JALOMA & JEBBS
[2020] FCCA 1191
•18 May 2020
FEDERAL CIRCUIT COURT OF AUSTRALIA
| JALOMA & JEBBS | [2020] FCCA 1191 |
| Catchwords: FAMILY LAW – Interim parenting proceedings – where there was a dispute as to parentage of child – where father determined to be parent of child – where father has had minimal time with child over the child’s life – whether risk of family violence established between parties – where risk of family violence established but able to be mitigated – where evidence of parties contradictory – whether order for equal shared parental responsibility to be made – where family violence rebuts presumption of equal shared parental responsibility – no order for parental responsibility made – where the father given cascading supervised time. |
| Legislation: Family Law Act 1975 (Cth), ss.60B, 60CA, 60CC, 61DA, 61F, 62G, 65D, 65DAA, 65DAB, 69ZW |
| Cases cited: M & M (1998) 166 CLR 69 |
| Applicant: | MR JALOMA |
| Respondent: | MS JEBBS |
| File Number: | WOC 171 of 2019 |
| Judgment of: | Judge Morley |
| Hearing date: | 23 October 2019 |
| Date of Last Submission: | 23 October 2019 |
| Delivered at: | Sydney |
| Delivered on: | 18 May 2020 |
REPRESENTATION
| Solicitors for the Applicant: | Ms Benjamin of Carter Ferguson |
| Solicitors for the Respondent: | Ms Mowbray as agent for Marriott Oliver Solicitors |
| Solicitors for the Independent Children's Lawyer: | Ms Ung of Legal Aid NSW |
ORDERS
PENDING FURTHER ORDERS THE COURT ORDERS:
By consent, that the child X born in 2016 live with his mother.
That the child spend time with his father as follows:
(a)For a period of 8 weeks from the making of these orders, on each Saturday from 10.00AM until 11.30AM with such time to take place at A Play Centre, in the presence of either Ms B or Ms C, with no other accompanying persons to attend upon that time;
(b)Thereafter and for a period of 4 weeks on each Saturday from 10.00AM until 12.30PM, in the presence of either Ms B or Ms C, with the paternal grandfather, Mr D, at liberty to attend the time, to take place at E Park in Town F and for no other accompanying persons to attend upon the time;
(c)Thereafter and for a period of 12 weeks, on each Saturday from 10.00AM am until 3.00PM and on each Wednesday afternoon from 3.00PM until 4.30PM in the presence of the paternal grandfather Mr D; and
(d)Thereafter on each Saturday from 9.00AM until 4.00PM and each Wednesday from 3.00PM until 4.30PM in the presence of the paternal grandfather, Mr D.
BY CONSENT AND PENDING FURTHER ORDERS THE COURT ORDERS:
That all changeovers to facilitate order 2(a) are to take place at A Play Centre, all changeovers to facilitate order 2(b) are to take place at E Park in Town F, and all other changeovers are to take place at McDonald’s at Town G.
That the child have audio-visual communication with the father on each Thursday at some time between 6.30PM and 7.00PM and to facilitate this order the father is to initiate the communication to the mother on her device and the mother is to make the device available to the child without interference, and in the event of exceptional circumstance of technical difficulty the communication will be by telephone to the mother’s mobile telephone.
That each of the parents is restrained from consuming any illicit substance or being under the influence of an illicit substance whilst the child is in his or her care.
That each of the parents is restrained from drinking alcohol, whilst the child is in his or her care, to the extent that it would be illegal for the parent to drive a sedan motor vehicle on a full licence in New South Wales.
That each of the parents is restrained from denigrating the other parent, any member of the other parent’s family or any member of the other parent’s household in the presence or hearing of the child and each parent is further restrained from allowing the child to remain in the presence of or within the child’s hearing of any other person who is denigrating the other parent, any member of the other parent’s family or any member of the other parent’s household.
That the mother will keep the father informed of all specialist medical appointments made for the child within 48 hours of such appointments being made.
That the mother will do all things necessary to authorise the father to obtain medical information and reports in relation to the child from any health practitioner that provides health services to the child.
That the mother keep the father informed of all pre-schools and child-care centres that the child is enrolled at within 48 hours of making an enrolment.
That the mother do all things necessary to authorise the father to obtain information and copies of documents intended for parents in relation to the child from any pre-school or child-care centre attended by the child.
That each of the parents do all things necessary to enrol in and to complete the ‘Circle of Security’ course within 9 months of the making of these orders.
That each of the parents enrol in and complete, if they have not already done so, a ‘Parenting after Separation’ course within 9 months of the making of these orders.
That each of the parents do all things and sign all documents necessary for the father to be recorded on the child’s birth certificate, with any costs of compliance with this order to be borne by the father.
THE COURT NOTES THAT:
(A)At the expiration of 7 months from the making of these orders, the parties should, with the assistance of the Independent Children’s Lawyer, do all things necessary to engage in family dispute resolution mediation with a view to attempting to agree to further parenting arrangements for the child.
IT IS NOTED that publication of this judgment under the pseudonym Jaloma & Jebbs is approved pursuant to s.121(9)(g) of the Family Law Act 1975 (Cth).
| FEDERAL CIRCUIT COURT OF AUSTRALIA AT WOLLONGONG |
WOC 171 of 2019
| MR JALOMA |
Applicant
And
| MS JEBBS |
Respondent
REASONS FOR JUDGMENT
Introduction
On 23 October 2019, I heard interim proceedings under the Family Law Act 1975 (Cth) (‘the Act’) in relation to parenting issues between Mr Jaloma, the applicant father (‘the father’), and Ms Jebbs, the respondent mother (‘the mother’), concerning interim parenting arrangements for their child, X, born in 2016. X turned three years of age shortly before the interim hearing.
The father was represented by his solicitor advocate, Ms Benjamin. The mother was represented by her solicitor advocate, Ms Mowbray, and Ms Ung of Legal Aid NSW appeared on her own behalf as the Independent Children’s Lawyer (‘the ICL’).
The principal issue in the interim hearing was the time the father would spend with the child, and on what, if any, conditions. Various other issues were raised in the parties’ applications, but at the commencement of the interim hearing I was told that both parties agreed with the orders sought by the ICL, as set out in a short Minute of Order provided by her, except as to the time the father would spend with the child.
Materials relied upon
The father relied upon the following material:
a)Initiating Application, filed 20 February 2019;
b)Notice of Risk, filed 20 February 2019;
c)Affidavit of the father, affirmed 20 February 2019 and filed that day;
d)Affidavit of the father, affirmed 17 September 2019 and filed that day;
e)Affidavit of the father, affirmed 16 October 2019 and filed that day; and
f)A Case Outline document prepared on his behalf by his solicitor advocate, including a minute of interim orders sought by the father.
The mother relied on the following material:
a)Response, filed 29 March 2019;
b)Notice of Risk, filed 29 March 2019;
c)Affidavit of the mother, affirmed 29 March 2019 and filed that day;
d)Affidavit of the mother, affirmed 22 October 2019 and filed that day; and
e)A Case Outline document, prepared for the mother by her solicitor, Ms Stevens.
The ICL relied on the following material:
a)Case Outline document prepared by Ms Ung;
b)A short Minute of Orders setting out the orders sought by the ICL; and
c)A Child Dispute Conference Memorandum to Court, dated 10 May 2019, prepared by the Family Consultant.
Various documents were tendered into evidence and marked as exhibits, including:
a)The bundle of documents produced under subpoena by NSW Police Force, marked as exhibit ICL1;
b)The bundle of documents produced pursuant to an order made under section 69ZW of the Act by New South Wales Police Force, marked as exhibit ICL2;
c)The three bundles of documents produced under subpoena by Region H Local Health District, marked as exhibit ICL3; and
d)The documents produced under subpoena by Region J Women’s Health and Welfare Aboriginal Corporation, marked as exhibit ICL4.
In relation to each of the exhibits, the Court was asked to read and give attention to all parts thereof that were marked with a tab in any way. Accordingly, I have read and taken into consideration all parts of those exhibits marked with green ‘F’ tabs, yellow ‘ICL’ tabs, orange ‘M’ tabs and yellow unmarked tabs.
In addition to having read and considered all of the material referred to forming part of the exhibits, I have read and given careful attention and consideration to:
a)The whole of the evidence contained in each of the affidavits relied upon by the parties;
b)The Case Outline documents filed on behalf of each of the parties and the ICL; and
c)The submissions made on hearing by Ms Benjamin on behalf of the father, Ms Mowbray on behalf of the mother, and Ms Ung as ICL.
The evidence
At hearing, the father was 23 years of age and the mother was 22 years of age. The father contends they commenced residing together in a de facto relationship sometime in December 2013, whereas the mother asserts cohabitation began sometime in 2014. On the father’s evidence, they separated in March 2016, when the mother was about six weeks pregnant with the child. On the mother’s evidence, they separated in January 2016, when the mother was about six weeks pregnant with the child. They cannot both be right, and given that X was born in 2016, it is more likely that separation occurred in about March 2016, if it occurred when the mother was six weeks pregnant with the child. In any event I find that nothing turns on the date of separation.
The mother is a proud Aboriginal woman of the K tribe. Apart from that statement at paragraph 2 of the mother’s affidavit[1] – which is a respected and appropriate statement – there is no evidence going to the child’s connection, if any, with his indigenous heritage, nor is there any other evidence to satisfy the Court’s obligation under section 61F of the Act.[2] As the Court is not given any evidence in that regard in relation to the child, I cannot take that aspect of the matter any further. Even though the section mandates the Court’s obligation in that regard by the use of the word “must”,[3] I will take the best interests of X as the paramount consideration and proceed to decide the interim issue of the time the father should spend with X without being able to have regard to matters referred to in section 61F.
[1] Affidavit of Mother sealed at 29 March 2019, [2].
[2] See Family Law Act 1975 (Cth) s 61F, which mandates that when the Court is applying Part VII of the Act in relation to an Aboriginal or Torres Strait Islander child or identifying a person or persons who have or may exercise parental responsibility for such a child, the Court must have regard to any kinship obligations and child-rearing practices of the child’s Aboriginal or Torres Strait Islander culture.
[3] Family Law Act 1975 (Cth) s 61F.
The father resides with his new partner, Ms L, and her two children, M and N, in a three-bedroom home at Town O. The father and Ms L commenced a relationship in early 2018 and commenced residing together in May 2018.
The mother resides with her husband, Mr P, and their child, Q, born in 2017, in a three-bedroom home in Town F, and the mother is expecting her second child with Mr P. Mr P’ son from a previous relationship, R, five years of age, spends time with his father, the mother, and his half siblings each alternate weekend from Saturday to Monday morning.
The father is employed as a tradesman and the mother is engaged full-time with home duties.
Procedural history
The first return date was brought forward from 20 May 2019 to 1 April 2019 by order of his Honour Altobelli. Orders were made on that initial date under section 69ZW of the Act for production of documents to the Court by the then titled Department of Family and Community Services and also by New South Wales Police. [4]
[4] Family Law Act 1975 (Cth) s 69ZW.
His Honour made the following orders on that occasion:
a)That the parties were to engage with S Children’s Contact Centre at Town F to arrange intake for their supervised children’s contact service;
b)That an ICL be appointed;
c)For random urine analysis testing for both parties at the request of the other party or by the ICL, whenever they are appointed;
d)For a Child Dispute Conference to occur on 10 May 2019; and
e)An adjournment of the matter to 9 July 2019 for an interim hearing.
On 27 June 2019, and by consent, there were orders made in Chambers vacating the interim hearing date of 9 July 2019 and relisting the matter for 20 September 2019, with a notation that the parties were engaging in parentage testing procedures in the meantime.
When the matter came before the Court on 20 September 2019, there was no appearance by or on behalf of the mother, but information was received by the Court that the mother was in hospital. The matter was adjourned to 23 October 2019 for interim hearing.
In the intervening time parentage testing was carried out, with the result that the father was shown to be X’s natural father.
On 23 October 2019 the interim hearing took place. At the conclusion of the hearing:
a)Judgment was reserved;
b)An order was made for preparation of a family report under section 62G of the Act;
c)The matter was set down for a mention on 7 December 2020 following, hopefully, the release of the family report;
d)A repeat order was made requiring the parties to engage with the S Children’s Contact Centre at Town F in preparation for any order that may be made involving that service; and
e)The matter was adjourned to 25 May 2020 before myself for further mention.
Orders sought by the parties and the ICL
The ICL provided a Minute of Orders, and it is convenient, given that the parties indicated agreement to large parts of that order, to set out the relevant parts of that Minute of Orders that were contested by the parties. The orders that were contested were with whom the child shall live, the time the child will spend with the other parent, and changeover. The balance of the ICL’s orders were agreed with by the parties.
The ICL’s Minute of Order proposed the following:
a)That the child live with his mother;
b)That the child spend time with the father for a period of eight weeks following the making of orders on each Saturday from 10.00AM to 11.30AM at A Play Centre in Town F, with such time to take place in the presence of either Ms B or Ms C and with no other accompanying persons to attend upon that time;
c)That thereafter the child spend time with the father for a period of four weeks each Saturday from 10.00AM to 12.30AM, with such time to take place in the presence of either Ms B or Ms C, with the paternal grandfather, Mr D, being at liberty to attend on the time, and that time taking place at E Park in Town F, and no other accompanying persons to attend upon that time;
d)That thereafter the child spend time with the father for a period of 12 weeks each Saturday from 10.00AM to 3.00PM in the presence of the paternal grandfather;
e)That thereafter the child spend time with the father each Saturday from 9.00AM to 4.00PM in the presence of the paternal grandfather; and
f)That all changeovers in relation to order (b) are to take place at A Play Centre , all changeovers in relation to order (c) are to take place at E Park in Town F, and all changeovers thereafter are to take place at McDonald’s at Town G.
The father sought a variation of the ICL’s proposed orders in that he sought that the period of time during which orders (b), (c) and (d) would operate would be four weeks. He also sought to include in orders (b), (c) and (d) that he also spend time with X from 3.00PM to 4.30PM each Wednesday afternoon.
The father also sought to vary the orders so that at the stage provided in order (d) – where he would spend Saturday from 10 am to 3 pm with X – his partner, Ms L, and her two children, M and N, could join in with the time and continue thereafter with the time provided for in order (e).
The father also sought an order that after the interim orders had been in operation for a period of six months, the parties engage in Family Dispute Resolution Mediation.
The mother sought a variation to the orders as sought by the ICL, in that she sought that the period provided for in order (c) endure for a period of 8 weeks rather than the 4 weeks provided by the ICL. The mother also sought to have Ms B or Ms C as the persons present for the father’s time with the child under order (d) – where the father would spend Saturday from 10.00AM to 3.00PM with X – rather than the paternal grandfather.
The evidence
The main thrust of the father’s evidence in his affidavit of 20 February 2019 was to set out the time that he asserted he had spent with X and to catalogue the difficulties he asserts he had encountered in having that time.
Here it should be mentioned that in the Response filed by the mother on 29 March 2019, she sought as a final order that the father spend no time with X, and she also sought as an interim order that the father spend no time with X. However, she then went on to require that the father undergo urine analysis testing, which would seem to be otiose if the father were not to spend any time with the child. Nevertheless, when the matter came to interim hearing, the mother had changed her position to include time between the child and the father, as indicated above.
There is no point in the Court cataloguing date by date the evidence set out by the father in his affidavit of 20 February 2019 as to when he asserts he spent time with the child, suffice to say that he asserts that he had two occasions of overnight time with X, on 20 January 2018 and on 31 January 2018 respectively. The mother, in her evidence, only refers to one such occasion occurring. She asserts that such an occasion was not sanctioned by her, but rather was to take place at the child’s paternal grandparent’s home, or the home of his paternal aunt, but that X was picked up from there by the father and taken back to the father’s residence.
On the evidence of both parties, the time that X has spent with the father from the time of his birth through to the interim hearing has been very limited and on almost all occasions has been supervised, mainly by the mother or her relatives.
The father gives evidence of sending frequent requests to the mother, particularly by SMS, seeking to arrange time between himself and the child, with most of those requests being refused by the mother or receiving no response.
The mother asserts that she received a letter claimed by her to be in the handwriting of and signed by the father, dated 12 February 2018 and placed in her residence letterbox, with the text:
Ms Jebbs and Mr P – I’m writing to you guys to give up all visits and everything to do with X, he was my mistake and wish nothing to do with him. I don’t want to be his father at all, he means nothing to me. Don’t contact me. Kind regards, Mr Jaloma – [a signature].[5]
[5] Affidavit of Mother sealed 29 March 2019, annexure ‘B’.
The father annexes a photographed copy of this letter to his affidavit and says that the photo was received by him from the mother through Facebook. He deposes that it is not his handwriting; that he did not write the letter. He says that sometime thereafter, he received a text message from the mother saying, “No I know who wrote the letter now and I’m sorry I ever framed you”.[6] He also annexes what he asserts is a screenshot showing that text message, that screenshot going on with the text conversation:
[6] Affidavit of Father sealed 20 February 2019, annexure ‘C’.
Father: Who wrote it?
Mother: I got told Mr P did.
Father: So I’ve missed out on seeing my son because of fucking Mr P.
Mother: Yeah, he blocked you on everything to do with my account and your phone number, which I just unblocked after finding where to go.
Father: When’s the soonest I can see X again?[7]
[7] Affidavit of Father sealed 20 February 2019, annexure ‘C’.
The father asserts in his evidence that the quoted SMS text conversation is between himself and the mother.
The mother in her evidence says “Mr Jaloma said it was not him, but it was his handwriting as I remember it and signature.”[8]
[8] Affidavit of Mother sealed 29 March 2019, [50].
The father says that on 3 January 2018, the mother provided to him a handwritten proposal which entailed that:
a)From 3 January to 3 May 2018, he spend time with X each Wednesday from 3.00PM to 5.00PM at A Play Centre;
b)From 3 May to 5 September 2018 he spend time with X each Wednesday from 3.00PM to 5.00PM at A Play Centre and each Saturday from 10.00AM to 2.00PM, unsupervised, at a place approved by the mother; and
c)From 5 September 2018 each Wednesday he spend time with X each from 3.00PM to 5.00PM at A Play Centre, each alternate Saturday from 10.00AM to 2.00PM, and each alternate weekend from Saturday 10.00AM until Sunday 1.00PM, with the regime to “continue to change as X gets older”.[9]
[9] Affidavit of Father sealed 20 February 2019, p 11, [2].
The father attaches a copy of the handwritten document as annexure ‘A’ to his affidavit of 20 February 2019, signed by each of the parties. The mother refers to this document in her evidence, but on the evidence of both, the regime proposed in this document did not take place.
The last occasion on which the father spent time with the child before he commenced proceedings on 20 February 2019 was on 10 November 2018.
On 3 January 2019, one year after the handwritten proposal, the father forwarded a text message to the mother in an attempt to organise time with the child. This was done following an attempt to engage in mediation that came to a dead end when the matter was deemed to be unsuitable for Family Dispute Resolution Mediation by the relevant Family Dispute Resolution practitioner.
The father asserts that the mother forwarded to him text messages including statements: “Now X and I would like to not be contacted by you”;[10] and:
Sorry, but if you want to see him that bad take it through Court, I don’t feel comfortable you having him without supervision. I gave you an option so you could see him and you didn’t like it, mediation is not going through because I don’t trust you due to past incidents both with X and before X was born in our relationship, if you wish to take this further you will have to take it through the Courts. Now as I have already stated until then I do not wish to be contacted and would like you to accept that wish otherwise I will be having you charged with harassment.[11]
[10] Affidavit of Father sealed 20 February 2019, p 18.
[11] Affidavit of Father sealed 20 February 2019, p 19.
In a text message that the father asserts was received by him from the mother on 12 January 2018,[12] the mother allegedly says:
Got your letter for starters no you cannot have X every Saturday as that’s unfair on X and his brothers. As well as unfair on us, so no you can’t have him every Saturday. Secondly I do not agree to what you wish to have as again that’s no fair on X’s relationship with Q or big X, as well as Mr P. We can come to an agreement but that’s not happening.[13]
[12] Affidavit of Father sealed 20 February 2019, annexure ‘H’.
[13] Affidavit of Father sealed 20 February 2019, p 27.
The mother gives evidence that she was the victim of domestic violence, including physical violence, perpetrated against her by the father on several occasions both during and after their relationship. She asserts that early in their relationship, when they had begun to live together at her grandmother’s home, she was subjected to verbal abuse by the father, who on one occasion kicked in the bathroom door whilst the mother was using the toilet, screamed abuse at her, punched her pink HP laptop and damaged it. He then left the premises for a time. The father denies the whole of the allegation except that he admits that he punched and damaged the mother’s laptop computer.
The mother refers to an occasion, undated, when she alleges the father held her up against a wardrobe by the throat and screamed abuse at her and then hit her in the stomach, in consequence of which she fell to her knees. The father then heard the mother’s grandmother arrive by car at the premises and he left. The whole incident is denied by the father, who asserts that on the occasion he was the victim of physical abuse by the mother, but does not describe the incident.
The mother says that in March 2015, after she had met Mr P, who is now her husband, but at that time had not had a relationship with him other than as friends, Mr P was the subject of an argument between the parties and that the father hit her. The father denies that this occurred.
On about 12 August 2015, the mother attempted to commit suicide by consuming alcohol and overdosing on prescription medication. She contacted the father, who came to where the mother was at her father’s house and took her to T Hospital. The father’s version has him receiving the message from the mother, attending the maternal grandfather’s house, where he roused the maternal grandfather, and they had the mother conveyed to Town H Hospital by ambulance. The mother says that the father attended at the hospital on that occasion and then left, whilst the father says, “I did not ever go to Town H Hospital at this time”.[14]
[14] Affidavit of Father sealed 17 September 2019, [10].
The material produced on subpoena from Region H Local Health District indicates that on 12 August 2015 the father was in attendance at the hospital, requested to be present at the interview between the mother and health professionals, and was asked by the health professionals to wait in the waiting room, and then left the hospital without waiting. Though the parties’ versions of this presumably very memorable event vary, their conflicting evidence does not really have much bearing on the issue in this interim hearing.
Shortly after the mother’s discharge from hospital, an incident took place between the parties when the father came to the mother’s place of residence to hand over a puppy and have her sign documentation changing registered responsibility for the puppy. A dispute arose during which the mother asserts the father became “...aggressive both verbally and physically…”[15] and “…pushed me up against the wall and held me by my throat again, yelling and screaming at me…”.[16]
[15] Affidavit of Mother sealed 29 March 2019, [19].
[16] Affidavit of Mother sealed 29 March 2019, [19].
The father in his version says that he remained calm whilst the mother screamed abuse at him. Both agree that he then left. Both agree that the father then returned later in the day, again, to have the paperwork signed by the mother and hand over the puppy and, on the mother refusing to sign the paperwork, the mother says that the father said, “I will be back for more later”[17] and began to walk away and that she, “Without thinking, ... reacted…”,[18] but the mother does not then go on to describe the incident any further.
[17] Affidavit of Mother sealed 29 March 2019, [21].
[18] Affidavit of Mother sealed 29 March 2019, [21].
The father indicates that on the second occasion, he was attempting to leave and was walking back toward the car in which he had arrived when the mother grabbed him by the hair on the back of his head and pulled him backwards. The father says that he tried to push the mother back to free himself and that an accompanying friend, Ms T, came to his assistance. The mother let go and the father found that a clump of his hair had been detached from his head at the back.
The father says that he got into the front passenger seat of the car in which he had arrived in as his brother was driving, that the window was down about 30 centimetres and that the mother reached in to try to grab the father’s hair again and failed and that she then began to attack the side of the car and moved the car’s side mirror, without causing damage to the car. The father and his accompanying persons then left in the vehicle.
The father says that he received an SMS from the mother, asking him if he wanted to go for “round 2”[19] and threatening him with personal abuse. As a result of this incident, an Apprehended Violence Order (‘AVO’) was issued on the application of a police officer for the protection of the father from the mother. The father annexes a copy of the provisional order as issued by an authorised police officer that indicated that the matter was to be before Town F Local Court on 28 August 2015. Neither party gives detail of the aftermath of that application nor can that detail be found in the material produced on subpoena by NSW Police.
[19] Affidavit of Father sealed 20 February 2019, annexure ‘I’.
The mother says that when she told the father that she was pregnant, he came to see her and was “…verbally and physically abusive…”.[20] She asserts that he said, “Abort the child or I’ll walk for good,…”[21] and that he held a knife pointed at her stomach. The mother says that she pushed the father away. The father denies that he ever made the comments attributed to him and he denies that he ever held a knife at the mother.
[20] Affidavit of Mother sealed 29 March 2019, [26].
[21] Affidavit of Mother sealed 29 March 2019, [26].
The mother asserts that she invited the father to various medical appointments to do with her pregnancy, but that the father refused to attend, denying that the child was his. The father denies that evidence and says that he was never invited to any medical appointments to do with the mother’s pregnancy.
The mother asserts that while she was pregnant, the father stalked her and followed her around Town F. The father denies this, saying that at the relevant time he was working and living in City U. There is material in the documents produced by the Region J Women’s Health and Welfare Aboriginal Corporation that contains an assertion by the mother that she would drive down to City U to collect the father after work and bring him home – another contradictory and confusing element of the evidence in this matter.
The mother gives evidence that at some time in late 2017, the father attended her place of residence whilst her partner, Mr P, was not at home. The mother asserts that while she was holding X in her arms, who at that time was around one year of age, the father punched the mother with a closed fist in the face, causing her to develop a black eye. This incident is denied by the father. There is no evidence by the mother that she reported this incident to anyone.
It is to be wondered why, after the events of 22 August 2015 leading to the mother being the subject of a personal protection order against her for the protection of the father, she did not report such a serious assault causing actual bodily harm to the police, or at least have it noted by some other person and present evidence of that noting. That is not to say that there is any finding or assertion that the incident did not occur – too much family violence does occur without the victim taking action that provides later corroboration–, and I note carefully the comments of the Full Court in Amador & Amador.[22] In context of the history of this matter, as given in the mother’s evidence, it is concerning that she gives evidence of this serious assault, but that the matter goes no further.
[22] Amador & Amador [2009] FamCAFC 196, [79].
The mother asserts that the father made repeated requests to her to resume their relationship, despite her relationship with Mr P, and that she refused all such requests. The mother includes as annexure ‘A’ to her affidavit of 29 March 2019 a print of what she asserts are text messages from the father to this effect and including the words:
I won’t let you down again. I won’t emotionally hurt you again or physically. I’m changing too and I want to make things for the better. Ms Jebbs, please.[23]
The father denies that he ever sought a reconciliation with the mother following the child’s birth. However, in his affidavit in response to the mother’s affidavit of 29 March 2019, he does not make specific denial of sending the asserted text message.
[23] Affidavit of Mother sealed 29 March 2019, annexure ‘A’.
The mother asserts that on the occasion when she allowed the child to spend overnight time with the father on 20 January 2018, the child returned to her care the next day with “…cuts and bruises along with ripped shorts”[24] and, when questioned by the mother, the child said, “He hit me.”[25] The mother says that she asked the child to show her what he meant and that the child:
…made a fist with his hand and proceeded to show me what Mr Jaloma had done. X ‘punched’ lightly on my leg and lightly on my stomach. I asked X if anything else happened, and X pointed to his back and said ‘kicked’.[26]
I note that at this time, the child was one year and four months of age.
[24] Affidavit of Mother sealed 29 March 2019, [48].
[25] Affidavit of Mother sealed 29 March 2019, [48].
[26] Affidavit of Mother sealed 29 March 2019, [48].
There is no evidence of the mother reporting this asserted incident to NSW Police or to the Department of Family and Community Services (as it was then called) or of seeking medical attention for the child or reporting the matter in any manner. The father denies the mother’s assertions and says that when the child came to his care on 20 January 2018, he saw cuts and bruises on the child’s knee and forehead, and when he questioned the mother about them, she told him that the child had fallen down stairs at her home.
The mother asserts that she did not hear from the father about wanting to spend time with the child between February and October 2018. The mother states that during this time that she did not have the father’s phone number blocked on her phone, but that from 2015 onwards he had been blocked on her social media. The mother makes the assertion that “Since having X, Mr Jaloma’s number has never been blocked on my mobile”[27] in paragraph 51 of her affidavit, but in paragraph 30 thereof, she asserts that “While I was pregnant with X... I had to block his number and have him blocked on social media.”[28]
[27] Affidavit of Mother sealed 29 March 2019, [51].
[28] Affidavit of Mother sealed 29 March 2019, [30].
The mother asserts that the father came to her home by invitation in October 2018 to spend time with the child, accompanied by his new partner, Ms L, but that despite the mother’s encouragement, the child refused to go to the father and became very clingy towards her and said, “No hit” when he was looking at the father.
There is evidence from both parties regarding the use of illicit drugs. I find that this evidence is admissible based on their Honours ruling in Britt & Britt. [29] Their Honours held that:
…evidence that is probative, even slightly probative, is admissible because it could rationally affect the determination of an issue. For it to be inadmissible, it must lack any probative value[30]
Whilst I can find that such evidence is slightly probative and therefor admissible, it can have no weight in the Court’s considerations, being that, at best, the evidence is in the form of assertions without supporting factual basis.
[29] Britt & Britt (2017) FamCAFC 27.
[30] Britt & Britt (2017) FamCAFC 27, [31].
The evidence I refer to regarding drug use is:
a)In paragraph 62 of the mother’s affidavit of 29 March 2019, the mother says:
Mr Jaloma has had a history of using and dealing illegal drugs. Mr Jaloma’s drug of choice during our relationship was cocaine. Mr Jaloma had also admitted to doing other drugs in the past, however, I cannot be certain if he is still using drugs or what drugs he has taken. Mutual friends have informed me that Mr Jaloma still has a drug habit.[31]
b)In the same vein, the mother asserts in paragraph 64 of her affidavit:
Mr Jaloma has also drunk alcohol heavily during the course of our relationship and would often drive under the influence of both drugs and alcohol.[32]
These statements can have no weight.
c)The father gives evidence that he used marijuana three times during the relationship at parties. He asserts that he saw the mother use ice four to six times per year and saw the mother smoke marijuana at parties.
This evidence falls into the same category as the mother’s – there is no particularity and it is so general that though it can be said to be of slight probative value, but having been admitted, it carries no weight.
d)The father says that the mother abused alcohol during their relationship and that he “observed Ms Jebbs to get drunk on most weekends”.[33]
e)The father specifically denies the mother’s assertions about his use of drugs and alcohol, and denies that he ever dealt illegal drugs.
[31] Affidavit of Mother sealed 29 March 2019, [62].
[32] Affidavit of Mother sealed 29 March 2019, [64].
[33] Affidavit of Father sealed 17 September 2019, [27].
The mother asserts that at some unspecified time, the father sent her a text message saying:
Ms Jebbs I will come by and drive to your house and take him and hurt you. I’ve done it before I’ll do it again!
Ms Jebbs, let me see my child or else, I will come get him! I’ve done it before I’ll do it again.[34]
[34] Affidavit of Mother sealed 29 March 2019, annexure ‘C’.
The father denies that he ever sent such text messages. The mother attaches as annexure C to her affidavit of 29 March 2019 a printed screenshot of the asserted messages. No finding can be made due to the ease with which such text messages can be falsified with the cooperative use of two mobile telephones to produce misleading screenshots, though it should be carefully noted that the Court makes no finding or even assertion that that is what has occurred here. This is merely to make the point of the difficulty in evaluating evidence based on screenshots, particularly where the asserted authorship is denied.
In the mother’s affidavit of 22 October 2019 she concedes that X refers to her husband Mr P as “dad”[35] and says that she “would not discourage this”.[36] She does not see any difficulty with the child identifying two ‘dads’ in his life.
[35] Affidavit of Mother sealed 22 October 2019. [11].
[36] Affidavit of Mother sealed 22 October 2019. [11].
In that affidavit, the mother responds to the assertion made by the father that he saw her use ice on occasions during their relationship by denying that she has taken the drug ice. Much of the balance of the affidavit details the mother’s beliefs and concerns.
From the totality of the material in the exhibits tabbed by the parties and the ICL, the Court has found the following evidence to be particularly informative:
a)The evidence from NSW Police dated 2016. There was a suggestion, though no follow-through detail, that Mr P may have been involved in some apprehended domestic violence order proceedings with his previous partner, who at that time was 18 years of age, and the mother of his child R.
b)The material produced by NSW Police under the section 69ZW order which contains detail of domestic violence by way of serious damage to property perpetrated against the mother by two of her ex-partners occurring in her life between the end of her relationship with the father and the commencement of her cohabitive relationship with Mr P.
c)In the COPS records for 8 March 2016 relating to the mother is detail of an incident between the mother and one of these partners, Mr V, who faced charges, or Mr W, who also faced charges, where, during the mother’s pregnancy with X, she was subjected to a savage threat by that partner to kill her baby, was subjected to physical violence by that partner and that partner smashed the mother’s iPod and other property and punched holes in walls and doors of the premises where the mother was residing. The evidence is incomplete and not clear as to which former partner perpetrated those acts.
d)From the material produced by Region H Local Health District:
i)In 2016, the day X was born, the mother informed health professionals at the hospital that there was a current AVO in place against the father and that was why she did not want him at the ward. There was no AVO for the protection of the mother and against the father at this or any other time, on the available evidence.
ii)In a note in the health records in 2016 of a conversation between the mother and a social worker, the mother indicated to the social worker that she went out partying, leaving the father at home, that on occasions she “lost it”.[37] In that regard the mother recounted to the social worker that “she remembered she was on him on the floor pummelling him with her fists until her dad, who they were living with, dragged her off him and told Mr Jaloma to go to his parents.”[38] The social worker further recorded that the mother detailed that:
[37] Exhibit ICL3, Copy of Clinical Notes from Town H Hospital, p 40 of 113.
[38] Exhibit ICL3, Copy of Clinical Notes from Town H Hospital, p 41 of 113.
Initially [the mother] determined that Mr Jaloma would never have a part in baby’s life, but later she asked her mother to contact him when she was in established labour. Mother rang him at that time and asked him not to come and that she would give him updates. However, he and his mother turned up at Hospital and an argument by his mother created a crisis. When Ms Jebbs’s family said they would get security, they finally left. After baby had been born, Ms Jebbs requested they allow Mr Jaloma to come and meet baby. Both mum and Ms Jebbs spoke well of the meeting. Ms Jebbs is now seeing someone else and Mr Jaloma is in a new relationship.(original emphasis) [39]
[39] Exhibit ICL3, Copy of Clinical Notes from Town H Hospital, p 41 of 113.
iii)At tab ICL4 is a note: “CWU contacted re DV in early pregnancy. Risk to unborn child.”[40] This would seem to be a reference to the incident referred to earlier involving a short-term partner of the mother who made a threat to the mother to kill the baby while she was pregnant with X and after she had ended the relationship with the father.
[40] Exhibit ICL3, Tab ICL4.
iv)A note on 28 April 2016 reads:
Ms Jebbs stated that after she broke up with Mr Jaloma, she had a brief relationship with Mr W, who she later found out was a drug user. She spoke about an incident of domestic violence from Mr W and that there is a current AVO in place.[41]
[41]Exhibit ICL3, Copy of Clinical Notes from Town H Memorial Hospital, p 10 of 20.
(d)From the evidence provided by Region J Women’s Health and Welfare Aboriginal Corporation there was:
i)A note on 3 February 2017 of Court support for the mother in relation to an AVO against her former partner, Mr V, in relation to his causing damage to property;
ii)A note on 13 February 2017 stating “CW to monitor living arrangements, state of home and also Ms Jebbs drinking habits”;[42]
iii)A note on 13 March 2017 stating “X going to father’s on weekend, however mother not allowed this weekend as she has concerns that father’s partner might be using drugs”;[43]
There is no suggestion in any of the mother’s evidence of the father’s partner, Ms L, being a drug user or involved with drugs in any way.
iv)A note on 27 March 2017 stating that the “House is noted to have a rotting food type of smell and general untidiness”.[44]
v)A note on 24 April 2017 stating that “Ms Jebbs’s solicitor, has received a letter from X’s father giving up all parental rights and responsibilities”. [45]
This cannot be a reference to the disputed handwritten letter of 12 February 2018 and appears to be an untrue statement made by the mother to the health professionals of Region J Women’s Health Centre.
vi)On 8 April 2017, a note of a home visit to the mother’s residence stating that the “House was tidy and not have any unpleasant smells”.[46]
[42] Exhibit ICL 4, Patient Summary, p 28.
[43] Exhibit ICL 4, Patient Summary, p 24.
[44] Exhibit ICL 4, Patient Summary, p 22.
[45] Exhibit ICL 4, Patient Summary, p 20.
[46] Exhibit ICL 4, Patient Summary, p 18.
On the basis of all of the evidence presented at the interim hearing, I find that there is a relationship between the father and the child. I find that bond has not been given time or opportunity to develop into a strong relationship. The time between the father and the child needs to progress cautiously whilst the child gains comfort and the relationship strengthens and deepens.
I find that there has been family violence in the matter, certainly family violence perpetrated by the mother against the father on 28 August 2015, after which it would seem the parties carried on their relationship for some time into the early months of 2016, X not having been conceived by August 2015. However, the evidence presented by the mother of family violence perpetrated against her and against the child by the father is contested for each occasion. I find that there is sufficient basis to be cautious for the benefit of X, and I will go into this aspect further when discussing the issue of risk later in these reasons.
I find on the evidence that there is no basis to find that either party presents a risk to the child in relation to drug use or misuse of alcohol.
I find that there is no basis on all of the evidence to find that either party presents a risk to X by reason of any mental health issues. In this regard, I am very mindful of the mother’s ‘cry for help’ purported suicide attempt in August 2015, noting that the same occurred at a difficult time in her life, before she was pregnant with X, whilst the relationship between herself and the father was in the process of breaking down, and before she had established her now stable relationship with her partner and husband, Mr P.
Child Dispute Conference
I have the assistance of the Child Dispute Conference Memorandum to Court dated 10 May 2019 prepared by the Family Consultant following a conference with the parties that day. The parties were interviewed separately. In the course of the narrative of the assertions made by each of the parties as to risk factors, the Family Consultant notes:
Ms Jebbs raised concern that [X] may be at risk of physical abuse in the paternal home. As outlined in affidavit, she states that, after an overnight stay with his father in 2018, X returned with bruises and seemed fearful of Mr Jaloma. She states that she has photos of injuries X sustained, describing him as being ‘black and blue’.[47]
It is noted that though the mother asserts that she has photos of injuries sustained by X, no photos are put into evidence.
[47] Child Dispute Conference Memorandum to Court dated 10 May 2019, p 2.
The Family Consultant notes that “there appears to be no communication between the parties and a high degree of mistrust”.[48]
[48] Child Dispute Conference Memorandum to Court dated 10 May 2019, p 2.
At the time of the conference, X had had no contact with his father for over six months, and the father acknowledged that he is likely to be a stranger to X having had minimal opportunity to be involved with him during his life. The mother estimated that X had seen his father “four times in three years”.[49] Concerningly, the mother stated that “she does not view Mr Jaloma is X’s father and says that her current partner has been a father figure to X”.[50]
[49] Child Dispute Conference Memorandum to Court dated 10 May 2019, p 2.
[50] Child Dispute Conference Memorandum to Court dated 10 May 2019, p 2.
On the evidence, the Court finds that a large part of the reason why the father has not been able to be X’s principal father figure is that, by a combination of factors, but including the mother’s failure to foster a relationship between the father and the child, he has not had that opportunity to do so. Again, concerningly, the Family Consultant notes the mother as saying “she is not supportive of any time between X and Mr Jaloma”.[51] This is reflected in the interim and final orders sought by the mother in her Response filed in the proceedings. The mother justifies this stance by indicating that she believes that time between the father and child would
place X at serious risk of harm, and argues that Mr Jaloma has been inconsistent, unreliable and abusive in the past. She considers that he is motivated to cause upset to her rather than being child focused.[52]
[51] Child Dispute Conference Memorandum to Court dated 10 May 2019, p 2.
[52] Child Dispute Conference Memorandum to Court dated 10 May 2019, p 2.
The Family Consultant notes, with which I agree, that “the parents have given very different accounts of the past, especially in relation to family violence and other risk issues”.[53] The Family Consultant notes that an ICL has been appointed and indicates that a family report may assist the Court. It was on the basis of this recommendation that the order for the family report was made on the day of the interim hearing so as to set the wheels spinning in that regard.
[53] Child Dispute Conference Memorandum to Court dated 10 May 2019, p 3.
The Family Consultant further notes that “A Parenting After Separation course may also be beneficial if any time were to occur.”[54]
[54] Child Dispute Conference Memorandum to Court dated 10 May 2019, p 3.
It is the case that based upon the competing applications of the parties and the ICL, time will occur, the issue being how much time and in what circumstances, if any, of other persons being present during the father’s time with the child.
The law
In any parenting proceedings under the Act, the Court is required to follow the legislative pathway. That applies to interim Hearings on parenting issues.[55]
[55] See especially Goode & Goode [2006] FamCA 1346 (Bryan CJ, Finn, and Boland JJ); Marvel & Marvel [2010] FamCAFC 101 (Faulks DCJ, Boland, and Stevenson JJ); MRR & GR (2010) 240 CLR 461 (French CJ, Gummow, Hayne, Kiefel, and Bell JJ).
The Court must give attention to section 60B that sets out the objects of Part VII of the Act relating to children, as those objects inform the making of parenting orders and that section contains the principles behind those objects.[56]
[56] Family Law Act 1975 (Cth) s 60B.
In this matter I have considered those objects and the principles behind those objects.
Section 60CA of the Act provides that, 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.[57] The child’s interests are not the only consideration. Parents and other persons, especially partners and extended families, are almost always relevant in the matter. However, the child’s interests must always be the paramount consideration.
[57] Family Law Act 1975 (Cth) s 60CA.
In parenting proceedings, pursuant to section 65D of the Act, the Court may, subject to the presumption of equal shared parental responsibility in section 61DA and consideration of parenting plans under section 65DAB, make such parenting order as it thinks proper.[58] The Court may make a parenting order that discharges, varies, suspends, or revives some or all of an earlier parenting order.[59]
[58] Family Law Act 1975 (Cth) s 65D(1).
[59] Family Law Act 1975 (Cth) s 65D(2).
In determining what is in the child’s best interests, the Court must consider the matters set out as the primary considerations and additional considerations in section 60CC of the Act and make findings.[60]
[60] Family Law Act 1975 (Cth) s 60CC(1).
Section 61DA provides that when making a parenting order in relation to a child, the Court must apply a presumption that it is in the best interests of the child for the child’s parents to have equal shared parental responsibility for the child.[61]
[61] Family Law Act 1975 (Cth) s 61DA(1).
The presumption does not apply in circumstances where a parent has perpetrated family violence or abuse.[62] The presumption, when applying, may be rebutted by evidence that satisfies the Court that it would not be in the best interest of the child for the child’s parents to have equal shared parental responsibility for the child.[63]
[62] Family Law Act 1975 (Cth) s 61DA(2).
[63] Family Law Act 1975 (Cth) s 61DA(4)
When the Court is considering parenting matters on the interim basis, the presumption applies unless the Court considers that it would not be appropriate in the circumstances for the presumption to be applied when making the order.[64]
[64] Family Law Act 1975 (Cth) s 61DA(3).
If a parenting order provides that a child’s parents are to have equal shared parental responsibility for the child, then pursuant to section 65DAA, the Court must consider:
a)Whether the child spending equal time with each parent would be in the best interest of the child;[65] and
b)Whether the child spending equal time with each of the parents is reasonably practicable.[66]
If both questions are answered ‘yes’, the Court must consider making an order to provide for the child to spend equal time with each of the parents.[67]
[65] Family Law Act 1975 (Cth) s 65DAA(1)(a).
[66] Family Law Act 1975 (Cth) s 65DAA(1)(b).
[67] Family Law Act 1975 (Cth) s 65DAA(1)(c).
If the Court makes an order for equal shared parental responsibility, but does not make an order for the child to spend equal time with each of the parents, then the Court must consider:
a)Whether the child spending substantial and significant time with each of the parents will be in the best interest of the child;[68] and
b)Whether the child spending substantial and significant time with each of the parents is reasonably practicable.[69]
If the answer to both is ‘yes’, the Court is to consider making an order to provide for the child to spend substantial and significant time with each of the parents.[70]
[68] Family Law Act 1975 (Cth) s 65DAA(2)(c).
[69] Family Law Act 1975 (Cth) s 65DAA (2)(d).
[70] Family Law Act 1975 (Cth) s 65DAA(2)(e).
What is meant by “substantial and significant time”[71] is set out in section 65DAA(3) of the Act and includes:
a)Days that fall on weekends and holidays;[72]
b)Days that do not fall on weekends or holidays;[73]
c)The child being able to be involved in occasions and events special to the parents;[74]
d)The parents being able to be involved in occasions and events of particular significance to the child;[75] and
e)The parents participating in the child’s daily routine.[76]
[71] Family Law Act 1975 (Cth) s 65DAA(2)(e).
[72] Family Law Act 1975 (Cth) s 65DAA(3)(a)(i).
[73] Family Law Act 1975 (Cth) s 65DAA(3)(a)(ii).
[74] Family Law Act 1975 (Cth) s 65DAA(3)(c),
[75] Family Law Act 1975 (Cth) s 65DAA(3)(b)(ii).
[76] Family Law Act 1975 (Cth) s 65DAA(3)(b)(i).
If the Court does not make an order for the child to spend substantial and significant time with each of the child’s parents, the Court must then go on to determine what parenting orders are proper in the best interests of the child.[77]
[77] Family Law Act 1975 (Cth) s 65D.
As to what is ‘proper’ and how the Court’s discretion is to be exercised, I note the comments of the Full Court of the Family Court of Australia in Grella & Jamieson:[78]
A discretionary judgment concerning parenting orders necessarily involves, because of the focus upon the future, significant elements of value judgments; assumptions; necessarily uncertain predictions and intuition.[79]
[78] Grella & Jamieson [2017] FamCAFC 21 (Bryant CJ, May, & Kent JJ).
[79] Grella & Jamieson [2017] FamCAFC 21, [18].
There is no requirement that the Court consider the best interests of the child under section 60CC, the matters dealt with in section 61DA as to parental responsibility, and the time to be spent under section 65DAA, in any particular order. It is suggested by the Full Court in Starr & Duggan[80] that a useful approach is to:
a)First make findings in relation to the considerations set out in 60CC;
b)Then, to consider in the light of the findings made in relation to section 60CC how (or if and how) an order is to be made relating to parental responsibility; and
c)Then, to consider the matters under section 61DAA relating to equal time or substantial and significant time and, if neither is determined to be in the child’s best interest, to go on to determine what parenting orders are proper to be made in the child’s best interests.[81]
[80] Starr & Duggan [2009] FamCAFC 115 (Boland, Thackray, & Watts JJ).
[81] Starr & Duggan [2009] FamCAFC 115, [38]. See also Taylor & Barker [2007] FamCA 1246 (Bryant CJ, Faulks DCJ, & Finn J); Sealey & Archer [2008] FamCAFC 142 (Bryant CJ, Finn, & Thackray JJ).
As the High Court of Australia said in their joint judgment in Bondelmonte & Bondelmonte:[82]
A parenting order made under section 65D involves the exercise of a judicial discretion because it is made by reference to a paramount consideration of a general kind, the best interests of the child, which involves an overall assessment of a number of other considerations, either statutorily prescribed or considered by the Court to be relevant [Family Law Act 1975 (Cth) s 60CC(3)(m)]. The primary considerations in section 60CC(2) are matters to be borne in mind as consistent with the objects of Part VII. The additional considerations in section 60CC(3) require assessments of the matters there listed by reference to the circumstances of the case. They involve value judgments in respect of which there may be room for reasonable differences of opinion [Norbis & Norbis (1986) 161 CLR 513 at 518], as does the overall assessment of what is in the best interests of the child.[83]
[82] Bondelmonte & Bondelmonte [2017] 259 CLR 662 (Keifel, Bell, Keane, Nettle, and Gordon JJ).
[83] Bondelmonte & Bondelmonte [2017] 259 CLR 662, [32].
There is much jurisprudence on risk in parenting proceedings. The jurisprudence may be simplified by saying that the task of the Court, where risks are asserted, is not necessarily to make a finding as to whether the actions and events asserted have actually happened or have definitely not happened, such a finding rarely being open to the Court on the evidence, but rather to assess whether the evidence establishes that there is a risk to the best interests of the child.
If the evidence establishes that there is such a risk, briefly expressed, the Court must:
a)Assess whether that risk is an acceptable risk or an unacceptable risk;
b)If it is assessed that it is an unacceptable risk, assess whether or not the risk can be mitigated by appropriate orders; and
c)Decide what orders are proper in all the circumstances in the best interests of the child.
Detailed exposition of the treatment of risk in family law parenting matters can be found in the High Court’s decision in M & M,[84] and the decisions of the Full Court of the Family Court of Australia in A & A,[85] Napier & Hepburn,[86] and Johnson & Page.[87]
[84] M & M (1998) 166 CLR 69 (Mason CJ, Brennan, Dawson, Toohey, & Gaudron JJ).
[85] A & A & The Child Representative [1998] FamCA 25 (Fogarty, Kay, and Brown JJ).
[86] Napier & Hepburn [2006] FamCA 1316 (Bryant CJ, Kay, and Warnick JJ).
[87] Johnson & Page [2007] FamCA 1235 (May, Boland, and Stevenson JJ).
In Dieter & Dieter,[88] the Full Court found:
The assessment of risk is one of the many burdens placed on family law decision makers. Risk assessment comprises two elements – the first requires prediction of the likelihood of the occurrence of harmful events, and the second requires consideration of the severity of the impact caused by those events. In our view, the assessment of risk in cases involving the welfare of children cannot be postponed until the last piece of evidence is given and tested, and the last submission is made. We accept, however, that it is always a question of degree depending on the evidence that is before the Court.[89]
[88] Dieter & Dieter [2011] FamCAFC 82 (Finn, Thackray, and Strickland JJ).
[89] Dieter & Dieter [2011] FamCAFC 82, [61].
I further note the comments made by the Full Court of the Family Court of Australia in the case A & A:[90]
[3.23] The task which his Honour was required to perform was to determine whether the evidence was such as to establish that there would be an unacceptable risk to the children if they were to have contact or supervised contact with the husband. The basis of that is that if there were an apprehension that the husband was the perpetrator of this violent assault that, together with the profile of such an assailant referred to in Dr Waters' evidence, to which we will refer later, may cause the Court to conclude that future contact by the father to these young children, at least unless strictly supervised, will carry with it a risk that he may act in a similarly irrational and violent way towards them. This is aside altogether from the question of its effect upon the wife. The concentration here is upon the welfare and safety of the children. In reaching a conclusion on that issue, it is necessary for the Court to form some opinion about the connection between the assault and the husband. It would not be necessary in this exercise to reach a positive conclusion that he was the assailant. On the other hand, if the Court reached a comfortable conclusion that the husband was not the assailant, that would be likely to have a profound effect upon the approach to the question of contact.
[3.24] In cases of this sort often it is not possible for the Court to form a positive view at one end or the other end of this scale of persuasion and it is not necessary for it to do so: see the discussion in N and S (1996) FLC 92-655. The term identified by the High Court in M and M of "unacceptable risk" provides the touchstone for such an enquiry. Usually they are sexual abuse or similar cases, but this approach includes cases of the type identified here which involve the assessment of the risk of future physical and/or emotional harm: see M and M, supra, CLR at 77 referred to above.
[3.25] Here the primary question which his Honour should have addressed was, looking at the whole of the evidence, whether contact (or at least contact which was not strictly supervised) might expose the children to an unacceptable risk because, although it is almost impossible to quantify in any precise way, it may place those children in circumstances of potential jeopardy in the future in their father's care.[91]
[90] A & A & The Child Representative [1998] FamCA 25 (Fogarty, Kay, and Brown JJ).
[91] A & A & The Child Representative [1998] FamCA 25, [3.23]-[3.25] (emphasis added).
Where there is contested evidence in an interim Hearing, the Court is not always able to make a finding. In cases of contested evidence, the Court is mindful to consider whether the evidence is sufficiently corroborated, and whether this corroboration is existent on the balance of the evidence before the Court, or on the balance of one party’s evidence in support of their case. Either case may enable the Court to make a finding.
Irrespective of whether the Court is capable of making a finding, the Court must do what can be done on the basis of agreed facts and contested evidence to perform the function of the Court – to resolve any interim issues with the best interests of the child as the paramount consideration, and to make whatever orders are then considered proper.
In SS & AH,[92] in the context of discussing the obligations of the Court whilst conducting interim children’s proceedings where the evidence available was contradictory in nature but nonetheless raised significant welfare concerns for the children concerned, the Court observed:
… 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.[93]
[92] SS & AH [2010] FamCAFC 13 (Boland, Thackray, and O’Ryan JJ).
[93] SS & AH [2010] FamCAFC 13, [100].
As noted by the Full Court of the Family Court of Australia in Eaby & Speelman,[94] 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.”[95]
[94] Eaby & Speelman [2015] FamCAFC 104 (Thackray, Ryan, and Forrest JJ).
[95] Eaby & Speelman [2015] FamCAFC 104, [19]. See especially SS & AH [2010] FamCAFC 13, [100]; see also Marvel & Marvel [2010] FamCAFC 101 (Faulks CJ, Boland, and Stevenson JJ).
The Court should not ignore child protection issues merely because those issues are incapable of definite resolution at the interim stage. This is the position in the matter currently before the Court, as is so often the case with interim parenting matters.
The Full Court again discussed the conduct of interim proceedings in Keats & Keats,[96] noting that:
… the principles that emerge from cases such as SS & AH (2010) FamCAFC 13, [are] namely, that apart from relying upon the uncontroversial or agreed facts, a Judge may have little alternative than to weigh the probabilities of competing claims and the likely impact on a child in the event that a controversial assertion is acted upon or rejected (see also Salah & Salah [2016] FamCAFC 100).[97]
[96] Keats & Keats [2016] FamCAFC 156 (Ainslie-Wallace, Ryan, and Cronin JJ).
[97] Keats & Keats [2016] FamCAFC 156, [9].
Having outlined the evidence I will now turn to the considerations under section 60CC and then I will consider the issue of parental responsibility under section 61DA.
The section 60CC considerations
The primary considerations in section 60CC(2) are the benefit of the child of having a meaningful relationship with both of the child’s parents and the need to protect the child from physical or psychological harm from being subjected to, or exposed to, abuse, neglect or family violence.[98] Subsection (2A) mandates that in applying the primary considerations, the Court is to give greater weight to the consideration of the need to protect the child over the consideration of the benefit of the child having a meaningful relationship with both parents.[99]
[98] Family Law Act 1975 (Cth) s 60CC(2).
[99] Family Law Act 1975 (Cth) s 60CC(2A).
The mother has been X’s primary carer from the time of his birth and is, self-evidently, his primary attachment figure. The father has not been a carer for X since the time of his birth, his contact with X being intermittent and for only short occasions, except for the one agreed overnight occasion on 20 January 2018.
On the evidence, there is a meaningful, close and loving relationship between X and his mother.[100] It is far more difficult to assess the relationship between X and his father, given the paucity of time that each have had to establish and develop that relationship.
[100] Family Law Act 1975 (Cth) s 60CC(3)(b).
Is it to X’s benefit to have a meaningful relationship with his father? Despite the evidence of the mother as to asserted family violence and drug and alcohol misuse by the father and assertion of violence by the father to the child on the occasion of the 20 January 2018 overnight time, I find that the evidence does not establish that the father is of such a risk to X that there should be no relationship between parent and child.
In general, there is benefit to all children in having the opportunity to have a relationship with both of their natural parents. A child being unable to have a relationship with one of his or her parents during their formative years, right up to late teen age, can have a detrimental effect on that child’s ability to form and maintain his or her own personal relationships in the future.
The mother asserts that the father presents a risk to X by reason of violence to others and violence to the child, by reason of a lack of parenting capacity, by reason of a propensity to abuse drugs and alcohol, and by reason of his pursuing the proceedings seeking time with X not out of parental affection or interest, but as a means to ‘get at’ the mother.
I have carefully considered all of the evidence presented in the interim hearing. I have detailed some of that evidence earlier in these reasons, in particular the competing and contradictory evidence between the parties going to violence.[101] I find that that evidence does not establish that the father is a risk to X on any of these bases such that the risk is so unacceptable as to outweigh the benefit to X of having a meaningful relationship with his father.
[101] Family Law Act 1975 (Cth) s 60CC(3)(j).
I cannot make findings on the contested evidence, even in relation to the incident that occurred on 28 August 2015 that led to the mother being placed on a provisional AVO order, because I am not presented with evidence of any aftermath of the issue of that provisional AVO order that goes any distance toward corroboration of either version of the incident.
Nevertheless, as these are interim proceedings and the evidence is untested, I must take into account all of the uncontested evidence and agreed facts, of which there are few. I must take serious note of the pool of competing and contested evidence and err to the side of caution. In following that course I find that it is appropriate to include with any orders providing for the father to spend time with the child orders that his time be in the presence of appropriate other persons. I am assisted in making this finding by the concession made on behalf of the father in submissions by Ms Benjamin at the interim hearing that he agrees to his time with the child being ‘supervised’. Although the proposed orders, in that aspect agreed to by each of the parties, do not provide for supervision as such, but for his time with X being “in the presence of”[102] appropriate persons.
[102] Short Minute of Order handed up on 23 October 2019, order 2.1(b).
Accordingly, I find that there is benefit to X in having a meaningful relationship with both of his parents and I find that I cannot at this stage discount some risk, but that the risk can be mitigated by orders that provide for the father’s time with X to occur in the presence of other appropriate persons. I find that such other appropriate persons include Ms B, Ms C, and X’s paternal grandfather, Mr D.
At three years of age, X is too young to have any views he may express taken into account.[103] The only evidence inferring a view by X is in the evidence asserted by the mother of X’s showing a reluctance to go with his father. I do not find that such asserted reluctance weighs against the appropriateness of making orders for X to spend time with his father.
[103]Family Law Act 1975 (Cth) s 60CC(3)(a).
On the state of the evidence, I cannot make any findings about the extent to which each of X’s parents has taken or failed:
a)To take the opportunity to participate in making major long-term decisions for him,[104] or
b)To spend time with him and to communicate with him.[105]
It is the mother’s case that the father has failed to take those opportunities, and it is the father’s case that he has been denied those opportunities. I cannot resolve the evidentiary conflicts in that regard at this stage.
[104] Family Law Act 1975 (Cth) s 60CC(3)(c)(i).
[105] Family Law Act 1975 (Cth) s 60CC(3)(c)(ii)-(iii).
I do not have sufficient evidence to make any findings in relation to the extent to which each of X’s parents has fulfilled or failed to fulfil their obligation to maintain him.[106]
[106] Family Law Act 1975 (Cth) s 60CC(3)(ca).
I find on the evidence that any change in X’s circumstances by reason of his separation from his mother through spending time with his father would not have any detrimental impact on his relationship with his mother, or upon X, given the short periods of time that are contemplated in the orders for that time is in effect agreed to by the parties as outlined in the ICL’s minute of order.[107] The parties are contesting the spacing of the steps rather than the duration of the time during each step.
[107] Family Law Act 1975 (Cth) s 60CC(3)(d)(i)-(ii).
There is no indication of a practical difficulty or expense involved in X spending time or communicating with his father given both parties are currently residing in the Town F area.
One aspect that needs to be addressed is in relation to the father seeking time in addition to that set out in the ICL’s minute of order on each Wednesday afternoon from 3.00PM until 4.30PM so as to provide time with the child on two occasions each week through each of the steps. In this regard, and in response to my inquiry, I was informed by Ms Ung as ICL that the proposed persons to be present for the first and second steps, Ms B or Ms C respectively, were unavailable on Wednesday afternoons. Ms C is in employment and would be working during that time and Ms B lives in Sydney and would have to come down for the occasion.
The consideration of parenting capacity is clearly a relevant issue in these proceedings,[108] the mother’s case asserting that the father lacks the appropriate parenting capacity. The father has had very little opportunity to develop his parenting capacity through having X in his care. However, he has since early 2018 shared the day-to-day care of Ms L’s daughters, M and N, and so has had some opportunity to begin to learn and develop parenting skills. No doubt the father engaging in an appropriate ‘Parenting After Separation’ course, as recommended by the Family Consultant in the Child Dispute Conference Memorandum to the Court, will assist in this regard. I find that there is a need for the father to develop his parenting capacity in relation to his son and that a stepped approach on a conservative basis to his time with the child is appropriate in those circumstances.
[108] Family Law Act 1975 (Cth) s 60CC(3)(f).
As referred to earlier in these reasons, X has Aboriginal heritage through his mother’s Aboriginality, but I have no further evidence in relation to his connection to culture or country. X is, and without dispute, will remain following this interim hearing primarily in his mother’s care and, accordingly, there is opportunity for him to have connection with and enjoy his Aboriginal culture. I note the submission made on behalf of the father in the case outline prepared by his solicitor advocate and relied upon by him at hearing that “the father supports the child being supported to fully appreciate and be involved with his indigenous heritage”.[109] X spending time with his father in accordance with the orders as proposed by the father, as a maximum, would not interfere with his opportunities to have connection with and enjoy his Aboriginal heritage and culture.[110]
[109] Case Outline of Father sealed 21 October 2019, p 6, [12.1].
[110] Family Law Act 1975 (Cth) s 60CC(3)(h).
It is difficult on the state of the evidence as it currently stands to properly assess the attitude to the responsibilities of parenthood demonstrated by each of the parents. Some concern is raised by the comments made by the mother to the Family Consultant at the Child Dispute Conference to the effect that she is not supportive of any time between X and Mr Jaloma, though she indicates that that stance is on the basis that she asserts that she believes that this would place X at serious risk of harm. By the time of the interim hearing, the mother had resiled from that absolute stance and was in agreement with time between father and child taking place.
It remains to be seen as this matter develops toward final hearing what will evolve as the mother’s real attitude to her responsibilities as a parent in fostering and developing a relationship between X and his father.[111]
[111] Family Law Act 1975 (Cth) s 60CC(3)(i).
I have already made findings in relation to family violence, such family violence having indisputably occurred, on the assertion of the father and the admission of the mother, by the mother to the father on 28 August 2015, and there being a range of other assertions of family violence perpetrated by one parent against the other. There is no current family violence order in evidence and the last asserted occasion of family violence was some time ago. Both parties are now in settled relationships with other persons, the mother with two children to her now husband and the father in a family setting with his new partner and her two children. If the only occasions on which the parents are to interact is at changeovers, then the presence of other persons on those occasions will assist in guarding against any incidents of family violence.
Parental responsibility – section 61DA
I find that the presumption in favour of equal-shared parental responsibility does not apply by reason of there being reasonable grounds to believe that a parent of X has engaged in family violence.[112]
[112] Family Law Act 1975 (Cth) s 61DA(2)(a)-(b).
It is asserted by the mother and denied by the father that he has perpetrated abusive violence to the child overnight on 20 January 2018. I cannot make a finding in that regard, but the orders proposed by both parties to be made provide for other persons to be present during the father’s time with the child and therefore appropriately mitigate any such risk.
As the presumption does not apply, I must go on to decide what order if any should be made in relation to parental responsibility. The father in his Initiating Application does not seek any interim order in relation to parental responsibility. The mother in her response seeks an order on an interim basis that she have sole parental responsibility for the child. The ICL’s short minute of order does not propose any order relating to parental responsibility.
It is noted by the Family Consultant in the Child Dispute Conference Memorandum to Court: “There appears to be no communication between the parents and a high degree of mistrust.”[113]
[113] Child Dispute Conference Memorandum to Court dated 10 May 2019, p 2.
I do not consider that it is appropriate at the present time to disturb the parental responsibility circumstance that arises under section 61C of the Act in that from the time of X’s birth each of his parents have had parental responsibility for him. That is a different concept to equal shared parental responsibility and it does not bring with it the statutory obligation to consult and to make the best efforts to reach agreement.
I find that it is currently not in X’s best interest to make an order that his parents have equal shared parental responsibility for him or to make an order that the mother have sole parental responsibility for him. Accordingly, I will make no order in relation to parental responsibility and section 61C will continue to apply in that each of the parents have parental responsibility for X.
As I will not make an order that the parents have equal shared parental responsibility I do no need to follow the legislative pathway through section 65DAA. However, I must decide what order is proper with X’s interests as the paramount consideration in relation to time to be spent between the father and child.
What orders in relation to the time to be spent between father and child are proper?
As the interim hearing developed, there was acceptance by the father of the appropriateness of his time to be spent with X to be in accordance with the four steps in the ICL’s Minute of Order, but with the father seeking an additional time in each step of 3.00PM to 4.30PM each Wednesday afternoon and for the duration of each step until the last being for four weeks. The mother was accepting of the time between father and child set out in the four steps, but sought that the duration of the second step be for eight weeks rather than four weeks and opposed the Wednesday time as sought by the father.
On all of the evidence in this matter and my consideration of the matters under the primary and additional considerations in section 60CC, I find that it is appropriate for orders to be made for X to spend time with his father as set out in the Minute of Order presented by the ICL on interim hearing, without the addition of Wednesday afternoon time each week in the first two steps. I find it is appropriate for such time to take place in the presence of either Ms B or Ms C, neither or whom would be available for the Wednesday time without serious inconvenience.
I find that the Wednesday time sought by the father should begin to occur from the third step when the time between father and child will be in the presence of the paternal grandfather, Mr D, who can be present for Wednesday afternoons.
The time proposed by the ICL does not involve any overnight occasions and I consider that to be appropriate at the current time given the state of the relationship, so far as it is known, between father and child and the developing state of the father’s parenting capacity.
The rest of the orders to be made are as agreed between the parties
A family report has been ordered and a date for mention after, hopefully, the release of that family report set for 7 December 2020. The matter is listed for a further mention and directions on 25 May 2020 before me in the Wollongong registry – though in current circumstances of the COVID-19 emergency this will almost certainly to take place by telephone – and at that time some consideration can be given to the matter having a further date later in the year for assessment.
For these reasons I make the orders set out above.
I certify that the preceding one hundred and forty-two (142) paragraphs are a true copy of the reasons for judgment of Judge Morley
Associate:
Date: 18 May 2020
Key Legal Topics
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Family Law
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Evidence
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