HAWKINS & DOWNES

[2015] FCCA 2635

FEDERAL CIRCUIT COURT OF AUSTRALIA

HAWKINS & DOWNES [2015] FCCA 2635

Catchwords:
FAMILY LAW – Interim hearing – where serious concerns about parenting capacity, both parents – where child not regularly attending school – whether to remove need for supervision of father’s time with child – s.91B order made.

Legislation:

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

Goode & Goode [2006] FamCA 1346
MRR v GR [2010] HCA 4

Applicant: MR HAWKINS

Respondent: MS DOWNES

File Number: WOC 385 of 2014

Judgment of: Judge Altobelli

Hearing date: 10 September 2015

Date of Last Submission: 10 September 2015

Delivered at: Wollongong

Delivered on: 19 October 2015

REPRESENTATION

Solicitors for the Applicant: Sward Law

Solicitors for the Respondent: Legal Aid NSW

Solicitors for the Independent Children's Lawyer: Verekers Lawyers

ORDERS PENDING FURTHER ORDER

1. The Child, X born (omitted) 2005 (“the Child”) live with the Mother.

2. The Child is to spend time with the Father as follows:

   (a)Commencing on the date of these Orders each Saturday for a period of 3 months;

   (b)Thereafter, and until further order, each alternate Saturday for 6 hours;

   (c)Changeover is to occur at Catholic Care (omitted) with the start and end times to be advised by the said Centre.

3. The Mother and Father be hereby restrained by injunction from discussing any proceedings between the parents or the parental relationship in the presence or hearing of the children or permitting any other person to do so.

4. Each parent is restrained by injunction from:

   (a)Denigrating the other parent in the presence or hearing of the Child and shall immediately remove the Child from the presence of any other person who does so;

   (b)Denigrating any other person with whom either parent has a relationship with including members of the other parent's family, and shall immediately remove the Child from the presence of any other person who does so;

   (c)Discussing the proceedings with the Child, showing documents in relation to the proceedings to the Child, or causing the Child to otherwise become aware of any issue, fact or circumstance in relation to these proceedings.

   (d)Swearing in the presence or hearing of the Child;

   (e)Consuming or being under the influence of any illegal drugs during any time that the child is in their care or for the preceding twelve hours and shall immediately remove the Child from the presence of any other person who is under the influence of illegal drugs;

   (f)Consuming alcohol to excess during any period that the Child is in their care;

   (g)Smoking tobacco or any other substance in the presence or the vicinity of the child whilst the Child is in their care; and both parents are to do all things necessary to ensure that no other person smokes in the presence or the vicinity of the Child whilst the Child is in their care.

5. The Father is restrained from exposing the Child to any form of verbal abuse or physical abuse.

6. The Mother ensures that the Child attends school punctually and  the Mother accept all recommendations made by the Department of Education in relation to educational support and counselling for the Child.

7. The Mother is to continue the Child’s attendance with his current treating psychologist Ms A for as long as considered necessary and accept any recommendations made by the psychologist.

8. The Mother is to continue to engage with her medical practitioner including her psychologist and accept all treatment and recommendations from her treating medical practitioner and psychologist.

9. Both the Mother and Father are to undertake random supervised drug urinalysis screening in accordance with the Australian/NZ Standard 4308:2008, at the written request of the Independent Children’s Lawyer (ICL) to the parent or their solicitor no more frequently than once per month; with the parent to submit to such testing by 5.00pm on the next business day; with the parent to provide the results of such testing to their solicitor promptly, and the parent’s solicitor to forward such results to the ICL and the other parent’s solicitor.

10. Liberty is granted to the parties to re-list the matter on 7 days’ notice by joint application to the Court in Chambers in appropriate circumstances.

FURTHER ORDERS

1. Pursuant to section 91B of the Family Law Act 1975, the Secretary of the Department of Family and Community Services is requested to intervene in these proceedings in relation to the Child, X born (omitted) 2005.

2. The Independent Children’s Lawyer is to forward to the Solicitor for the Secretary of the Department of Family and Community Services at its Head Office in (omitted), not later than 4.00 pm on 2 November 2015 copies of the documents filed by each of the parties to date.

3. Upon request from the nominee of the Secretary the Registry Manager permit inspection of the Court file to enable consideration of the request to intervene in the proceedings.

4. The Court notes that for the purposes of this notification the subject Child presently lives with the Mother, Ms Downes.

5. The matter be listed for 3 day Final hearing commencing 5 December 2016 at 10:00am in the Wollongong registry.

6. The Applicant is to comply with the payment of any setting down and/or daily hearing fee in accordance with Rules 24.03 and 24.04 of the Federal Circuit Court Rules 2001 or as otherwise directed by the Registry Manager by the date of filing of further material.

7. I DIRECT the Independent Children’s Lawyer to make appropriate arrangements to monitor the Child’s school attendance.

8. I DIRECT the Independent Children’s Lawyer to apply for funding for an Expert’s Report.

9. The matter be adjourned to 29 January 2016 at 11:30am for Mention.

NOTATIONS

(A)The Court is yet to make directions for trial. 

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

FEDERAL CIRCUIT COURT
OF AUSTRALIA
AT WOLLONGONG

WOC 385 of 2014

MR HAWKINS

Applicant

And

MS DOWNES

Respondent

REASONS FOR JUDGMENT

Introduction

1. This case is about X, who is 10 years old.  These reasons for judgment explain the interim orders that the Court has made for X to spend time with his father. 

2. This is a difficult case.  It is apparent to the Court from reviewing the evidence before it that there is every reason to be concerned about X’s welfare, whether he is in the care of his mother or his father.

Background

1. X’s father is 44 years old and his mother is 41 years old.  They met in 1992, commenced a relationship in 2004, and separated in October 2007.  It appears relatively uncontentious that between October 2007 and April 2014 X lived with each of his parents on a week-about basis.  A number of incidents then occurred as between the parents.  The present proceedings were then initiated.  Two sets of interim consent orders have been entered into. 

2. The first consent orders, dated 8 July 2004, provide for equal shared parental responsibility, for X to live with his mother, and spend time with his father each alternate weekend from Friday afternoons until Monday morning, together with special days.  The Father’s time with X was to be supervised by the paternal grandfather.  On 5 December 2014 there were further consent orders.  Equal shared parental responsibility was confirmed.  X continued to live with his mother, but to spend supervised time with his father at Catholic Care in (omitted). 

3. A number of issues were foreshadowed in these interim consent orders.  For example, in Order 12 the Mother was required to ensure that X attends school punctually; in Order 13 the Father was directed to engage in anger management counselling; and in Order 14 the Mother was to continue to engage with her medical practitioner and psychologist.  Both were directed to undertake random urinalysis. 

4. It is important to record that, until the matter came before the Court on 10 September 2015, the evidence had not been subjected to the critical scrutiny of the Court.  By the time of the second consent orders an Independent Children’s Lawyer had been appointed and obviously participated in the negotiations that resulted in the consent orders made that day.

5. In any event, when the matter came before the Court for interim hearing on 10 September, the Father sought orders for X to spend time with him each alternate weekend from after school on Friday to the conclusion of school on Monday, on an unsupervised basis.  Amongst the orders sought by him was a series of very specific orders to deal with the concerns raised on behalf of the Father about the Mother’s mental health.  At the interim hearing, the Mother opposed any change to the existing orders.  She opposed the orders sought by the Father.  Her proposal was that the Father continue to spend supervised time each alternate weekend at the Catholic Care supervised contact centre until February 2016, when the matter might be reviewed.

6. The Independent Children’s Lawyer’s proposal was that the Father’s current supervised contact regime through Catholic Care be continued for a period of 10 weeks but, thereafter, that the supervised contact provider be empowered to provide their service outside of the centre itself.  A number of restraints were proposed as regards both parents.  An order was sought furthering the Mother’s obligation to ensure that X attends school, that she continues to attend her current treating psychologist, and that she continue to engage with her medical practitioner.

The Evidence

1. The Mother relied on the following documents:

   ·Response filed 7 July 2014;

   ·Notice of Child Abuse, Family Violence or Risk of Family Violence filed 7 July 2014;

   ·Affidavit of Ms Downes sworn 7 July 2014;

   ·Affidavit of Ms Downes sworn 10 November 2014; and

   ·Affidavit of Ms Downes sworn 4 September 2015.

2. The Father relied on the following documents:

   ·Amended Initiating Application filed 2 September 2014;

   ·Affidavit of Mr Hawkins affirmed 28 August 2015;

   ·Affidavit of Mr H sworn/affirmed 12 November 2014;

   ·Affidavit of Mr Hawkins affirmed 6 November 2014;

   ·Affidavit of Ms S sworn/affirmed 5 September 2014;

   ·Affidavit of Mr Hawkins affirmed 2 September 2014; and

   ·Affidavit of Mr Hawkins affirmed 29 April 2014.

3. The Independent Children’s Lawyer provided a Case Outline document and tendered some documents as set out below.

4. The following documents were tendered:

   ·Exhibit A1 – documents produced by the NSW Police pursuant to subpoena, tendered by the Applicant Father;

   ·Exhibit A2 – documents produced by Catholic Care pursuant to subpoena, tendered by the Applicant Father;

   ·Exhibit A3 - documents produced by the Department of Education pursuant to subpoena, tendered by the Applicant Father;

   ·Exhibit A4 – documents produced by the Department of Family & Community Services pursuant to subpoena, tendered by the Applicant Father;

   ·Exhibit ICL1 – Child Dispute Conference Memorandum of 9 September 2015, tendered by the Independent Children’s Lawyer; and

   ·Exhibit ICL2 – documents produced by the Benevolent Society pursuant to subpoena, tendered by the Independent Children’s lawyer.

   ·Exhibit ICL3 – documents produced by (omitted) pursuant to subpoena, which became available after the interim hearing, and was tendered without objection.

The Applicable Law

1. In determining parenting matters under Part VII of the Family Law Act 1975 (hereafter referred to as ‘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.

3. 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.

4. 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.

5. 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.

1. In MRR v GR [2010] HCA 4, the High Court said

   8.  Sub-section (1) of s 65DAA is headed "Equal time" and provides:

   "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."  (emphasis added)

   Sub-section (2) makes provision for where a parenting order provides that a child's parents are to have equal shared parental responsibility for the child (par (a)) but the Court does not make an order for the child to spend equal time with each of the parents (par (b)).  In such a circumstance the Court is obliged to:

   "(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."

   Sub-section (3) explains what is meant by the phrase "substantial and significant time".

   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. The Full Court’s decision in Goode & Goode [2006] FamCA 1346 provides some guidance about the interpretation of the legislation 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.

Outline of Submissions Made

1. Shortly stated, the Father’s case was that there had been four entirely satisfactory visits at Catholic Care (omitted), but that when the evidence was viewed closely there was no basis for imposing supervision, and the existing order did not provide X with a basis to have a meaningful relationship with his father, particularly in the context of what he described as his insecure relationship with his own Mother. 

2. In the Father’s case it was submitted that a close examination of the evidence would suggest that the allegations that X made that his father had assaulted him, and which led to the most recent orders for supervised time, in fact had no foundation.  The concern was raised that the Mother had been, directly or indirectly, actively or passively, involved in influencing X as regards these allegations. 

3. Moreover, in the Father’s case it was submitted that there were real issues about X’s welfare in his mother’s care, given that the school records indicate she is unable to consistently get him to school.  Indeed, it was submitted that well over 50 per cent of the available school days were missed by X.  In addition, it was submitted that the objective material raised serious concerns about the Mother’s own wellbeing, the nature of her relationship with X, and her ability to identify and then prioritise X’s needs over her own. 

4. The Father’s proposal frankly recognised that, for the time being, the Court might be reluctant to make an order placing X in his father’s full-time care.  The Father’s case was, however, that making an order for substantial and significant time provides a safety net for X, enables the Father to monitor X’s wellbeing, and creates a basis for the strengthening of their already good relationship.

5. On behalf of the Mother, it was submitted that much more evidence was needed, indeed expert evidence, before the existing safeguards on X’s time with his father could be relaxed.  On her behalf, it was submitted that there is still a current Apprehended Violence Order in place (but lapsed on 26 September 2015) protecting X from his father as a result of the assault allegation.  In any event, it was asserted that the evidence suggested there was a previous history of family violence.  The      Child Inclusive Conference Memorandum indicated that X was in fear of his father. 

6. The Independent Children’s Lawyer’s case was that the Court ought to proceed cautiously and that a further report be obtained before changing the existing arrangements in any dramatic sense.

7. With great respect to those representing both the Mother and the Independent Children’s Lawyer, the Court was left with the impression that they had not examined the subpoenaed documents with the same level of detail as the solicitor for the Father.  Once again, with great respect to those representing the Mother and the Independent Children’s Lawyer, the significant concerns that the Court has about X’s welfare in his mother’s care, and which are clearly apparent from the subpoenaed documents, appear to have been glossed over.  This will be discussed in further detail below.

A More Objective View of the Evidence

1. The Child Inclusive Conference Memorandum of 9 September 2014 records each parent’s concern about the other, and foreshadows many of the issues currently before the Court.  The Family Consultant records the following in relation to X: -

   X (aged 9 years 2 months) presented as quiet and reluctant to talk.  He was keen to return to his mother.  X asked several times what his mother and father had said,  whether his story was closest to his mother’s or father’s story and he was particularly worried about his father receiving feedback about his assessment.  He appeared aware of incidences that were within his mother’s perspective.

   X’s information within this assessment was similar to the concerns raised with the mother’s affidavit material, including statement that his father had physically hit him.  There was insufficient information within this assessment (and X was understandably reluctant to speak about the incident in greater detail) to gain a clear picture of what he believed had occurred.  He expressed what appeared to be a genuine sense of fear of his father and he believes that his mother, paternal grandmother, paternal grandfather and paternal aunt are frightened of his father.  He is aware of an alleged incident where his mother was assaulted by his father when X was a baby (which he is unlikely to have his own memory of).  This suggests that such incidents have been discussed with X.

2. Clearly, X is confused and is experiencing divided loyalties.  It is also clear that both parents have involved him in the case.  Based on his own comments, what X has told each of his parents does not necessarily reflect how he feels.  The Family Consultant did record “what appeared to be a genuine sense of fear of his father” but, it should be noted, the subsequent words link this to his perception that others are afraid about his father, rather than an independent view.

3. The observations of supervised time at (omitted) Catholic Care are inconsistent with the assertion that X is afraid of his father.  Indeed, this contact appears to be quite satisfactory.  The notes suggest that X looks forward to his time with his father and transitions easily from his mother’s care.  Indeed, the only person who doesn’t seem to be coping, at times, is his mother.

4. The records relating to the alleged assault incident depend almost entirely on X’s account, but his own account is inconsistent with other evidence. Nonetheless it is clear he continues to tell others (for example, his treating psychologist at (omitted)) that his father has assaulted him.  He appears to be convinced that this is the case.

5. The Father’s liver function and urine tests are normal.  Up until October 2014, the Mother’s urine tests revealed the presence of cannabis.

6. The evidence about X’s absences from school is alarming.  Between 28 January and 12 August 2014, the records indicate 65 full-day absences, with four partial absences.  The 2015 absences amount to 74 days.  He was absent from school for 19 days in July, 12 days in June, 9 days in May, 8 days in April, 19 days in March and 11 days in February this year.  The Mother’s evidence about this will be discussed below.

7. Issues about the Mother’s parenting capacity, and the very nature of her relationship with X, abound from the objective evidence.  Concerns are expressed in these business records about the Mother using X to regulate her own emotions and about the Mother’s mental health generally.  There are unresolved issues about her engagement with the services designed to assist her.

Evidence about School Absences

1. The objective evidence about the extensive school absences experienced by X has been referred to above.  The Mother was clearly aware of the significance of this issue and deals with it in her Affidavit of 4 September 2015.  Specifically, the issue of X’s school attendance is dealt with at paragraphs 30-35 of her Affidavit.  At paragraph 31 she deposes to X’s absences in June 2015, referring to 18, 19, and 22-26 June 2015.  She thus explains seven days of absences that month.  She annexes, or refers to, medical certificates which cover three of those days.  The fact is that X was absent from school for 12 days that month and no explanation is given for the balance.

2. At paragraphs 32 and 33, the Mother seeks to explain X’s absences by reference to the order for him to spend time with his father at Catholic Care.  For example, she says that after her intake appointment at Catholic Care, X was anxious, angry and had outbursts about his father.  She says that she observed X having problems with sleeping and eating.  The Mother’s own evidence about the intake at Catholic Care is set out at paragraphs 5-12 of her Affidavit.  This material is largely corroborated by the Catholic Care records produced in subpoena.  The Mother’s attempt to complete the intake at Catholic Care spanned the period January 2015 – 6 May 2015.  This evidence is in itself somewhat disconcerting. 

3. Clearly, the Mother was prepared to, indeed seems to have preferred, to have X present during the intake.  It is far from clear why that would be necessary or desirable.  In any event, what is equally disconcerting is that the Mother would somehow feel that X would need to know about the intake process at Catholic Care.  Indeed, in the circumstances of this case, and having regard to the evidence as it is unfolding, it is hardly surprising that X may have become anxious if the Mother was so prepared to involve him in the process unnecessarily.

4. In any event, to the extent that the Mother is seeking to assert, either explicitly or implicitly, that X’s school absences was linked to his anxiety about the intake process at Catholic Care, it is hardly a satisfactory or complete explanation for the extent of his absences in the period February to May, as set out above.

5. Moreover, at paragraph 33, the Mother asserts that after contact started, X missed several more weeks of school as he was refusing to go to school or do anything.  Clearly, the implication is that it was the commencement of his time with his father that precipitated further problems with school attendance. 

6. In any event, when the dates of his absences from school are correlated with the three visits he had with his father at the supervised contact centre on 19 July, 2 August and 16 August, it is by no means obvious how his absences are directly attributable to supervised contact.  For example, he had a contact on 19 July, and was away from school for all of the following week, indeed, the next two weeks.  But he was also away for most of the two weeks preceding the contact.  He had supervised contact on 2 August and 16 August, but the fact is he appears to have had minimal time away from school during that month.

7. To the extent that the Mother hypothesises that X’s time with his father is somehow the explanation for his time off school, it is plainly implausible.  The Court does not rule out the possibility that it is one factor, but the totality of the evidence presently before the Court suggests there might be other factors including matters within the Mother’s own life and the nature of her relationship with X.

8. This is a significant issue which, with due respect to those representing the Mother and the Independent Children’s Lawyer, seems to have been glossed over.

9. Moreover, in paragraph 33, the Mother attaches a doctor’s certificate that explains X’s four day absences in July, but the problem is he was actually absent 14 days in July.

10. At paragraph 35, the Mother asserts that X is now attending school regularly and is doing really well.  Indeed, she asserts that “he is raring to go to school at 8.30 am”.  This assertion is yet to be tested but, in any event, it is plainly inconsistent with the notion that his absences from school are somehow related to the time he spends with his father.

Discussion

1. This Court finds the matter troubling, not just in terms of what the Court considers to be the concerning issues about X’s welfare, whether in the care of his mother or father, but also because of the way that the matter has proceeded without these issues being subjected to critical scrutiny.  The Mother asserts, almost with pride, that the Department of Family and Community Services have closed their file since April, but one wonders whether they would have done so if they knew about the continued problem with getting X to school. 

2. Even more troubling is the evidence suggesting that the nature of X’s relationship with his mother is a potentially unhealthy one in a psychological sense. As noted above, there are problems in both households, and the Mother’s concerns about the Father are by no means easily dismissed, but they also are by no means validated. The Court believes that this case does need to be referred back to the Department, and a s.91B order will be made.

3. What is disconcerting is that the notes provided by (omitted) establish that the Mother told X what the Court had openly raised in Court on 10 September 2015, that is, that it was considering making an order pursuant to s.91B inviting the Department of Family & Community Services to intervene in this case. This upset X. He told his psychologist he would run away if he was placed in foster care. The notes record the Mother’s admission that she told X. This raises very serious issues about the Mother’s lack of insight, inappropriate boundaries, and the very nature of her relationship with X.

4. The argument made on behalf of the Father that, in effect, increasing X’s time with him becomes a safety net, deserves consideration.  The Court is concerned that the Mother’s depiction of the Father in her household with X may be distorted, and this thus presents a risk to him.  It is not necessarily a risk of physical harm, but a risk of psychological harm.  She struggles to get him to school.  There are concerns about her own parenting capacity.

5. The Father does not seek an order, at least for the time being, that X lives with him.  This probably reflects good advice based on an objective appraisal of the strengths and weaknesses of his case, and of how X would cope with such a change.  His case is, however, that he can bring a risk-free and more normal environment for X in his care.  In effect, the submission is that by increasing his time with his father, and removing the supervision which in itself carries the stigma that it is unsafe for him to spend solo time with his father, X gets to see a more accurate picture of who his father is and will be removed, albeit temporarily, from the potentially unhealthy psychological environment in his mother’s home.

1. Against this, however, is the evidence from (omitted) that X wants someone there when he spends time with his father, and his continued expressions of belief that his father did assault him.

2. The evidence does not objectively establish why his time needs to be limited to a supervised contact centre. The multiple other concerns raised about the Mother’s parenting capacity may not have been fully appreciated.  Any transition to unsupervised time needs to be managed carefully.  There are already orders in place requiring the parents not to involve X in these proceedings, but the Mother seems either unwilling, or incapable, of implementing such direction. 

3. It is important for the parents not to come into contact with each other given the history of the matter.  The supervised contact centre can become the changeover venue.  For a period of three months, X can spend time with his father each Saturday for 3 hours thereafter, this can extend to alternating Saturdays for 6 hours, in each case with the changeover to be facilitated at the contact centre, at hours that work for them.  It would be too much change too quickly, for X to have more time with his father.

4. This case needs an Expert’s Report and the Independent Children’s Lawyer is requested to apply for funding in this regard.  It may be necessary to again review the contact arrangements in future.

5. Out of abundant caution, a further order will be made that the parents do not discuss these proceedings with, or in the presence of, X, and allow no one else to do so.

6. Leave will be granted to re-list on 7 days’ notice should there be issues with the implementation of these orders.

7. This case needs a Final Hearing date.

8. The issue of X’s continued school attendance needs to be closely monitored, and the Independent Children’s Lawyer is requested to make arrangements in this regard, perhaps by obtaining information direct from the school with appropriate parental authority.

9. The Minute of Order proposed by the Independent Children’s Lawyer sets out a number of uncontentious orders that the Court will make.

I certify that the preceding fifty-eight (58) paragraphs are a true copy of the reasons for judgment of Judge Altobelli

Associate: 

Date:       19 October 2015