Hester and West

[2014] FamCA 78

FAMILY COURT OF AUSTRALIA

HESTER & WEST [2014] FamCA 78

FAMILY LAW – CHILDREN – Interim parenting – Whether the children should change residence and live with the father on an interim basis – Concerns raised as to the mother’s current mental health – Risk of harm to the children – What order as to parental responsibility is appropriate in the circumstances of the case and to be made on an interim basis – Application granted

Family Law Act 1975 (Cth) ss 60CA, 60CC(2), (2A), (3),61DA

Goode & Goode [2006] FamCA 1346
Marvel & Marvel (No. 2) [2010] FamCAFC 101

APPLICANT: Mr Hester

RESPONDENT: Ms West

INDEPENDENT CHILDREN’S LAWYER: Mr Gonzalez

FILE NUMBER: DUC 451 of 2012

DATE DELIVERED: 29 January 2014

PLACE DELIVERED: Parramatta

PLACE HEARD: Parramatta

JUDGMENT OF: Foster J

HEARING DATE: 29 January 2014

REPRESENTATION

SOLICITOR FOR THE APPLICANT: Legal Aid NSW Dubbo

SOLICITOR FOR THE INDEPENDENT

CHILDREN’S LAWYER:

Gonzalez & Co

Orders

PENDING FURTHER ORDER, IT IS ORDERED THAT:

1. The Father have sole parental responsibility for the children B born … January 2003 and P born … February 2005 (“the children”).

2. The said children live with the Father.

3. Interim orders made at the Local Court on … April 2013 be suspended pending further order.

IT IS FURTHER ORDERED THAT:

1. A sealed copy of these orders together with a copy of the Father’s application in a Case and Affidavit in support be served personally on the Mother by no later than 14 February 2014.

2. Both parties and the Independent Children’s Lawyer are granted leave to issue such Subpoena as they consider relevant to the issues before the Court with such Subpoena to be returnable by Friday 28 February 2014.

3. The Mother file and serve a response to the Application in a Case and any affidavit in support of orders sought by her by Wednesday 5 March 2014.

4. The matter is adjourned to Friday 7 March 2014 at 9.30 am for a further Case Management hearing.

IT IS NOTED that publication of this judgment by this Court under the pseudonym Hester & West has been approved by the Chief Justice pursuant to s 121(9)(g) of the Family Law Act 1975 (Cth).

FAMILY COURT OF AUSTRALIA AT PARRAMATTA

FILE NUMBER: DUC 451 of 2021

Mr Hester

Applicant

And

Ms West

Respondent

And

Independent Children’s Lawyer

REASONS FOR JUDGMENT

The proceedings

1. The application before the Court is an Application in a Case filed by the father on 24 January 2014 seeking orders, in effect protective orders, placing the subject children in his care. 

2. The father in his Application in a Case seeks interim orders in relation to the children:  B, born in January 2003 and P, born in February 2005, (“the children”).  The children are now aged, respectively, 11 and nearly nine and in their upper years of primary education.  The father seeks further orders that all previous Orders in relation to the children be suspended. 

3. The application is supported by an affidavit by the father sworn on 24 January 2014.

4. Proceedings were listed before this Court on 6 December 2013. 

5. The mother’s solicitors have since withdrawn from the proceedings. 

6. On the previous occasion, leave was granted to the Independent Children’s Lawyer to release a copy of the Family Report dated 2 December 2013 for the purposes of mediation between the parties.

7. The matter was adjourned to today’s date for a case management hearing and both parties were ordered to serve a minute of final orders sought.

8. The minute of final orders filed by the mother effectively seeks an order that the children reside with her and, in a fairly normal arrangement, spend alternate weekends and school holiday periods with the father together with other specific dates.  The father seeks an order that the children reside with the parents on a week‑about basis.  Inferentially, in those orders is an acknowledgment by the mother that the father is quite capable of providing adequate care for the children on weekends and during extended periods, school holidays.

The Fathers Evidence

1. In his affidavit, the father gives evidence of recent events regarding the mother’s circumstances.

2. The children have recently reported to him that the mother and her partner smoking something that smells different to cigarettes smoke, and B reported in late 2013 that they use a “plastic milk carton with a piece of garden hose inside” and that it is called a “bong”.

3. The mother called him on 6 January 2014 and asked him to help her get rid of her partner from the home and said that she needed money.

4. On 13 January 2014 the mother’s brother telephoned him and asked him to remove the children from his sister, because of her partner’s drug use. The brother said he was going to contact the Department of Family and Community Services about his concerns for the subject children, and mentioned his concerns in respect of seeing his sister with mental health issues before.

5. On 16 January 2014 the father went to collect the children from a holiday camp run by a church group, which the parents had organised the children to attend. A woman named Ms J approached him and said she was there to collect the children because the mother was in hospital and very unwell.  She said the mother “is erratic and stressed out at the moment. She is not coping”. 

6. He took the children into his care. That night, the father received a telephone call from the mother asking him to bring the children into hospital to see her the next morning, which he did but the mother was not there so he returned home with the children.

7. On 17 January 2014 the father’s partner received a telephone call from the mother to the effect of the mother knowing the children would be looked after in her care.

8. That same day the father received a call from a Departmental caseworker advising they had visited the mother in hospital and she was very ill, and they were investigating a number of reports they had received.  The caseworker indicated the children were to remain in his care at that stage, that they were safer with him.

9. On 19 January 2014 the father received a telephone call from the mother’s elder daughter of a previous relationship, who voiced concerns about the mother arising from a telephone call she had received from her mother 20 minutes earlier. The mother had asked her when she was coming home, when she had not lived with the mother for over 12 months, and the mother had quoted bible passages to her.

10. On 21 January 2014 the father received a telephone call from the mother in which she quoted bible passages, which he says is out of character.

11. On 21 and 22 January 2014 the father’s solicitors were advised by a Departmental caseworker that because of their concerns regarding the mother, the children are to remain in the father’s care until the matter returns before the Family Court later in the month.

12. The father has facilitated the children speaking to their mother by telephone every day since they have come into his care. The mother has told the children about getting married on about five different dates, and when B has asked her about the wedding, the mother has questioned how she knew. He has started placing the conversations on loud speaker because of his increasing concerns about the mother during such conversations.

13. The father says that in 2003, when the parties were in a relationship and the mother was pregnant with B, she had tried to run him over in a motor vehicle then took an overdose of prescription medication and was taken to Suburb C Hospital.  Prior to that incident the mother was displaying similar behaviours such as quoting from the bible and forgetting what she had told people.

14. On 23 January 2014 he received a telephone call from a nurse at the Town D Hospital advising him the mother was in hospital there and was wishing to speak to the children. He permitted the children speaking with their mother, placing the conversation on loud speaker, and he overheard the mother telling P she sounded “so sad” and when P had responded that she was happy, the mother had started yelling at her, saying P was possessed by the devil, amongst other things. The nurse intercepted the telephone call and said the mother had been admitted that day and was “very, very ill”. The children were very upset by the telephone call.

15. Issues have been raised in relation not only to the mother’s mental health but in relation to the children’s ongoing attendance at their present school and the father’s wish to have them relocate, at least on an interim basis, to live with him and attend the local Town E Primary School, in respect of which the children are familiar.  The school is a short distance from his home, as opposed to the current school which is some 45 minutes bus away each way. 

16. The father expresses concerns in relation to the mother’s partner. 

17. The orders sought by the father are supported by the Independent Children’s Lawyer.

Discussion

1. The principles in relation to parenting proceedings are well settled: Goode & Goode [2006] FamCA 1346.

2. The issues that often arise in these interim proceedings have been discussed by the Full Court of this Court in Marvel & Marvel (No. 2) [2010] FamCAFC 101.

3. The objects and principles in relation to parenting are set out in Part VII of the Family Law Act 1975 (Cth) (“the Act”).

4. The Court is required under section 60CA to make an order that is in the best interests of the children, having regard to that as the paramount consideration.

5. Section 60CC then governs the Court in relation to what are the best interest considerations in terms of the primary considerations and the additional considerations set out in subsections (2) and (3) of that section.

6. If a Court is proposing to make a parenting order the Court must apply a presumption that it is in the best interests of the children for the parents to have equal shared parental responsibility. 

7. That presumption does not apply in certain circumstances, more particularly in interim proceedings, as set out in section 61DA (3), where the Court considers it would not be appropriate in the circumstances for the presumption to be applied when making the order.  In all of the circumstances, having regard in particular to the mother being scheduled and an involuntary inpatient in the mental health unit at her local hospital, the Court is comfortably satisfied that the presumption should not apply. 

8. In that circumstance, the Court is required to then consider the orders to be made as a consequence of a consideration of the best interest factors in section 60CC of the Act.

9. The present application before the Court is determined by having regard to the primary considerations set out in subsection (2)(a) and (b), particularly subsection (2)(b) which provides that the Court shall have as a primary consideration the need to protect the children from physical or psychological harm or from being exposed to abuse, neglect or family violence.

10. In June 2012, section (2A) of that provision was inserted, giving greater weight to those protective concerns set out in subsection (2)(b). 

11. In all of the circumstances, having regard to the specific allegations made in the father’s affidavit, the Court is satisfied that on an interim basis, in the best interests of the children, bearing in mind the mother has no notice of the present application because of her present circumstances and because she is presently unrepresented, there should be orders that provide for the father, pending further order, to have sole parental responsibility and for the children to reside with him, and that the previous Orders made at the Local Court be suspended pending further order.

I certify that the preceding thirty-six (36) paragraphs are a true copy of the reasons for judgment of the Honourable Justice Foster delivered on 29 January 2014.

Legal Associate:      

Date:    17 February 2014