Hill and Anor and Johnston

[2016] FCCA 713

FEDERAL CIRCUIT COURT OF AUSTRALIA

HILL & ANOR & JOHNSTON [2016] FCCA 713

Catchwords:
FAMILY LAW – Interim parenting orders – consideration of s.60CC(2) and (3) of the Family Law Act 1975 – time spent with – home schooling – Family Report recommendations implemented.

Legislation:

Family Law Act 1975, ss.60CC(2), 60CC(2)(b), 60CC(3), 62G

First Applicant:

Second Applicant:

MR HILL

MS JOHNSTON

Respondent: MS K JOHNSTON

File Number: MLC 8923 of 2013

Judgment of: Judge Hartnett

Hearing date: 22 March 2016

Delivered at: Melbourne

Delivered on: 22 March 2016

REPRESENTATION

Counsel for the First Applicant: Mr Lynch

Solicitors for the First Applicant:

The Second Applicant:

Peter Lynch

In Person

Counsel for the Respondent:

Ms Sudholz

Solicitors for the Respondent: Heinz & Partners

Counsel for the Independent Children's Lawyer: Ms McCreadie

Solicitors for the Independent Children's Lawyer: Bowlen Dunstan & Associates Pty

ORDERS

THE COURT ORDERS, BY CONSENT, THAT:

1. Order two of the Orders dated 18 June 2015 be discharged.

2. The child X born (omitted) 2010 (‘the child’) spend time with and communicate with the father as follows:-

   (a)from 2:00pm on 26 March 2016 to 4:00pm on 27 March 2016;

   (b)from 2:00pm on 1 April 2016 to 4:00pm on 2 April 2016;

   (c)from 2:00pm on 8 April 2016 to 4:00pm on 9 April 2016;

   (d)from 10:00am on 23 April 2016 to 4:00pm on 25 April 2016;

   (e)from the conclusion of school on 6 May 2016 to 4:00pm on 8 May 2016;

   (f)from the conclusion of school on 20 May 2016 to 4:00pm on 22 May 2016;

   (g)from the conclusion of school on 3 June 2016 to 4:00pm on 5 June 2016;

   (h)from the conclusion of school on 17 June 2016 to 4:00pm on 19 June 2016;

   (i)from 4:00pm on 1 July 2016 to 4:00pm on 6 July 2016;

   (j)from the conclusion of school on 15 July 2016 to 4:00pm on 17 July 2016; and

   (k)such other times as maybe agreed between the parents in writing including SMS.

3. In order to facilitate changeover when same does not occur at the child’s school the father or his nominee shall collect the child from the mother’s residence at the commencement of time and the mother and father or their nominee shall meet in (omitted) outside the Police Station at the conclusion of time.

4. The parents forthwith do all acts and things necessary to cause the child to commence Term two of the 2016 school year at (omitted) Primary School.

THE COURT ORDERS THAT:

1. The mother shall do all acts and things necessary to ensure that the father is listed as an emergency contact for the child with (omitted) Primary School.

THE COURT ORDERS, BY CONSENT, THAT:

1. The parents shall be entitled to:-

   (a)receive a copy of all school reports, notices, letters, photograph order forms and correspondence normally provided to parents;

THE COURT ORDERS THAT:

(b)attend all school related events including but not limited to assemblies, sports day and concerts that parents are normally invited to attend.

THE COURT ORDERS, BY CONSENT, THAT:

1. The parents advise each other as soon as practicable of any significant illness and/or injury suffered by the child whilst in their respective care along with the names and contact details of any treating medical, dental and/or allied health professionals so that each parent may liaise with same and receive a copy of any reports prepared in relation to the child.

2. The Maternal Grandmother spend time with and communicate with the child as agreed between her and the Applicants, but not to include overnight time.

THE COURT ORDERS THAT:

(8B)The maternal grandmother is restrained by herself, her servants and/or agents from discussing, in the presence and/or hearing of the child the following:-

(a)the mother’s unmarried status; and

(b)the maternal grandmother’s religious beliefs.

1. Pursuant to s.62G(2) of the Family Law Act 1975 (Cth), the parties and the child of the relationship attend upon a family consultant (Ms S) nominated by the Dispute Resolution Coordinator of the Federal Circuit Court of Australia on a date and at time/s to be advised for the purposes of the preparation of an updated family report.

2. The family report deal with the following matters:-

   (a)any views expressed by the said child and any factors (such as the said child’s maturity or level of understanding) that would affect the weight that the Court should place on those wishes;

   (b)the matters set out in ss.60CC, 61DA and 65DAA of the Family Law Act 1975 (Cth); and

   (c)any other matters that the family consultant considers important to the welfare or best interests of the said child.

3. The parties send copies of all of their Court documents to the family report writer within seven days of being requested to do so by the family report writer.

4. The family consultant have leave to inspect any documents produced under subpoena in this matter provided that they have been released for inspection by at least one party.

5. Upon the Report being provided to the Court, the Court will provide a copy to each party (or if represented the party’s lawyer) and to any Independent Children’s Lawyer in the proceedings.

6. Unless a party objects, in writing, within 14 days of the date of releasing the Report, copies of the 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 child/ren to whom these proceedings relate:-

   (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.

7. Unless otherwise ordered, no person shall release the Report, or provide access to the Report to any other person.

8. Pursuant to Section 69ZW of the Family Law Act 1975 (Cth), the Department of Health & Human Services provide a Report to the Court as a matter of urgency, such Report to outline:

   (a)any notifications to the Department of Health & Human Services of suspected abuse of the child to whom the proceedings relate or of suspected family violence affecting the child;

   (b)any assessments by the Department of Health & Human Services of investigations into a notification of that kind or the findings or outcomes of those investigations; and

   (c)any reports commissioned by the Agency in the course of investigating a notification.

9. Otherwise all extant applications are adjourned to 11 July 2016 at 10:00am for a defended hearing for 5 days.

THE COURT ORDERS, BY CONSENT, THAT:

1. All parties make, file and serve any affidavits upon which they seek to rely no later than 5:00pm on 24 June 2016.

THE COURT DIRECTS THAT:

1. The Minute of Orders signed by the parties and marked ‘Exhibit A’ remain upon the Court file.

AND THE COURT NOTES THAT:

A.At the date on which a copy of the Report is to provide to any of those identified above, it may not have been admitted into evidence and may be untested or if admitted would only form one part of the evidence in the proceedings.

B.Section 121 of the Family Law Act 1975 (Cth) provides that it is an offence punishable by imprisonment for up to one year to publish or disseminate to the public any account of family law proceedings which identifies the parties, witnesses or other people concerned with the proceedings, unless specifically authorised by the Court.

C.In the event a party to these proceedings objects to the release of the Family Report pursuant to order 13 herein, they shall write to the Chambers of Judge Hartnett seeking that the matter be listed on short notice for their objection to be heard.

D.Ms S has indicated that she is able to undertake interviews with the child and parties on 1 June 2016 as follows:-

(i)the Applicant Father and Ms M at 10:00am;

(ii)the Mother at 11:00am; and

(iii)the Maternal Grandparents at 1:00pm.

E.Pursuant to s.62B and s.65DA(2) of the Family Law Act 1975 (Cth), the particulars of the obligations these Orders create and the particulars of the consequences that may follow if a person contravenes these Orders are set out in the Annexure and these particulars are included in these Orders.

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

FEDERAL CIRCUIT COURT
OF AUSTRALIA
AT MELBOURNE

MLC 8923 of 2013

MR HILL

First Applicant

MS JOHNSTON
Second Applicant

And

MS K JOHNSTON

Respondent

REASONS FOR JUDGMENT

(Edited Ex Tempore Reasons)

1. The parties to the proceeding this day are Mr Hill, the biological father of X born (omitted) 2010 (‘X’), and Ms M, his wife, as First Applicants, Ms Johnston, the maternal grandmother and Second Applicant, Ms K Johnston, the biological mother of X and Respondent and the Independent Children’s Lawyer.

2. Amongst the orders which were sought today by the Applicants, and an order not opposed by any of the parties is that Ms M have leave to withdraw from the proceedings.  That is an appropriate order sought and the Court shall make such order.  Ms M lives with her husband, Mr Hill, and supports him in his application for parenting orders with respect to X.

History

1. There is a long history of proceedings between the biological parents in respect of their daughter, X, and those proceedings have included Children’s Court proceedings in 2014 and proceedings in this Court thereafter.  There were also earlier proceedings in this Court in 2013 and early 2014. Those earlier proceedings ended with final orders made by Judge Riethmuller on 19 February 2014 in Ballarat when the father sought and was granted leave to withdraw from the proceedings and orders were made that the mother have sole parental responsibility for X and that the child live with her.  The father’s time with the child was reserved. 

2. The proceedings in the Children’s Court involved a child, Y, now aged nine years, who was removed from the mother’s care and placed with her biological father in 2014.  At that time, two younger children then in the mother’s care, X (the subject of these proceedings) and W, were also removed temporarily.  The Department of Health and Human Services (‘the Department’) were concerned that excessive responsibilities previously expected of Y would be transferred to X. In addition, the mother’s mental health was brought into question. Subsequently, X and W were returned to the mother’s care with protective services not identifying ongoing risk to X or the other children, but with protective concerns remaining for Y, who continues to live with her father.  The mother has had another child, Z, who is now aged approximately 14 months in the intervening period.

3. Mr Hill and Ms Johnston met in 2006 and began a casual sexual relationship. They separated intermittently with final separation occurring in 2011.  The mother briefly moved into the father’s home in 2010 prior to the birth of their only child together, X.  The mother’s other children, V, who is now aged approximately 15 years, and Y, lived with them.  At other times, the mother and children lived separately at the mother’s home.

4. The mother has made, over time, allegations of family violence against the father; allegations that he has been violent toward her child, Y; and allegations concerning all the children’s safety in the father’s care.  The father has a juvenile history of transgression of sexual boundaries, and depression, alcohol dependency and emotional regulation issues, as an adult. The father has presented for various psychological and psychiatric assessments from 2013 which consistently report that he has addressed these issues in counselling, learnt a range of self-management strategies and developed his parenting skills.  The various reports to which the family report writer, Ms S, referred to in her report dated 7 February 2016 which is before the Court in evidence in this interim hearing, conclude that the father does not present a significant risk if having ongoing contact with his daughter, X.  The Department support the father spending time with X.  Indeed, the Department prepared a report in June 2015 suggesting that X could spend time with her father on an unsupervised basis.

5. The family report prepared by Ms S, psychologist and family consultant, was ordered by the Court on 18 June 2015.  That was shortly after the Court had received information from the Department dated 11 June 2015 in response to a Notice of Risk filed in the proceedings.  The Department indicated at that time that it intended to take no further action.  That report noted that a protection application was issued at the Geelong Children’s Court granting an Interim Accommodation Order to the mother on 25 August 2014.  That order was breached on 1 September 2014 due to Child Protection further intervening following the mother presenting at (omitted) Health Services Emergency Department with thoughts of self-harm.  She was pregnant with Z at the time. Her presentation in Emergency resulted in (omitted) Psychiatric Services becoming involved. The mother’s presentation and the concerns around her disclosures to harm herself resulted in the children being removed from her care, and an Interim Accommodation Order to out of home service was granted.  X was returned to her mother’s care when an Interim Accommodation Order to parent was granted on 15 December 2015. A referral to Families First occurred and commenced in 2015.  The mother engaged with the service.

6. The Department’s report of 11 June 2015 noted that the father was seeking to have X placed in his care, which was opposed by the mother.  At the time of closure of its file, the Department did not object to the father’s application. In relation to him, it was assessed he had addressed concerns in relation to his attraction to prepubescent girls through his work with Ms W, who did not believe that he posed a risk to his daughter in relation to this.

7. Other orders made on 18 June 2015 and by consent were that the child X live with her mother and that her father spend time with her each Saturday from 9am to 5pm save for the first Saturday of each month with such time to be supervised by her father’s wife.  That time spent with has occurred in accordance with the orders since June last year.  That is a period of some nine months. X has been able to develop her relationship with her father in that time and no complaint has been made about the supervisor or supervision. 

Time spent with

1. In June 2015, the Department had no concerns with the father spending time with X unsupervised and overnight. There is nothing before the Court that provides evidence that the Department has changed its view.  There is no evidence before the Court that the Department have any current protective concerns in respect of X’s time spent with her father. The family report of Ms S canvasses the history of time spent with between X and her father and recommends that unsupervised time should commence, and that such time should include overnight time and holiday time. In addition, Ms S recommends that the maternal grandparents should be able to spend time with X by agreement with either Ms Johnston and/or Mr Hill. The report writer, however, considered the maternal grandparents’ application as secondary to the application of Mr Hill, and as a matter not to be prioritised ahead of X establishing a regime of time spent with, to include unsupervised and overnight periods, with her father.  The report writer noted in paragraph 38 of her family report that in the presence of her father and Ms M, X was “happy and content”. That paragraph relevantly sets out:- 

   “X engaged with them confidently. She was observed to enjoy close and familiar relationships with her father and a natural rapport with her step-mother. Initial impressions of X were of a gentle mannered, self-contained and autonomous girl.  She engaged in the interview in a reserved but cautious manner.  X avoided eye contact and did not readily engage in conversation.  As the day progressed, X relaxed and became more confident initiating eye contact and conversation.

   39. Interactions between X and the adults in her life were overwhelmingly positive. Mr Hill and Ms M interacted with X in an age appropriate, energetic and fun loving manner and X was responsive to their efforts. X was observed to seek out Mr Hill’s company and contact and they were observed to enjoy a loving relationship. X sat on her father’s lap while they read a book together, he encouraged her reading and language skills. No concerns arose with regard to interaction between X and her father and step mother.”

2. Ms S concluded that provided the Department did not have concerns for X in the father’s extended and overnight care, and I note again no such concerns are before the Court, then such care should commence in the “immediate future”. 

Home schooling

1. The mother’s eldest daughter, V, was both home-schooled by her mother and attended the state public system of education. The mother determined that V performed better in the public school system and left her enrolled there.  The child Y, the mother home-schooled.  The mother is thus familiar with both the public school system and home schooling.  The mother has not commenced to home school X, it being suggested that she was not familiar with the age at which she was required to either home school X or have her attend a public school. This seems somewhat implausible, given the mother’s previous experience of both systems with her two elder children. X is currently not home schooled, nor attending school.  She is not enrolled.  Ms S gave consideration to this matter and recommended in recommendation 2 of her family report dated 7 February 2016 that that X should be enrolled in school as a priority.  In paragraph 48 of that report, she said as follows:-

   “X is of an age where she should be attending school.  While Ms Johnston claims she is “home schooling” X, she did not appear to be following any formal structure or recognised curriculum.  This may need to be tested by the Court.  In addition, it seems unrealistic to expect that Ms Johnston can and will divide her time between educating X and parenting the children in her care. If the home schooling arrangement is inadequate and continues, then this will be potentially damaging to X’s normative development. X should be provided with the opportunity to attend school and learn in accordance with a recognised curriculum. An additional benefit in X attending school is that external professionals, teachers and welfare officers can monitor X’s presentation and development and report to protective services if need. It is recommended that X is enrolled to attend school as soon as possible. If Ms Johnston cannot commit to doing this, then change of living arrangements may be warranted.”[1]

   [1] Family Report by Ms S dated 7 February 2016 at [48].

2. The Court determines on the evidence that it is in X’s best interests that she be enrolled in accordance with the recommendation made in the family report, that is immediately.

Conclusion

1. The mother’s historic concerns have been canvassed in the Children’s Court and in this Court on previous occasions and over time. The most recent expert material independent of the parties which is before the Court overwhelmingly supports the child spending time with her father unsupervised and overnight. The orders which the Court makes this day are until further order. The Court notes, nevertheless, in the making of such orders, that it is required to consider the child’s best interests and that it must consider the matters that are set out in s.60CC(2) and (3) of the Family Law Act 1975 (Cth) (‘the Act’). It is clearly of benefit for X to have a meaningful relationship with her father as she does with her mother, and s.60CC(2)(b) of the Act does not apply in the present circumstances and at the present time.

1. Matters which are set out as additional considerations in s.60CC(3) of the Act have been considered by the Court. X would like to spend overnight time with her father as expressed to the report writer. She is of an age where those views should be given some weight. She has a good relationship with each of her parents and with her maternal grandparents. The father has spent time consistently with her on a supervised basis over quite some period now, and that has gone well. There are no protective concerns surrounding his ongoing time spent with becoming unsupervised.

2. There is no suggestion that there be a change in the current residence arrangements of the child, subject to the mother enrolling her at school and facilitating her attendance. Thus X will continue to live with her mother and the other siblings in the mother’s household. 

3. The father appears to have a capacity, on the basis of the reports, to provide for X’s needs, including her emotional and intellectual needs. There is some concern as to the mother’s providing for the intellectual needs of the child, given her current refusal to enrol her in a primary public school, and the absence of home schooling that has occurred to date.  There is no evidence before the Court that there is a proper home schooling curriculum in place for X. If the mother were to pursue that option in the future, significant evidence in support would need to be before the Court.

4. The interim orders made this day will exist until July when the matter is listed for final hearing. There will then be an opportunity for all parties to properly litigate the matter before the Court.

I certify that the preceding eighteen (18) paragraphs are a true copy of the reasons for judgment of Judge Hartnett

Date: 1 April 2016