Innes and Innes and Ors

[2019] FCCA 758

FEDERAL CIRCUIT COURT OF AUSTRALIA

INNES & INNES & ORS [2019] FCCA 758

Catchwords:
FAMILY LAW – Interim parenting – best interests of children – orders made.

Legislation:

Family Law Act 1975, ss.60CA, 60CC

Cases cited:

Goode & Goode [2006] FLC 93-286

Marvel & Marvel [2010] 43 FamLR 348

Eaby & Speelman [2015] FamCAFC 104

Banks & Banks [2015] FamCAFC 36

Applicant: MR INNES

First Respondent: MS INNES

Second Respondent: MR JAMES

Third Respondent: MS JAMES

File Number: PAC 5894 of 2016

Judgment of: Judge Newbrun

Hearing date: 5 March 2019

Date of Last Submission: 5 March 2019

Delivered at: Parramatta

Delivered on: 6 March 2019

REPRESENTATION

Counsel for the Applicant: Mr Kenny

Solicitors for the Applicant: Neil Jones Solicitors

Counsel for the First Respondent: Mr Heazlewood of Counsel

Solicitors for the First Respondent: Walsh & Blair Lawyers

Solicitors for the Second and Third Respondent: Ms Coady of Louise Coady Lawyer 

Independent Children’s Lawyer: Ms Hafey as agent for Annette Ryan of Legal Aid NSW Parramatta Family Law

ORDERS PENDING FURTHER ORDER

1. All previous parenting Orders are discharged.

2. The children shall live with the father.

3. The father shall collect the children from their school at Suburb A after school today, and the mother is restrained from being present at such time. The mother is further restrained from contacting the children today before the father collects the children from their school this afternoon.

4. That a warrant pursuant to a recovery order issue, but for the warrant to lie in the Registry in the case of the mother failing to comply with any Order of the Court as to change live with arrangement. The recovery order to provide for:

   (a)Authorise and direct the Marshall or officers of the Australian Federal Police and/or officers of the Police Force in all the States and Territories of the Commonwealth of Australia and take possession of the children, [X], born … 2010 and [Y], born … 2013 in the State of New South Wales and return the said children to the father, Mr Innes forthwith.

   (b)Direct that the children remain in the day to day care of the father until further Order.

   (c)Prohibit Ms Innes from removing or taking possession of the said children.

   (d)Authorising all officers of the Australian Federal Police and all officers of the Police Forces of all the States and Territories of the Commonwealth of Australia to arrest, without warrant, Ms Innes in the event the said Ms Innes again removes or takes possession of the said children other than in accordance with these Orders.

5. That the warrant issued pursuant to Order 4 above be forwarded by the Court to the Australian Federal Police upon the  provision of an Affidavit of the father to the Judge’s Associate via email setting out the circumstances in which the mother has failed to comply with the Order for changeover.

6. The children shall spend time with the mother under the supervision of the Suburb B Children’s Contact Service located at Suburb B, such time to occur on one occasion each fortnight for no less than 2 hours on days and at times nominated by that service.

7. To facilitate Order 6 above, each parent shall within 48 hours make contact with the Suburb B Children’s Contact Service on … and thereafter complete all intake requirements as directed by the service.

8. The parents shall share equally in the costs of the service provided by Suburb B Children’s Contact Service.

9. The mother shall at her own expense submit to chain of custody urinalysis testing within 24 hours of any request by the Independent Children’s Lawyer that she do so and shall provide the results of that testing to the father’s solicitor and the Independent Children’s Lawyer as soon as those results are published.

10. The mother shall by no later than close of business on Wednesday 13 March 2019 provide the Independent Children’s Lawyer with the full name and contact details of any counsellor, psychologist, doctor or therapist she has consulted in relation to her mental health since June 2018.

11. The children shall spend time and communicate with the maternal grandparents as follows:

    (a)During school terms, every third weekend from after school Friday until before school the following Monday commencing on Friday 15 March 2019 and recommencing on the second weekend of each school term;

    (b)During the Terms 1, 2 and 3 school holiday periods, from 4pm on the last day of school term until 4pm on the middle Sunday of the school holiday period;

    (c)During the Term 4 school holiday periods, for two one week block periods as agreed between the father and the maternal grandparents in writing but failing agreement from 2-9 January and from 21-28 January each year;

    (d)By telephone each Wednesday at 6pm with the maternal grandparents to initiate the telephone call to the father’s mobile telephone. The father shall ensure that the children are available to take the maternal grandparents’ call and shall give the children privacy for this telephone call;

    (e)From 2pm on Christmas Day until 6pm on 27 December;

    (f)Such other times as may be agreed between the father and the maternal grandparents in writing.

12. To facilitate Order 11 above, the maternal grandparents shall collect the children from their school (if a school day) or from the father’s home (if a non-school day) and shall return the children to their school (if a school day) or to the father’s home (if a non-school day).

13. The maternal grandparents are restrained from allowing the children to come into contact with their mother during the periods of time that the children are in the maternal grandparents’ care.

14. The maternal grandparents shall be permitted to attend the children’s school for the purposes of school events to which family members are ordinarily invited to attend.

15. The mother is restrained from allowing the children to come into contact with Mr C born … 1980.

16. That the father shall advise any school that the children may from time to time be attending to forward to the mother copies of all school reports, notices, newsletters or other documents usually sent to the parents and the mother is permitted to order any photographs depicting the children the parents are invited to order.

17. That each party will inform the other as soon as reasonably possible of any medical or other emergency involving any of the children whilst the children are in that relevant parent’s care.

18. That the mother’s hair follicle test results and any drug urinalysis screening results arising from testing as ordered on 8 February 2019 be provided to all parties by the mother.

19. By consent and pending further Order, in the event that the mother’s time with the children coincides with the maternal grandparents’ weekend when they spend time with the children, then the maternal grandparents shall facilitate the mother’s supervised time with the children. 

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

FEDERAL CIRCUIT COURT
OF AUSTRALIA
AT PARRAMATTA

PAC 5894 of 2016

MR INNES

Applicant

And

MS INNES

First Respondent

And

MR JAMES

Second Respondent

And

MS JAMES

Third Respondent

REASONS FOR JUDGMENT

1. This interim hearing relates to the children [X] born … 2010 and [Y] born … 2013.

2. The father seeks interim parenting Orders such that the children be removed from the primary care of the mother and placed into his primary care.  Further, he seeks interim parenting Orders that the children spend supervised time with the mother.  He contends, on the material before the Court, that there is an unacceptable risk of harm posed to the children should they remain living in the mother’s primary care, by reason that the mother is presently afflicted by the use of illicit drugs.  The Independent Children’s Lawyer (“ICL”) supports the father’s proposed Orders.  The maternal grandparents support interim parenting Orders such that the children now live with the father.

3. The mother opposes such proposed interim parenting Orders.  She contends that the children should remain living in her primary care.  However, she proposes that the children spend alternative weekends with the father from after school Friday to before school Monday and half school holidays.  The mother contends, inter alia, that she has ceased ingesting illicit drugs and that she has obtained beneficial treatment for depression and anxiety.

4. It is common ground that the mother has been the children’s primary carer from birth to date.

5. The father has been spending supervised time with the children at the Contact Centre D in Town E since interim parenting Orders were made by this Court on 18 May 2018.  The interim hearing relating to those past Orders had dealt with, inter alia, the consequences to this family of a motor vehicle incident on 30 September 2017 whereby the father, as the driver, caused his motor vehicle to collide with the mother with the children being present in the motor vehicle at this time.

6. The mother contends that this interim hearing is premature because the mother does not have a copy of the Court’s Reasons for Decision made on 18 May 2018.  The Court does not accept that contention in circumstances where the ICL informed the Court on 8 February 2019, inter alia, that she recommended that the Department of Family and Community Services (“FACS”) be requested to intervene in relation to the children, and in any event where the father filed an Application in a Case seeking interim parenting Orders that the children live with him on 18 February 2019.  In the view of the Court, there has been ample time for the mother, through her legal representatives, to obtain a copy of the Reasons for Decision of 18 May 2018.

Material relied upon by the parties

1. The father’s Application in a Case was filed on 18 February 2019.  The father relied upon his Affidavit filed the same date.

2. The maternal grandparents relied upon their Affidavits filed 25 February 2019 and 4 March 2019 and their Amended Application in a Case filed 4 March 2019 (the Court should state at this point that the maternal grandparents were recently joined in proceedings and they sought Orders, again, as set out in their Amended Application in a Case seeking to spend time with the children).

3. There were case outlines filed by the father and the mother which the Court has considered.

4. The mother relied upon her Affidavit dated 4 March 2019 said to be sworn 5 March 2019, and also relied upon an Affidavit of Mr F, psychologist, affirmed on 15 May 2018. 

5. There were numerous documentary exhibits at the interim hearing, including subpoenaed documents tendered by the father; the Family Report was in evidence; Exhibit B was a facsimile letter from the Department of Family and Community Services dated 25 February 2019 addressed to the Registrar of this Court; Exhibit C was a random drug screen pertaining to the mother, being a urine drug screen performed in relation to the mother on 8 February 2019.

6. The Court has considered all the above material, including the documentary exhibits.

Agreed facts unless otherwise stated

1. The parties commenced cohabitation in about 2007.  The parties separated in about 2016.  At about this time, the parties lived in Town G.  The mother then relocated to Town H.

2. Orders were made in December 2016 for the children to live with the mother and spend every second weekend with the father.  The father asserts that thereafter the mother only permitted him to spend time with the children from 9 am Saturday until 3 pm Sunday on a fortnightly basis.

3. The father asserts that in late June 2017, the mother unilaterally suspended his time with the children and that he did not see the children until about September 2017.  There was an incident involving a motor vehicle, as aforesaid, on 30 September 2017.

4. There was an ADVO preventing the father from, inter alia, contacting the children after the car incident, which was made on 9 April 2018 for a duration of twelve months subject to any Court orders.  The father asserts that he consented on a without admissions basis to a final ADVO.  The father asserts that he did not have any contact with the children after this car incident on 30 September 2017 until orders of the Court were made on 18 May 2018.

5. The father was found guilty of negligent driving in relation to the car incident sometime after March 2018. 

6. The father asserts he has completed a Making Choices program and a Parents Not Partners program.

7. In 2018, the child [X] had significant absences from school.

8. The mother was admitted to Town J Hospital on about 18 December 2018 for treatment of a staph infection.

Legal principles

1. The relevant principles in relation to parenting proceedings, including interim proceedings, are well settled:  see Goode & Goode [2006] FLC 93-286.

2. In Marvel & Marvel [2010] 43 FAMLR 348, the Full Court of the Family Court of Australia discussed the problems associated with making findings on disputed evidence as follows:

   [120] As has frequently been emphasised interim parenting proceedings, and orders made as a consequence, are a necessary but temporary measure until all the evidence can be tested, evaluated and weighed at a final hearing by the making of final parenting orders. 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 (s 61DB).

   …

   [122] In SS & AH [2010] FamCAFC 13 the majority (Boland and Thackray JJ) discussed at paragraph [88] of their reasons the care necessary to be exercised in making findings in interim parenting proceedings. Their Honours said:

   In our view, findings made at an interim hearing should be couched with great circumspection, no matter how firmly a judge’s intuition may suggest that the finding will be borne out after a full testing of the evidence.

   [123] Later, at [100] their Honours amplified their comments and said:

   The intuition involved in decision-making concerning children is arguably of even greater importance when a judge is obliged to make interim decisions following a hearing at which time constraints prevent the evidence being tested. 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.

3. Of this, the Full Court of the Family Court of Australia in Eaby & Speelman [2015] FamCAFC 104 said at 80-332:

   As would be immediately apparent, this approach enables 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.

4. The Court also refers to the decision of the Full Court of the Family Court of Australia in Banks & Banks [2015] FAMCAFC 36, especially at paragraphs 46 to 52.

5. Section 60B of the Family Law Act 1975 (Cth) (“the Act”) sets out the objects of Part VII of the Act relating to children that inform the making of parenting Orders.

6. In deciding whether to make a particular parenting Order in relation to a child, the Court must regard the best interests of the child as the paramount consideration: section 60CA of the Act.

7. Section 60CC of the Act provides that in determining what is in the child’s best interests, the Court must consider the matters set out in subsections (2) and (3).

8. Section 60CC, subsection (2A) provides that in applying the considerations set out in subsection (2) of section 60CC, the Court is to give greater weight to the consideration set out in paragraph subsection (2)(b) (subsection (2)(b) relating to the need to protect the child from physical or psychological harm from being subjected to or exposed to abuse, neglect or family violence).

The best interests of the children

Section 60CC considerations

Subsection 2(a) the benefit to the child of having a meaningful relationship with both of the child’s parents:  a primary consideration

1. The Court recognises that the mother has been the children’s primary carer from birth to date.

2. It would appear the children have a meaningful relationship with both parents and would benefit from a continuance of those relationships.

3. The Court refers to its discussion below under the need to protect primary consideration.

4. Should the children be taken out of the mother’s primary care and begin to spend supervised time with her, as proposed by the ICL and the father, whilst there is a real chance that the children will miss living with the mother, there is a significant prospect that their meaningful relationship with her will nevertheless be maintained.  It is not without relevance in this latter context that the children’s meaningful relationship with the father has been maintained whilst they had supervised time with him, whilst recognising that the children’s relationship with each parent is unique.

Subsection (2)(b) the need to protect the child from physical or psychological harm from being subjected to or exposed to abuse, neglect or family violence

1. On the material before the Court, there is an unacceptable risk of harm posed to the children in remaining living in the mother’s primary care and even spending unsupervised time with her. 

2. This unacceptable risk of harm arises by reason of the significant suggestion on the material before the Court that the mother is afflicted by illicit drug use whilst the children are in her primary care.

3. In the view of the Court on the material before it, there is a need to protect the children from the significant risk of being neglected, and exposed to physical and psychological harm, if remaining in the mother’s primary care and if spending unsupervised time with her.

4. The risk posed to the children, as above, can be minimised, on an interim basis, by the children leaving the mother’s primary care, beginning to live with the father, and spending supervised time with the mother.  In stating this view, again, the Court recognises that the mother has been the children’s primary carer, and that the children may well miss the mother’s usual presence in their lives on a daily basis; in this context, the Court refers to its discussion above under the meaningful relationship primary consideration.

5. The Court, in reaching the above views relating to unacceptable risk of harm, has taken into account in particular: 

   a)The observations and concerns expressed by the Family Report writer in relation to the mother and the children, whilst acknowledging that the Family Report remains untested at this interim stage;

   b)The apparent admission made by the mother to the Family Report writer on 11 January 2019 that she is an addict and has depression;

   c)The concerns and observations made by the maternal grandparents in relation to the mother both in their respective Affidavits and to the Family Report writer;

   d)The tendered subpoenaed material from, inter alia, Town J Hospital and FACS suggesting, inter alia that the mother in quite recent times (for example late December 2018) has been engaged in illicit drug use, including the use of ice and cannabis, and also in association with persons engaged in illicit drug use, including Mr C, and that the mother as a result has been neglecting the children;

   e)The mother’s failure to comply with drug testing related orders made by this Court on 8 February 2019;

   f)The child [X]’s unsatisfactory school attendance record in 2018;

   g)The apparent recent provision of services by FACS in relation to the mother and children following a referral to FACS at the end of 2018 following a series of risk of harm reports, whilst noting the mother’s assertion in her Affidavit that she has not had any interventions by any agencies.

1. In relation to the children, on an interim basis, living with the father, the Court has taken into account the reports from the Contact Centre D in Town E in terms of the children’s positive time spent with the father supervised at that place.  The Court has taken into account the assertions of the father in respect to his abstinence in relation to alcohol.  It appears to be common ground that the father is an alcoholic.

2. The Court has taken into account the father’s conviction for negligent driving in relation to the car incident in September 2017 and his assertions in relation thereto, whilst noting that this issue remains untested within the context of these parenting proceedings.  The Court has also taken into account in this context the mother’s proposal that the children spend unsupervised time with the father.

3. The Court recognises that the children living with the father will involve a change of the children’s schooling, but again, the Court is of the view that the risk posed to the children in remaining living in the mother’s primary care justifies such a change on an interim basis.

4. The Court has not overlooked the mother’s assertions that she has turned the corner, that she is getting treatment and feeling better about herself in 2019, and that she asserts that she is fit and able to care for the children, but nevertheless the Court’s concerns remain as to the children remaining living in her primary care.

5. The Court has also not overlooked the mother’s random drug screen of 8 February 2019, whilst noting that it was not stated to be a chain of custody urine specimen.

6. The Court gives significant weight to this need to protect primary consideration.

Section 60CC(3) additional considerations

1. The Court takes into account the children’s statements to the Family Report writer that they would like to spend more time with the father, whilst noting their tender ages.

2. The Court takes into account the child [Y]’s statement to the Family Report writer that he gets scared a little bit, stating that mean people come to their house and that a man they refer to as Mr K is mean to himself and the mother, whilst again noting his tender age.

3. The Court again is mindful that a change in residence may well result in the children missing the mother.  However, in the view of the Court, there is a significant prospect that they will emotionally cope with living with the father, out of the mother’s primary care, while spending regular supervised time with the mother.

4. The Court has considered the reports annexed to the affidavit of Mr F, psychologist, relating to the children’s anxiety states.  The reports are dated 14 May 2018.  There is a significant suggestion from, inter alia, the contact centre reports, relating to the children’s supervised time with the father, that the children are now emotionally comfortable in the father’s presence and will not experience significant anxiety if living with him.

5. A restraining Order is sought against the mother restraining her from allowing the children to come into contact with Mr C.  The maternal grandfather asserts that the mother commenced a relationship with Mr C in about … 2018.  He asserts that the mother told him that Mr C had just gotten out of Gaol for domestic violence offences.  The maternal grandfather asserted that in early December 2018 he was told that a Facebook search revealed that Mr C’s main conversations were about sex, pornography and drugs.  He alleges that he immediately confronted the mother who would not listen to him.  He asserts that on 14 December 2018 he made a report to FACS.  He asserts and alleges that the mother separated from Mr C on 18 December 2018.  There is subpoena material suggesting Mr C has ingested illicit drugs in recent times.  It will be in the best interests of the children that such a restraining Order be made against the mother.

6. The mother was quite emotionally labile during the course of this interim hearing.  In the view of the Court it will be in the best interests of the children that she be restrained from attempting to contact the children today until the father collects the children from school this afternoon.  The Court is informed that the children last night were at the residence of the maternal grandparents.

7. Evaluating the above discussed relevant considerations under section 60CC of the Act, it will be in the best interests of the children to make interim Orders as follows:

   (1)     All previous parenting Orders are discharged.

   (2)     The children shall live with the father.

   (3)The father shall collect the children from their school at Suburb A after school today, and the mother is restrained from being present at such time. The mother is further restrained from contacting the children today before the father collects the children from their school this afternoon.

   (4)That a warrant pursuant to a recovery order issue, but for the warrant to lie in the Registry in the case of the mother failing to comply with any Order of the Court as to change live with arrangement. The recovery order to provide for:

   (a)Authorise and direct the Marshall or officers of the Australian Federal Police and/or officers of the Police Force in all the States and Territories of the Commonwealth of Australia and take possession of the children, [X], born … 2010 and [Y], born … 2013 in the State of New South Wales and return the said children to the father, Mr Innes forthwith.

   (b)Direct that the children remain in the day to day care of the father until further Order.

   (c)Prohibit Ms Innes from removing or taking possession of the said children.

   (d)Authorising all officers of the Australian Federal Police and all officers of the Police Forces of all the States and Territories of the Commonwealth of Australia to arrest, without warrant, Ms Innes in the event the said Ms Innes again removes or takes possession of the said children other than in accordance with these Orders.

   (5)That the warrant issued pursuant to Order 4 above be forwarded by the Court to the Australian Federal Police upon the  provision of an Affidavit of the father to the Judge’s Associate via email setting out the circumstances in which the mother has failed to comply with the Order for changeover.

   (6)The children shall spend time with the mother under the supervision of the Suburb B Children’s Contact Service located at Suburb B, such time to occur on one occasion each fortnight for no less than 2 hours on days and at times nominated by that service.

   (7)To facilitate Order 6 above, each parent shall within 48 hours make contact with the Suburb B Children’s Contact Service on … and thereafter complete all intake requirements as directed by the service.

   (8)The parents shall share equally in the costs of the service provided by … Children’s Contact Service.

   (9)The mother shall at her own expense submit to chain of custody urinalysis testing within 24 hours of any request by the Independent Children’s Lawyer that she do so and shall provide the results of that testing to the father’s solicitor and the Independent Children’s Lawyer as soon as those results are published.

   (10)The mother shall by no later than close of business on Wednesday 13 March 2019 provide the Independent Children’s Lawyer with the full name and contact details of any counsellor, psychologist, doctor or therapist she has consulted in relation to her mental health since June 2018.

   (11)The children shall spend time and communicate with the maternal grandparents as follows:

   (a)During school terms, every third weekend from after school Friday until before school the following Monday commencing on Friday 15 March 2019 and recommencing on the second weekend of each school term;

   (b)During the Terms 1, 2 and 3 school holiday periods, from 4pm on the last day of school term until 4pm on the middle Sunday of the school holiday period;

   (c)During the Term 4 school holiday periods, for two one week block periods as agreed between the father and the maternal grandparents in writing but failing agreement from 2-9 January and from 21-28 January each year;

   (d)By telephone each Wednesday at 6pm with the maternal grandparents to initiate the telephone call to the father’s mobile telephone. The father shall ensure that the children are available to take the maternal grandparents’ call and shall give the children privacy for this telephone call;

   (e)From 2pm on Christmas Day until 6pm on 27 December;

   (f)Such other times as may be agreed between the father and the maternal grandparents in writing.

   (12)To facilitate Order 11 above, the maternal grandparents shall collect the children from their school (if a school day) or from the father’s home (if a non-school day) and shall return the children to their school (if a school day) or to the father’s home (if a non-school day).

   (13)The maternal grandparents are restrained from allowing the children to come into contact with their mother during the periods of time that the children are in the maternal grandparents’ care.

   (14)The maternal grandparents shall be permitted to attend the children’s school for the purposes of school events to which family members are ordinarily invited to attend.

   (15)The mother is restrained from allowing the children to come into contact with Mr C born … 1980.

   (16)That the father shall advise any school that the children may from time to time be attending to forward to the mother copies of all school reports, notices, newsletters or other documents usually sent to the parents and the mother is permitted to order any photographs depicting the children the parents are invited to order.

   (17)That each party will inform the other as soon as reasonably possible of any medical or other emergency involving any of the children whilst the children are in that relevant parent’s care.

   (18)That the mother’s hair follicle test results and any drug urinalysis screening results arising from testing as ordered on 8 February 2019 be provided to all parties by the mother.

   (19)By consent and pending further Order, in the event that the mother’s time with the children coincides with the maternal grandparents’ weekend when they spend time with the children, then the maternal grandparents shall facilitate the mother’s supervised time with the children. 

I certify that the preceding fifty (50) paragraphs are a true copy of the reasons for judgment of Judge Newbrun

Date: 13 May 2019