[10]
[10] Notice of child abuse, family violence or risk of Ms Harvey filed 29 August 2024.
The Mother’s allegation of alcohol abuse was to some extent corroborated by the Hair Follicle testing, showing elevated levels. Her claim of drug use was somewhat countered by the same testing. Excessive use of alcohol can be a significant risk factor and I will impose an injunction preventing either party consuming alcohol to excess while the children are in their care. I realise there were no allegations raised against the mother in this regard, but mutual restraints will best ensure the safety of the children, while evidence remains untested, and counter allegations are made.
The Mother’s allegations cannot be tested at this interim stage. I accept that some of her allegations may not withstand forensic testing, but at this stage I am unable to make a finding either way. The court will be in a better position to consider the allegations of risk once the Child Impact Report is released in November. The Court Child Expert will have the benefit of observing the parties and the children and will likely be able to offer some guidance as to the appropriate living arrangements for the children pending trial. The issues can then be re‑canvassed at the interim hearing in December.
The concerns of the Father regarding the Mother’s mental health also needs further investigation. The Mother’s behaviour towards police, her seemingly incessant postings on social media, and her alleged behaviour towards Ms C at changeover, raise a question as to whether her mental health is as settled as Dr B opines. The ICL will no doubt seek further clarification from Dr B, and to that end I will provide the ICL with leave to show Dr B the police report, the social media posts made by the Mother, and the parties affidavits including that of Ms Harvey, so that Dr B may comment.
That said, there is no evidence that the children are at risk in the Mother’s care, and on the face of it, the Father was content for the Mother to have primary caring role pre and post separation, suggesting his concerns regarding her mental health may be overstated.
I intend to impose injunctions upon both parties from making any post on social media that directly or indirectly refers to the other party or the children. I will also injunct both parties from conducting themselves in any manner that creates conflict in the presence of the children at changeover. I am satisfied, on the untested evidence, that it is just and convenient to impose these orders in the best interest of the children. I would also expect that the ICL will search out video footage, if it exists, of the changeovers described in Ms Harvey’s affidavit. Evidence of a parent behaving poorly at changeover is usually highly relevant to the assessment of that parent’s ability to provide for the emotional needs of their children.
Whatever the truth — which usually comes out at some stage — both parties are under a very bright spotlight, and they need to conduct themselves in a child focused manner from now on.
The children’s safety will be best promoted at this early stage, with the court adopting a cautious and conservative approach, and allowing time for there to be a deeper investigation as to the various allegations raised so far. SJR Tran’s orders meet that objective.
(b) any views expressed by the child
There is no objective evidence as to the children’s views, and given their ages, little weight could be attached to them.
(c) the developmental, psychological, emotional and cultural needs of the child;
More information will be available in this regard once the Child Impact Report is released. The untested evidence, at this stage, supports the Mother’s position that she has been the children’s primary carer pre and post separation. That said, the Mother appears to concede that she and the Father had a co-parenting relationship, which continued post separation with the Father regularly spending time with the children at the matrimonial home, prior to him later moving back in:
14. This arrangement for [Mr Harvey] to visit in the evenings on weeknights allowed us to maintain a co-parenting relationship during separation. It also prevented the children from witnessing [Ms Harvey]'s excessive alcohol consumption or potential drug usage during weekends or when partying with his friend. [Ms Harvey] often took weekends off to recover from the weekend substance abuse.[11]
(Emphasis added)
[11] Mother’s Affidavit (n 1 ).
The current ordered arrangements have somewhat diminished the Father’s time with the children, although they still spend time with him two days per week, including a full day each Sunday. As an interim measure, given the untested allegations and pending the Child Impact Report, this is a sensible and child focused arrangement.
(d) the capacity of each person who has or is proposed to have parental responsibility for the child to provide for the child’s developmental, psychological, emotional and cultural needs
Both parties raised significant questions regarding the others capacity to meet the children’s needs. Further information will be received regarding this from the Child Impact Report, and from further investigations to be undertaken by the ICL.
(e) the benefit to the child of being able to have a relationship with the child’s parents, and other people who are significant to the child, where it is safe to do so
The children’s relationship with both parties is maintained with SJR Tran’s orders.
(f) anything else that is relevant to the particular circumstances of the child.
SJR Tran contemplated that her orders would need to be revisited once better information was to hand, as is clear from her order listing the proceedings for a further interim hearing on 18 December 2024. This was an appropriate position to take given the nature of the evidence before her at that time.
Conclusion
It follows from the above that the Review must fail.
That said, I will make orders by consent for the appointment of an ICL and for the changeover arrangements to occur inside McDonalds as mentioned.
I will also make orders:
(1)Providing leave for the ICL to clarify Dr B’s report and provide her with the relevant documents mentioned above.
(2)Injuncting the parties’ from posting inflammatory material on social media.
(3)Injuncting the parties from creating any conflict for the children at changeover.
(4)Injuncting the parties from consuming alcohol to when the children are in his care.
The parties would do well to reflect on these Reasons and the Child Impact Report and try and resolve the upcoming interim hearing via a conference with the ICL. For the sake of the children, both parties need to adopt a less combative stance.
I certify that the preceding fifty-eight (58) numbered paragraphs are a true copy of the Reasons for Judgment of Judge Turnbull. Associate:
Dated: 17 October 2024
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