Hazelwood & Everett
[2023] FedCFamC2F 784
FEDERAL CIRCUIT AND FAMILY COURT OF AUSTRALIA
(DIVISION 2)
Hazelwood & Everett [2023] FedCFamC2F 784
File number(s): ADC 688 of 2021 Judgment of: JUDGE BROWN Date of judgment: 28 June 2023 Catchwords: FAMILY LAW – Interim parenting arrangements – two children aged 13 and 4 – allegations of abuse, neglect and family violence – where the child has made serious disclosures to experts – whether a change in care arrangement would be in the children’s best interests – where the parties have a very limited co-parenting relationship – nature of interim hearing – role of independent children’s lawyer – assessment of risk – matters to be considered Legislation: Family Law Act 1975 (Cth) Pt VII, ss 4(1), 4AB, 60B, 60CA, 60CC, 61DA, 65DAA, 68LA Cases cited: B & B (1988) FLC 91- 957
Deiter & Deiter [2011] FamCAFC 82
Eaby & Speelman (2015) FLC 93-654
Goode & Goode (2006) FLC 93-286
H v W (1995) 18 Fam LR 788
M & M (1988) FLC 91-979
Marvel & Marvel (No 2) [2010] FamCAFC 101
R & R: Children’s Wishes (2000) 25 Fam LR 712
Slater & Light [2013] FamCAFC 4
SS v AH [2010] FamCAFC 13
Division: Division 2 Family Law Number of paragraphs: 172 Date of hearing: 20 June 2023 Place: Adelaide Solicitor for the Applicant: Ms Dansie, Stevens Law Counsel for the Respondent: Mr Tredrea Solicitor for the Respondent: Camatta Lempens Solicitor for the Independent Children's Lawyer: Ms Shorter, Shorter Legal ORDERS
ADC 688 of 2021 FEDERAL CIRCUIT AND FAMILY COURT OF AUSTRALIA (DIVISION 2)
BETWEEN: MR EVERETT
Applicant
AND: MS HAZELWOOD
Respondent
INDEPENDENT CHILDREN'S LAWYER
order made by:
JUDGE BROWN
DATE OF ORDER:
28 June 2023
THE COURT ORDERS:
1.Within 7 days, MS HAZELWOOD (hereinafter referred to as ‘the mother’) and MR EVERETT (hereinafter referred to as ‘the father’) shall each undertake a hair follicle drug test at each parents sole expense, with such sample to test for illicit substances for a period of three (3) months and shall obtain, file and serve under an affidavit a copy of the test result report within 7 days of receipt of the report.
2.Until compliance with order (1) hereof, the mother and father are each restrained, and an injunction is hereby granted restraining the mother and father from:
(a)Cutting, shaving, colouring or bleaching their hair; and
(b)Using any chemicals or treatments on their hair other than commercially available shampoo and/or conditioner.
UNTIL FURTHER OR OTHER ORDER IT IS ORDERED AS FOLLOWS:
TIME SPENDING ARRANGEMENTS
3.Paragraphs 2 and 3 of the Orders of 24 June 2021 be discharged.
4.X born in 2009 live with the father from the conclusion of school on Friday 30 June 2023.
5.X spend time and communicate with the mother in accordance with her wishes.
6.Y born in 2018 live the father commencing from after kindergarten on 30 June 2023 and spend time with the mother on each alternate weekend from the conclusion of school (or 3.00pm if a non-school day) Friday to 5.00pm the following Sunday commencing 7 July 2023.
7.Upon the mother providing a clean hair follicle drug test result, her partner Mr B filing an affidavit, and upon the filing of evidence that the mother has addressed the issues contained within the Child Impact Report, then Y live with each parent on a week about basis with each parent as follows:
(i)With the mother from the conclusion of school Monday to the conclusion of school the following Monday, commencing the first Monday following the mother filing the above material (as set out in paragraph 6(b) herein) and each alternate week thereafter.
(ii)With the father at all other times.
PARENTING & OTHER PROGRAMS
8.Both parents shall, within 7 days, enrol in the first available C Program and D Program and shall provide evidence of enrolment and completion to the other parent and Independent Children’s Lawyer within 7 days of receipt of same.
9.The mother shall, within 7 days, engage with a qualified drug counsellor to address her use of marijuana and to assist the mother in understanding the impact of her drug use on the children and her capacity to provide essential items for the children and shall provide written evidence of her engagement with the counsellor to the Independent Children’s Lawyer and the father’s solicitor within 7 days of receipt.
INJUNCTIONS
10.The mother and father are each restrained and an injunction is granted restraining the mother and father from:
(a)Consuming or being under the influence of any illicit, non-prescribed substance or alcohol to excess, at any time the children are in their care, or within 24 hours of the children coming into their care, and from allowing any other person to do so while the children are in their care;
(b)Smoking cigarettes within the home at any time the children are in their care, and from allowing any other person to do so;
(c)Physically disciplining, physically intimidating/threaten or assaulting the children at any time, and from allowing any other person to do so;
(d)Discussing these proceedings or any allegations therein with the children, or within their presence or hearing or allowing any other person to do so;
(e)Allowing the children to have unsupervised contact at any time with the mother’s partner Mr B; and
(f)Providing the children with alcohol, cigarettes, illicit drugs, or a vape at any time or allowing any other person to do so.
MENTAL HEALTH
11.Both parents do all things, within 7 days, to ensure X is engaged with a trauma informed psychologist and both parents shall do all things to ensure X’s regular attendance upon the psychologist at such times as appointments are scheduled – with each parent to share the responsibility of X’s attendance for appointments.
12.Both parents do all things to ensure the children’s medical / dental needs are addressed in a timely manner and shall provide evidence of any attendance upon a medical professional to the other parent within 24 hours of any appointment being made and shall advise of the results of any attendance within 12 hours of the appointment.
OTHER MATTERS
13.The mother use her best endeavours to have her partner Mr B file an affidavit addressing the matters raised in the material (including Child Impact Report) against him.
14.The father be authorised by this order to enrol X at E School and Y at an appropriate kindergarten proximate to his home provided he gives the mother written notification of the kindergarten selected by him.
15.Pursuant to s 62G(2) of the Family Law Act 1975 (Cth), the parties and the children attend upon a Court Child Expert (practicing under their appointment as a family consultant), or a Family Consultant appointed under Regulation 7, nominated by the Court Children’s Service (referred to as the Family Consultant) for the purposes of the preparation of a family report, such report to be released by 31 October 2023 and that the family report address:
(a)any views expressed by the children and any matters (such as the children’s maturity or level of understanding) that would affect the weight that the court should place on those views;
(b)the matters set out in ss 60CC, 61DA and 65DAA of the Family Law Act 1975 (Cth);
(c)the impact upon the children and upon their relationship with the mother if the Court made orders as sought by the father;
(d)the impact upon the children and upon their relationship with the father if the Court made orders as sought by the mother;
(e)any other matters that the Court Child Expert/Family Consultant considers important to the welfare or best interests of the children.
16.Not later than 4.00 pm on 7 July 2023 the parties must provide their contact telephone numbers and email addresses to ...@....
17.Each party will do all things necessary to ensure the children attend upon to the Family Consultant pursuant to Section 62G(3A), unless otherwise determined by the Court Child Expert that Section 62G(3B) applies.
18.The parties and the children shall attend for interviews at such times, dates and places, and by such means as the Family Consultant may advise.
19.The Family Consultant shall be at liberty to inspect any material filed by the parties, and otherwise the following:
(a)Any co-located information provided to the Court from the Department for Child Protection and South Australian Police.
20.Upon the family report being provided to the Court, the Court will release the report and provide a copy to each party (or if represented, the party’s lawyer) and to any Independent Children’s Lawyer in the proceedings.
21.Unless a party objects in writing within 14 days of the date of releasing the family report, a copy of the family report may further be provided to the following, if the Court is requested to do so for a purpose related to the care, welfare or development of the children:
(a)a Children’s Court;
(b)a child protection authority;
(c)a State or Territory legal aid authority; and
(d)a convener of any legal dispute resolution conference.
22.Unless otherwise ordered, no person shall release the family report, or provide access to the family report to any other person.
23.This matter be listed for final hearing before Judge Brown on 29, 30 & 31 January 2024 at 10.00am NOTING 3 days hearing time has been allocated and will not be exceeded without leave of the Court.
24.The applicant file and serve all affidavit evidence she proposes to rely on at trial on or before close of Registry filing on 5 January 2024.
25.The respondent file and serve all affidavit evidence he proposes to rely on at trial on or before close of Registry filing on 12 January 2024.
26.On or before 19 January 2024 the applicant do pay the setting down fee or file an exemption certificate in respect thereof.
27.The applicant pay such daily hearing fee as required pursuant to the Family Law (Fees) Regulations 2022.
28.Solicitors for the parties shall forthwith jointly advise the Associate to Judge Brown at …@... on becoming aware that the matter has settled or for any other reason will not be proceeding to full hearing on the days allowed.
29.That no later than 7 days prior to the trial date Counsel for each party shall exchange and provide to the Associate to Judge Brown a Case Outline Document, with such Case Outline Document to include the following (divided under headings):
(a)Those documents to be relied upon;
(b)The specific Orders sought;
(c)A short chronology of significant events;
(d)A summary of the issues in dispute between the parties;
(e)A concise summary of argument (with specific reference to any statutory considerations); and
(f)A list of any relevant authorities, together with submissions as to their relevance.
30.Should any of the parties require the Family Report writer to give evidence at Trial, they are to contact the Court Children’s Services by email at …@... to arrange for the same NOTING no later than seven (7) days prior to Trial the solicitors for the Applicant and Respondent do provide the parties’ Applications, Responses and Trial affidavits to the Court Child Expert by email and for such purposes the said Court Child Expert is granted leave to inspect and read such documents prior to Trial.
31.Further consideration of the matter is adjourned to 27 November 2023 at 9.30am for mention.
32.All outstanding interim applications be 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).
Section 121 of the Family Law Act 1975 (Cth) makes it an offence, except in very limited circumstances, to publish 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 s 121(9)(g) of the Family Law Act 1975 (Cth).
REASONS FOR JUDGMENT
JUDGE BROWN:
INTRODUCTION
This is an extremely difficult and confronting case, which concerns parenting arrangements for two children aged 13 and 4 years respectively. It arises at an interim stage, against a background of competing and serious allegations of parental neglect and family violence, which cannot be resolved in the context of a truncated hearing, involving the consideration of affidavit evidence only.
Yet regardless of this difficulty, given the urgency of the situation surrounding the children concerned, the Court must make a decision expeditiously. In so doing, I am well aware of the possible serious ramifications, which may possibly arise, including the disturbance of reasonably long-standing care arrangements for the children, who have lived in the predominant care of their mother since an interim consent order was made in April of 2021, which became final in the following June.
It is the father’s case that the children are at a significant degree of risk of suffering physical and emotional neglect in the mother’s care to such a degree to justify a change of care, notwithstanding the provisional and untested nature of the evidence available, to the court, at an interim stage.
On the other hand, the mother contends that she has done the best she can to parent the children concerned in challenging circumstances, made more difficult by the father’s manipulative conduct towards her. As such, it will be potentially deeply unsettling for the children to have to cope with a change of home, school and routine, which may possibly be changed again, at the final hearing stage, when more evidence is likely to be to hand.
Essentially, the case is concerned with the assessment of risk. Regrettably, the case is one replete with issues of risk in both parents’ respective homes, each of whom acknowledges long‑standing drug use, whilst their spousal relationship was on foot. At this juncture, neither party concerned is able to provide any positive assessment of the parental capacity of the other.
At the outset of these reasons for judgment, I acknowledge the moment of the decision which the court must make, which will inevitably cause dismay to one of the parties concerned. I also acknowledge that it is evident to me that both the father and mother love their children.
However, once again, I reiterate the serious concerns that require the court to closely examine the evidence available and remain focussed on what it considers will be the outcome must conducive to serving the best interests of the children concerned, at this stage.
The Full Court has described the nature of the hearing, at the interim stage, as being significantly curtailed. In these circumstances, it has cautioned first instance courts, such as this one, about being drawn into issues of fact or matters relating to the merits of the substantive case where findings are not possible.[1]
[1] See Goode & Goode (2006) FLC 93-286 at 80,901 [68].
As a consequence, any orders made by the court, at this stage, are provisional in nature and so are capable of revision later, following a more detailed inquiry, involving a more thorough canvassing of evidence, which is also later likely to be more extensive, particularly in terms of expert evidence.
The Full Court, in the case of Marvel & Marvel (No 2) (“Marvel”)[2] summarised the difficulties arising for the court at the interim stage and said as follows in respect of the nature of the approach to be taken and the rationale for such an approach:
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.
[2] See Marvel & Marvel (No 2) [2010] FamCAFC 101 at [120].
I remind the parties that I am not determining the final arrangements for the care of the children concerned, at this stage. I will fix the matter for final hearing, as quickly as possible, as I indicated I would do at the conclusion of the interim hearing. I will also order the preparation of a more comprehensive Family Report in conjunction with such a final hearing.
BACKGROUND
The children concerned are X, born in 2009 and Y born in 2018. The evidence currently available unequivocally indicates that, for complex and, as yet not completely defined, reasons X is a vulnerable and troubled child, with a history of school truancy and self-harm. She has also been excluded from school as a consequence of posting photographs of drug paraphernalia on a social media website.
At this stage, neither party advocates the two children living in separate households. In this context, it is the father’s position that the court needs to make a dramatic change in respect of the current care arrangements for X and she should come and live with him. As a consequence, this would also entail Y leaving her mother’s care.
X and Y’s parents are their father, Mr Everett and their mother, Ms Hazelwood. They live reasonably proximate to one another in Adelaide – the mother in Suburb F; the father in Suburb G.
Up to this stage, X has attended H School. It is Mr Everett’s position that it would be a good idea for X to have a fresh start, at a new school. It is his position that relations between X and staff at H School have broken down. He proposes E School, which is a short walk from his home.
Y currently attends Suburb J Kindergarten, which is associated with the nearby primary school. Ms Hazelwood plans for her to transition to Reception at K School, at the start of next year, with her cohort of friends from kindergarten. She is vehemently opposed to there being any change in care arrangements for Y.
Sadly, it is my apprehension, that in some areas of her life, X is older than her chronological years. Both her parents acknowledge some degree of defiance on her part. In these circumstances, it seems to me that there is a reasonable prospect, notwithstanding her tender years, X will choose to make her arrangements in respect of where she lives – either with a friend or her boyfriend.
By way of background, Mr Everett was born in 1972. He is employed as a tradesman. He works between 7.00am and 4.30pm. He is close to his parents, who live nearby. It would appear to be his case that he would be reliant on his mother – the children’s paternal grandmother – to assist him in caring for the children, if they come and live primarily with him.
The paternal grandmother has not provided an affidavit in these proceedings. It is the mother’s position that she (the paternal grandmother), for complex historical reasons, is not well disposed towards her and is intent on undermining her relationship with both children. It is also Ms Hazelwood’s case that this is also the stance adopted by Mr Everett. Essentially, she asserts that the father is intent on alienating X from her and is utilising the child’s current difficulties to achieve this end.
Ms Hazelwood was born in 1991. Accordingly, there is a 19 year age difference between the parties. Ms Hazelwood is reliant on social security for financial support. She has re-partnered. Her current partner is Mr B. It is Ms Hazelwood’s case that she and Mr B do not currently live together.
Issues to do with financial support and the suitability of accommodation for the children are an issue in this case. At present, Ms Hazelwood lives in rented accommodation with six others, including X and Y. These other individuals include Ms Hazelwood’s sister. Prior to recent events, X was sleeping first on a mattress and then on a bunk bed located in a converted hallway. She has complained about the lack of privacy it provides her. Y shares a bedroom with her aunt.
Mr Everett has apparently a larger home, which also accommodates a much loved dog. Both X and Y love the dog and there is some evidence to indicate that X regards him as her support animal providing her with emotional stability. In this context, Ms Hazelwood proposes that Y and X continue to live with her and that the dog comes too.
Ms Hazelwood does not dispute that she is currently subject to significant financial difficulties. However, it is her case that these difficulties are exacerbated by Mr Everett’s failure to pay her appropriate level of child support for the children. She asserts that he is currently approximately $1,200.00 in arrears in this regard.
In this context, Ms Hazelwood is critical of Mr Everett alleging that he has purchased expensive gifts, for X, such as AirPods and a mobile telephone, in order to curry favour with her and influence the child against her mother.
Mr Everett disputes the truth of these allegations. It is his case that X, for understandable and rational reasons, has indicated a preference to live with him. This preference is based on her experience of being exposed to her mother and Mr B’s endemic and daily marijuana use; her neglect by the mother; and her general dissatisfaction with her mother’s household, including her sleeping arrangements and lack of privacy. In addition, he alleges that Mr B has assaulted X in the past.
In response, Ms Hazelwood asserts that Mr Everett has fanned X’s dissatisfaction and has engaged in a campaign of making false claims, against her, to both South Australia Police (“SAPOL”) and the Department for Child Protection (“DCP”). She further alleges that he has lied to these authorities in order to justify his retention of the children, in contravention of earlier court orders. Essentially, it is Ms Hazelwood’s case that Mr Everett has a compromised attitude towards the responsibilities incumbent in being in a competent and caring parent.
Mr Everett and Ms Hazelwood are not the only parties to these proceedings. Given the serious nature of the allegations made by each of the parties, which have also engaged SAPOL and DCP, at an earlier stage of the proceedings, it was ordered that X and Y be independently represented in the case. The children are represented by an Independent Children’s Lawyer (“ICL”), Ms Melissa Shorter, an experienced family lawyer, who practises in Adelaide.
Ms Shorter is to be regarded as a party of equal importance to the parents in this case. Pursuant to the provisions of section 68LA of the Family Law Act 1975 (Cth),[3] she is under a statutory duty to carefully examine all the evidence available to her, in this case, and then advocate the outcome, which she considers would best serve the interest of X and Y.
[3] Hereinafter referred to as “the Act”.
The first major evidentiary issue arising in the case (which cannot be resolved in the context of these interim proceedings) is when the parties began their sexual relationship. The mother’s position is that it was when she was 14 years old and the father was 33.
In these circumstances, it is her case that there has always been an inherent power imbalance between the two, in which Mr Everett has subjected her to his coercion and control. In addition, she alleges that she was directed to keep the nature of the parties’ relationship secret from the paternal grandmother, who did not know of the existence of X, until she was approximately 9 years old. It is a theme of her case that this demonstrates the emotional un-healthiness of the parties’ relationship with one another, which she asserts continues to the current time.
The father affirms that the sexual aspect of the parties’ relationship began when Ms Hazelwood was 16 or 17. He was a friend of Ms Hazelwood’s father. What is clear is that X was born after Ms Hazelwood turned 18. As will be detailed in due course, it would appear to be the case that Mr Everett was not entered on X’s birth certificate as her father. What have been the implications of this omission, for child support purposes, is unclear to me.
The father does not appear to dispute the mother’s assertion that she moved into Mr Everett’s home, when X was around 3 or 4 years old. In this context, she asserts that she paid board and contributed to other household bills but essentially supported X on her own.
The father asserts that the mother was utilising her funds to purchase drugs for herself. He is also critical of Ms Hazelwood for becoming obsessed with an internet game which he asserts she played incessantly leading to her ignoring the physical needs of first X and then more recently Y. It is the mother’s position that the parties’ relationship was inherently unstable and marked by several separations.
The parties do, however, agree that their relationship irretrievably broke down in October of 2020, when, on the mother’s case, there was an unpleasant altercation between her and the paternal grandmother. As previously indicated, it is Ms Hazelwood’s case that she and the paternal grandmother have no effective relationship with one another because of long standing animus between them.
This was the context in which the mother first commenced proceedings, in this court, which she did on 12 February 2021. She sought the following orders:
·X and Y live with her;
·The parties have equal shared parental responsibility for the children;
·A declaration be made that Mr Everett is X’s father and her birth certificate be amended to recognise this fact;
·The father spend time with the children on alternate weekends from Friday evening until Sunday evening and for half of each school holidays; and
·The children be exchanged inside the Suburb M Police Station in the absence of the paternal grandmother, with the father to be injuncted from leaving the children in the care of Ms N for periods longer than 2 hours.
Mr Everett responded to this application on 20 April 2021. He sought the following orders:
·The parties have equal shared parental responsibility for Y and X;
·The children live with him; and
·Subject to the mother providing three negative drug screen tests, she spend time with the children on alternate weekends from Friday evening until Sunday evening, as well as for half of the school holidays.
The factual underpinning of the orders sought by him was that the mother had a serious drug abuse issue and abused alcohol. This led to her being unable to provide adequate care for the children, whom she frequently left unattended, whilst she played video games or left the home to secure illicit drugs. Essentially, it was his case that the mother had neglected the children and her life was out of control.
The case came into court, for the first time, on 22 April 2021, when orders were made for the children to continue to live with their mother and spend weekend time with their father. The parties were referred to a child dispute resolution conference and each was directed to undertake one random drug screen test, at the direction of the other’s solicitor. In addition, Mr Everett was directed to obtain a psychiatric report in respect of his mental health.
The parties however did not attend the child dispute resolution conference. Accordingly, no independent assessment was provided in respect of the dynamic between them. In addition, neither provided a random drug screen test. Rather, on 24 June 2021, notwithstanding the difficult and conflicted background between them, the parties were able to agree on final orders for the care of X and Y.
Essentially, the parties agreed on the interim arrangements, along with some specific provisions relating to special occasions. They also agreed to refrain from the use of illicit substances and to cease making critical or derogatory remarks about the other and members of the other’s family. Significantly, no specific orders were made in respect of resolving the issue of X’s birth certificate.
Clearly, given what has occurred since they were made, these orders did not represent a considered resolution of the long standing and complicated relationship issues between the parties. In addition, given her age, it would appear to be inevitable that X has been subjected to the parties’ long standing conflict.
On 28 October 2022, Mr Everett commenced contravention proceedings alleging that Ms Hazelwood had not made the children available to spend time with him. In addition, he alleged that Ms Hazelwood had breached the order in respect of the use of illicit drugs. He alleged that one of the children had found her[drug paraphernalia] hidden under her bed and advised him of this.[4]
[4] See affidavit of Mr Everett filed 24 October 2022 at [7].
In the context of drug use, he deposed as follows:
I admit I had used illicit drugs in the past, as had the mother. However, I have been clean since the beginning of the year whereas the mother’s drug usage has increased.[5]
It was the effect of his evidence that the orders made on 24 June 2021 had been problematic from the date of their instigation.
[5] See affidavit of Mr Everett filed 24 October 2022 at [10].
This contravention application had been referred to the national contravention list and is being managed by a Senior Judicial Registrar based in City O. There had been a number of appearances before the court, between November 2022 and March 2023, with the contravention proceedings having been ultimately discontinued by Mr Everett on 27 June 2023.
The next matter of significance, which occurred in the case, is that on 16 March 2023, Ms Hazelwood filed an application seeking a recovery order in respect of both X and Y and the children return to their respective school and kindergarten. At this stage, it was the mother’s case that Mr Everett had lied to police in order to achieve custody of the children, whom she had not seen since late-February 2023.
In her affidavit filed in support of her application Ms Hazelwood deposed her concern that X had begun cutting her legs. In addition, as previously indicated, she deposed that X had been suspended from school for posting a video of herself using drugs, whilst wearing her school uniform.
Thereafter, she deposed to her and X having an argument about some issue to do with her (X’s) mobile telephone on or around 21 February 2023. Later that evening, X apparently summonsed the police to the mother’s home on the basis that she (X) had been the subject of an assault. X later went to a friend’s home and then apparently to her father’s home, where she remained.
On 25 February 2023, whilst driving in their neighbourhood, Ms Hazelwood and Mr B saw X walking with a friend. It is their position they stopped to talk. Mr Everett has deposed that he was contacted by X’s friend who informed him that Mr B had attempted to run them over with his vehicle. The matter was referred to SAPOL and DCP. It is Mr Everett’s case that he was advised by a DCP worker that he should take steps to get Y into his care.
This led to a further unpleasant incident which occurred at Y’s kindergarten on 27 February 2023. Given the terms of the court order, the principal of the kindergarten did not agree to Y going into Mr Everett’s care. Again SAPOL was summonsed. It is the mother’s case that the father lied to the officers concerned that DCP had indicated that Y should live with him. As a consequence, Y came into her father’s care, which precipitated the mother’s recovery order application.
Against this chaotic state of affairs, each party was critical of the other’s conduct and asserted that it represented a threat to the welfare of the children. The mother asserting that the father was not inclined to obtain the mental health/counselling support which X desperately needed and had not ensured the children had attended school since they had come into his care, in contravention of the earlier order.
For his part, Mr Everett deposed as follows:
I have real and significant concerns that both girls are in danger whilst living with the mother. The mother doesn’t care about them. [X] does as she pleases and has no boundaries. She is cutting herself and self-harming, which is increasing. She is a vulnerable person and has no direction. I am concerned that [Y] is also in danger as the mother doesn’t seem to care about her. [Y] has already started swearing and using expletives that are totally inappropriate for her age.[6]
[6] See affidavit of Mr Everett filed 22 March 2023 at [69].
In tandem with Mr Everett’s contravention proceedings, on 17 February 2023, a Senior Judicial Registrar ordered that a Child Impact Report be prepared, which was to be released in mid‑June of 2023. Necessarily, the controversies arising between the parties as to why X and Y had come into their father’s care overtook the contravention process and the case was ultimately listed before me for interim determination on 29 March 2023. At this stage, I had available to me documents prepared by SAPOL and DCP regarding their departmental involvement with the family.
In its report dated 28 March 2023, DCP indicated that it had received a number of notifications between October 2020 and 23 February 2023 regarding the safety of the children, whilst in their mother’s care. These included allegations of homelessness regarding Ms Hazelwood; and X disclosing self-harm. In addition, other notifications were made that the father had attended one of the children’s sports games, whilst under the influence and had abused the mother. Further, in February 2021, the Department received allegations regarding historical family violence, involving the father and concerns relating to his compromised mental health.
All in all the Department had received 11 child protection notifications, which delineated both paternal and maternal concerns. The Department did not have an open file as at March 2023. It is apparent that the Department elected not to formally investigate any of these notifications. Significantly, on 8 October 2021, the Department received a notification that a neighbour of the mother had sexually assaulted X. The perpetrator concerned was apparently known to the Police.
The last notification received was in the following terms:
The last child protection notification that the department received was on 23 February 2023, pertaining to allegations that the step-father [Mr B] bailing [X] up in her bedroom and threatening to 'sort her out' if she spoke to her mother like that again after they had a verbal argument. Further allegations raised: that the children had dirty clothing/nappies; that [X] was missing school; that [X] was out walking late at night; that [X] had fresh cuts down her arms and the cuts on her arms are deep enough to draw blood; that [X] stated that she was cutting herself "because they're (the mother and [Mr B]) filling my head with weird thoughts and fucking with my head"; that [Y] had not had a bath or shower in the last 3 weeks; that [X] was sleeping on the floor in the hallway and has nowhere to store her clothes at the mother’s residence; that [Y] sleeps on a mattress on the floor in her aunties room when in the mother’s care; that the father commenced a sexual relationship with the mother when she was 14 years old; that [Y] previously had a sore vagina and a rash when she was 3 years old, however a doctor assessed that she was ‘okay medically’; and that the mother tried to run over [X].[7]
[7] See DCP report dated 28 March 2023.
The SAPOL material indicated four incidents involving the Police and the family. The first incident occurred on 27 December 2022 when X is alleged to have texted her mother that dad’s voice is starting to get violent. As a consequence, Ms Hazelwood requested police carry out a welfare check.
On investigation, the Police reported that there had been a verbal altercation between father and child, regarding the latter’s mobile phone use, resulting in Mr Everett confiscating the device. The relevant entry concludes with the following statement:
[X] was spoken to separately and the version of events was corroborated by her. [X] stated that she wanted to go back to her mother’s house and wanted her phone back as she was sick of her father. Nil abuse and both children were sighted and in good health.[8]
[8] See SAPOL Information Summary Report dated 8 March 2023.
The next entry relates to another police welfare check, which occurred on 22 February 2023, when Mr Everett requested that police check on X, at Ms Hazelwood’s home because of an alleged altercation, which had occurred between X and Mr B.
To police, Ms Hazelwood reported that she had been in a verbal argument, with X, regarding issues surrounding X’s broken mobile phone, when this argument had escalated, Mr B had intervened and said words to the effect of don’t you speak to your mother like that or I will… It was in the aftermath of this situation that X apparently went to stay at a friend’s home, with police approval and then later went on to her father’s home, precipitating the current proceedings.
The Police record indicates that Mr Everett was informed of this outcome, upon which he conveyed his concerns regarding the welfare of Y. In this context, the police record indicates as follows:
In relation to the welfare of [Y] Police re attended [Ms Hazelwood’s] address and checked on the welfare of [Y] and there will nil concerns regarding living conditions, health or safety of any child residing at that address. Police recorded that there were 4 suitable adults who live at the address that provided adequate care for all children living there.[9]
[9] See SAPOL Information Summary Report dated 8 March 2023.
The final entry is dated 26 February 2023. On this occasion Mr Everett and X reported their concerns regarding living conditions at Ms Hazelwood’s home for Y. They included the following:
·The house was dirty;
·There was never enough food to feed X or Y;
·Mr B was violent and X was constantly frightened of him;
·Ms Hazelwood’s home had three bedrooms yet accommodated 5 adults requiring X to sleep on the floor in a hallway;
·X’s head was filled with horrible thoughts, which caused her to want to cut herself;
·Y had ringworm and was not being bathed by her mother.
It would appear to be the case that the police took no direct action in regards to these matters and nor did DCP. However, on 27 February 2023, as has been previously indicated, police were summoned to Y’s kindergarten for a standby breach of the peace. It was in this context that Y came into Mr Everett’s care.
It is Ms Hazelwood’s position that he dishonestly told police that he had the approval of DCP to assume care of Y, when he knew this was not the case. In these circumstances, Ms Hazelwood and her solicitor are extremely critical of Mr Everett asserting that he has no compunction in manipulating the authorities to gain an advantage over Ms Hazelwood in respect of care arrangements for the children.
Ms Hazelwood was also critical that Mr Everett, in the context of what she would describe as his own self-help, subsequently enrolled X at E School and Y’s kindergarten without consultation with her. Ms Hazelwood was also concerned that X had informed her that she was not, in any event, attending school and, in effect, this was none of her mother’s business.
In addition, Ms Hazelwood deposed as to being messaged, by X, on 1 March 2023, when X had said the following:
Mum can you let dad know when you drop my stuff off at the police station my hair straightener school clothes and clothes and the money you promised love [X].[10]
[10] See affidavit of Ms Hazelwood filed 16 March 2023 at [64].
When the case came on for interim hearing, on 29 March 2023, I was concerned by the extreme level of parental conflict between the parties and their obvious inability to communicate about issues to do with their children. It was also apparent to me that DCP had received complaints about the alleged deficits of both parents concerned, but had not formally become involved.
In this context, I was concerned that perhaps there was a possibility that X, as a consequence of her exposure to this state of affairs, was to some extent, playing her parents off against each other, to achieve her own ends. By way of example it was apparent from Police records that X had had an argument about her mobile phone with each of her parents and in each case had thereafter expressed her dissatisfaction with that parent and indicated a desire to live with the other.
That is not to say that I consider anything other than that X is an extremely vulnerable and troubled child, not least because of the fact that she has apparently been subject to a sexual assault. It was also clear to me that her attendance at school was far from complete.
However, I was also concerned at the degree of calculation exhibited by Mr Everett in achieving custody of Y. In this context, I was struck by the dichotomy between the police’s view, from their own physical observations in February of 2023, that Ms Hazelwood’s home was suitable for Y and Mr Everett and X’s later report to police that it was not.
I was also struck by the fact that, ostensibly at least, the source of conflict between X and each of her parents, had been the former’s mobile phone, a common scenario in respect of teenage children and, as previously indicated, these disputes had led to X leaving one household for the other.
In this context, the normality and familiarity of X’s interaction with her mother regarding her hair straightener and clothes did not appear to be completely congruent with a child who had rejected a parent because of the obvious deficits in the household concerned.
In addition, when the police, on Mr Everett’s instigation, had conducted the welfare check on Ms Hazelwood’s home, they had found it to be satisfactory, albeit crowded. As previously indicated, it is a significant element of Ms Hazelwood’s case that she is subject to a high level of financial disadvantage. It was also, I considered noteworthy that the Department did not have an open file and each parent had apparently been the subject of notification to it.
Most significantly of all, at this interim stage, I did not have any independent and objective assessment of X’s views in the matter nor, indeed, any form of expert assessment of the family concerned, although the preparation of a Child Impact Report was in train. I also noted that the final order had been fairly recently made, with the consent of the parties.
In these circumstances, for the above reasons, (which were orally delivered at the time) I elected that the children should return to the care of their mother and the previous parenting regime be reinstated. It was at this stage that the order appointing Ms Shorter was made and a further order mandating a process for each party to be subject to drug screen testing. In this context, the case was adjourned until mid-June, when it was anticipated that the Child Impact Report would be to hand.
Regrettably, any hope that this outcome would provide some sort of short circuit of the conflict between the parties (and X) proved to be forlorn. On 25 May 2023 Ms Hazelwood commenced further proceedings seeking a recovery order for X. Mr Everett responded on 13 June 2023 seeking that both children live with him and spend time with their mother on alternate weekends. Ms Hazelwood filed a further affidavit in response on 19 June 2023.
Again, the contents of these affidavits has not been subject to cross-examination and the parties themselves vehemently dispute the various issues set out. In brief the mother’s position was as follows:
·The children had settled back into her care easily following the earlier interim proceedings;
·X had returned to H School and Ms Hazelwood, X and the school authorities had decided she would attend on a part-time basis and focus on her main subjects;
·Mr Everett retained X on 12 May 2023 and had later sent her maternal grandmother a text message that she was being held on to by her father but had gone to Dad’s because she was better off there, which had been recommended by the school – although which one was not clear;
·Police had conducted another welfare check on her home on 13 May, which Ms Hazelwood described as extremely thorough and which involved checking what food was available in the home. Nothing untoward had been found and the police were apparently aggrieved that they had been engaged without proper basis. As a consequence, they indicated that Mr Everett would be warned about making spurious welfare checks; and
·X was not attending school. Ms Hazelwood had not been sending Y to kindergarten because she feared the father would again take custody of her.
The father’s evidence can be summarised as follows:
·In mid-2023 he had received a report from X’s school (presumably H School) that she had informed an unspecified person that she (X) was being mistreated in her mother’s home, as was Y;
·In these circumstances, he had instructed his mother to collect X from school;
·When X came into his care, it was apparent she was unwell. X said she had been unwell for 1½ weeks but her mother had declined to seek medical attention for her;
·Mr Everett took X to a general medical practitioner who diagnosed an upper respiratory tract infection. The doctor prescribed rest, fluids, lozenges and analgesia and wrote a prescription for medication;
·The GP concerned was not X’s usual doctor but one at the same practice. The notes available to him indicate that X had recently been reviewed by this doctor and X herself stated that she had seen a specialist weeks earlier and been prescribed medication;
·In this context, part of the plan of treatment for X was for usual GP to follow-up specialist recommendations.
·A person described as Ms Q at X’s school (not specified) has advised that X needs to stay away from her mother;
·X has reiterated her complaints of being neglected at her mother’s home and of not having enough to eat. In this context, X took a photo of her mother’s fridge, which he provided to the court. It shows milk, juice, a carton of eggs but no vegetables or obvious ingredients from which to construct a meal;
·He had purchased a bunk bed for X, which she described as like sleeping on a cloud. She co-slept with the dog; and
·X reported the existence of drug paraphernalia at her mother’s home. In this context, a photograph of this paraphernalia, on a cupboard shelf, was provided. The identity of the person taking the photograph was not specified.
Ms Hazelwood responded to these issues in the following manner:
·X has a medical condition. She has been consulting a specialist at the R Hospital. Ms Hazelwood had been giving her medication, which costs $55.00, which she (Ms Hazelwood) struggles to fund. She has asked Mr Everett to assist but he has declined;
·She was not informed by Mr Everett that he was taking X to the doctor. Accordingly, there was no discussions between the parties regarding the child’s medical circumstances;
·The father pays no child support for X and is $1,196.00 in arrears in respect of Y;
·She acknowledges the photo of her fridge shows it somewhat empty. However, she has a chest freezer which contains meat, vegetables, bread and other items;
·The children have appropriate bedding at her home;
·The father has been buying X expensive presents such as air pods and clothes;
·On the weekend of 17/18 June 2023, she had a video call with X, who displayed to her a knife, which she indicated her father knew was in her possession. A photograph was provided of this knife. In two dimensional black and white image, it appeared to be obviously a serious and dangerous weapon. The mother is highly critical of Mr Everett for allegedly allowing X to have such an item, given her current propensity to cut herself.
To sum, the conflict between the parties (and X’s engagement in it) seems to be becoming even more intense. In this conflict, each party seems intent on searching out for every conceivable means of gaining ascendancy over the other, in the struggle for control of the children.
As a consequence, the court is called upon, as best it can, to adjudicate ever escalating allegations of parental malfeasance. In such an atmosphere, in my view, there arises a very significant risk of innocuous events being misconstrued or misreported and indeed of being fabricated, given the inability (and apparent unwillingness) of the parties themselves to discuss controversies between (including issues reported by X) and de-escalate them in a child focussed manner.
THE CHILD IMPACT REPORT
The Child Impact Report was prepared by Court Child Expert Ms S. She recommended to the court that orders be made restraining each of the parties discussing her report with either child or expressing any displeasure at what X and Y had indicated to her. For this reason, the release of the report was delayed until shortly prior to the interim hearing.
At the outset, it is important to point out to the parties that Ms S’s report is not a full family report assessment and, in addition, her considerations and methodology have not been subject to any detailed scrutiny by either the parties themselves or the court.
In the Child Impact Report, Ms S was at pains to avoid impinging upon the court’s role as fact finder. However, at the same time, for obvious reasons, Ms S has a significant advantage, over me, in the case, given that she was able to engage with the children directly. As a consequence, her report is a significant piece of evidence available to the court, at this interim or provisional stage.
In this context, most significant of Ms S’s Key Considerations was as follows:
If the court accepts that [X] and [Y] are at risk of abuse and/or neglect in [Ms Hazelwood]’s care it may support their safety for them to live with [Mr Everett] until [Ms Hazelwood] is able to demonstrate that she has addressed these concerns.[11]
In the context of this recommendation, due to what she characterised as the significant risks identified in the case, Ms S recommended that a full Family Report be prepared.
[11] See Child Impact Report dated 7 June 2023 at [65].
The other of Ms S’s key recommendations can be summarised as follows:
·The parties each do a number of parenting courses;
·Each party undertake a hair follicle drug screen;
·Ms Hazelwood engage with a drug counselling service; and
·X engage in a course of counselling with a trauma informed psychologist via a mental health care plan.
Each of the parties provided to the Court Child Expert a history, which is congruent with the matters summarised in these reasons for judgment. From this history, Ms S noted the following significant issues:
·X had significant mental health/behavioural issues, which included self-harm by cutting, running away from home, and refusal to attend school. In addition, she had been sexually assaulted last year, which seemed to have exacerbated her self-harming.
·X had made several disclosures to multiple people, including police, concerning alleged physical and emotional abuse by each of her parents.
·It seemed likely to be the case that both X and Y had significant relationships with members of both their paternal and maternal families.
·Both parties acknowledged to Ms S that they had used illicit drugs, while in a relationship. Each asserting that the other used it more frequently than the other, with Ms Hazelwood alleging that Mr Everett supplied her with the drug and she only used it when he did.
In this context, for obvious reasons, the contents of Ms S’s interview, with X, assumes central importance. In this regard, Ms S reported that X engaged readily with her and, after a brief period of rapport building, spontaneously reported I want to live at Dad’s. X then made other complaints about her mother’s household, including her sleeping arrangements and the fact that she was denied food for extended periods by her mother, who spends all her money on weed.
X also had complaints, regarding the discipline at her mother’s home. One of her mother’s rules, which X perceived to be unfair, was that she was required to cease using her mobile phone at 10.30 (presumably PM). From X’s perspective, this was inappropriate, as the telephone was a gift from her father and therefore only he could direct how she was to use it.
From my perspective, in purely objective terms, it does not seem to be unreasonable that a parent should restrict a 13 year old’s use of an electronic device. As previously indicated, X’s use of her phone has been a source of conflict in both of her parent’s homes, with her father also apparently reporting his concern that X was using it excessively.
In addition, X complained that her mother restricted her capacity to speak to her father on the telephone. From X’s perspective, the only adult she felt she was able to talk to about her problems was her father and therefore she wanted the ability to talk to him on an unrestricted basis. Significantly, X asserted a close relationship with both her maternal and paternal grandmothers. She also reported having friends. Accordingly, it is apparent that X is not entirely isolated in the world.
The major component of X’s complaints, about her mother’s household, centre on her being assaulted and abused by both Ms Hazelwood and Mr B. She reported feeling frightened of Mr B, who punched walls and yelled. She also indicated that he assaulted her mother. To Ms S, X indicated that these various events caused her to think about suicide and were the reason she had begun to self-harm.
Finally, X also complained that her mother had neglected her health, when she had been recently unwell. She asserted that Ms Hazelwood had failed to take her to a doctor. Given the medical records, which have been made available to me, albeit that those records are not comprehensive, this statement may not be strictly congruent with what actually occurred.
When interviewed, Y was positive about her father and her dog. She also indicated that she hated her mum’s house. In summary, Ms S, found her interview with Y to be somewhat incoherent but one which indicated a sense of safety, connection and belonging with her father but the opposite, so far as her mother was concerned.
After interview, Ms S observed each of the parents interacting with X and Y. In terms of the father, these interactions were warm and positive. With her mother, X was described as being distracted and impatient.
Initially, Y played happily with her mother. Later, when it came time for Y to put on her shoes, she became resistant to her mother, which caused Ms Hazelwood to become somewhat irritated and then, in Ms S’s expression, very angry with Y, which she displayed by yelling loudly at the child.
Ms S found this parental behaviour to be concerning as it was, in her view, disproportionate to the incident and therefore might indicate a difficulty with emotional regulation, on Ms Hazelwood’s part. From Ms S’s perspective, it was particularly significant that this had occurred subject to her professional scrutiny, when parents are usefully focussed on making a positive impression on the expert concerned. Equally concerning to Ms S was that Y appeared unaffected by her mother’s loss of composure, which suggested to the expert that the child had become accustomed to it.
In all these circumstances, from Ms S’s perspective, this was a family replete with a significant degree of risk, on both the maternal and paternal side. This was as a consequence of each parties’ acknowledgement to her of significant previous illicit drug use and the self-evident level of conflict between them, which had already negatively impacted upon X and had the potential to do so in respect of Y.
So far as Mr Everett was concerned, Ms S was not in a position to reject Ms Hazelwood’s assertion that Mr Everett’s repeated allegations that she was neglecting the children represented harassment of her. In this context, Ms S pointed to the frequent SAPOL welfare checks instigated by Mr Everett, which had not resulted in any adverse findings by SAPOL. In this context, Ms S opined as follows:
In light of the risks identified in relation to [X], [Mr Everett]’s concerns about her are likely to indicate protectiveness, however the information presented to the court in the SAPOL records indicates that [Mr Everett] has not always been child focussed in the way he has managed these concerns. If the court accepts that [Mr Everett] pressured [X] into making disclosures against her mother to SAPOL, this is likely to have had a significant emotional impact on her, particularly as speaking to police may have triggered trauma for her after having to make statements to them in relation to her sexual assault by a neighbour.[12]
Clearly, if X is either being manipulated or compelled, by her father, to make unfounded claims of abuse against her mother, this would represent a significant emotional abuse of the child, as it would represent an attempt to undermine a central relationship for X, namely her maternal one.
[12] See Child Impact Reported dated 7 June 2023 at [48].
Ms S shared my view that Ms Hazelwood’s attempts to set boundaries, for X, in respect of mobile phone use, did not appear to be unreasonable. As a consequence, she noted that the evidence available to her indicated Mr Everett did not appear to be supportive of such boundary setting and his extremely negative attitude towards Ms Hazelwood, had the potential to exacerbate the likelihood of X placing her in situations where she may be at risk, for example by running away from home.
As previously indicated, these were issues, which occurred to me at the earlier interim hearing stage. I noted that, at one stage, X elected to leave her father’s home, when the two came into conflict. I remain concerned at the prospect of X being inclined to oscillate between her parents, given the power vacuum in respect of her parenting, which has and continues to exist and her overall personal level of vulnerability.
However, for obvious reasons, the most significant aspect of Ms S’s report concerns the spontaneous and serious allegations of physical abuse and neglect, which X made to her and which were, to some extent, echoed by Y. Ms S opined as follows:
If the court accepts that [X] has experienced abuse by [Ms Hazelwood] this is a significant concern and is likely to have impacted negatively on [X]’s emotional and mental health. [X] herself reported that witnessing family violence by [Mr B] and fighting amongst her maternal family made her feel “suicidal”. [X] has also experienced sexual abuse by an adult neighbour which is likely to increase her vulnerability to mental health and behavioural difficulties. [X] is a young person at significant risk of harm, not only by potential abuse and neglect, but also due to her frequent running away, her disengagement from school and her feeling that she has limited support from her family at home.[13]
[13] See Child Impact Report dated 7 June 2023 at [47].
As indicated above, Ms S was careful not to intrude upon the role of the court as the ultimate finder of fact in the case. It is my responsibility to assess the level of risk, which exists in each household and put in placer order which are proportionate to the level so assessed. At this juncture, there is scant, if any, independent and objective evidence to indicate that X has been abused, in either of her parents’ homes. This is the central evidentiary dilemma thrown up by the case.
However, the fact remains X has made very many serious disclosures, not only to Ms S but also to others, including police officers and her father. I am aware that these have arisen in the context of a highly conflicted parenting relationship, in which X has likely become enmeshed.
However, necessarily, given the structure of the Family Law Act 1975 and the doctrine expressed by the Full Court in Marvel, this court is mandated to take a conservative approach to the case, whilst bearing in mind that any interim decision is provisional in nature and capable of reversal at a later stage.
THE ICL’S POSITION
Ms Shorter is relatively recently appointed. At present, she has received limited, if any, information from X’s school. Clearly, the regularity of her attendance is a matter of major concern for the ICL, as is the suggestion that she has attended at school hungry from time to time. Ms Shorter has requested records but as yet has not received anything concrete.
She has however interviewed both children, whom Ms Hazelwood brought to Ms Shorter’s office one afternoon recently outside of school hours. At this stage, X informed Ms Shorter she had not attended school that day indicating that she had wagged, which caused Ms Shorter to be concerned. In this context, X indicated a strong preference to attend E School.
X’s interview with Ms Shorter was broadly consistent with what she said to CCE Ms S, namely a strong sense of dissatisfaction with her mother’s household and the behaviour of Mr B. Strong pull factors to her father’s household were greater privacy, the presence of the dog and she does not get hit. In contrast, at her mother’s household, there were seven occupants and her Mum and Mr B use weed every day. Ms Shorter also indicated that Mr B had killed one of her pets – a fact Ms Hazelwood disputes asserting that the pet died of natural causes.
To Ms Shorter, X expressed some ambivalence about attending a counsellor. Ms Shorter’s impression both from the child’s presentation and the material available to her was that X was a vulnerable and troubled adolescent. As such, Ms Shorter was greatly concerned about her current circumstances, which militated in favour of her (Ms Shorter) being in more in favour of X living with her father than her mother.
Given her age, Ms Shorter did not interview Y at length. Again what Y said to her was consistent with her interview with Ms S. Ms Shorter noted that the older child seemed to have a more entrenched negative attitude towards her mother. However she was not in favour of separating the children’s place of residence.
In this context, Ms Shorter was aware of the moment of changing the children’s living arrangements, at the interim stage, but advocated a change of both children’s living arrangements to their father’s household, given what she regarded as X’s disturbing disclosures to her.
As a consequence, it is Ms Shorter’s assessment of the evidence available, at this interim stage, that the best interests of X and Y will be served if they live with their father and X spends time and communicates with her mother when she wishes; whilst Y spends time with her from 3.00pm Friday until the following Sunday at 5.00pm on an alternately weekly basis.
From Ms Shorter’s perspective, the most disturbing aspect of her interview with X was the child’s description of endemic drug use by her mother. As a consequence, she proposed a hair follicle test, to which Ms Hazelwood agrees. Ms Shorter also proposed a range of injunctions and that the parties themselves attend specified parenting courses and the mother attend some form of drug counselling. She also seeks a hair follicle test from Mr Everett, given his acknowledgment of prior drug use.
Given the criticisms made of Mr B, Ms Shorter proposed a process by which some further evidence be gathered from him. She also acknowledged the limited nature of the Child Impact Report and proposed a more detailed Family Report be prepared. She agreed with my view that the case needed to be fixed for final hearing sooner rather than later.
Significantly, Ms Shorter expressed her assessment that both Mr Everett and Ms Hazelwood loved X and Y very much. In this context, Ms Shorter did not rule out the parties sharing the care of the two children on the condition that Ms Hazelwood provided evidence that her drug issues were in remission. I acknowledge that this is a significant evidentiary controversy in the case and, as yet, there have been no drug screen tests provided.
Notwithstanding X’s reticence about counselling, Ms Shorter was strongly in favour of arrangements being made in this regard as soon as possible. She was also well aware of the financial implications of such an order and recognised that neither party but particularly Ms Hazelwood was in a strong financial position. As I have already indicated, one of the strong features of this case is endemic social and financial disadvantage.
THE LEGAL PRINCIPLES APPLICABLE
At the outset, it is to be noted that, although the nature of the hearing is different, at the interim stage, as opposed to the final hearing stage, the legal principles to be applied are the same. They are contained in Part VII of the Family Law Act 1975.
In deciding whether to make any particular parenting orders, in relation to a child, the court must regard the best interests of that child as the paramount or most important consideration.[14]
[14] Family Law Act 1975 (Cth) s 60CA.
The matters which the court must take into account, in deciding how a child’s best interests are to be served, are set out specifically, in list form, in section 60CC.
The section creates two classes of considerations which are relevant – primary considerations and a longer list of additional considerations. Generally speaking, the court should give greater weight to the primary considerations, which closely tie in with the overall objects and principles of the Act set out in section 60B.
There are two primary considerations, which are as follows:
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.
Family violence is defined by section 4AB(1) of the Act. It means:
[V]iolent, threatening or other behaviour by a person that coerces or controls a member of the person’s family, or causes the family member to be fearful.
The legislature has provided a list of examples of behaviour which may constitute family violence in section 4AB(2) of the Act. Some of these examples are:
·an assault;
·a sexual assault or other sexually abusive behaviour;
·stalking;
·repeated derogatory taunts;
·intentionally damaging or destroying property; and
·the withholding of financial support.
As a result of the insertion of section 60CC(2A) into the Act, the court is now directed in applying the primary considerations “to give greater weight” to the primary consideration relating to protective concerns applicable to the children who are the subject of the relevant proceedings.
In the words of the relevant explanatory memorandum where child safety is a concern, this new provision will provide the court with clear legislative guidance that protecting the child from harm is the priority consideration. Future protective issues for a child are the court’s priority.
The expression meaningful is not specifically defined in the Act. It is an ordinary English word. In Mazorski v Albright[15] Brown J indicated that a meaningful parental relationship is one which is important, significant and valuable to the child concerned.
[15] See Mazorski v Albright (2007) 37 Fam LR 518 at 526 [26].
The expression meaningful is also used in section 60B(1)(a). The court is directed to ensure that a child’s best interests are met by ensuring the children have the benefit of both their parents having a meaningful involvement in their lives. As a verb, involve means to participate or share experience.
Other specific criteria, relating to how the court is directed to consider how the best interests of any children concerned may be served, by any order which is made, are set out in section 60CC(3). There are fourteen such criteria, which are categorised as being additional considerations. Depending on the circumstances of the case concerned, one or more of these factors may come to the fore.
In this particular case, sub-paragraphs (a); (b); (ca); (d); (f); (i); and (j); of section 60CC(3) are relevant. These subparagraphs deal with the following issues:
·Any views expressed by the child and any factors influencing such views including the child’s maturity;
·The nature of the child’s relationship with parents and significant other persons, including grandparents;
·Provision of financial support;
·The effects of any change in the child’s circumstances;
·The capacity of parents to provide for the child’s emotional and intellectual needs;
·The attitudes to the responsibilities of being a parent demonstrated by the parties concerned; and
·Family violence.
Pursuant to section 60CC(3)(m), the court is empowered to have regard to any other fact or circumstance, which it considers relevant. This ensures that the infinite variety of individual children’s circumstances may be addressed in any order which the court makes.
Abuse, in respect of a child, is defined by section 4(1) of the Act. It means an assault, including a sexual assault, of the child. It also means serious neglect of a child. The concept of neglect is not separately defined. In my view, it is an ordinary English word and should be given such a meaning which is a failure to provide care or attention.
Because of the importance the legislature places on both parents being closely involved in their child’s life, if such an outcome is commensurate with the overall best interests of the child concerned, the starting point for the court, when it makes any parenting order under Part VII is to consider whether the parents concerned should have equal shared parental responsibility for their child.[16]
[16] Family Law Act 1975 (Cth) s 61DA.
The presumption relates to the allocation of parental responsibility, not the allocation of time which a child spends with each of his or her parents.
The presumption of equal shared parental responsibility is rebutted if it is found, on reasonable grounds, that one of the child’s parents has abused the child concerned or exposed him or her to family violence.[17]
[17] Family Law Act 1975 (Cth) s 61DA(2).
The presumption is also rebutted if evidence is provided which satisfies the court, that it would not be in the child’s interests for his or her parents to have such equal shared parental responsibility for the child concerned.[18] Significantly, in the current matter, the court is authorised not to apply this presumption, at the interim hearing stage, if it considers that it would not be appropriate for it to do so.[19]
[18] Family Law Act 1975 (Cth) s 61DA(4).
[19] Family Law Act 1975 (Cth) s 61DA(3).
The pathway, which the court is mandated to follow in determining parenting matters, as delineated by the Full Court in Goode & Goode can be summarised as follows:[20]
[20] Goode & Goode (2006) FLC 93-286.
·consider the section 60CC matters that are relevant to the matter;
·decide whether the presumption in section 61DA should be applied or, if it is rebutted because:
·there are reasonable grounds to believe abuse or family violence has occurred;
·or in an interim matter only, it is not considered “appropriate” for it to be applied;
·If the presumption is rebutted or found not to apply, then make the orders considered to be in the best interests of the child, again as a result of applying the relevant section 60CC matters;
·If the presumption does apply, decide whether it should be rebutted because it would not be in the child's best interests;
·If the presumption applies, consider first making an order that the children spend equal time with each parent, then second, an order that the child spend substantial and significant time with each parent, unless it is contrary to the children's best interests, as a result of the consideration of any relevant section 60CC factors, or is impracticable in the terms specified by section 65DAA(5);
·If neither equal time nor substantial and significant time are considered to be in the best interests of the child, then make the orders which are considered to be in the best interests of the child when considering applicable matters in section 60CC; and
·Even in this latter situation, it is open to the court to make an order for equal time or substantial and significant time, if the court considers it to be in the best interests of the child concerned.
DISCUSSION
This is a case concerned with risk and its assessment in the context of an abridged interim hearing. The issues raised by X, in interview with both CCE Ms S and Ms Shorter must be regarded as extremely serious. If true both children are at serious risk of suffering neglect in their mother’s household.
On the other hand, I acknowledge that there is a possibility that X is playing both ends off against the middle to secure her own perceived advantages. This is possible because of the endemic conflict between her parents and it remains a possibility that Mr Everett has his own motivations for allowing this to occur so that the children come to live with him.
In these troubling circumstances, in my view, it is clearly inappropriate that the presumption of equal shared responsibility be applied at this stage to mandate the compulsory consideration of an equal time regime. In this context, although it is an outcome frequently proposed in high risk parenting cases, that there be a week about regime to, in the jargon, balance or share the risk, neither party advocates such an outcome at this stage, although Ms Shorter does not rule it out, at some stage in the future subject to Ms Hazelwood demonstrating some positive changes in her lifestyle.
In these circumstances, as best it can, it falls to the court to assess the risks arising from the children living in each of the parties’ households and having assessed those risks, in the context of an abridged hearing, put in place the orders commensurate with the degree of risk it so assesses. I reiterate this cannot be an exact science and indeed it may ultimately prove to be erroneous, once more evidence is to hand. However I cannot defer the task until later. Rather I must bear in mind that, if and when more evidence comes available, an interim order can be modified.
The father contends that to allow both X and Y to remain in their mother’s predominant care would represent a significant level of threat to the welfare because of Ms Hazelwood’s drug and alcohol use; the violence which Ms Hazelwood and Mr B have inflicted on both children; and Ms Hazelwood neglect of the children’s emotional, medical and dietary requirements.
On the other hand, Ms Hazelwood points to the fact that she has been the children’s predominant provider of care since the consent orders were made and to change such a long standing arrangement would be physically and emotionally destabilising for both children. In addition she asserts that Mr Everett has demonstrated a flawed level of insight into the responsibilities of being a parent by lying to the authorities and she would say waging a campaign with them to discredit and harass her.
In Deiter & Deiter,[21] the Full Court has directed that, in assessing the degree of risk incumbent in any particular parenting scenario, the court must look to the degree of probability that a harmful event will occur in future and what will be its severity, to any individual, particularly any child, who will be potentially affected by it. The court cannot postpone the risk assessment task indefinitely or delay it because the issue arises at an interim stage.
[21] See Deiter & Deiter [2011] FamCAFC 82 at [61].
In SS v AH[22] the Full Court indicated, in the context of discussing the obligations of the court, whilst conducting interim children’s proceedings, in circumstances where the evidence available was contradictory in nature, but nonetheless raised significant welfare concerns for the children concerned as follows:
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.
[22] See SS v AH [2010] FamCAFC 13 at [100].
In Eaby & Speelman[23] the Full Court endorsed this approach as enabling 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. In essence, the court is not in a position to ignore child protection issues, merely because those issues are incapable of definite resolution, at the interim stage. This is the position in the matter currently before the court.
[23] See Eaby & Speelman (2015) FLC 93-654 at 80,332 [19].
Necessarily how risk is approached will depend on the degree of risk involved and the individual circumstances of the case concerned. As indicated at the outset, more often than not, the court adopts a more cautious approach, at the interim stage, being aware that a conservative interim order can be reversed or extended upon when further material is to hand.
In M & M,[24] the High Court formulated a test, which has since been referred to as the unacceptable risk test as means of balancing the benefits arising for a child of interacting with a parent with possible detriments arising from exposure to that parent.
[24] See M & M (1988) FLC 91-979 at page 77,081.
Essentially the court should not grant time to a parent with a child, if the situation envisaged would expose the child concerned to an unacceptable risk suffering some form of harm or abuse. The standard of proof applicable to the assessment of risk, in this context, is the ordinary civil standard.[25] The Full Court in Slater & Light[26] expressed the task of assessing risk in the following terms:
The nature of the risk is best expressed by the term ‘unacceptable risk’. It is an evaluation of the nature and degree of the risk and whether, with or without safeguards, it is acceptable.
[25] See B & B (1988) FLC 91- 957 at 76,935.
[26] See Slater & Light [2013] FamCAFC 4 at [37].
As previously indicated, the most compelling delineation of the risk arising for X and Y, in this case, come from what X has said to CCE Ms S. I appreciate that there are some factors which necessitate the court approaching her statements with some degree of caution, given her enmeshment in the dispute between her parents. However, in my view, it would be imprudent of the court to ignore her unequivocal statements that the level of care provided to her has been seriously neglectful.
In addition, they would appear to indicate that she and Y have been exposed to family violence in their mother’s home. Although I am not in a position to make a definitive finding that any of the events complained of by X did in fact occur, in my view, these matters dictate that the court should adopt a conservative approach in its assessment of risk, at the interim hearing stage.
At the present time, both X and Y have expressed a strong view to live more with their father than their mother. The father asserts that the major factor influencing such a view is their respective exposure to their mother’s compromised parenting and their experience of Mr B’s violent conduct. As I understand the mother’s case, X has either been manipulated by her father or is acting capriciously. Ms Shorter’s impression was not of caprice.
The applicable legislation requires me to consider any views expressed by the children concerned and any factors which may affect the weight to be given to those views, such as the children’s maturity or level of understanding. The legislation speaks of views rather than wishes. The latter is a more concrete concept; the former is more addressed to perceptions and feelings.[27]
[27] See Explanatory Memorandum, Family Law Amendment (Shared Parental Responsibility) Bill 2006 (Cth) at [56].
Accordingly, a child is not required to make a decision about what the appropriate outcome is in any particular case. Nor are they required to express an explicit wish as to which parent or other significant person they want to live with or spend time with.
However, it seems that the Court is required to explore a child’s perception of what he or she feels is likely to be best for him or her. Very often these perceptions will be ambivalent and difficult to express or quantify. This is particularly so with younger children. This does not mean that a child’s view should be disregarded.
To the contrary, over time, there has been an increase in the judicial regard given to the rights of children in proceedings such as these. It is often said that children have a right to be heard. Certainly children’s views are important and requiring of being given “proper and realistic weight” rather than token regard.[28]
[28] See H v W (1995) 18 Fam LR 788, 797 (Fogarty, Baker and Kay JJ).
It is also impossible to catalogue all the factors which may be at play in shaping a child’s view in any given case. Matters of individual preference are idiosyncratic but no less important for that. It has been said that the process of weighing up a child’s professed view is a process of intuitive synthesis.[29] What is done with those views is a matter of common sense in the overall assessment of what is likely to be in a child’s best interests.
[29] See R & R: Children’s Wishes (2000) 25 Fam LR 712, 724 [54] (Nicholson CJ, Finn & Guest JJ).
X will be fourteen years of age soon. She has expressed a consistent view of negativity about her mother’s household to a number of people. Significantly, it is likely to be the case that she was aware of the moment arising from expressing her views to both CCE Ms S and Ms Shorter. I acknowledge that on at least one occasion she has also expressed a negative view about her father’s household, in the context of a disciplinary issue. However, notwithstanding this stricture, in my view, it would be imprudent for the court to ignore the views expressed by X.
X and Y have a close relationship with each of their parents and other members of both their maternal and paternal families. However, the nature of the relationship between the paternal and maternal aspects of their family are problematic and, at present, there is no evidence from any of the grandparents concerned. This is a significant deficiency in the case currently and warrants caution.
It seems to be the case that there are some issues in respect of the nature of the relationship the children share with Mr B. There has been limited evidence from Mr B. In my assessment, there exists a tangible risk he has exposed the children to some form of family violence.
However, in my view, the most significant risk factor arising for the children is the evidence relating to the mother’s current level of cannabis use. Regrettably, it does not seem improbable that X has a worldly appreciation of this issue given her own experience in life to date. As such, I cannot ignore what she has said to Ms Shorter about her mother and Mr B’s use of weed.
Mr Everett is critical of living arrangements in the mother’s household. In my view, it is probable that many of these difficulties arise because of Ms Hazelwood’s financial disadvantage. Mr Everett has not assisted in this regard by provision of any financial assistance.
At the centre of this controversy is the issue of what is entered on X’s birth certificate and the far deeper controversies relating to the nature of the parties’ relationship with one another as a consequences of the circumstances surrounding her conception and beforehand. These are extraordinarily difficult issues.
Whether X has not been fed properly or her medical needs adequately met in her mother’s home cannot be resolved at this interim stage. The same is true in regards to issues relating to Y’s nappy rash and associated issues. I must be cautious about potentially over-reacting given the lack of objective independent evidence. However, I cannot ignore these concerns, which do go the heart of the court’s preeminent responsibility to act protectively in respect of children.
Against this consideration, is the magnitude of changing a comparatively long-standing arrangement in respect of the care of the two children. The mother has been the children’s predominant provider of care, certainly since the parties separated and it would seem prior to that time.
In addition, it is an incontrovertible fact that Mr Everett is in full time employment and, as a consequence, others are likely to be involved in providing for the care of the children when he is at work, most probably his mother, who has not provided any evidence in the case to date. Accordingly, a change in residence is not without its potential pitfalls.
I mean no disrespect but the evidence available to me indicates that each of the parties has experienced some difficulties in supporting X’s intellectual needs. In this context, her expressed desire to attend E School and have a fresh start there cannot be overlooked. In addition, it would appear to be the case that her emotional needs are not being fully met given her self-harming. In my view, these are factors which favour a change of approach.
I apologise for the length of these reasons for judgment. However, I have found this to be a difficult and confronting case. It is a case without many, if any, uncontroversial or agreed facts. I am concerned that the outcomes proposed by each of the parties pose some level of threat to the welfare of X and Y. I must balance, as best I can, the strengths and weakness of their competing assertions.
At this juncture, I have reached the conclusion that the best approach to avoid both X and Y coming to harm is to make the orders proposed by the ICL, which will remain provisional until final hearing or, in the shorter term, until Ms Hazelwood, in conjunction with Mr B, provides sufficient evidence to defuse the concerns raised in the case regarding their drug use and the other issues raised against them by X. In my view this is the more conservative approach.
As I understand matters, Y is currently in Ms Hazelwood’s care. The most appropriate time for this regime to commence is the end of school/kindergarten on 30 June next. Thereafter, the mother should begin to commence to spend time with Y on the following weekend beginning Friday 6 July 2023.
Although I recognise the instability inherent in the arrangement, I will make no specific orders in respect of X to either live with or spend time with her mother. She will be a free agent in this regard and I will request Ms Shorter, at some convenient time to her, to explain this aspect of the order to her. I would hope, given her close relationship with her aunt and other members of her maternal family that X will accompany her sister on some of the weekend visits.
Necessarily these orders, which I recognise are highly controversial, necessitate a change of school and kindergarten for the children. It seems relatively clear that E School is X’s preference and she has some relationship with the school. Regrettably, the outcome I have envisaged will require Y to attend a new kindergarten.
At this juncture, it needs to be re-emphasised that these are provisional orders, pending a more thorough re-evaluation of all the evidence which the parties may wish to put forward, including a more thorough family report. In addition, it is implicit in Ms Shorter’s position that, if Ms Hazelwood and Mr B satisfactorily address the issues raised by X with her and Ms S, it will be open to Y to live in a shared care arrangement.
For all these reasons the orders of the court will be as set out at the commencement of these reasons for judgment.
I certify that the preceding one hundred and seventy-two (172) numbered paragraphs are a true copy of the Reasons for Judgment of Judge Brown. Associate:
Dated: 28 June 2023
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