Josse & Vipen (No 4)
[2024] FedCFamC1F 890
•18 October 2024
FEDERAL CIRCUIT AND FAMILY COURT OF AUSTRALIA
(DIVISION 1)
Josse & Vipen (No 4) [2024] FedCFamC1F 890
File number(s): CAC 80 of 2023 Judgment of: CURRAN J Date of judgment: 18 October 2024 Catchwords: FAMILY LAW – PARENTING – Interim hearing – Where the father is presently on remand at F Correctional Centre pending charges – Where the child lives with the paternal grandmother and spends time with the mother – Issues of risk in both households – Where it has previously been held that it is in the best interests of the child to remain with the paternal grandmother pending final trial – Where the trial date was vacated –Allegations the paternal grandmother breached orders, facilitating time and communication between child and father – Consideration of safety of the child – Orders made for child to live with the mother and spend time with paternal grandmother Legislation: Family Law Act 1975 (Cth) ss 4, 60B, 60CA, 60CC, 60CG, 61B, 61D, 64B, 65DAA, 69ZL
Convention on the Rights of the Child
Cases cited: Banks v Banks (2015) FLC 93-637; [2015] FamCAFC 36
Eaby & Speelman (2015) FLC 93-654; [2015] FamCAFC 104
Eastley & Eastley (2022) FLC 94-094; [2022] FedCFamC1A 101
Franklyn & Franklyn [2019] FamCAFC 256
Goode & Goode (2006) 206 FLR 212; 36 Fam LR 422; FLC 93-286; [2006] FamCA 1346
In the Marriage of B & R (1995) 127 FLR 438; 19 Fam LR 594; FLC 92-636
Isles & Nelissen (2022) FLC 94-092; 65 Fam LR 288; [2022] FedCFamC1A 97
Malcher & Malcher (No.2) [2012] FamCA 1115
Marvel & Marvel (2010) 240 FLR 367; 43 Fam LR 348; [2010] FamCAFC 101
Rice & Asplund (1979) FLC 90-725; [1978] FamCA 84
SS & AH [2010] FamCAFC 13
Division: Division 1 First Instance Number of paragraphs: 160 Date of hearing: 18 September & 16 October 2024 Place: Sydney Counsel for the Applicant: Ms Baker-Goldsmith Solicitor for the Applicant: JS Family Lawyers The First Respondent: The First Respondent appeared in person Counsel for the Second Respondent: Mr Mando Solicitor for the Second Respondent: Mic Lawyers Counsel for the Third Respondent: Ms Davis Solicitor for the Third Respondent: U Solicitors Counsel for the Independent Children's Lawyer: Mr Stagg Solicitor for the Independent Children's Lawyer: Jeanine Lloyd & Associates ORDERS
CAC 80 of 2023 FEDERAL CIRCUIT AND FAMILY COURT OF AUSTRALIA (DIVISION 1)
BETWEEN: MS VIPEN
Applicant
AND: MR JOSSE
First Respondent
MS JOSSE
Second Respondent
CHILD YOUTH PROTECTION SERVICES
Third Respondent
INDEPENDENT CHILDREN'S LAWYER
ORDER MADE BY:
CURRAN J
DATE OF ORDER:
18 OCTOBER 2024
PENDING FURTHER ORDER THE COURT ORDERS THAT:
1.All previous orders are discharged.
2.The mother and the Director-General shall have parental responsibility and joint decision making authority in respect of all decisions concerning major long-term issues as defined in s 4(1) of the Family Law Act 1975 (Cth) in respect to the child, Z born 2012.
3.Z shall live with the Mother commencing from 10.00am Sunday 20 October 2024.
4.Z shall spend time with the father, professionally supervised on a weekly basis as arranged by the Director General.
5.Z shall communicate with the Father professionally supervised on a weekly basis as arranged by the Director General via Skype or AVL.
6.The Father and the Paternal Grandmother be permitted to send cards and/or gifts to Z on her birthday and at Christmas via the mother's postal address.
Restraints
7.Each party be restrained by injunction by themselves, their servants and/or agents from:
(a)denigrating the other in the presence or hearing of the child or permitting any person to do so;
(b)Questioning Z about the personal life of the other parties;
(c)Physically disciplining Z;
(d)allowing the child to read any correspondence, documents or reports generated in connection with these proceedings or any communications between the parties concerning the parenting arrangements for the Z;
(e)discussing the Father’s criminal proceedings in the presence or the hearing of the Z.
(f)exposing Z to abuse or family violence (including verbal, psychological and emotional abuse), and that each party will take all measures necessary to remove the child from an incident of family violence should such circumstances arise.
8.Each party is required to notify the others, including the ICL and the Director-General, within 24 hours of any of the following occurring:
(a)The attendance of the Police or CYPS at their residence;
(b)The interviewing of themselves, any child in their care or any member of their household by the Police or CYPS;
(c)Any member of their household being arrested or charged with any offence;
(d)Having any child, including but not limited to the Z, in their household removed by the Police or CYPS;
(e)Being named as the defendant or protected person in any FVO or similar order for personal protection;
(f)Being admitted into a rehabilitation program; or
(g)They, or anyone in their household, being admitted into hospital as a result of a mental health or alcohol or drug related illness or injury; or
(h)The Father applying for bail and the outcome of such application.
9.The Mother is restrained from changing the enrolment of Z from L School.
10.Pursuant to section 68B of the Family Law Act 1975 (Cth) the Father be and are hereby restrained from doing the following with respect to the Mother and/or Z:
(a)assaulting, harassing, threatening or intimidating Z or the Mother.
(b)engaging in behaviour that constitutes family violence towards the mother or Z;
(c)approaching or being within 100 metres of the Mother or Z, except:
(i)at a Court or Tribunal proceeding;
(ii)at a counselling or mediation session; and
(iii)unless agreed in writing by the Mother and the Director-General;
(iv)in accordance with an Order of this Court; or
(v)at changeover for Z.
11.Pursuant to section 68C of the Family Law Act 1975 (Cth), Order 10 is an injunction for the personal protection of the mother and for Z born 2012.
12.Ms Josse (“the Paternal Grandmother” is restrained by injunction (“the injunction”) from:
(a)allowing or permitting Z to come into any form of contact, spend any time or to have any communication, with the Father, including during telephone/video calls, and/ or
(b)allowing or permitting Z to come within 100 metres of any home where the Father may reside or be present.
Time with the Paternal Grandmother - conditional
13.The Paternal Grandmother shall enter into a written undertaking in a form provided by the ICL and file that undertaking with the Court (“the undertaking”). The undertaking is to be filed within 7 days.
14.Z's unsupervised time with, and communication with, the paternal grandmother pursuant to these Orders is conditional upon her ongoing compliance with the injunction in Order 12 and the undertaking in Order 13.
Time with Paternal Grandmother - if Paternal Grandmother complies with injunction and undertaking
15.Conditional upon the Paternal Grandmother's compliance with the injunction in Order 12 and the Undertaking in Order 13, Z shall spend time with the Paternal Grandmother as agreed, but failing agreement as follows:
(a)Commencing on 26 October 2024, and each alternate Saturday thereafter, from 9:00 am until 5:00 pm.
(b)Changeover will occur by the Mother arranging for Z to be delivered to and collected from Suburb C shops.
Time with Paternal Grandmother - if Paternal Grandmother does not comply with Injunction and Undertaking
16.In the event that the paternal grandmother does not give the undertaking to comply with the restraints herein, Z shall spend supervised time with the Paternal Grandmother at K Family Services (“the Contact Centre”) at the first available opportunity, and thereafter at such regular times as the Centre can accommodate, but on not less than once per fortnight for a period of two (2) hours, unless unavailable, and for that purpose:
(a)Within seven (7) days each party shall do all acts and things and sign all documents reasonably necessary to undertake whatever reasonable intake procedures are required of them and thereafter adhere to the rules of the Contact Centre; and
(b)The Paternal Grandmother be liable for any costs of spending time at the Centre.
Other Matters
17.Within 28 days the mother and the Director-General do all acts and things necessary for Z to be referred to a paediatrician or other qualified assessor as nominated by the Director-General at the expense of the Director-General to undertake an assessment for ADHD and ASD.
18.The mother and the Director-General do all acts and things necessary for Z to be enrolled in trauma informed counselling as nominated by the Director-General at the expense of the DG.
19.The above order which provides for the child Z to live with her mother, is inconsistent with the family violence order made in the Magistrates Court in early 2023 noting that it will which prohibits the mother coming within 50 metres of the child or contacting her.
20.Pursuant to s 68Q of the Family Law Act 1975, to the extent of the inconsistency, these family law orders prevail.
21.The ICL shall meet with Z to explain the effect of the interim orders.
Note: The form of the order is subject to the entry in the Court’s records.
Note: This copy of the Court’s Reasons for judgment may be subject to review to remedy minor typographical or grammatical errors (r 10.14(b) Federal Circuit and Family Court of Australia (Family Law) Rules 2021 (Cth)), or to record a variation to the order pursuant to r 10.13 Federal Circuit and Family Court of Australia (Family Law) Rules 2021 (Cth).
Part XIVB of the Family Law Act 1975 (Cth) makes it an offence, except in very limited circumstances, to publish an account of proceedings that identify persons, associated persons, or witnesses involved in family law proceedings.
IT IS NOTED that publication of this judgment by this Court under the pseudonym Josse & Vipen has been approved pursuant to subsection 114Q(2) of the Family Law Act 1975 (Cth).
EX TEMPORE
REASONS FOR JUDGMENTCURRAN J:
These reasons for judgment were delivered orally and have been corrected from the transcript.
These are short form reasons for a decision in relation to an interim parenting order, as permitted by section 69ZL of the Family Law Act 1975 (Cth) (“the Act”).
INTRODUCTION
An Application in a Proceeding was filed by the mother on 12 September 2024 which primarily concerns whether the child Z (born 2012) should remain living with the paternal grandmother or whether she should live with her mother pending the final determination of this matter.
The substantive applications are parenting proceedings between the applicant father, Mr Josse, the second applicant paternal grandmother, Ms Josse, and the respondent mother, Ms Vipen. The Director-General of Child and Youth Protection Services (“the Director-General”) are involved in the proceedings as an intervenor. An Independent Children’s Lawyer (“ICL”), Ms Lloyd, has been appointed in these long standing and fraught proceedings.
The matter was listed for interim hearing on 18 September 2024. The following day the Director-General filed an application to re-open the interim hearing and call further evidence. Directions were made for the filing of evidence and submissions and the matter was listed for determination on Wednesday 16 October 2024. The Director-General served the father with the material relied upon, personally, the day prior to the interim hearing, on 15 October 2024. The mother had not served the material she relied on. This would have necessitated a further adjournment in order to provide the father with the opportunity to respond to allegations that had been made as to his alleged conduct during the interim proceeding. In the circumstances the Director-General withdrew the application.
There are seven children of the relationship. The youngest is Z, born 2012, aged 12.
These proceedings relate to the interim arrangements only in respect of Z. Z is presently living with the paternal grandmother and spending time with the mother each Sunday.
PROCEDURAL BACKGROUND
On 19 December 2023 Judge Hughes made orders that the paternal grandmother have sole parental responsibility for Z, that Z live with the paternal grandmother, and that Z spend time with her mother each Sunday from 10.00am until 6.00pm. Her Honour made orders restraining the paternal grandmother from facilitating any contact between Z and the father as follows:
11. The paternal grandmother is restrained from:
a.Facilitating any contact between the child and her father or allowing anyone else to do so;
On 13 February 2024 Judge Hughes made orders transferring the proceedings to the Federal Circuit and Family Court of Australia (Division 1) and made further orders restraining the father from coming into contact or communicating with Z, noting that the father had been arrested in 2023 and remanded in custody on charges involving another person.
The father entered a plea of not guilty on all charges and was granted bail.
Despite the orders that prevented the paternal grandmother from allowing Z to come into contact with the father, the father spent time with Z at his home during a period when he was on bail.
On 8 April 2024 Gill J heard competing applications for the child to reside with the paternal grandmother or to reside with the mother. His Honour made no change to the existing live with orders of Judge Hughes. The order prohibiting the paternal grandmother from facilitating contact between Z and the father (Order 11 of 19 December 2023) was made subject to orders for supervised time.
Those orders made by Gill J set out:
1.The father is to spend professionally supervised time with [Z] on a weekly basis, as arranged by the Director-General, pending final hearing of the matter.
Similarly, the order restraining the father from coming into contact or communicating with Z (Order 2 of 13 February 2024) was subject to the orders for supervised time made on 8 April 2024.
A Family Violence Order dated early 2023 prohibits the mother coming within 50 metres of Z or contacting her. Justice Gill noted in orders dated 27 March 2024 that:
11.The above order which provides for the child [Z] to spend time and communicate with her mother, is inconsistent with the family violence order made in the […] Magistrates Court [in early] 2023 which prohibits the mother coming within 50 metres of the child or contacting her.
12.Pursuant to s 68Q of the Family Law Act 1975, to the extent of the inconsistency, these family law orders prevail.
THE PARTIES' PROPOSALS
The applicant mother, the ICL, and the Director-General were largely united in their application that Z live with the mother, continue to spend only supervised time with the father in accordance with the orders made by Gill J, and that Z should spend time with the paternal grandmother. The time with the paternal grandmother would occur only after the paternal grandmother provided an undertaking to the court that she would comply with the orders of Judge Hughes and Gill J and not bring Z into contact with or communicate with the father, unless professionally supervised.
There is no doubt on the evidence, in particular from the recordings of telephone communication recorded by the F Correctional Centre, that the paternal grandmother has permitted Z to communicate with the father despite the restraint. Through her counsel the paternal grandmother refused and remained steadfastly unprepared to give any undertaking to be bound to comply with the orders and not bring Z into contact or communicate with her father.
The PGM was represented by counsel. Submissions were made by counsel appearing for her that there was no risk of emotional or psychological harm to Z in the care of the paternal grandmother. It was contended that while the recorded conversations that had been played in court were “not the best,” they were not, he contended, psychologically or emotionally damaging to Z.
Dr D’s reports had been tendered into evidence. Dr D had listened to a number of the recordings, and in an updated report dated September 2024, had expressed a clear and strong view that Z was at risk of harm if she remained in the care of the paternal grandmother arising from her inability and unwillingness to protect Z from the behaviours identified, as set out later in these reasons.
Counsel for the paternal grandmother was specifically asked to address court in relation to the weight of the evidence of Dr D in circumstances where her opinion, albeit untested, was that there was a risk of harm to Z arising from her exposure to these conversations. Counsel maintained that the court would not find on that evidence that the child was at risk of psychological or emotional harm if she remained living with the paternal grandmother. I reject counsel’s submission. Dr D identified and articulated a risk of harm to Z arising from the failure of the paternal grandmother to protect Z from communication with the father. As referred to later in these reasons there were a number of clear examples of Z being exposed to concerning comments by the father which I accept occurred. The opinion of Dr D was that this exposure was damaging to Z. The paternal grandmother was steadfast in her resolve to continue to facilitate time between her son and granddaughter, notwithstanding the orders that specifically prohibited precisely that contact unless it was professionally supervised.
It was contended that in the absence of a willingness by the paternal grandmother to comply with the orders, that Z should not spend time with paternal grandmother unless supervised because of concerns for the safety and welfare of Z arising from allegations that the father had exposed Z to psychological distress and harm and that this was likely to continue.
Justice Gill made explicit orders that Z not communicate or spend time with the father. The paternal grandmother permitted frequent communication with the father, as is evidenced by the recordings from the F Correctional Centre.
Determination of the issue now in dispute is where Z should continue to live on an interim basis, and it requires consideration of the risk to Z’s safety in the care of each party and whether and how such risks can be ameliorated.
The ICL submitted that the Court is presently faced with a very stark factual dispute of extensive and very serious allegations of violence and risk of harm to Z as raised by the mother, which are vehemently denied by the father and paternal grandmother, and claims of risk to Z from living with her mother arising due to allegations by both the father and paternal grandmother of a history of drug misuse, which they contend is ongoing, and a history of family violence perpetrated by the mother.
The father and paternal grandmother opposed any change being made to the current arrangements.
THE FATHER’S PARTICIPATION IN THE INTERIM PROCEEDINGS
The father attended the interim proceedings via AVL from F Correctional Centre. He was unrepresented. He explained that he had spoken to a lawyer only days prior to the hearing and that he would need a further two weeks to obtain legal representation. He explained that his case worker was assisting him in completing the paperwork for representation at the final hearing, that paperwork being the s 102NA application form that had recently been received by him through the mail the day prior to the hearing. Although he said he opposed the vacation of the final hearing date on the last occasion, he also advised the court that his criminal trial would proceed in early 2025 and that he needed the family law matter to be determined after the criminal proceedings were concluded. The mother’s application was explained to the father. He opposed any variation to the current arrangements, he supported the paternal grandmother’s ongoing role, and sought that Z continue to reside with the paternal grandmother and spend time with the mother. He contended that the risk to Z living with the mother was unacceptable and that there was no risk to Z if she remained living with the paternal grandmother.
The father has no prospects of being in a position to care for Z for the foreseeable future due to his criminal charges, and other issues that are yet to be tested, including alleged substance abuse issues and mental health challenges.
The father had filed no evidence in the interim proceedings.
The father remains on remand at the F Correctional Centre. Additionally, given the very serious nature of the allegations made against him, even if he were to be granted bail, he is not in a position to be considered as a parent with whom Z could live on an interim basis due to the issues of risk of harm to Z arising from the nature of the serious allegations that he is facing.
In all of the circumstances and doing the best that could be done with the limitations of the AVL, the application was explained to the father. The process and order of submissions was explained to the father. Despite the father not being legally represented it was clear the father opposed the mother’s application and supported the paternal grandmother’s ongoing role. I was satisfied that the interim proceeding should continue to be determined even though the father was unrepresented due to the serious nature of the issues of risk identified to Z, the long delay before the matter would be finally determined, which must be sometime after early 2025 when the father’s criminal proceedings are determined, and the fact that the issue as to the interim residence was in fact an argument as between the paternal grandmother and the mother, both of whom were represented and both of whom had filed evidence that was relevant to determining the best interests of Z, at least, on an interim basis.
MATERIAL RELIED UPON
The mother, paternal grandmother, ICL, and Director-General each filed an outline of case document which identified the issues in dispute and set out an outline of the contentions in support of the orders they sought. The father did not file any material, and he remained unrepresented.
The mother set out what she relied upon for the purposes of her Application seeking a change of residence in her Case Outline document filed 16 September 2024. I have had regard to that material.
The paternal grandmother relied upon her Response to Application in a Proceeding and her affidavit filed on 15 August 2024, as set out in her Case Outline filed 17 September 2024 and I have had regard to that material.
The ICL relied upon:
(a)Family Report of Ms M dated 13 October 2023;
(b)Report of Dr H filed September 2024;
(c)Report of Dr D dated May 2024; and
(d)Report of Dr D dated September 2024.
The Director-General also relied upon each of the reports referred to by the ICL and an affidavit of Ms N filed 3 September 2024, and the Case Outline filed 17 September 2024. I have read and have regard to all of this material.
I have considered the material that has been relied upon and considered the parties' written contentions and oral submissions. In the course of these reasons, I refer to the evidence only as necessary to determine the interim issues in dispute.
THE FATHER’S CRIMINAL CHARGES
On 13 February 2024 the court noted that the father had been arrested in 2023 and remanded in custody on charges involving an unrelated person. The father was released on bail in early 2024.
On 3 July 2024 the court was advised by the Director-General that the father had been arrested in mid-2024 and remanded in custody, where he remains.
The father advised that the criminal trial was to occur in early 2025 but was uncertain as to the precise date. He is legally represented for the criminal trial and advises this court that he has entered pleas of not guilty on the charges. He advised he would soon be applying for bail.
THE DIRECTOR-GENERAL’S INVOLVMENT
The Director-General was requested to intervene on 27 January 2023 and 10 May 2023. It was noted on 30 June 2023 that Director-General did not intend to intervene, however would continue to remain in the matter on an amicus curiae basis. The Director-General was ultimately joined as party to the proceedings on 21 December 2023.
THE LAW
Parenting Orders
Orders in respect of children are informed under Pt VII of the Act. The meaning of a parenting order is defined at s 64B.
Section 60CA provides that the Court is to regard the best interests of the child as the paramount consideration. Section 60B of the Act outlines the objects and principles underlying Pt VII being to ensure that the best interests of children are met, including by ensuring their safety, and to give effect to the Convention on the Rights of the Child (“CROC”).
Section 60CC(2) outlines the matters that the Court is to take into account in determining what is in the best interests of a child, those being:
(a)what arrangements would promote the safety (including safety from being subjected to, or exposed to, family violence, abuse, neglect, or other harm) of:
(i) the child; and
(ii) each person who has care of the child (whether or not a person has parental responsibility for the child);
(b) any views expressed by the child;
(c) the developmental, psychological, emotional and cultural needs of the child;
(d) the capacity of each person who has or is proposed to have parental responsibility for the child to provide for the child’s developmental, psychological, emotional and cultural needs;
(e) the benefit to the child of being able to have a relationship with the child’s parents, and other people who are significant to the child, where it is safe to do so;
(f) anything else that is relevant to the particular circumstances of the child.
The court must, pursuant to s 60CC(2A) consider to any history of family violence, abuse, or neglect involving the child or a person caring for the child, and any family violence order that applies or has applied to the child or a member of the child’s family.
Z is an Aboriginal or Torres Strait Islander child, and accordingly, the court must also consider the matters set out in s 60CC(3) in determining what is in the child’s best interests. Section 60CC(3) sets out the additional considerations and is as follows:
Additional considerations--right to enjoy Aboriginal or Torres Strait Islander culture
(3) For the purposes of paragraph (1)(b), the court must consider the following matters:
(a) the child's right to enjoy the child's Aboriginal or Torres Strait Islander culture, by having the support, opportunity and encouragement necessary:
(i) to connect with, and maintain their connection with, members of their family and with their community, culture, country and language; and
(ii) to explore the full extent of that culture, consistent with the child's age and developmental level and the child's views; and
(iii) to develop a positive appreciation of that culture; and
(b) the likely impact any proposed parenting order under this Part will have on that right.
Assessment of safety considerations
In my view an assessment of “safety” as required under s 60CC(2)(a) requires a similar analysis of risk of harm as established by the previous iteration of s 60CC of the Act and also as established in case law. The arrangements must promote the safety of the child but also the safety of each person who has care of the child.
Per Isles & Nelissen (2022) FLC 94-092, in assessing risk the Full Court enumerated the necessity to consider to all of the circumstances, including historical conduct, in determining whether or not there is sufficient evidence to make a finding of fact on the balance of probabilities in relation to the allegations made, in order to determine whether there is a possibility of harm arising in the future.
In the decision of Eastley & Eastley [2022] FedCFamC1A 101; FLC 94–094, the Full Court observed the need for a trial judge to consider the cumulative effect of the whole of the evidence in determining an assessment of risk, rather than merely dealing with each individual allegation in an isolated fashion as set out at [33]:
…the law did not require the primary judge to assess the potency of the risk of harm posed to the children by reference to the evidence concerning individual events in isolation from the remainder of the evidence. On the contrary, the primary judge was required to assess the level of risk posed to the children on the whole of the evidence, since the strength of the evidence lies in its cumulative effect, much like how the strength of rope derives from the combination of its individually weaker strands (Transport Industries Insurance Co Ltd v Longmuir [1997] 1 VR 125 at 127–130 and 141; Savage v Lunn [1998] NSWCA 203; J.D Heydon, Cross on Evidence (LexisNexis Australia, 13th edition, 2021) at [1110] and [9040]).
Parliament has removed the requirement to have the need to protect the child from harm as the primary consideration above all other factors. What has changed is that the Court is now required to assess safety as one of many factors to be required to be considered under s 60CC(2).
To make orders that are in the best interests of the children and promote the safety of the child and each person who has care of the child, the court must undertake an assessment of the safety of the children and each person who has care of the child, in the circumstances particular to each case.
Parental Responsibility
Parental responsibility is defined under s 61B of the Act and the court has power to make parenting orders that allocate decision making responsibility to the parties jointly or solely in relation to all or specified major long-term issues under s 61D(3).
The term “major long-term issues” is defined under s 4(1) of the Act as:
in relation to a child, means issues about the care, welfare and development of the child of a long-term nature and includes (but is not limited to) issues of that nature about:
(a)the child's education (both current and future); and
(b)the child's religious and cultural upbringing; and
(c)the child's health; and
(d)the child's name; and
(e)changes to the child's living arrangements that make it significantly more difficult for the child to spend time with a parent.
Interim proceedings
This is an interim hearing and there has been no cross-examination or testing of the evidence. By virtue of that fact, I am cautious in my approach to making findings in relation to disputed facts which in this case, there are many.
The procedure for conducting an interim hearing has been established by the Full Court in Goode & Goode (2006) FLC 93-286. It is an abridged process where the scope of enquiry is curtailed. The Full Court set out at [81]-[82] the procedure to be following in an interim hearing:
81. In making interim decisions the Court will still often be faced with conflicting facts, little helpful evidence and disputes between the parents as to what constitutes the best interests of the child. However, the legislative pathway must be followed.
82. In an interim case that would involve the following:
(a) identifying the competing proposals of the parties;
(b) identifying the issues in dispute in the interim hearing;
(c) identifying any agreed or uncontested relevant facts;
(d) considering the matters in s 60CC that are relevant and, if possible, making findings about them (in interim proceedings there may be little uncontested evidence to enable more than a limited consideration of these matters to take place);
The Court should take a conservative approach in interlocutory parenting matters, and that includes applying caution in making any findings of fact (per Marvel & Marvel (2010) 43 Fam LR 348).
The fact that findings may not be possible in an interlocutory parenting matter, does not mean that evidence that raises questions of risk ought to be dismissed because no finding is yet available. As the Full Court observed in Eaby & Speelman (2015) FLC 93-654 by reference to SS & AH [2010] FamCAFC 13 at [122]-[123]:
122.In SS & AH [2010] FamCAFC 13 the majority (Boland and Thackray JJ) discussed at [88] of their reasons the care necessary to be exercised in making findings in interim parenting proceedings. Their Honours said:
[88]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:
[100]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.
In Banks v Banks (2015) FLC 93-637, the Full Court confirmed that in interim proceedings, it is unnecessary for each of the relevant statutory considerations to be the subject of particular consideration and only a limited consideration may be given to the relevant factors. Interim disputes should determine only matters necessary to be addressed prior to a full determination at final hearing. Any failure to mention any consideration does not mean it has been overlooked in my determination as to the orders that are in Z’s best interests. I have considered all of the relevant material in each of the affidavits, the evidence relied on, the reports that have been filed, and I have had regard to all of the submissions made.
There are serious allegations that are made in this case. They cannot be ignored at an interim proceeding just because they have been put in issue. In an interim proceeding, possibilities of unacceptable risk of harm are a legitimate basis for assessing risk, as long as there is a proper basis for those possibilities.
As I say, an interim hearing is a curtailed hearing which proceeds on the documents filed by each party. Evidence is in the form of affidavits and the reports, together with subpoenaed material and this evidence has not yet been tested.
In this matter significant facts are in dispute and the Court cannot make conclusive findings about those matters. As the Full Court observed in the case of Franklyn & Franklyn [2019] FamCAFC 256 at [73]:
In interlocutory hearings, to the extent it is possible, judges are enjoined to make decisions about interim orders based on agreed facts, less contentious evidence, and inferences which fairly arise …. but decisions must still be made despite contentious evidence. Judges are obliged to act on the strength of the evidence presented and, if it is relatively weak, are entitled to treat it so. Contrary to the inherent premise of [one party's] submissions [...] judges are not required to treat all untested evidence as bearing the same weight.
In interim hearings the Court must exercise great caution in making factual findings without having had the opportunity for the evidence to be examined in detail and tested. However, the serious allegations of risk and conduct of the parties which put Z’s safety at risk, in particular her psychological and emotional safety, must be taken seriously. Although the evidence has not yet been tested, it is necessary to give appropriate weight to that evidence.
SECTION 60CC FACTORS
As referred to above, the court is mandated to take into account the factors in ss 60CC(2)-(3) in determining what is in the best interests of Z. These factors are addressed as follows:
s 60CC(2)(a) – What arrangements would promote the safety (including safety from being subjected to, or exposed to, family violence, abuse, neglect, or other harm) of the child and each person who has care of the child?
The mother contends that supervised time between the child and father would best promote Z’s safety and protect her from family violence, abuse and neglect.
The ICL and Director-General supported the orders sought by the mother.
The mother gave evidence that she listened to the call log from F Correctional Centre that was produced under subpoena and from that log she identified Z’s voice, and that Z had spoken to the father on approximately 120 occasions during the relevant period.
A number of the conversations are of significant concern in respect of the impact on Z, and on her safety. I do not address every one of the conversations in these reasons, but I extract the detail of several to illustrate the conduct of the father that supports the finding that I make that his communication with Z poses a risk of harm to the psychological wellbeing and safety of Z, and that the risk is unacceptable.
The father is recorded on 23 December 2023 talking to Z about his partner Ms E. He asks Z if his partner is going to break up with him and asks Z to send a message to Ms E. He says to Z “If [Ms E] ends up breaking up with Dad then that means I will get no visits and I will end up trying to kill myself.” This illustrates the father’s lack of capacity to provide for the child’s emotional and psychological welfare by saying he will end up trying to harm himself and shows a complete lack of insight as to Z’s emotional needs.
On 27 December 2023 the father spoke to Z in relation to her visiting him at the F Correctional Centre. In a conversation between Z, the father, and the paternal grandmother, Z says to the paternal grandmother “dad wants to know will [Ms E] bring me for a visit.” The paternal grandmother says “no not allowed to” and the father says “But you’re [Ms N], you’re not [Z].” [Z] said “yeah but I’m dressed as [Z]. Still not allowed to. They take photo’s apparently.” The father goes on to say, “dad still does not feel good…do you wanna tell [Ms E] that daddy is crying because he is upset because he thinks you are going to break up with him.” Z was being encouraged to lie as to her identity illustrating the lack of insight as to the impacts on Z of involving her in the adult conversations about the father’s relationship.
On 29 December 2023 during a conversation between Z and the father, he says “hopefully my emails go through.” Z says “hopefully so I can talk to you. But remember I am [Ms N]…. yeah because I don’t want to get you in trouble.” The father says “nah it’s alright sweetie. I’m in jail anyway. They can’t do much while I am in here anyway.” This illustrates Z not wanting to get her father, or the paternal grandmother into trouble and being complicit in the lie as to her identity.
The mother had her lawyer write to the father’s lawyer in February 2024 after she had heard the father in the background during her regular telephone contact with Z. The father’s solicitor wrote stating “[Z] did not speak to [Mr Josse] in prison. [Z] answered the phone when it rang, and [Mr Josse] was on the line. As soon as [Ms Josse] became aware it was [Mr Josse] she took the phone from [Z].” This is demonstrably false from the recordings.
In June 2024 the mother’s evidence is that she recognised the voice talking to the father as being Z although was pretending to be someone else. She said she heard the paternal grandmother call out for Z and that although she called him “[Mr Josse]’ in the beginning she then called him “dad.” Another example of the child being involved in deception to avoid the father and paternal grandmother being discovered in the breach of the court ordered restraints.
In mid-2024 the father explains to Z the events of his arrest. The CYPS case worker spoke to Z in mid-2024 about the father’s most recent arrest. Z told her she saw all of it and it was a bit frightening and scary to see it happening. Z also said she last saw the father the day he got arrested and that she had said good night to him on the phone once, but that she stopped because she didn’t want Nan to get into trouble. This report by Z was clearly false and no doubt motivated by not wanting to expose her grandmother or her father.
In August 2024, the father had a discussion with the child about sexually transmitted diseases that he says his former partner Ms E gave him. The conversation was inappropriate and illustrates the lack of judgement, lack of insight and lack of intervention by the paternal grandmother to prevent harm by the exposure to such conversations.
In August 2024 the matter was listed before Gill J. The mother gave evidence that his Honour “spoke directly to [Ms Josse] and told her that she was required to comply with the Orders and that there is a temporary order that prevented her from allowing the father to spend any time or communicate with [Z].” Later that day the paternal grandmother is recorded as saying “I don’t know whether to put you on as I am in shit at the moment” and the father replied, “no one will know anyway.” Z is then put on the call. This is another clear breach of the restraint and disregard for the obligations that the orders imposed on both the paternal grandmother and father.
The next day the recording between the paternal grandmother and the father included a conversation where the paternal grandmother says, “they have you on video link with [Z]” and the father says “who cares.” The paternal grandmother says in that conversation “This is bullshit. He is not going to jump through the screen.” After this conversation the father speaks to Z where he says, “dad’s getting chest pains and shortness of breath, coughing blood” and says “dad’s not in a good mood…because of your fucking stupid, fucking cunt of a fucking mother fucker, starting her shit. She doesn’t want me to have anything to do with you [Z].” The denigration of the mother to Z together with the inappropriate conversation further illustrate the complete lack of regard for the orders and the lack of insight as to the impact of conversations on Z. It also illustrates the paternal grandmother taking no steps to protect Z from such conduct.
Does the paternal grandmother pose a risk of harm to Z?
The allegations of risk to Z in the care of the grandmother, largely arising from her complete disregard of the orders prohibiting the contact between Z and her father unless professionally supervised. Those allegations are made out on the evidence.
The accepted audio recordings of the multiple telephone conversations with the father in breach of the restraints are concerning. The paragraphs above are but a selection of some of the communication between Z and her father that occurred while she was with the paternal grandmother. There was no evidence of the paternal grandmother intervening to protect Z from the father’s inappropriate and likely distressing comments, for example, his threats to self-harm, his denigration of the mother, and involving Z in inappropriate adult conversation about the relationship breakdown with Ms E.
The CYPS appraisal records communication between the paternal grandmother and the caseworker also record that the paternal grandmother “did not care what either court said, that she would not prevent [Mr Josse] from attending her home” and she referred to an earlier self‑harm attempt that Mr Josse had made when he could not see his older daughter Ms N some years earlier.
The mother gave evidence that the paternal grandmother admitted to permitting the father to spend time with Z upon his release from prison despite an order restraining her from facilitating any contact between the child and the father (paragraph [32] of mother’s affidavit filed 3 September 2024). The mother contended this was a breach of the orders of Judge Hughes dated 19 December 2023 which are set out above at [8].
Exhibit 4 was a report dated May 2024 after a home visit to the paternal grandmother’s residence by the department, stating “[Ms N] explained that [Mr Josse] is not allowed to see the children and that if [Ms Josse] facilitates this she would be breaching the Family Law Court orders… [Ms Josse] stated that she did not care what either court said, that she would not prevent [Mr Josse] from attending the home.” These comments, together with her refusal to provide an undertaking, referred to in these reasons, that she would comply with the court orders, and the frequency and volume of breaches are so substantial, it provides little hope as to the paternal grandmother acting protectively if orders were made for Z to remain in her care. Her rigidity in relation to these matters shows a lack of insight in relation to the identified risks to Z’s safety as recorded and opined in the most recent Dr D report.
Counsel for the paternal grandmother contended that non-compliance with the orders is not a sufficiently good reason to change this young person’s living arrangements and puts her in “a less-than-ideal environment… where she is surrounded by drug users and drug dealers”.
I was not taken to any evidence, other than assertions, that the mother and her family are drug dealers and current drug users. The mother’s drug use will be addressed in these reasons below.
I do not accept the submission that non-compliance with orders is not a sufficiently good reason to change the living arrangements given the opinion expressed by Dr D as to the impact on Z of this ongoing non-compliance.
In the Dr D report dated May 2024, it was identified that CYPS holds concerns about the paternal grandmother’s ability to “act protectively” for Z and to shield her from the current conflict. This will no doubt be the subject of evidence at the final hearing where findings will be able to be made after the evidence is tested.
In summary, Z has been exposed to an array of concerning comments by the father while in the care of the paternal grandmother who took no steps to prevent or terminate the conversations in a protective sense.
Is the mother a risk of harm to Z?
The father and paternal grandmother allege that the mother poses a risk of harm to Z and that risk is unacceptable.
Historically, it was reported that at that time CYPS were involved with the mother she lacked the insight to understand that the children needed to be shielded from parental conflict and that she did not then appreciate that her substance abuse may have impaired her parenting capacity.
In the family report prepared by Ms M in October 2023 it was recommended that the mother obtain supports to address her trauma, but that Z would benefit from living with her mother and sister, and spending time with her father. There were risks identified in the mother’s care including her substance abuse.
In the tender bundle relied on by the Director-General, the summary of risks and issues identified by the Department in respect of the mother from an appraisal of January 2023 included:
The concerns of [Z] being in her mother's care due to the allegations of her perpetrating family violence against the children (Head butting the children and taking a knife to [someone]), her mother using drugs, and exposing the children to inappropriate people ([Mr Q]) who allegedly escalated family conflict (see police notes of when [Mr Josse] tried picking up [Z] from her mother's residence).
The 2024 engagement with the Director-General is, however, more positive and identified that the mother has obtained some supports. It still, however, identifies risk factors for Z in the mother’s care.
The mother, through her counsel, acknowledged the mother’s previous difficulties, but relied on evidence of new supports to contend that her circumstances have improved significantly in recent times.
In support of that submission, the mother tendered a letter from a support person from K Family Services dated August 2024 evidencing her engagement with O Family Services. She also relied upon a certificate of completion of the Family Transitions Triple P Online Positive Parenting Program dated late 2024, and a letter dated August 2024 from K Family Services reporting that the property in which she resides is in a liveable condition.
I am satisfied on the evidence that the mother has now taken some steps to seek supports to address the longstanding issues that have been identified by CYPS in respect of the mother’s parenting capacity, as evidenced by the course she has recently completed and the ongoing support she has from K Family Services.
Dr H records that:
If the mother adheres to the following treatment recommendations and maintains sustained reduced [drug] use for at least 2 years, then her prognosis will be more favourable.
First, the mother should engage in evidence-based treatment for PTSD. The cornerstone of treatment is psychological therapy, such as trauma-focused cognitive behavioural therapy. In my specialist forensic psychiatric opinion, such treatment will assist the mother’s functioning, parenting capacity and reduce risk of harm to herself and others. The mother should engage with a counselling therapist, such as a psychologist, with reviews at least every month for the next two years to ensure adequate improvement with treatment. Such therapy is freely available from [P Health Services].
Second, for [illicit drug] use disorder the mother should engage in sustained evidence-based treatment for substance use disorder, specifically drug health counselling for at least 24 months. Drug health counselling is freely available from [Region S] Health Alcohol and Drug Service (ADS), or from [P Health Services].
Third, the mother must demonstrate abstinence from or sustained reduced substance use for at least two years, demonstrated through random urinalysis or hair follicle drug testing.
The extent of the evidence from the mother was, in her affidavit filed 3 September 2024, “that I am currently prescribed a medicinal drug due to issues with pain. My prescription has been disclosed to the legal representatives in this matter.” There is no current evidence as to the engagement of the mother in relation to her substance misuse or the extent of any drug health counselling.
The mother relied on a drug screen dated 29 February 2024. It indicated a positive result for a drug; however, she tendered a medical prescription for its use. The drug screen results relied upon, importantly, are negative for all drugs and alcohol other than the medicinal drug. The allegations made by the paternal grandmother to Dr D included allegations of risk arising from the mother’s alleged extensive drug use. This evidence supports a finding that the mother is drug free other than the use of her prescribed medical drug.
Dr D noted in her report dated 5 May 2024, that:
[106]… CYPS has limited information regarding [Ms Vipen]’s current functioning. She identified that hair strand testing through the family law proceedings showed [Ms Vipen] was not using illicit drugs other than [a medicinal drug] and she has provided a medical certificate that authorises her use of [the] medical [drug]. She said historically [Ms Vipen] has presented as “very erratic” in her engagement with CYPS and there have been concerns around her mental health and general functioning.
The absence of evidence in relation to the management of the mother’s long history of drug misuse is of concern in relation to issues relevant to Z’s safety and is a matter that must be carefully considered and balanced in order to assess Z’s safety and to make orders that are in her best interests on an interim basis.
The lacuna in the mother’s case creates an element of potential risk for Z given the past history of the mother’s recorded drug misuse. Balancing that risk is the fact that the mother is now supported by both the Department and has ongoing supports from P Health Services and Dr T.
Dr H’s report dated July 2024 makes the recommendations that I have referred to earlier in these reasons. The mother, through her counsel, indicated that she would engage with necessary supports as recommended. Her engagements with supports and the recommendations will no doubt be the subject of scrutiny by both the department in their role as holding joint decision making with the mother and will be scrutinised at the final hearing of this matter.
Other recorded risks
The Director-General have known the family since 2011 when they had previous involvement with Z’s older siblings. The evidence from the Director-General has comprehensive notes with the detail of many reports made about both the risk in the care of the mother and risks in the care of the father and paternal grandmother.
The Director-General records note that at that time when “[Z] was removed from her mother to live with her father that [Region S] policing called and advised they were currently at the […] residence trying to action the FLC recovery order. [Z] has threatened suicide/self-harm so they have contacted Ambulance for their assessment. They asked if CYPS wanted to attend. Advised at this stage CYPS would not be attending.”
There are a number of reports made to the Director-General by the mother alleging the children are at risk with the paternal grandmother and father due to family violence and alcohol, sexual abuse with an allegation that the father had at an earlier time been “dry humping” Z and other complaints. The father denies these complaints.
Both the father and paternal grandmother make complaints to the Director-General about the mother, alleging that the mother is the risk to the children with a history of family violence including pulling a weapon on one of the children, her extensive drug use and the children’s exposure to drug use through other family members, neglect and psychological harm.
Another identified risk as detailed by Dr D was the potential risk of Z being exposed to other drug users, in particular allegations that some of her siblings have used drugs. Despite this having been reported to Dr D, I was not taken to any evidence sufficient to make a finding that this is a current risk to Z’s safety. Again, no doubt these matters will be fully explored at the final hearing of this matter.
Conclusion on risk to Z’s safety on an interim basis
At this stage of the proceeding, the Court will place weight on agreed facts and objective evidence and less weight on contested facts. However, the contested evidence includes allegations capable of exposing Z to ongoing significant risk, those allegations simply cannot be ignored. The Court must weigh all the evidence as best it can, mindful of the statutory considerations.
Section 60CC(2A) of the Act provides that in considering the matters set out in s 60CC(2)(a), the Court must consider any family violence order that applies to the children and the parents and any history of family violence, abuse or neglect involving the children or a person caring for them.
In considering this criterion there are a number of matters which inform the Court.
The assessment of risk is a predictive or prospective exercise based on known facts and circumstances. It entails the foresight of possible future harm.
The Court must assess the degree of likelihood or possibility of harmful events occurring in the future. The Court must also consider the extent, magnitude and nature of the harm that may flow to the children if a harmful event occurs. If a finding of unacceptable risk is made or a finding that a child's safety is compromised is made, it is necessary to assess whether safeguards can be put in place to ameliorate or mitigate that risk such that the child can maintain a relationship with the other parent. The safeguards must be proportionate to the degree of risk.
If the serious allegations made by the mother are substantiated at trial, there is a realistic possibility, perhaps a significant possibility, that the Court would conclude that the father presents an unacceptable risk. Conversely, if the father establishes that the mother's allegations are fabricated, exaggerated or without substance, it is possible that she might be viewed as an unacceptable risk. Indeed, the mother’s drug use if it is established that it continues would also create evidence that the mother may be an unacceptable risk.
The issues of risk and safety feature in this matter. The available evidence weighs in favour of the mother's proposal, as supported by the ICL and the Director-General, that there should be supervised time with the father and supervised time with the paternal grandmother if she remains unprepared to provide and undertaking to comply with the existing court orders not to bring Z into contact with her father unless it is professionally supervised.
s 60CC(2)(b) - any views expressed by the child
Z has been spoken to by many people. She has been recorded as reporting different views to different people. The CYPS notes from March 2023 record Z as saying “Dad told me to tell the solicitor that I want to live with him, I told the solicitor that I want to live with mum because she said she wouldn't tell him. I asked how she would feel if she was made to live with her dad, she shrugged and said 'I'm used to it'. I asked how this makes her feel, she said a ‘bit disappointed’.”
It was also recorded at around that time that:
In contrast to her brothers, [Z] expressed that she wished to reside with her mother and have weekend contact with her father. She did not articulate any abuse or neglect that occurred within either household, though stated everything was 'better' at her mothers and stated she enjoyed her time with her pets while at her mother's residence. She indicated she wished for the swearing to cease in her grandparents home and identified that everyone swears except for herself and her grandfather. [Z] said she likes being at her mother's house because her older brothers take her out and buy her dinner and treats. Upon the second interview with [Z], she stated that she can't sleep at times because she's scared of the dark and in these instances she will sleep in the same bed as her father for comfort. [Z] made no disclosures regarding sexual abuse by [Mr Josse] and her views and wishes remained consistent throughout the appraisal. [Z] stated that she may be 'disappointed' if she has to live with her father, but said that she is 'used to it' by now. [Z] said that [Y] and [X] were telling her that their mother is on drugs, but she does not believe this is the case.
In July 2024, the CYPS notes record that:
[Z] does not want to be involved in the drama.
Would not suggest living with Dad because of the charges.
“If he did do it, he should be in jail but if he didn’t then he doesn’t deserve it?”
Making sure [Z] is safe and all the adults are doing their job.
Live with Mum in case Nan passes away. Does not think Pop will be able to understand when she gets her period.
A short time later, the CYPS notes report:
•[Ms N] asked if [Z] still wants to live with her Nan? [Z] informed [Ms N] that she doesn’t want to live with her Nan, she wants to live with her mum.
•[Z] informed [Ms N] that she hasn’t lived with her mum in ages. The last time she lived with her mum was when they lived in [another suburb] (parents were still together) – they had a fight and then [Z] was sent to live with her Nan and she didn’t get to see her mum.
•[Ms N] asked [Z] what had changed as she had initially wanted to live with her Nan? [Z] said that she thought it would be better for her and make things okay. Now she wants to live with her mum.
•[Z] wanted to stay with her mum from the start. Had stayed with her mum for 2 months – Dad got a recovery order and took her back.
The record of Z’s recent expressed wishes, that have been maintained, is something that, given her age and the history of this matter, I give some weight to.
s 60CC(2)(c) – The developmental, psychological, emotional and cultural needs of the children
Exhibit 3 was a document prepared by a case worker following a meeting between Z and the case worker on three occasions from August 2024. Relevantly, the notes of the case worker state:
[Z] is a very mature and attuned 11 year old who is vulnerable to the conflict and dysfunction between her maternal and paternal family members. Of this [Z] describes herself as confused and overwhelmed. [Z] is aware that she is being allowed access to her father [Mr Josse] by her PGM [Ms Josse] and that this is against the court orders that are in place. The impact of decisions like this by [Ms Josse] is that [Z] feels conflicting loyalties which she describes as guilt. [Z] states that she wants to have contact with her father but she does not want to get anyone in trouble.
There was evidence of Z being spoken to at school and she ran away and hid rather than answer questions about her father. The reality of the damage to her developmental and emotional welfare is considered by Dr D who concluded that the child is at risk of serious harm if she remains living with the paternal grandmother and continues to be exposed to such conflict.
There is evidence of possible risk to Z’s developmental, psychological, emotional and cultural needs, and on an interim basis, until these risks are able to be fulsomely tested, the court must take a cautious approach in relation to her ongoing exposure noting that this matter will not be finally determined earlier than April 2025.
s 60CC(2)(d) – The capacity of each person who has or is proposed to have parental responsibility for the child to provide for the child’s developmental, psychological, emotional and cultural needs
The mother contended that the recordings of the telephone calls from F Correctional Centre between Z and the father demonstrate that Z is being emotionally blackmailed to speak to the father and pressured to visit him. I am not satisfied that the evidence supports that Z feels pressured or blackmailed to speak to her father. Z has reported that she loves both her parents, there is no doubt she does. The evidence, however, supports that she feels compelled to lie to authorities at times due to her worry about her father or paternal grandmother getting into trouble. She was told to, or decided to, take on a false identity in order to circumvent the restrictions on visiting the father in jail on more than one occasion. As discussed above, Z has been exposed to inappropriate adult conversations. She was told by the father that he might suicide and the pressure of such conversations must be a cause of trauma for any person let alone a child. The father said insulting, belittling and highly critical things about Z’s mother to Z as the cause for him not being in a good mood.
Dr D expressed her opinion as to the detrimental impact on Z arising from the content of the calls. I accept her evidence in this regard. It was submitted, and I accept that the cumulative effect of the conduct evident in the calls is likely to be psychologically and emotionally detrimental to Z as opined by Dr D. I note the evidence has not yet been tested but accept that it shows a lack of insight on behalf of the father and paternal grandmother as to the impact of their conduct on Z and is likely damaging to Z.
s 60CC(2)(e) – The benefit to the child of being able to have a relationship with the child’s parents, and other people who are significant to the child, where it is safe to do so
The conversations recorded show that the father has little insight into the impact of his conversations on Z and likely has little capacity to regulate his emotions to put Z’s needs ahead of his own. His conduct in threatening self-harm to Z is a stark example of his lack of insight. Balancing the risk is that Z says she loves and cares for her father and derives identity and benefit from aspects of her relationship with him and her paternal family.
I find that it is in the best interests of Z to spend time with her father provided that such time is professionally supervised as arranged by the Director-General, as was previously ordered by Gill J. It is also important for these reasons that Z is able to telephone or Skype her father, provided it is safe to do so to maintain a connection with him, pending final determination of the matter. For the same reason it is appropriate for the father and paternal grandmother to send cards and gifts to Z from time to time, and I make an order permitting them to do so.
It is also important for Z to maintain her relationship with her “nan” and her paternal grandfather with whom she has been living for the last 12 months. That time should be professionally supervised and arranged by the Director-General in circumstances where the paternal grandmother has refused to abide by the orders of this Court. The inability of the father to regulate his emotions and prioritise Z’s needs, supports the need for supervision, failing which he and the paternal grandmother will likely continue in an unfiltered and insensitive way to expose Z to inappropriate and damaging comments. This needs to cease.
s 60CC(2)(f) – Anything else that is relevant to the particular circumstances of the child
Z is happy and settled at her school. She is now in term 4 of year 6 and it is not in her best interest that she moves schools now despite her mother living on the south side of City J and her school being on the north side of City J.
The Director-General and mother both acknowledge the significance that stability will provide to Z if she remains in her current school. I agree it is in her best interests to remain in the school where she is settled to complete year 6, and accordingly make the order restraining any change from that school. I note that order is made with the consent of the mother.
The Director-General indicated that they would assist the mother to ensure the child’s school attendance particularly in relation to travel to and from school given the distance. There was some suggestion in submissions that Z’s adult siblings may be able to assist. There was however no evidence before me of any such availability. It is anticipated by this Court that the Director-General will provide the supports that are necessary to maintain as much stability for Z as possible, particularly in this transition period.
Given the extensive evidence containing allegations that each parent has exposed Z to family violence, drug use and other issues of risk identified in these reasons and contained in the material if not specifically referred to in these reasons, it is appropriate on an interim basis at least to make the restraints sought by the ICL, and I make those orders.
This matter will be finally determined in 2025. It is appropriate that if there are incidents that occur prior to the determination that are relevant to the determination of what is in Z’s best interests, that this Court and the other parties are apprised of that evidence. Accordingly, I make the order sought that the parties are required to provide notice as sought by the ICL.
The Director-General and the mother have consented to orders that the Director-General arrange for Z to be referred to a paediatrician and to undertake trauma informed counselling and that counselling be at the expense of the Director-General. These supports are in Z’s best interests, and I make that order.
I have otherwise dealt with the matters I consider relevant to this interim application in the discussion above.
s 60CC(3) – The right to enjoy Aboriginal or Torres Strait Islander culture
Since Z is Aboriginal, the court must also consider the matters set out in s 60CC(3). In determining what orders are in the child’s best interests, I must consider these matters.
I am mindful of Z’s cultural heritage and note both her parents are Aboriginal.
I am satisfied that Z will continue to experience her culture whether she is with her maternal or paternal family, as each identify as Aboriginal. Each party will have an opportunity to present evidence relevant to this consideration for the final hearing of this matter commencing on 16 June 2025.
The importance of Z maintaining her right to enjoy her Aboriginal culture and her family from both the paternal and maternal side cannot be overstated. This is a crucial matter for Z and for her development as an Aboriginal woman. I respectfully adopt the comments of the Full Court in the matter of In the Marriage of B & R (1995) 19 Fam LR 594 in respect of the significance of Z’s cultural background. This will be a matter at final hearing where the undoubted relevance and importance to be attached to her Aboriginal heritage can be the subject of specific evidence to ensure the appropriate weight is given to this consideration in my finally determining the orders that are in Z’s best interest.
The outcome in this case will ultimately depend upon the relationship of that evidence with all of the other evidence, tested against the final determinant, namely what is overall in the best interests of Z.
EXPERTS
Dr H
In July 2024, with consent of the parties, Dr H was appointed as an expert witness in these proceedings to conduct a psychiatric assessment of the mother. His report was accepted into evidence and, although not yet tested, provides evidence to which I give weight that the mother has been diagnosed with the confirmed psychiatric diagnoses of post-traumatic stress disorder (“PTSD”) and drug use disorder.
Dr D
Both reports of Dr D were accepted into evidence. It is important that the evidence has not yet been tested and that will occur at the final trial. However, I give significant weight to the opinion of Dr D from her report dated September 2024, where she said:
… Based on the additional material reviewed and the updated interview with [Ms Josse], it is my opinion that [Z] is at greater risk of harm in the care of [Ms Josse] and [Mr R] than outlined in the May 2024 Comprehensive Family Assessment.
a) Established evidence of [Z] having contact with [Mr Josse], including both phone contact during his incarceration, and face-to-face contact after his release. In addition to the potential risks posed by [Mr Josse], noting a full risk assessment has not been able to be undertaken, this also places [Z] in a difficult position where she has needed to lie to services, professionals, and teachers involved with her and her family.
b) A review of the phone-calls provided from [F Correctional Centre] highlights multiple times where [Z] was exposed to inappropriate and harmful discussions. For example, [Mr Josse] involving [Z] in his intimate relationship problems, asking her to speak with his partner, and then threatening to harm himself. [Z] can also be heard in the background of other phone-calls, where family conflict and his current charges are discussed.
c) [Ms Josse] and [Mr R] currently present as unwilling to acknowledge any risks around [Z’s] contact with [Mr Josse], and any areas where his parenting is less than ideal. For example, when asked if it is appropriate for a parent to threaten self-harm to their 11-year-old child, [Ms Josse] insisted “[Z] would have heard worse from her mum or at school”. She did not present with any capacity to reflect on the importance of protecting [Z] from cumulative stress. The lack of acknowledgement of these concerns from the paternal grandparents raises significant questions around their capacity to provide protective care for [Z].
d) Although [Ms Josse] stated that “no one really knows” if [Mr Josse] is guilty of […] charges, she was unable to acknowledge the need for [Z’s] wellbeing and safety to be paramount in the process. She reported that she will not be stopping [Mr Josse] from visiting the home, as [Ms Vipen] currently has unsupervised contact. In my opinion, care and contact with [Z] appears to be viewed as a way of “winning” against the other side, with no party currently presenting as willing and able to accept responsibility for their behaviours and to prioritise [Z’s] needs for protective care in the process.
e) [Ms Josse] and [Mr R] have reported that [Mr Josse] will be returning to live at home once he is released on bail. They did not appear to have any capacity to acknowledge [Mr Josse’s] role in recent domestic violence charges or to acknowledge the potential risks to [Z]. Their decision to have [Mr Josse] return home indicates they are not currently willing or able to prioritise [Z’s] needs above her father at this stage.
f) [Z’s] behaviour and school engagement appears to be worsening, suggesting a deterioration in her wellbeing and functioning. [Z] would also benefit from engaging in external therapeutic support and an ADHD/learning assessment, which appears unlikely to be facilitated by any of the parties.
2. These concerns are associated with increased risk of psychological and emotional harm, and exposure to cumulative trauma. Although a formal risk assessment has not been undertaken with [Mr Josse], there are concerns around recent domestic violence charges, ongoing criminal proceedings […], substance abuse, and his parenting capacity.
The opinion of Dr D is persuasive. It is based on the evidence of numerous calls from the father over a significant period. I have considered the totality of both reports and agree that the conduct complained of and observed through the recordings, the paternal grandmother’s refusal to act protectively and the potential harm to Z that on an interim basis the orders sought by the ICL, the mother and the Director-General are, on balance, the arrangement that will best promote Z’s safety on an interim basis.
Ms M
Her report dated was October 2023. Her report was undertaken at a time when Z was living primarily with her father and was spending time with her mother.
The recommendation was that Z live with her mother and spend time with her father. It was opined that Z was adopting the father’s narrative in her interview that someone else’s opinion had been interposed to supress hers. It was recommended at that time that it would benefit Z to spend more time with her mother, and her older sister who lives with her mother.
Again, this opinion has not yet been tested and will be at final hearing, however, it provides some evidence of the long-held preference of Z to live with her mother.
THE COMPLAINT THAT THE MOTHER’S FURTHER APPLICATION FOR INTERIM ORDERS SHOULD NOT BE HEARD
The paternal grandmother and arguably supported by the father, in essence raised a question as to whether the mother’s Further Application in a Case is a further attempt to have a differently constituted Court reconsider the earlier determinations of her Honour Judge Hughes and his Honour Gill J in respect of the interim arrangements for Z.
The principle that a party should not use a court's procedure to bring applications that seek similar relief in a manner that brings into question the administration of justice applies. In the decision of Malcher & Malcher (No.2) [2012] FamCA 1115 at [15], Ryan J stated that the Family Court is “not a court of unrelenting interlocutory applications.”
The consideration of an abuse of process arising from successive interim applications seeking to reconsider earlier decisions that a party is unhappy with underpins the rationale of the decision of the Full Court in Rice & Asplund (1979) FLC 90-725 because of the detriment caused to a child of ongoing litigation, unless there is a material change in the circumstances that would justify a further determination.
However desirable it is to limit the numbers of interlocutory applications, those considerations must be subservient to what is in Z’s best interests. After her father was charged with the serious offences Z was ordered to live with the paternal grandmother with orders for no time and no communication with the father. Justice Gill determined an application for the child to live with the mother and declined to make such orders instead re-iterating the paternal grandmother’s obligations and restraints on bringing Z into unsupervised contact with the father.
The evidence is overwhelming that, subsequent to the father being charged with the serious criminal offences and orders being made by Judge Hughes on 19 December 2023, that Z was living with the paternal grandmother, and the paternal grandmother has continued to disregard her obligations and the restraints made in respect of Z coming into contact with and communicating with her father. The paternal grandmother’s resolve was unwavering when asked in court through her counsel to provide an undertaking to comply with the court orders. This refusal was notwithstanding the evidence before the court of the opinion of Dr D that the conduct was exposing Z to risk. The paternal grandmother firmly refused to give such an undertaking.
I have carefully considered the recently filed affidavit material relied upon by each of the parties, the subpoenaed and other material I have been taken to, as well as the reports. There is a change of circumstances that is sufficient to warrant a further consideration of the interim arrangements. The matter could not simply be listed for an expedited final hearing to fully test the evidence without delay as the father is on remand and the father seeks to have his criminal proceedings finally disposed of prior to the parenting orders being determined.
CONCLUSION
Counsel for the ICL made the very poignant observation that Z will remain exposed to risk whether she lives with her mother or her paternal grandmother. I agree entirely with this view. As expressed by me in the interim hearing, I am concerned that Z could still be exposed to risk in the mother’s home arising from the mother’s past drug use history and parenting deficits, she may be exposed to drug use risks. The father and paternal grandmother made allegations the mother is associated with drug users and other people who may present a risk to Z. There was no evidence in support of their allegations, but I note that they were made.
The Director-General is on notice of concerns about Z living with the mother, but the Director-General supported the order be made that Z live with the mother. The Director-General has been involved with this family for over ten years. Notwithstanding the issues of risk that have been raised, they have not taken action in the children’s court, instead they have consented to an order that they share decision making responsibility on an interim basis with the mother. I am satisfied on the evidence that this is an appropriate order to be made on an interim basis and I make that order.
Given the risks that have been identified in the mother’s household, the historical risks in respect of the mother’s parenting capacity identified by Dr D, and the consent of the mother and the Director-General to such an order, and noting that it is also supported by the ICL, I order that the mother and the Director-General have joint decision making responsibility for Z on an interim basis.
The Director-General through their counsel indicated that if there was any risk of which they become aware, including of the mother’s drug use, that they would then take emergency action. As I expressed in court, it is my hope that the resources of the Director-General are able to be used to provide safeguards and supports for Z such that she is supported in her school attendance and the mother is supported in her efforts to remain drug free and to improve her parenting which is her desired role to Z.
I note the observations of the ICL of there being risk with either of the options presented to the court and agree with that observation based on the history of which the Department and all of the parties are well aware. The only option that this court has is to make orders placing Z in the care of the person who, on the evidence before me, poses the least risk to Z’s safety. In my view and for the reasons set out above, this is the mother, and I make the orders accordingly.
Ms Vipen, this is a leap of faith. Z has had much disruption and instability. She has been exposed to many things in her young years that she should have been protected from. You are on notice that the Director-General is supporting you in turning your life around to be the parent for Z you say you want to be. This is your opportunity to lean into those supports and continue to do all you can to provide Z with stability and an environment in which Z may flourish. If you maintain your sobriety and you engage with the supports that are recommended by the experts who provided reports for this Court and you do so with the support of the Director-General it is my expectation that the Director-General will provide support to you. If you do not, the Director-General will take action for Z to be placed in their care. This is an opportunity for you to establish that living with you is in Z’s best interests. These are interim orders, they are not final orders and all of these matters will be tested at final hearing.
Accordingly, I make orders similar to the terms of the orders sought by the Director-General, the ICL and the mother.
Taking into account the matters which I must address, I am satisfied that on balance it is in the best interests of Z to maintain a relationship with her paternal grandparents and her father, provided it is safe to do so and I make orders to put that into effect as well.
It is my view that professional supervision of time is the only way to ameliorate the identified risks of harm to Z from continued exposure to her father.
The paternal grandmother was unwilling to provide any undertaking to comply with her obligations not to bring Z into contact with her father unless by way of professional supervision. If the paternal grandmother is willing to provide such an undertaking then regular time that is not supervised would be able to recommence.
I make the orders for Z to spend professionally supervised time with both her paternal grandmother and her father as arranged by the Director-General on at least a fortnightly basis or as can otherwise be arranged.
I certify that the preceding one hundred and sixty (160) numbered paragraphs are a true copy of the Ex Tempore Reasons for Judgment of the Honourable Justice Curran. Associate:
Dated: 20 December 2024
0
5
2