Hurley and Simpson

[2013] FamCA 577

FAMILY COURT OF AUSTRALIA

HURLEY & SIMPSON [2013] FamCA 577

FAMILY LAW – CHILDREN – interim

APPLICANT: Ms Hurley

RESPONDENT: Mr Simpson

FILE NUMBER: SYC 4006 of 2013

DATE DELIVERED: 31 July 2013

PLACE DELIVERED: Sydney

PLACE HEARD: Sydney

JUDGMENT OF: Watts J

HEARING DATE: 31 July 2013

REPRESENTATION

SOLICITOR FOR THE APPLICANT: G & D Lawyers

SOLICITOR FOR THE RESPONDENT: David H Cohen & Co

Orders

PENDING FURTHER ORDER,

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

2. The respondent father ensure that the paternal grandmother delivers the child to the mother at Suburb C Police Station at 10am on 1 August 2013.

3. The child spend the following time with the father:

   3.1.For six hours every Saturday and Sunday commencing at 9am and concluding 3pm;

   3.2.As an option, by giving written notice to the mother through the mother’s lawyer, one other day during the week for six hours commencing at 9am and concluding 3pm.

4. The mother remain living at D Lodge (“the Refuge”) and is to sleep at the Refuge every night of the week.

5. The mother notify the father or his solicitor within 24 hours if for any reason she ceases to live at the Refuge.

6. Within 24 hours the mother is to see a GP for the purpose of obtaining a referral to the “Brighter Futures” program.

7. Within 48 hours of the referral, the mother is to contact the relevant agency which runs the “Brighter Futures” program in the mother’s local area and thereafter is to:

   7.1.Undertake any intake assessment as required by the agency and/or FACS to engage in the program;

   7.2.Remain engaged with the “Brighter Futures” program at all times.

8. Within 7 days the mother is to see a GP for the purposes of obtaining a mental health plan and take the steps suggested in the mental health plan including seeing a regular psychiatrist or psychologist.

9. Both parties undertake a drug urinalysis within 48 hours of a request to do so by the other party or the Independent Children's Lawyer and for that purpose:

   9.1.The drug urinalysis must be supervised, have an appropriate creatine level and the party must have provided photo identification to the collecting centre;

   9.2.Each party may request the other party to undertake a drug urinalysis no more than once in a calendar month, although that restriction does not apply to the Independent Children's Lawyer who may request drug urinalysis more frequently;

   9.3.Each party is to authorize the collecting centre to provide the results of the drug urinalysis to the solicitor for the other party and the Independent Children's Lawyer.

10. In the event that:

    10.1.Either party fails to undertake a drug urinalysis within 48 hours when properly requested to do so by the other party; or

    10.2.The results of a party’s drug test show a positive result; or

    10.3.The mother no longer continues to reside at the Refuge,

    the other party or the Independent Children's Lawyer shall be at liberty to apply to the court on 7 days notice to the other party or parties and the matter may be listed before me if I am reasonably available.

11. Pursuant to s 68L Family Law Act the child shall be separately represented and Legal Aid NSW is requested to arrange such representation.

12. The Registry Manager or her nominee notify the Senior Solicitor, Family Law Litigation, Legal Aid NSW of these Orders within 7 days from today.

13. Within 14 days from the date of these orders, the parties provide to the Senior Solicitor, Family Law Litigation, Legal Aid NSW copies of all relevant orders, reports, applications and affidavits filed on behalf of the each of the parties.

14. The Department of Family & Community Services is requested to intervene in these proceedings.

15. The Registry Manager is to notify the Department of this order;

16. Upon request from the said Department, the Registry Manager permit inspection of the Court file by a person authorised by the Department and copying of any part of it to enable consideration of the request to intervene in the proceedings.

17. The final hearing of this matter be expedited. The list clerk list this matter for a first day before me as soon as possible after the Independent Children's Lawyer has been appointed and filed a notice of address for service.

18. Pursuant to s.65DA(2) and s.62B, 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 adjust to and comply with an order are set out in the Fact Sheet attached hereto and these particulars are included in these orders. 

IT IS NOTED that publication of this judgment by this Court under the pseudonym Hurley & Simpson 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 SYDNEY

FILE NUMBER: SYC 4006 of 2013

Ms Hurley

Applicant

And

Mr Simpson

Respondent

EX TEMPORE REASONS FOR JUDGMENT

1. In this matter the mother seeks the return of the child B born in 2012 and who is currently eight months old.  The child was in the primary care of the mother from the date of her birth until 14 July 2013 when the father, against the mother’s wishes, retained the child after the child had been with him for a scheduled and agreed period of time. 

2. The mother alleges that the father has been violent towards her throughout the relationship.  There is no issue about the fact that there was an incident in October 2011 for which the father received an 18 month head sentence in relation to one count of assault occasioning actual bodily harm and a 12 month head sentence in relation to a second count of assault occasioning actual bodily harm. There were six other counts of common assault on the schedule of charges against the father as well as a charge for contravening an apprehended violence order that had only been made a month earlier against him in the mother’s favour. Given that the father had no previous criminal record, I infer that the assault on the mother, which took place over a period of four hours, was very serious. The father was high on ice at this time. 

3. The father’s original instructions to his solicitor when the matter first came before me on 22 July was that he had retained the child because the mother was, in his opinion, “stoned on ice”. But that allegation has been modified to simply be that she was stoned (not “on ice”) and as a result he made a decision to decline to return the child to her mother on that day. 

4. Given the different versions given by different witnesses about a large number of issues and events, in the context of this interim hearing which I am dealing with on the papers without any of the witnesses being tested, I am only really able to make a decision based on matters that are uncontroversial or matters where there’s objective evidence which points heavily in one direction or matters where I can make a decision based on the inherent likelihood of something being the case rather than the opposite.

5. It is useful just for me to briefly recap on the background that is in the material and I will try and do it in chronological order. 

6. The father is 31 years of age.  He was born in 1981. 

7. The mother is 22 years of age.  She was born in 1990. 

8. In 2003 tragically the mother’s stepfather committed suicide and it seems that that triggered a cascading series of events so far as the mother was concerned.  She became homeless and has been homeless on and off since 2003.  She was 13 years of age in 2003. 

9. In 2006, when she was 16, she commenced a relationship with Mr E (Mr E) and two years later F was born.  F was born in 2008.  The mother and Mr E commenced to live together in early 2009 and separated at Christmas 2010.  The circumstances in which F started to live with her father, were discussed during submissions.  F still lives primarily with Mr E. F has spent some time from time to time with her mother since she became part of Mr E’s household. Mr E has provided evidence supportive of the father in this application.

10. The parties to these proceedings commenced living together on 16 June 2011.  At that time the mother was having difficulties.  There is a letter attached to the father’s affidavit which is dated September 2011, however, which indicates that G District Health had been involved with the mother and had assessed that she had attended appointments for counselling over a previous three month period. 

11. I currently do not know why, but on 29 September 2011 an apprehended violence order was made against the father in the mother’s favour.  It seems the parties were together at that time. 

12. In October 2011 the paternal grandmother says there was an incident where she had to go to the home where the mother and her son were living and she observed the mother having a panic attack which resulted in the mother going to her bedroom and closing the door and cutting her arm with a razor blade.  It is not in issue that both parents were using ice at this time and as I have already mentioned, at the end of October 2011 there was a significant incidence of violence which the father said happened during a period when he was high on ice.

13. The material I have indicates that over an extensive period, the mother says four hours, she was hit in the back with electrical wire, she had things thrown at her, she was punched in the face and body and she was given a knife and asked to either kill herself or kill the father.  The father was taken away in an ambulance and charged with the counts that I have already referred to.  He spent six weeks in jail.  Before being released on bail the parties reconciled whilst he was in prison and after he was released on bail they commenced to live together as a couple.

14. There was a significant incident involving the mother in early 2012 where the mother was taken by the police, initially to Suburb C Hospital and then transferred to J HOSPITAL and was there for three weeks.  I have the hospital records in relation to that admission and there has been some discussion about what is in those records during submissions. 

15. In February 2012 or thereabouts the mother fell pregnant with the child and on 12 April she applied for revocation of the AVO that had been made in September 2011 against the father. 

16. In June 2012 the father was sentenced in relation to changes arising out of the incident in October 2011.  He pleaded guilty to the various charges and was sentenced and we have discussed what those sentences were.  He was sent to H Correctional Centre. The paternal grandmother opines that it was noticeable that the mother used ice during the period the father was at the correctional centre. I can place little weight on that simple expression of opinion.

17. The father says the mother saw him in prison between June and October 2012 on eight occasions at one point in his material and on 15 occasions, in another point in his material. 

18. The father was released from prison on 19 October 2012 and returned to live with the mother prior to the child’s birth.  As I have already noted, the child was born in 2012. 

19. Somebody made a complaint to the department in relation to the child possibly being at risk in the care of the mother and father. The Department carried out an investigation and there is a letter from the Department dated 27 February 2013 which assessed that the child was not currently at risk of harm and indicated no further investigations would be conducted. 

20. The paternal grandmother says that in March 2013 she saw injuries on the father that would have been sufficient to enable the father to have the mother charged with assault but I have no further information about what (if anything) happened about that. 

21. The father has annexed to his affidavit some entries from the mother’s Facebook page of 16 April 2013, which would indicate the mother was using some type of drug as at 16 April 2013. 

22. The parties separated on 25 May 2013.  On this occasion the mother says there was an assault and says that she was hit on two occasions to the left eye by the father.  The father was charged with assault.  He was denied bail and spent four weeks in prison until the matter was heard.  I am told today that there was evidence given in a Local Court and he was found not guilty of the assault charge, on the criminal standard of proof. I have got no material apart from the police statements.  I note the police said that when they attended they observed there to be redness around the left eye of the mother.  However, she had been crying, and the police could not determine if the redness was from an assault or the crying. 

23. Importantly, both F and the child were present when the police attended, and the police observed that both children appeared to be well and healthy, clean and playful.  There were nil injuries or marks on the children.  The father was not at the scene; he had left.  I am unable to make any assessment on balance of probabilities as to whether or not the mother made up the story that the father had hit her on this occasion.  Clearly the police were not able to satisfy a court beyond reasonable doubt that the father was guilty of an assault.

24. The father was on parole.  It was a very serious charge that had been made.  The facts surrounding this incident may require some further exploration at a final hearing. 

25. The mother took the child on the day of this incident away from the father’s home.  She called the Homeless Helpline and was connected to the Domestic Violence Helpline and subsequently put in touch with a women’s refuge.  Whilst the father was in prison for those four weeks, there was some arrangement reached between the mother and the paternal grandmother for the paternal grandmother to take the child to see her father in prison.

26. The mother gives some evidence as to how she dealt with a medical problem that the child had at the end of June and the arrangements for the child spending time with the father during July. 

27. There is the event of 14 July, which led to the father retaining the child and with which I will deal in more detail shortly. 

28. The mother filed an urgent application on 17 July, so there was no delay in her taking action.  She undertook a drug urinalysis on 18 July; the results of that have become Exhibit 8 in the proceeding. 

29. The matter came before me on 22 July, and orders were made by consent allowing the mother to see the child on three occasions prior to today, supervised by a case worker from D Lodge. I am told by the solicitor for the mother that that supervision is no longer viable on a continuing basis.

30. The father filed a response on 26 July in which he sought both interim and final orders.  His solicitor has indicated today that he would not be pressing the final order which would see the child living with him primarily, but rather an order that there be equal time shared between the two parents. 

31. The approach to an interim hearing is well-known (see Goode & Goode). That case asks me to follow the normal pathway prescribed by Part VII, and to make findings and observations in relation to matters referred to in section 60CC(2) and (3) Family Law Act (“FLA”) as best one is able to do in the context of an interim application.

32. Both solicitors have identified that the risk to the child is the primary focus of this interim inquiry, and both parties allege against the other that their use of drugs respectively creates significant risk. The father also points to the mother’s mental status.  Dealing firstly with issues in relation to the mother’s mental status, I am unable to make any particular observation except to say that in the J Hospital records, there is some reference to somebody in the hospital opining that the mother might have borderline personality traits or possibly a borderline personality disorder.  I can not tell by whom that diagnosis or observation has been made.  In the context of this interim hearing about where the child lives, I am not prepared to put any great weight on this entry in the hospital notes.  However, it is supportive of a proposition that the final hearing in this matter should be expedited, particularly given the age of the child, no matter what the outcome, and an independent children’s lawyer should be appointed. 

33. A chapter 15 expert report is certainly indicated if funding for it is available. 

34. In relation to what should happen in relation to the child in the meantime, I look to the major matters that arise out of the evidence.  The first is the use of drugs by both the parties.  The mother alleges that the father was always using drugs as long as she had known him.  She said she has seen him smoke and inject the drug ice on a regular basis.  She has seen him smoke marijuana and take Valium.  She asserts that the father has told her that he used heroin, although she had not seen him do that.  When they were together, the mother alleges that the father used ice daily.

35. The father says at two places in his affidavit that he has not used ice since the night that led to him being charged with multiple offences of assault on the mother, that is, 31 October 2011.  That assertion in his affidavit is contradicted by subpoenaed material which indicates that he told somebody in authority who was interviewing him at the time of his conviction in June 2012 that within the previous four weeks, he had used both ice and cannabis.  It is difficult in those circumstances to accept on its face anything the father says about his current drug use.

36. I have, of course, some general statements by those who have filed affidavits in support of the father saying that they think he is drug-free at the moment, and that may well be right, but I can not be confident about that today given that I am relatively confident he has not told me the truth in his affidavit, as I have just outlined.  The father has agreed to regular drug testing in the interim period that it will take for this matter to get ready for a final hearing. 

37. The mother asserted that she had not used ice since her admission to J Hospital in early 2012 and had not used marijuana since 15 May 2013.  The solicitor for the father has been unable to point to any record in the subpoena material that would put that claim in doubt.  The mother indicated when in hospital in November 2012 (she was in hospital giving birth to the child) that she had not used ice since the beginning of 2012.  The drug tests done on the baby were negative.  I am not able to accept at its face the paternal grandmother’s claim that the mother was constantly using ice during 2012.

38. Dealing with the events of 14 July 2013, when the matter came before me on the last occasion, the father gave as his justification for retaining the child contrary to the agreed arrangement between the parties, the fact that in his view the mother was stoned on ice.  He has resiled from that position to say that he just believes she was stoned on some drug.  What he says happened is set out in paragraphs 24 and 38 of his affidavit, and he says that he made observations that the mother’s pupils were dilated, her speech was slurred, and her face was badly marked and she was very agitated, and that he formed the view as a result of those observations she was stoned. 

39. He says that his mother said to him that “she’s on something”, and it was a result of all of those things that he decided not to hand the child back.  I’ve already made comment in passing that there’s a Jones & Dunkel submission to be made against the father’s case on the basis that the father’s mother, who has given evidence, has given no evidence that corroborates what the father says in relation to that conversation that is supposed to have happened between the father and the paternal grandmother, nor has the paternal grandmother given any evidence as to her observations of the mother on this occasion.

40. There were three other people present who are associated with the father.  None of them are on affidavit. 

1. The father says that he had a conversation with the male police officer who attended on 14 July 2013, and he says that in that conversation, he told the police officer that his view was the mother appeared stoned and the male police officer said, “Yes, she appeared stoned.”  We do not have the COPS records or any records from the police who attended on 14 July, and I don’t know if that is an accurate statement or not by the father. 

2. The mother’s version about what happened on 14 July 2013 is set out at paragraphs 31 to 35 of her affidavit.

3. She denies that she was in any way affected by drugs.  Importantly, there is evidence given by Ms K.  Again, she hasn’t been tested, but on the face of her affidavit she is a 37 year old woman who’s currently on maternity leave, separated from her partner and living at the same refuge as the mother, and she has known the mother for a short period of time.  She was assisting the mother with transport on this occasion. She gives a plausible explanation as to why the mother was late in arriving on this day to pick the child up.  It had to do with Ms K’s daughter sleeping.

4. Importantly, Ms K gives the following evidence at paragraph 12:

   There is nothing about the applicant’s behaviour that indicated to me that she was on any drugs or had been drinking.  She was not shaking, her eyes were not red or bloodshot, she did not smell like anything, her speech was regular, although regular for the applicant is speaking quite quickly as she always has a lot of energy. 

5. The witness also confirms that she was present when the police were there.  She heard the police say to the mother that there was nothing they could do in terms of making the father give the child back, because there was no Family Court order. She says the mother argued with the police and tried to explain her situation.  She became upset and upset with the police, and the police told them both to leave.  As discussed during submissions, this witness also says that she has some experience in observing people who had used the drug ice.  She had a partner, seven years previous, who used that drug.  She said that when she worked for the Department of Juvenile Justice as an executive assistant to the assistant director-general of operations, and many of the children coming through the centre where she worked were using the drug ice, and she would see those children, and that she also had regular training about substance abuse and different behaviours and the way to recognise such drug use, including ice.

6. On the face of it, she’s an independent witness, although not tested, who has some qualification to make the observations that she did, and given that the only person who gives evidence that the mother was stoned is the father, I place greater weight on the untested evidence of the independent person, particularly given the fact that the father changed his story between 22 July 2013 and today.  I am not satisfied that the father is accurately reporting his observation of the mother on 14 July.

7. I now just move on to the evidence about parenting capacity.  The mother asserts that from the child’s birth until 14 July 2013 she was the primary carer of the child.  She breastfed the child until about six weeks, attended to her medical needs, including her six-month vaccinations.  The father didn’t seem to put any of that in issue in his affidavit that was filed subsequent to the mother’s affidavit.

8. Some of the father’s witnesses provide evidence that is critical of the mother’s parenting capacity.  The father’s sister Ms L makes various negative observations about the mother’s parenting capacity, in particular the assertion that not only the child but F is malnourished.  I must say that assertion came as somewhat of a surprise to me when I read other material and took into account that F ordinarily lives with her father, and I’ve already observed in these reasons observations made by the police officer on 14 July as to the appearance of the two children and how well, healthy and clean they were. I am also mindful of the Department’s inquiries which were concluded at the beginning of 2013.

9. The observations made by the father’s uncle in his affidavit are diminished by the fact that he says that he worked with the father over a 15-year period and he gave him a very positive reference without at all mentioning that the father was a regular user of ice during a portion of that period. 

10. It may be more weight would be placed on the father’s witnesses at a final hearing once they’re seen in the witness box and their evidence is tested, but, as I said at the outset, I’m only able really to deal with uncontroversial matters and matters where objective evidence points in one direction.

11. In the father’s favour, I accept that his State Housing offers a more secure guarantee of a roof over the child’s head than the mother’s current refuge accommodation.

12. There is a balancing that has to happen. Up until 14 July 2013, the mother was the child’s primary carer. Nothing I know about what happened on 14 July would persuade me to endorse the unilateral action taken by the father on that day. When I look at and think about all the matters under section 60C(2) and (3) FLA, I conclude that it’s in the child’s best interests in the interim, whilst we get this matter ready for a full hearing, for her to be returned to her mother. She will reside with her mother in the current refuge accommodation, which I’m satisfied is secure, till September with an extension available of three months after that time.

13. It might take that amount of time to get the case ready for a hearing.  I intend to expedite the hearing of the case. 

14. It is my view the Department should be requested to consider intervening in this case, notwithstanding those requests are very rarely accepted by the Department.

I certify that the preceding fifty-four (54) paragraphs are a true copy of the ex tempore reasons for judgment of the Honourable Justice Watts delivered on 31 July 2013.

Associate:  H. Pickering

Date:  7.8.13