Hitti and Collins

[2016] FamCA 499

FAMILY COURT OF AUSTRALIA

HITTI & COLLINS [2016] FamCA 499

FAMILY LAW – CHILDREN – Application for child to return to mother’s care heard on short notice – order made – matter to return for further interim hearing

Family Law Act (1975) (Cth)

Goode & Goode (2006) FLC 93-286

APPLICANT: Ms Hitti

RESPONDENT: Mr Collins

FILE NUMBER: BRC 5430 of 2016

DATE DELIVERED: 10 June 2016

PLACE DELIVERED: Brisbane

PLACE HEARD: Brisbane

JUDGMENT OF: Hogan J

HEARING DATE: 10 June 2016

REPRESENTATION

SOLICITOR FOR THE APPLICANT: Ms Black, Advance Family Law

SOLICITOR FOR THE RESPONDENT: Mr Black, Esource Legal

Amended on 21 June 2016 pursuant to rule 17.02 of the Family Law Rules 2004

Orders

IT IS ORDERED THAT

1. The Application in a Case filed 8 June 2016 is adjourned for further hearing to the Judicial Duty List commencing at 10.00 am on Monday, 18 July 2016 before Justice Hogan.

2. The parties file and serve any additional affidavit material to be relied upon at the hearing on 18 July 2016, by no later than 4.00 pm on Monday, 4 July 2016.

IT IS ORDERED UNTIL FURTHER ORDER THAT

1. The child, B born … 2012 (“the child”) live with the mother.

2. In order to facilitate this, the father or his agent, provided that the same is known to the Respondent, return the child to the home of the maternal grandparents at C Street, Suburb D in the State of Queensland, by no later than 6.00 pm on 10 June 2016, with the mother to collect the child from the maternal grandparents’ at that address.

3. Save as provided for in this Order, the father otherwise be restrained and injunction issue restraining him from removing the child from the mother’s care or any day care or Contact Centre at which the child attends whilst in the mother’s care.

4. Each party has responsibility for daily decisions about the day to day care, welfare and development of the child while in his or her care.

5. The child spend time with the father at all times as agreed between the parties and failing agreement as follows:

   (a)each alternate Saturday from:  9.00 am to 5.00 pm commencing on 18 June 2016;  and

   (b)each alternate Sunday from:  9.00 am to 5.00 pm commencing on 26 June 2016.

6. The time referred to in Clause 7 of this Order take place in the presence and under the supervision of the paternal grandmother whose undertaking has today been accepted by the Court.

7. The father shall be at liberty to communicate with the child by telephone or Skype each Monday, Wednesday and Thursday from 6.00 pm to 6.30 pm on a telephone number provided by the mother, and the mother shall ensure that the child is available to receive such communication.

8. Each party provide to the other a mobile telephone number and/or landline telephone number upon which the child can be contacted at all times.

9. The mother and father shall:

   (a)keep the other informed at all times of their residential address and contact telephone numbers and advise the other of any change to the same within 24 hours of such change;  and

   (b)keep the other informed of the names, addresses and contact details of any medical or other health professionals who treat the child;  and

   (c)inform the other as soon as is reasonably practicable of any serious medical condition, significant health issue or significant illness suffered by the child;  and

   (d)inform the other immediately in the case of any emergency concerning the child.

10. Any day care attended by the child are hereby authorised to provide to each parent, at that parent’s request and cost, all information about the child’s educational progress.

11. Any medical or other health professionals who treat the child are hereby authorised to provide to each parent, at that parent’s request and cost, all such information lawfully able to be provided about the child’s attendance and treatment.

12. Neither parent denigrate the other or their family to, or in front of, or within the hearing of, the child and shall direct third parties to refrain from denigrating either party or their family to, or in front of, or within the hearing of, the child and, failing compliance with such a direction, shall remove the child from that environment immediately.

AND IT IS FURTHER ORDERED THAT

1. Pursuant to s 65DA(2) and s 62B 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 and details of who can assist parties to adjust to and comply with an Order are set out in the Fact Sheet attached and these particulars are included in these Orders.

AND IT IS NOTED

1. The Order made today is inconsistent with the existing Temporary Protection Order issued by the E Town Magistrates Court on 9 June 2016

AND IT IS FURTHER NOTED

1. The existing Temporary Protection Order issued on 9 June 2016 was obtained on an ex parte basis and in reliance on an Application in which no reference was made to the Respondent’s  actions on 31 May 2016 in removing the child unilaterally from day care and without notice of that proposed action to the Applicant.

NOTATION:

This Order has been amended pursuant to Rule 17.02 of the Family Law Rules 2004 by adding the balance of the final notation.

IT IS NOTED that publication of this judgment by this Court under the pseudonym Hitti & Collins 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 BRISBANE

FILE NUMBER: BRC 5430 of 2016

Ms Hitti

Applicant

And

Mr Collins

Respondent

EX TEMPORE

REASONS FOR JUDGMENT

1. There are no existing parenting orders in relation to the parenting arrangements for the child, B, born in 2012.  Instead, the Court is asked to deal with an Application by the child’s mother, filed on 8 June of this year and listed with some urgency, that the child return to live in her care and, at least as contended for in that Application, that there be either no time or supervised time between the child and her father, pending further order and pending either the appointment of an Independent Children’s Lawyer, the obtaining of a Family Report and/or the obtaining of a psychiatric assessment of, perhaps, each of the parents.

2. It is clear on the material, I think, that the child’s parents commenced a de facto relationship in about September 2010 and married in 2011.  They first separated, it seems, in about August – or at least there was a separation in about August 2011 - and thereafter made some attempts at reconciliation of their relationship.  It appears from the mother’s evidence that, at around Christmas time 2011, she learned she was pregnant. 

3. After a period of reconciliation and for reasons which I suspect may be in dispute and which are not capable of being determined given the interim nature of the hearing today, the parties again separated.

4. They did so before the child was born.  They subsequently divorced, it seems, on 3 January 2015. 

5. B’s mother has other children from previous relationships – Ms F and Mr G, who are both adults, and H, born in 2006, and who is presently 10 years of age.  H lives with his mother. 

6. B’s father has two children from a previous marriage – J, born in 2001 and who, therefore, is currently 15 years of age, and K, born in 2012, who is currently 13 years of age. 

7. During the course of discourse with the legal representatives who appear on behalf of each of the parties, I outlined a number of uncontested facts.

8. I do not intend here orally to repeat those but I do intend to include them in the settled reasons which will be made available to the parties.  I will do so by obtaining a transcript of the proceedings today and ensuring that the uncontested facts, as I summarised and as were accepted as accurately summarised, are included in these very short reasons. 

9. The uncontested facts as referred to above are as follows:

   a)B never lived with her parents living together as parents because they had ended their relationship prior to her birth;  

   b)from the time of her birth until 31 May, she lived primarily with her mother;

   c)on 31 May, without notice (albeit said to be with some asserted justification) the Respondent removed the child from day care;

   d)since her time in the Respondent’s primary care, the child’s opportunity to spend time with her mother and her half-brother - with whom she had, until then, lived - has been limited to, I think, a telephone contact on the evening of 31 May and, I think, a Skype communication on the 2^nd or thereabouts of June and, I think, perhaps seeing and perhaps hearing her mother outside the Respondent’s home on the two occasions: 2 and 5 June when her mother attended there;

   e)given the contents of the Respondent’s affidavit, since 31 May she has not gone to kindergarten either, so she has had that further disruption to her usual day-to-day life; 

   f)having had notice of this Application, the Respondent applied for a Temporary Protection Order, ex parte; 

   g)the Respondent relies, in the Application placed before the E Town Magistrates Court yesterday, on an accounting of asserted behaviour by the mother:  in that accounting, he fails to mention his actions on 31 May and therefore fails to put that Court on notice of the context within which any consideration could be given to the mother’s asserted actions as he described them;

   h)the Respondent obtained, yesterday, ex parte a Temporary Protection Order – the matter is returning to the E Town Magistrates Court on 7 July;

   i)the children, for the last three nights, have had additional time via Skype.

10. It is clear that the parties have previously had some attempts at reaching a resolution about parenting arrangements for the child.  Those attempts have been, at varying times, unsuccessful. 

11. It is also clear on the material that, until 31 May 2016, the child lived primarily with her mother and spent time with her father (on both a supervised and unsupervised basis) as a consequence of agreements reached between her parents.  It seems that some of the time the child has spent with her father has occurred when he has attended at her day care centre and spent time with her there and/or removed her for short periods and spent time with her before returning her to that centre. 

12. It also appears that there have been times, at least during the day, more recently, when the child has spent time with her father and her half-sisters as a consequence of agreement between the parents in the absence of orders prescribing the same.

13. The events of 31 May of this year are those which really see the parties before the Court on an urgent basis.  It is, I think, undisputed that, on that occasion, in the morning, the father, without notice to the mother, removed the child from the day care centre at which she had attended for some time.  He retained her in his care and her time and her interaction with her mother since then has been limited to telephone communication and a Skype communication. 

14. Those events precipitated this Application by the mother and her position in seeking the child’s return to her.

15. The mother’s case involves assertions that she is concerned that the child is at risk of harm in the father’s care.  Assertions are made of concerns about the child’s comments to her: saying that she has been sore on her private parts.  The mother says that the child started to have nightmares in December 2015 and she, the mother, pieced together information provided to her by the child’s father on 26 January when he returned the child to her care – namely, that the child was sore on her private parts at the front and he thought she might have thrush – with other information she had either observed or gleaned in relation to one of the father’s older children.

16. The mother says that her consideration of a combination of those matters has caused her to hold concerns that there is a risk that the child may be harmed in the care of her father. 

17. The information provided, it seems, by the father on 26 January of this year to the mother resulted in the mother’s attendance with the child upon a medical practitioner. 

18. That medical practitioner has subsequently prepared a report, which is exhibited to the mother’s affidavit: reference to it contains that person’s description of comments the child is recorded as having made during the appointment.

19. The medical practitioner, it appears, contacted the Department of Child Safety (using a short form of reference).  Information was conveyed to that Department. 

20. After this event, it appears that the doctor reported back to the child’s mother.  The medical practice notes record the mother’s information that she would await contact from the Department of Child Safety, would not contact the police at that stage but would not send the child to her father to spend time with him. 

21. Subsequent to this, however, the mother’s evidence makes it clear that because the child was missing her sisters and father and because, she says, she acted on advice from police, the mother contacted the father and proposed that the child spend time with him.

22. As I understand the evidence, her proposal for time was, in fact, implemented by the parties such that the child spent time with her father for an hour on 12 March in the presence of her mother: for three hours on 20 March in the presence of her mother;  for a further three hours when the child’s parents both attended a circus with the child;  at McDonald’s on 27 March of this year where the child and her mother attended with the father and his daughters; for three hours on 3 April with her father and sisters at the park on an unsupervised basis; for six hours on an unsupervised basis on 9 April 2016;  for another six hours on an unsupervised basis on 24 April 2016;  between 9.30 and 5.00 pm on each of 7 and 8 May 2016 - that being a time when the child was able to spend time with her father and her sisters and engage in activities, at least in some way, associated with interactions with members of her extended paternal family.

23. It appears that, in the midst of this time (on about 20 April 2016) the mother was contacted by a Family Relationship Centre, which advised that the child’s father had arranged for family dispute resolution to take place, with the idea of discussing the child spending overnight time with him. 

24. The mother’s evidence is that, because police had previously advised her not to allow the child to have any unsupervised time with her father, she declined to attend at family dispute resolution. 

25. She also advances, clearly, on her material, that she did not wish to engage with the child’s father because of her perception of his attitude toward her as being nasty;  she felt that engagement in such a process would, from her perspective, provide him the opportunity to say hostile, malicious and perhaps derogatory comments directed toward her.

26. It appears, then, that the child spent time with her father on 11 May 2016.  The mother’s evidence is that, after returning to her care on that day, the child told her that her sisters were not present and that her father had rubbed cream into her bottom again. 

27. On 16 May 2016, the mother, it seems, sent a text to the child’s father to tell him he would not have any further time with the child and that the matter needed to be sorted out in Court.

28. It is following that, then, on 31 May, that the father acted unilaterally to take the child into his care. 

29. It appears from the evidence before me at this point that, at the time he attended the centre, he was accompanied by his older daughters, J and K. It also appears possible, at least, that they were, in some way, involved in the process of removing the child from the centre on that day. 

30. The centre, it seems, contacted the mother and she subsequently contacted the father.  It appears she had a telephone conversation with the child on the evening of 31 May and communicated with her via FaceTime on 4 June and that, save for those two occasions (with the exception of the two occasions in early June on which she attended at the father’s home to attempt to see and/or retrieve the child) that has been the extent of the interaction between them.

31. The mother’s evidence also contains reference to a posting on YouTube during which she says the father outlined and explained his actions in removing the child.  She says he also denigrated her during this posting.  It is accepted that the child was present - at least for some part of this event - which appears to have taken between 20 and 25 minutes. 

32. It is submitted on behalf of the mother, in essence, that the father’s actions in acting unilaterally on 31 May of this year to remove the child from the routine that had previously attended all of her life was and is a demonstration of his attitude toward the child’s relationship with her mother and is also demonstrative of an attitude that is unsupportive of the relationship between them.  

33. The submissions, in essence, also outline that the father’s actions have had the effect, for the child, of imposing a unilateral and sudden change to all of her known and experienced living arrangements.  It is in that context, then, that the submission is made that it is in her best interests that she be returned to her mother’s primary care forthwith. 

34. Consideration, of course, must be had to both parties’ proposals. The principles applicable to, and the manner in which, interim parenting applications by parents are to be considered and resolved are well known, and are as set out in Goode & Goode, a decision of the Full Court in this Court reported (2006) FLC 93-286: particularly at paragraphs 80 and 82 of the judgment of the Court.

35. The parties’ competing proposals here are as outlined in the respective Application and Response material.  That is, the mother seeks that the child is returned to her care and spends, as I have said, supervised time with her father.  In contrast, the child’s father seeks that the child continue to live with him and spend supervised time with her mother.

36. The context, as I have said, of the consideration and orders that will be made is that they will be in force until 18 July when the matter will return before me.  That being the case, it is, I consider, unnecessary to descend into further detail in relation to the factual circumstances which pertain to the competing Applications.  It is enough, in my view, in addressing the relevant s 60CC factors, to record, as I intend to do in the settled reasons, the uncontested facts already summarised during the course of this appearance.

37. It is difficult, always, in circumstances in which the Court is asked to deal with allegation and counter-allegation on an interim basis, to reach any findings of fact in relation to such matters.  That is, of course, why the Full Court has made it clear that particular regard should be had to the identification of agreed or uncontested relevant facts. 

38. Here it is clear, in my view, that it is more likely than not, given her past primary care arrangements, that the child is likely to have a strong and significant attachment to her mother and her brother.

39. It is also though likely, as is acknowledged by the mother’s legal representative on her behalf (and as is acknowledged by the mother in her affidavit material) that the child has an attachment to her father and her sisters and loves them as well.  

40. Whilst there is no direct evidence going to the issue, it seems to me to be more likely than not, for the child at three years of age, that she loves all of the adults in her world.  It is highly likely, that she is suffering, to some extent, as a consequence of the sudden and unilateral changes to her long-standing care arrangements.

41. To reflect in this way, is not simply to accede to the submission that orders should be made which see a return to a status quo because of the existence of a status quo.  Rather, it is simply a proper, in my view, recognition of the likely attachments between the child and each of her parents, given her historical care arrangements.

1. I am not persuaded on the evidence before me at this stage that it is in the child’s best interests that she continue to live in the primary care of her father.  I am, however, persuaded that, in fact, it is in her best interests that she return to the primary care of her mother, where she had lived and to whom her care had been entrusted, seemingly with the acquiescence, at least, of her father until 31 May of this year. 

2. I have to take into account that, in this particular case, there is in existence a family violence order that was obtained by the father yesterday in the E Town Magistrates Court on an ex parte basis.  As I noted during discourse with the father’s legal representative, it is clear, having regard to the chronology of events, that the father’s Application for a protection order followed upon his being served with the mother’s Application currently before the Court.

3. There is nothing in the evidence before me to suggest that, at any time prior to the making of the order yesterday, the father had obtained from any Court a protection order:  despite the fact, uncontested, that the child has always lived with her mother and has received her primary care from her. 

4. It is necessary to have regard to and record, in particular, the existence of that order, given that those sections which may be found in Division 11 of Part 7 of the Family Law Act.

5. Section 68N, contained within Division 11, makes it clear that the purpose of the Division is to resolve inconsistencies between family violence orders and orders made under the Family Law Act that provide for a child to spend time with a person or otherwise require or authorise a person to spend time with a child.

6. There are other purposes, as set out further in s 68N.

7. Quite properly and in compliance with s 60CF of the Act (albeit, I suspect, for a purpose other than to which I am referring) the father has made the Court aware of the existence of the family violence Order. 

8. It is particularly relevant to note that, as a consequence of the Application made by the father, the Order encompasses each of his children, including, of course, the child.

9. It is made clear by s 68P of the Family Law Act that, if a Court makes a parenting order that provides for a child to spend time with a person in circumstances where that would be inconsistent with an existing family violence order - as it would be here given the father obtained a temporary protection order yesterday ex parte - the Court must, to the extent to which its order provides for a child to spend time with a person, specify in the order that it is inconsistent with the existing family violence order and give a detailed explanation in the order as to how contact that the order provides for is to take place.

10. The Court must also, as a consequence of the terms of s 68P(3) of the Act, provide a copy of the order to various particularised persons and agencies. It is also made clear by s 68Q of the Family Law Act that, to the extent to which an order provides for a child to spend time with a person and that order is inconsistent with an existing family violence order, then the family violence order is invalid. 

11. The consequence, then, of s 68Q is that if, as I have determined it is in the child’s best interests, an order is made for her to live with her mother, the family violence order, insofar as it refers to the child, is, upon the making of that order, invalid.

12. There is also a requirement imposed upon the Court to explain the consequences of the making of such an order.  It is for this reason that I have outlined that which I have just said. 

13. It is also, I think, appropriate to include, in the order that will issue, a notation to the effect that the temporary protection order obtained by the father on 9 June 2016 was obtained ex parte and in reliance on an Application in which no reference was made to his actions on 31 May 2016 in removing the child unilaterally from day care and without notice of that proposed action to her mother. 

14. In that way, any other person (including a Court) reading the order and the contents of the father’s Application for a Protection Order will be able to accord to it whatever consideration is determined appropriate, taking into account what I consider to be relevant context omitted from the Application for a protection order. 

15. I consider that an order returning the child to her mother will return her to the previous care arrangement that has existed for her for the entirety of her life, to date, with the acquiescence of her father.  It will reunite her also with her brother.

16. It will ensure that she will return to the day care centre at which she has previously attended. 

17. Given the mother’s acknowledgment that the child loves both her father and her sisters, it is, it seems to me, appropriate and in her best interests that orders be made to give her the opportunity to spend time with those people.  It would not, in my view, be in any way beneficial for her to be asked to endure a circumstance where, having been unilaterally removed by one parent from the care of another and having been afforded a very limited opportunity to see that parent, she is placed in exactly the same situation upon her return to her mother’s care.

18. I am not persuaded, therefore, that an order prohibiting any time or interaction between the child and her father is something which is in her best interests. 

19. The question then becomes: what time, and in what manner, is it in the child’s best interests in the next month that she spend with her father?  How does the Court balance the mother’s evidence in which concerns are raised with the father’s complete and vehement denial of any inappropriate behaviour toward his daughter at any time?  This is a difficult issue always for the Court - particularly in circumstances where the evidence is not capable of testing via cross-examination, which occurs at trial.

20. It may be that, at the adjourned hearing on 18 July 2016, there is additional evidence available to the parties which can be presented and relied upon by either or both of them in support of their primary arguments. 

21. It seems to me, at this time, however, that it is in the child’s best interests that there not be any further hiatus in her opportunity to spend time with her father and with her sisters. 

22. Whilst it was submitted on behalf of the child’s mother - after the opportunity to obtain information - that it would be possible for her to spend supervised time with her father at, and under the auspices of, a commercial supervision centre, this would have, for the child, the consequences of introducing into her life yet another change.  For her, she would go, it seems to me, from spending time with her father and sister in their home to spending time with him, for a limited period of time, in a new place.  That has its own consequences and potential impacts upon her.

23. Of course, if I were persuaded this was the only way in which I could be assured the child would not be at an unacceptable risk of harm while spending time with her father, then, that would, of course, be the end result, given the imperative imposed upon the Court to make orders which ensure that a child is not placed in a circumstance of unacceptable risk of either physical or emotional harm. 

24. However, I take into account the undertaking provided by the child’s paternal grandmother.  In its terms and by its terms, she makes clear that she will ensure that the child is not unsupervised whilst spending time with her  father during the period between now and 18 July 2016.

25. Whether such undertaking remains necessary after 18 July 2016 will, of course, be a matter, no doubt, the subject of submissions on that date. 

26. It seems to me, though, that given the contents of the undertaking (which I accept) and given the assurances provided to me by Mr Black on behalf of the Respondent father that he has explained to the child’s paternal grandmother the consequences for her of the undertaking accepted by the Court, I am persuaded that, at least for the period between now and 18 July 2016, the child would not be at an unacceptable risk of harm if her time with her father was to take place under the auspices of supervision by her paternal grandmother.

27. This will mean that, for the child, that time can take place in an environment that is known to her and that it is not limited by the likely no more than two hours time period that would, almost inevitably, attend time being ordered on a supervised basis at a contact centre.  It will also ensure that the child continues to have the benefit of interactions with each of her sisters whilst spending time with her father and, to the extent that it is otherwise appropriate and determined by her father, provide her with an opportunity to engage in whatever other interactions are usual interactions with members of the paternal extended family.

28. I am persuaded, therefore, that it is in the child’s best interests that she spend time with her father, supervised by the paternal grandmother. 

29. I do not consider there to be any need to give a further detailed explanation in the order as to how the contact between the child and her mother is to take place because it seems to me that the term of the order which will provide for the child to live with her mother contains a detailed explanation sufficient to meet the requirement imposed by s 68P(2)(b) of the Family Law Act. 

30. I do not intend to make any order today in relation to the allocation of parental responsibility for the child.

31. Where the Court is asked to deal, as I am today, with an interim Application, there may be circumstances in which it is inappropriate to apply the presumption that it is in the child’s best interests that her parents have equal shared parental responsibility for her. So much is made clear by s 61DA(3) of the Family Law Act. 

32. In this case, I consider there to be numerous and complex factual issues in dispute - they are incapable of determination, particularly today at this interim hearing which has been brought on at short notice.

33. For those reasons, then, I consider it inappropriate to apply the presumption of equal shared parental responsibility. In the circumstances where this matter is coming back before me in not much over a months time, I consider it more appropriate that any further consideration of orders dealing with the issue of parental responsibility be advocated for and further considered at that time. 

34. That will, simply, then, have the consequence that the provisions of the Act recognising parental responsibility that vests in each of the child’s parents will continue to apply.

35. I am confident, given that it is only about five weeks before this Application returns, that it is unlikely that there will be any decision about, or in relation to, a major long-term issue that would be required to be made in that intervening time.  For these short reasons, then, I decline to make orders in relation to the allocation of parental responsibility for the child at this point in time. 

I certify that the preceding seventy-six (76) paragraphs are a true copy of the reasons for judgment of the Honourable Justice Hogan delivered on 10 June 2016.

Associate:                 

Date:    10 June 2016