KAMARA & KAMARA
[2017] FCCA 2675
•3 November 2017
FEDERAL CIRCUIT COURT OF AUSTRALIA
| KAMARA & KAMARA | [2017] FCCA 2675 |
| Catchwords: FAMILY LAW – Parenting – interim relocation – parental responsibility – live with – whether the father’s time with the children should be supervised – consequential parenting orders. |
| Legislation: Family Law Act 1975, ss.4, 60B, 60CA, 60CC, 61DA, 65DAA, 65DAC & 65DAE |
| Cases cited: MRR v GR [2010] HCA 4 Goode & Goode [2006] FamCA 1346 |
| Applicant: | MS KAMARA |
| Respondent: | MR KAMARA |
| File Number: | SYC 4599 of 2013 |
| Judgment of: | Judge Kemp |
| Hearing date: | 29 September 2017 |
| Date of Last Submission: | 29 September 2017 |
| Delivered at: | Sydney |
| Delivered on: | 3 November 2017 |
REPRESENTATION
| Counsel for the Applicant: | Mr Fowler |
| Solicitors for the Applicant: | Doolan Callaghan |
| Respondent: | Self-represented |
| Solicitor for the Independent Children's Lawyer: | Legal Aid Commission of NSW |
THE COURT ORDERS, PENDING FURTHER ORDER, THAT:
All previous parenting orders be discharged.
The mother have sole parental responsibility for X born (omitted) 2007, currently 10 years of age (“X”) and Y born (omitted) 2011, currently 6 years of age (“Y”) (“the children”).
By consent the children live with the mother.
The mother be permitted to relocate with the children to (omitted) NSW.
The mother or her legal representative shall notify the father by email within 7 days of her and the children’s relocation to (omitted) NSW.
The children spend time with the father in Sydney and (omitted) as provided for by these orders.
On the children living in Sydney, the children spend time with the father under supervision by (omitted) or other such service (“Contact Service”) as agreed between the parties, for a period of 3 hours on the first Saturday of each calendar month, between 1.00pm and 4.00pm or at times agreed between the Contact Service and the parties, and to facilitate such time each party must;
(a)contact the Contact Service within 7 days of these orders to arrange an appointment for assessment for suitability;
(b)attend any assessment for the Contact Service;
(c)comply with any appointments for the Contact Service for supervised time;
(d)comply with all reasonable rules of the Contact Service; and
(e)comply with all reasonable requests or directions of the staff of the Contact Service;
and the father must:
(f)pay the fees nominated by the Contact Service for the provision of its service; and
(g)book the visit with the Contact Service and confirm with the mother or her legal representative in writing by email not later than 1 week prior to any proposed visit and if not confirmed, the visit is suspended.
On the mother relocating with the children to (omitted) NSW, that the children spend time with the father, as follows;
(a)during the 4th week of each school term in (omitted), for 2 hours on a Friday and 2 hours on a Saturday, consecutively, supervised by (omitted) Children's Contact Service;
(b)during the term 1, 2 and 3 school holiday periods in Sydney, for 3 hours on a Saturday and a Sunday consecutively on the middle weekend of the school holiday period, or other times by agreement, supervised by the Contact Service;
(c)during the Christmas school holiday period in Sydney, for 2 hours on a Saturday and a Sunday consecutively, on 2 occasions during the school holiday period by agreement and failing agreement, on the 3rd and 5th weeks of the Christmas school holiday period, supervised by the Contact Service; and
(d)at other times as agreed between the parties in Sydney or (omitted), supervised by the Contact Service or the (omitted) Children's Contact Centre.
To facilitate the time at the (omitted) Children's Contact Service in accordance with order 8(a) and 8(d):
(a)the mother shall contact the (omitted) Children's Contact Service within 7 days of her arrival in (omitted) to arrange an appointment for assessment for suitability;
(b)the father shall contact the (omitted) Children's Contact Service within 7 days of being notified by the mother of her and the children’s arrival in (omitted), in accordance with order 5, to arrange an appointment for assessment for suitability;
(c)each party is to attend the assessment in person or by telephone;
(d)each party is to comply with any appointment made by the (omitted) Children's Contact Service;
(e)each party is to comply with all reasonable rules, reasonable requests or directions of the (omitted) Children's Contact Service;
(f)each party shall pay the fees nominated by the (omitted) Children's Contact Service for the provision of its service; and
(g)each party is to contact the (omitted) Children's Contact Service at least 8 weeks prior to each visit to book with the (omitted) Children's Contact Service and advise the other party or their legal representative by email, and the father is confirm his attendance with the mother or her legal representative in writing by email not later than 1 week prior to any proposed visit, and if not confirmed, the visit is suspended.
To facilitate each visit supervised by the Contact Service in accordance with orders 8(b), 8(c) and 8(d), the father is to book the visit with the Contact Service and confirm with the mother or her legal representative in writing by email no later than 2 weeks prior to any proposed visit and if not confirmed, the visit is suspended.
The father submit to urine analysis testing under the following conditions;
(a)the drug testing shall be by way of chain of custody urine drug screens with the sample supplied in a supervised environment and checked for adulteration;
(b)the drug testing shall meet the Australian/New Zealand standard 4308/2008;
(c)the results shall be provided to the Independent Children’s Lawyer and the mother’s solicitor no later than 48 hours after receipt by the father;
(d)the father shall submit to random drug testing within 48 hours of receiving a request from the Independent Children’s Lawyer and such request is to be made by the Independent Children’s Lawyer by emailing the father;
(e)the Independent Children’s Lawyer shall request the father submit for urinalysis no more than once during a calendar month; and
(f)the father be responsible for the costs associated with the testing in accordance with this order.
Within 28 days of this order, the father do all acts and things to cause his treating psychiatrist or clinical psychologist to provide a report to the Independent Children’s Lawyer and the mother that details;
(a)the father’s current mental health and any mental health diagnosis;
(b)any treatment plan and/or medication prescribed for the father; and
(c)any referrals to other medical professionals.
The father attend on his treating psychiatrist or clinical psychologist, or if the father does not have a treating psychologist or psychiatrist, that within 7 days of the date of these orders, the father shall attend a General Practitioner to obtain a GP Mental Health Plan and/or a referral to either a clinical psychologist or psychiatrist or counsellor, for the purposes of anger management counselling and the father shall attend on the said counsellor as and when directed by the said counsellor and follow any reasonable directions of the said counsellor.
Within 7 days of the date of these orders, the father notify the Independent Children’s Lawyer by mail of the name address and phone number of his treating psychiatrist, clinical psychologist or counsellor and the Independent Children’s Lawyer be granted leave to provide those persons with the Family Report of Mr W dated 27 October 2016.
Within 14 days of the mother and the children relocating to (omitted), the mother is to contact Centacare in (omitted) on (omitted) to seek referrals for a counsellor for X to attend on in (omitted) and on the referrals being provided the mother is:
(a)to make contact with the said counsellor to arrange an appointment for X to attend and notify the Independent Children’s Lawyer and the father of the name and contact details of the said counsellor;
(b)ensure that X attend on the said counsellor as and when directed by the said counsellor and follow any reasonable direction of the said counsellor; and
(c)be responsible for attending on a General Practitioner with X to obtain a mental health plan for X;
and with the said counselling to be confidential and;
(d)neither parent is permitted to subpoena the notes of the said counsellor;
(e)the father is restrained from contacting the said counsellor unless the said counsellor elects to contact the father; and
(f)the Independent Children’s Lawyer be granted leave to:
(i)provide the said counsellor with the Family Report of Mr W dated 27 October 2016; and
(ii)to speak to the said counsellor about the counselling.
Each party is to keep the other party informed of their current mobile phone number and email address details.
Within 14 days of the date of these orders and within 14 days of the children’s subsequent enrolment at any school, the mother do all acts and things and give all irrevocable authorities necessary to ensure that any school that the children may attend from time to time, forwards the father copies of the children’s school reports and merit cards.
The mother shall ensure that she informs the father as soon as practicable of any serious medical problems or hospitalisations suffered by the children.
For the purposes of communicating information between the parties, the mother and the father shall communicate by email.
The Independent Children’s Lawyer be granted leave to provide a copy of these orders to the children’s school(s) and to X’s counsellor.
Each party refrain from making critical or derogatory remarks in relation to the other parent in the presence or hearing of the children and that each party do all things necessary to ensure that no third party makes critical comments about the other party in the presence or hearing of the children.
Pursuant to s.65DA(2) of the Family Law Act1975, the particulars of the obligations these orders create and the particulars of the consequences that may follow if a person contravenes these orders are set out in the Fact Sheet, attached hereto and these particulars are included in these orders.
The matter be stood over to 31 May 2018 at 9.15am for mention.
THE COURT NOTES THAT:
On the adjourned date, it will give consideration to the ordering of an updated Family Report.
IT IS NOTED that publication of this judgment under the pseudonym Kamara & Kamara is approved pursuant to s.121(9)(g) of the Family Law Act 1975 (Cth).
| FEDERAL CIRCUIT COURT OF AUSTRALIA AT SYDNEY |
SYC 4599 of 2013
| MS KAMARA |
Applicant
And
| MR KAMARA |
Respondent
REASONS FOR JUDGMENT
Introduction
The applicant mother (“the mother”) filed an application in a case on 21 November 2016, seeking certain interim parenting orders in respect of the children of the parties’ relationship, X born (omitted) 2007, currently 10 years of age (“X”) and Y born (omitted) 2011, currently 6 years of age (“Y”) (“the children”), as follows:
(1)That the applicant mother be allowed to relocate the children to (omitted) on 4 January 2017.[this date was subsequently changed to after the conclusion of the school term 4 in 2017]
(2)That the orders made on 11 July 2016 amended by the minute of order made on 15 November 2016 stand to allow for any person agreed between the parties in writing to supervise the father’s time with the children in accordance with those orders.
(3)That consent orders detailing how parenting arrangements be agreed between the parties and made to provide a structure for how the father will spend time with the children in the next 2 years.
(4)NOTE the mother is very much aware of the difficulties the Court has in providing time for this matter due to the number of matters currently listed and demanding of its time, however, she asks for it to be urgently considered due to the fact that the children need to start school in the new location at the end of January and she is also unable to meet her financial obligations in her current situation.
The mother now, however, supports the orders proposed by the Independent Children’s Lawyer, as set out in paragraph 4 below.
The respondent father (“the father”) has not filed a response to the mother’s application in a case, but by reference to his response filed on 23 September 2014, he, essentially, opposes the mother’s relocation of the children to (omitted) and seeks orders to the follow effect:
(1)The parties have equal shared parental responsibility for the children.
(2)The children live with the mother.
(3)The children spend time with the father each alternate week from 6:00pm on Friday to 6:00pm Sunday.
(4)The children spend time with the father during half of the school holidays, except for the holidays in term 2, when the father wants the children to spend all of those holidays with him.
(5)The father have unlimited email access with the children.
(6)The father be able to have a video conference with the children 3 times per week.
(7)The father be able to travel overseas with the children during the term 2 school holidays.
The Independent Children’s Lawyer seeks the following interim orders, in terms of Exhibit “ICL1”:
(1)That all previous parenting orders be discharged.
(2)That the mother have sole parental responsibility for the children.
(3)That the children live with the mother.
(4)That the mother be permitted to relocate with the children to (omitted) NSW.
(5)The mother or her legal representative shall notify the father by email within 7 days of her and the children’s relocation to (omitted) NSW.
(6)That the children spend time with the father in Sydney and (omitted) as provided by these orders.
CHILDREN LIVING IN SYDNEY
(7)That on the children living in Sydney, that the children spend time with the father under supervision by (omitted) or other such service (“Contact Service”) as agreed between the parties, for a period of 3 hours on the first Saturday of each calendar month, between 1pm and 4pm or at times agreed between the Contact Service and the parties, and to facilitate such time each party must:
(a)Contact the Contact Service within 7 days of these orders to arrange an appointment for assessment of suitability.
(b)Attend any assessment for the Contact Service.
(c)Comply with any appointments for the Contact Service for supervised time.
(d)Comply with all reasonable rules of the Contact Service.
(e)Comply with all reasonable request or directions of the staff of the Contact Service
(f)That the father pay fees nominated by the Contact Service for the provision of its service.
(g)That the father is to book the visit with Contact Service and confirm with the mother or her legal representative in writing by email not later than 1 week prior to any proposed visit, and if not confirmed, the visit is suspended.
CHILDREN LIVING IN (OMITTED)
(8)That on the mother relocating with the children to the (omitted) NSW, that the children spend time with the father as follows;
(a)During the 4th week of each school term in (omitted), for 2 hours on a Friday and 2 hours on a Saturday consecutively, supervised by (omitted) Children's Contact Service.
(b)During the term 1, 2 and 3 school holiday periods in Sydney, for 3 hours on a Saturday and a Sunday consecutively on the middle weekend of the school holiday period, or other times by agreement, supervised by a Contact Service.
(c)During the Christmas school holiday period in Sydney, for 2 hours on a Saturday and a Sunday consecutively on 2 occasions during the school holiday period by agreement and failing agreement, on the 3rd and 5th weeks of the Christmas school holiday period, supervised by a Contact Service.
(d)At other times as agreed between the parties in Sydney or (omitted), supervised by a Contact Service or the (omitted) Children's Contact Centre.
(9)To facilitate the time at the (omitted) Children's Contact Service in accordance with order 8(a) and 8(d):
(a)The mother shall contact the (omitted) Children's Contact Service within seven (7) days of her arrival in (omitted) to arrange an appointment for assessment for suitability
(b)That the father shall contact the (omitted) Children's Contact Service within 7 days of being notified by the mother of her and the children’s arrival (omitted), in accordance with order 4, to arrange an appointment for assessment for suitability.
(c)That each party is to attend the assessment in person or by telephone.
(d)That each party is to comply with any appointment made by the (omitted) Children's Contact Service.
(e)That each party is to comply with all reasonable rules, reasonable requests or directions of the (omitted) Children's Contact Service.
(f)That each party shall pay the fees nominated by the (omitted) Children's Contact Centre for the provision of its service.
(g)That each party is to contact the (omitted) Children's Contact Centre at least 8 weeks prior to each visit to book with the (omitted) Children's Contact Centre and advise the other party or their legal representative by email, and the father is confirm his attendance with the mother or her legal representative in writing by email not later than 1 week prior to any proposed visit, and if not confirmed, the visit is suspended.
(10)To facilitate each visit supervised by the Contact Service in accordance with order 8(b), 8(c) and 8(d) the father is to book the visit with Contact Service and confirm with the mother or her legal representative in writing by email not later than 2 weeks prior to any proposed visit, and if not confirmed, the visit is suspended.
ADDITIONAL ORDERS FOR THE FATHER
(11)That the father submit to urine analysis testing under the following conditions:
(a)The drug testing shall be by way of chain of custody urine drug screens with the sample supplied in a supervised environment and checked for adulteration.
(b)That the drug testing shall meet the Australian/New Zealand standard 4308/2008.
(c)The results shall be provided to the Independent Children’s Lawyer and the mother’s solicitor no later than 48 hours after receipt by the father.
(d)That the father shall submit to random drug testing within 48 hours of receiving a request from the Independent Children’s Lawyer and such request is to be made by the Independent Children’s Lawyer by emailing the father.
(e)That the Independent Children’s Lawyer shall request the father submit for urinalysis no more than once during a calendar month.
(f)That the father be responsible for the costs associated with the testing in accordance with this order.
(12)That within 28 days of this order, the father do all acts and things to cause his treating psychiatrist or clinical psychologist to provide a report to the Independent Children’s Lawyer and the mother that details:
(a)The father’s current mental health, and any mental health diagnosis,
(b)Any treatment plan and/or medication prescribed for the father,
(c)Any referrals to other medical professionals.
(13)That that father attend on his treating psychiatrist or clinical psychologist, or if the father does not have a treating psychologist or psychiatrist, that within 7 days of the these orders the father shall attend a general practitioner to obtain a GP Mental Health Plan and/or a referral to either a clinical psychologist or psychiatrist or counsellor (the Counsellor”), for the purposes of anger management counselling and the father shall attend on the counsellor as and when directed by the counsellor and follow any reasonable direction of the counsellor.
(14)That within 7 days of the date of these orders, the father notify the Independent Children’s Lawyer by mail of the name address and phone number of his treating psychiatrist, clinical psychologist or counsellor and the Independent Children’s Lawyer be granted leave to provide the counsellor with the family report of Mr W dated 27 October 2016.
Counselling for X
(15)That within 14 days of the mother and children relocating to (omitted), the mother is to contact Centacare in (omitted) on (omitted) to seek referrals for a counsellor (“the Counsellor”) for X to attend on in (omitted), and on the referrals being provided the mother is to:
(a)To make contact with the Counsellor to arrange an appointment for X to attend, and notify the ICL and the father of the name and contact details of the Counsellor.
(b)Ensure that X attend on the Counsellor as and when directed by the counsellor and follow any reasonable direction of the counsellor.
(c)Be responsible for attending on a General Practitioner with X to obtain a mental health plan for X.
(d)That the counselling is confidential and neither parent is permitted to subpoena the notes of the Counsellor.
(e)The father is restrained from contacting the Counsellor unless the Counsellor elects to contact the father.
(f)That the Independent Children’s Lawyer be granted leave to:
(i)provide the Counsellor with the family report of Mr W dated 27 October 2016 a copy of these orders and
(ii)to speak to the Counsellor about the counselling.
Additional orders
(16)That each party is to keep the other party informed of their current mobile phone number and email address.
(17)That within 14 days of these orders and within 14 days of the children’s subsequent enrolment at any school the mother do all acts and things and give all irrevocable authorities necessary to ensure that any school that The children may attend from time to time, forwards the father copies of the children’s school reports and merit cards.
(18)That the mother shall ensure that she informs the father as soon as practicable of any serious medical problems or hospitalisations suffered by the children
(19)That for the purposes of communicating information between the parties the mother and the father shall communicate by email
(20)The Independent Children’s Lawyer be granted leave to provide a copy of these orders to the children’s school and X’s counsellor.
(21)That each party refrain from making critical or derogatory remarks in relation to the other parent in the presence or hearing of the children and that each party do all things necessary to ensure that no third party makes critical comments about the other party in the presence or hearing of the children.
(22)That pursuant to s.62B of the Family Law Act, information about the family counselling services, family dispute resolution services and other courses, programs and services available, is set out in the Fact Sheet attached hereto.
(23)That pursuant to s.65DA(2) of the Family Law Act, the particulars of the obligations these orders create and the particulars of the consequences that may follow if a person contravenes these orders are set out in the Fact Sheet, attached hereto and these particulars are included in these orders.
On 7 December 2016, the following orders were made:
(1)Orders be made, pending further order, in accordance with the handwritten document handed up today (noting that order 7 is by consent) as follows:
1. That order 2, being the orders made by consent on 11 July 2016 and Order 1 of the orders made by consent on 15 November 2016 be discharged.
2. That the children spend time with the father every alternate Saturday from 10am to 2pm, with such time to be supervised by Mr D (“Mr D”), commencing 17 December 2016.
3. That the father do all acts and things to ensure Mr D files an undertaking in court as to his role and duties as a supervisor and serve the undertaking on the mother and the Independent Children’s Lawyer, and the father’s time with the children in accordance with Order 2 shall not occur until compliance with this order.
4. That the father is to provide the mother through the father’s solicitor, Mr D’s phone number within 7 days of this order.
5. That changeovers shall occur at (omitted) train station, (omitted) Entrance, and the father shall ensure that Mr D is present at changeovers.
6. That if for any reason Mr D is unable to supervise the children’s time with the father, then the father is to do all acts and things to cause Mr D to contact the mother directly to cancel the visit, and such notification shall be provided no later than 24 hours before the proposed visit.
7. The father is restrained from directly communicating with the mother regarding parenting arrangements for the children.
(2)Not reproduced.
(3)Not reproduced.
(4)The mother be and is hereby restrained from removing the children from the Sydney Metropolitan Area.
(5)Within 6 weeks of today’s date, the mother to file and serve any further affidavit upon which she seeks to rely in terms of her application in a case filed on 21 November 2016.
(6)Within 4 weeks after the mother’s compliance with order 5 above, the father to file and serve any affidavit material upon which he seeks to rely, should he seek to oppose such application.
(7)The matter be adjourned to a date to be fixed with regard to the mother’s application in a case.
On 14 March 2017, by way of a Chambers order, the matter was listed for interim hearing on 25 July 2017.
On 25 July 2017, the matter came before the Court for interim hearing. Mr Fowler of Counsel appeared for the mother. The father was self-represented at that time. Initially, while Mr Fowler sought to have the matter proceed, he conceded that the mother’s affidavit material had not been filed in accordance with order 5, as set out in paragraph 5 above and that the father still had time, under order 6, to file his responsive affidavit material. Accordingly, further orders and notations were made by the Court to the following effect:
(1)The matter be adjourned to 29 September 2017 at 10:00am for interim hearing in relation to the mother’s proposed relocation of the children to (omitted).
(2)The time for the father to file and serve any affidavit material on which he seeks to rely, (should he seek to oppose the mother’s application) be extended to 4.00pm on 19 September 2017.
(3)By 4:00pm on 26 September 2017, any case outline document together with any minute of order sought should be provided to my associate.
(4)Any short affidavit by the mother, by way of update, to be filed and served by 8 September 2017.
(5)Upon the father being legally represented his lawyer is to file a Notice of Address for Service within 3 days of same.
(6)The father is to file and serve a Notice of Address for Service within 48 hours of today’s date.
THE COURT NOTES THAT:
(7)Ms Lohitharajah from Slater & Gordon will be retained by the father and will prepare documents for him for the interim hearing.
(8)The mother would propose any relocation to (omitted) to occur after the conclusion of the school term 4 2017.
(9)The father was legally represented by Rafton Family Lawyers in the period 21 April 2017 to 30 June 2017.
(10)The father consented to personal service of the divorce application today.
(11)By consent, the divorce application filed by the mother on 24 October 2016, in file number SYC6294/2016, was granted by the Court today and the divorce will become effective one month and one day from today’s date.
(12)The further list date of 12 September 2017, provided by the Registrar in relation to the divorce application was vacated.
On 25 September 2017, the Independent Children’s Lawyer provided her case outline document.
On 26 September 2017, the father filed a notice of address for service, albeit substantially late, in terms of order 6, referred to in paragraph 7 above.
On 26 September 2017, the father also filed a “Case Outline” which set out, as follows:
a)No evidence has been provided with regards to the legitimacy of the claim that I or my GP are cheats when it comes to several substance abuse tests.
b)I would like to understand why the opinion of a renowned forensic psychiatrist has been disregarded? Dr S regularly provides guidance to our courts. Why is it this court different?
c)The emotional harm to children that is caused due to an absent parent is an extremely serious situation, which will lead to complexities in early adulthood. Since this court claims to be acting in the children’s best interest. I would like to know what the next steps are?
On 29 September 2017, on the interim hearing, Mr Fowler of Counsel appeared for the mother. The father appeared in person (he had not obtained any legal representation from Slater & Gordon as he had advised was to be the case on 25 July 2017) and Ms Maitland, solicitor, appeared for the Independent Children’s Lawyer.
Principles to be applied and procedure to be followed
The Full Court in Goode & Goode [2006] FamCA 1346 set out a number of procedural steps to be followed on an interim application, such as this, namely:
(a) identifying the competing proposals of the parties;
(b) identifying the issues in dispute;
(c) identifying any agreed or uncontested relevant facts;
(d) considering the matters in s.60CC of the Family Law Act 1975 (“the Act”) 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);
(e) deciding whether the presumption in s.61DA that equal shared parental responsibility is in the best interests of the child applies or does not apply because there are reasonable grounds to believe there has been abuse of the child or family violence or, in an interim matter, the Court does not consider it appropriate to apply the presumption;
(f) if the presumption does apply, deciding whether it is rebutted because application of it would not be in the child’s best interests;
(g) if the presumption applies and is not rebutted, considering making an order that the child spend equal time with the parents unless it is contrary to the child’s best interests as a result of consideration of one or more of the matters in s.60CC, or impracticable;
(h) if equal time is found not to be in the child’s best interests, considering making an order that the child spend substantial and significant time as defined in s.65DAA(3) with the parents, unless contrary to the child’s best interests as a result of consideration of one or more of the matters in s.60CC, or impracticable;
(i) if neither equal time nor substantial and significant time is considered to be in the best interests of the child, then making such orders in the discretion of the Court that are in the best interests of the child, as a result of consideration of one or more of the matters in s.60CC;
(j) if the presumption is not applied or is rebutted, then making such order as is in the best interests of the child, as a result of consideration of one or more of the matters in s.60CC; and
(k) even then the Court may need to consider equal time or substantial and significant time, especially if one of the parties has sought it or, even if neither has sought it, if the Court considers after affording procedural fairness to the parties it to be in the best interests of the child.
To determine what time orders should be made under s.65DAA(1) and (2) of the Act, the Court must look to determine whether the actual spending of “equal time” or “substantial and significant time” is in the best interests of the child and, as a separate and distinct matter, whether the actual spending of such time is reasonably practicable. The Court must, affirmatively, answer both of these questions for it to have the power to make a time order of that nature: MRR v GR [2010] HCA 4. If it cannot do so, the Court must consider making such “other” time order as is, otherwise, in the best interests of the children.
The best interests of the children remain the paramount consideration: s.60CA of the Act.
The best interests of the children are to be determined by an examination of the factors, as set out in s.60CC of the Act. These factors are to be examined, weighed and applied against the facts of each case within the ambit of the objects and their underlying principles as set out in s.60B of the Act, as follows:
(1) The “objects”…are to ensure that the best interests of children are met by:
(a) ensuring that children have the benefit of both of their parents having a meaningful involvement in their lives, to the maximum extent consistent with the best interests of the child; and
(b) protecting children from physical or psychological harm from being subjected to, or exposed to, abuse, neglect or family violence; and
(c) ensuring that children receive adequate and proper parenting to help them achieve their full potential; and
(d) ensuring that parents fulfil their duties, and meet their responsibilities, concerning the care, welfare and development of their children.
(2) The “principles” … are … :
(a) Children have the right to know and be cared for by both their parents, regardless of whether their parents are married, separated, have never been married or have never lived together; and
(b) Children have a right to spend time on a regular basis with, and communicate on a regular basis with, both their parents and other people significant to their care, welfare and development (such as grandparents and other relatives); and
(c) Parents jointly share duties and responsibilities concerning the care, welfare and development of their children; and
(d) Parents should agree about the future parenting of their children; and
(e) Children have a right to enjoy their culture (including a right to enjoy the culture with other people who share that culture).
(3) For the purposes of subparagraph (2)(e), an Aboriginal child's or Torres Strait Islander child's right to enjoy his or her Aboriginal or Torres Strait Islander culture includes the right:
(a) to maintain a connection with that culture; and
(b) to have the support, opportunity and encouragement necessary:
(i) to explore the full extent of that culture, consistent with the child's age and developmental level and the child's views; and
(ii) to develop a positive appreciation of that culture.
(4) In relation to proceedings commenced after 7 June 2012, an additional object of this Part is to give effect to the Convention on the Rights of the Child done at New York on 20 November 1989.
Relocation
Justice Boland in Morgan & Miles (2007) FamCA 1230, in reviewing the relevant legislation, held on considering an appeal from an interim parenting order made on a relocation case, that the following earlier “core principles” remain valid. These principles were, as stated by Her Honour:
1. that the child’s best interests remain the paramount but not sole consideration;
2. that a parent wishing to move does not need to demonstrate “compelling” reasons;
3. that a judicial officer must consider all proposals, and may himself or herself be required to formulate proposals in the child’s best interests; and
4. the child’s best interests must be weighed and balanced with the “right” of the proposed relocating parent’s freedom of movement.
Her Honour stated that the Act requires a careful exercise of a structured discretion (there being no applicable presumption) to determine the appropriate order. Further, the Court must, when evaluating the competing proposals of the parties in relation to any relocation, noting that neither party bears an onus, have regard to the whole of the evidence relevant to the best interests of the children: B & O & M [2008] FMCAfam 379.
Her Honour made it clear that, if a parenting order for equal shared parental responsibility had already been made prior to any application to relocate, the parties have a primary duty, under s.65DAC of the Act, to determine jointly (through a process of consultation and genuine effort to reach agreement) if the proposed living arrangements for a child would make it significantly more difficult for that child to then spend time with the parent not relocating. The operation of this section, her Honour finds: “would preclude a unilateral move by one parent without notice and consultation with the other parent”. This is particularly so, as her Honour finds:
Section 60I requires parents, if no exclusionary factors such as abuse, family violence, or urgency apply, whether there is an order under s.61C, or s.61B is operative, to make a genuine effort to resolve the dispute with a family dispute resolution practitioner.
The Court in determining a parenting case involving a proposal to relocate a child’s residence, must carefully evaluate each of the proposals advanced by the parties, without dissection of the case into discrete issues. For example, who the child should live with and spend time with and then based on that, whether the relocation should be permitted. The evaluation process requires a weighing up of the evidence and submissions, as to how each proposal is advantageous or disadvantageous when considering the best interests of the child. The Court must follow the legislative directions in s.60CA and s.60CC of the Act and apply this exercise to each of the factors set out therein. The Court will, in its consideration, apply necessarily greater significance to some factors over others and it is in this process that the Court must indicate how such matters are balanced out and the weighting the Court has given to determine that process.
Evidence
The mother relied on:
(a)her Affidavit affirmed on 30 June 2017 and filed on 4 July 2017;
(b)the Affidavit of Ms G sworn/affirmed on 5 July 2017 and filed on 7 July 2017; and
(c)the Affidavit of Mr B sworn/affirmed on 6 July 2017 and filed on 7 July 2017.
The father relied on:
(a)his Affidavit affirmed on 22 September 2017 and filed in Court on 29 September 2017.
The following documents were placed into evidence as follows:
Exhibit No
Document
Tendered by
A
Bundle of subpoena documents identified in the mother’s chronology and case outline in terms of the various “M” numbers referred to therein
Mother
B
Bundle of subpoena documents, being the same as Exhibit “A” above
Mother
C
Referral letter from Dr J to Dr O dated 16 November 2011 and 4 pages of handwritten notes from Dr O’s file dated 21 November 2011, as produced under subpoena
Mother
1
Report of Dr S dated 5 February 2016
Father
ICL1
Minute of proposed order
Independent Children’s Lawyer
ICL2
Bundle of documents produced under subpoena and marked ICL18.1, ICL19 and ICL24.4
Independent Children’s Lawyer
ICL3
Emails to (omitted) Contact Centre dated 29 September 2017
Independent Children’s Lawyer
ICL4
Australia Post tracking information document
Independent Children’s Lawyer
The Limitations of an Interim Hearing
The Court, as stated, hears this matter on an interim hearing basis, as the mother has confirmed there is urgency in obtaining relief.
The Court’s determination, therefore, is based only on a study of the documents before it, including affidavits read, documents tendered and the submissions of the parties and legal representatives. There is no provision, at the interim hearing stage, for a more extensive hearing where evidence can be tested in cross-examination and where the Court can make findings of fact, after testing credibility and truthfulness.
The combined practical effect of sections 60B, 61DA and 60CC of the Act is that, on an interim basis, the Court may have little practical alternative other than weighing the probabilities of the parties’ respective claims and balancing the questions of risk.
In this regard, the Full Court of the Family Court of Australia, in Redmond & Redmond [2014] FamCAFC 155, acknowledged the limitations of interim hearings when determining questions of disputed facts. In response to the father’s submission in that case that the trial judge should have ignored or disregarded any allegations or matters of disputed fact that were adverse to the father on an interim hearing, the Full Court noted that:
This approach overlooks two important things. First is the distinction between, on the one hand, the acknowledged limitations in an interim hearing to determine disputed issues of fact on untested evidence and, on the other, the need for the court to consider, particularly when the subject facts or allegations are centrally important to a child’s welfare, the risks to that welfare if those facts or allegations are ultimately established at a trial. Second, the fact that an issue or allegation of fact is disputed does not sit in isolation. Consideration of other evidence, including independent expert evidence, may weigh in the court’s consideration as to probabilities, one way or the other, of an allegation ultimately being established, or rejected, at a trial.
In relation to this “weighing up” or balancing of risk, the Full Court of the Family Court of Australia, in SS & AH [2010] FamCAFC 13 (Boland and Thackray JJ), stated that:
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.
Further, in the decision of Banks & Banks [2015] FamCAFC 36, the Full Court of the Family Court of Australia stated that:
By their nature, interim parenting proceedings should be confined to those issues which, in the best interests of the child, require determination prior to a proper determination at a trial. The fact such disputes are commonly dealt with in overcrowded court lists makes it even more desirable to identify with precision those issues which can, or should, be resolved on an interim basis.
…Furthermore, there is a risk that in discussing every s 60CC factor, the judicial officer may lose sight of the forest for the trees. It is also important to stress here that the requirement to “consider” each factor does not mean each must be discussed, especially where the evidence leads inexorably to a particular conclusion: SCVG & KLD (2014) FLC 93-582.
When it is obvious that the findings made as to some of the s 60CC factors will be determinative of the child’s best interests on an interim basis, it is a sterile and unnecessary exercise to address other factors. Moreover, it will be a sterile exercise to determine whether or not particular facts are disputed if they are relevant only to one of the non-determinative s 60CC considerations. Properly understood, we do not interpret what was said in Goode as meaning that in an interim case, each and every fact must be characterised as disputed or not; and that each s 60CC factor must be traversed where it is obvious on the facts and issues joined that there are only one or two decisive factors.
Proposals
The parties and the Independent Children’s Lawyer seek the various competing orders, as set out above.
Issues
The essential issues in dispute the subject of determination are:
a)parental responsibility;
b)whether the children will be permitted to relocate with the mother to (omitted);
c)time to be spent by the father with the children and whether that time should be supervised;
d)whether or not there is an unacceptable risk to the children due to the father’s alleged history of violence, alleged mental illness and substance misuse problems;
e)whether or not the mother’s parenting capacity is impacted by her mental health problems; and
f)the disputed allegations of family violence and the impact of this on the parenting relationship.
Factual Matters
There appear to be a number of relevant facts, as follows:
a)The mother was born on (omitted) 1972 and is currently 45 years of age.
b)The father was born on (omitted) 1976 and is currently 41 years of age.
c)The parties commenced cohabitation on (omitted) 1997.
d)The parties were married on (omitted) 2000.
e)There are 2 children of the parties’ relationship, a daughter, X, born (omitted) 2007, currently 10 years of age and a son, Y, born (omitted) 2011, currently 6 years of age. Both children are in good health.
f)On 21 November 2011, Dr O, a Consultant Psychiatrist and Addiction Specialist, wrote to Dr J saying that, in his opinion, the father suffered from Polysubstance Dependence.
g)On 28 November 2011, the parties separated. The mother left the parties’ residence at (omitted) with the children after, as she alleges, a violent episode that occurred in front of the children when the father threw a chair and kicked a table repeatedly.
h)On 3 December 2011, the mother called the Police to report to them that the father had said to her: “I wanna see the kids and if you get in my way I will break your legs.”
i)On 20 December 2011, a report was made to the Police by the mother’s brother and sister in law that the father had made threats towards them, including: “What has your fucking cunt of a husband done with my car? I am going to come around and fucking bash him up”.
j)On 28 December 2011, the father went to the (country omitted).
k)On 3 January 2012, the father returned from the (country omitted).
l)On 13 January 2012, a provisional Apprehended Domestic Violence Order (“ADVO”) was taken out against the father with respect to the event referred to in (i) above, in favour of the mother and her brother, Mr T.
m)On 12 March 2012, the provisional ADVO was made final against the father for the protection of the mother and the children (not her brother) for a period of 2 years.
n)On 22 April 2012, the Police attended the father’s unit after the mother received text messages from the father threatening self-harm. When the Police attended, they asked the father for his phone. The father allegedly, deleted his messages from his phone and said to the Police: “threats are deleted”. The Police then took the father to the (omitted) Hospital, where he was scheduled under the Mental Health Act (NSW) 2007.
o)On 24 August 2012, the father punched and kicked a work colleague.
p)On 5 December 2012, the father was sentenced at the Local Court of New South Wales at North Sydney after pleading guilty to a charge for the assault referred to in (o) above. The father was placed on a s.10 Good Behaviour Bond for 2 years, conditional on him taking his prescribed medication and attending on counselling and treatment in accordance with the directions of his psychiatrist, Dr W.
q)On 14 August 2013, final property orders between the parties were made by consent in the Family Court of Australia.
r)Up until 29 March 2014 and for a period of approximately 2 and a half years, commencing after separation, the children were spending time with the father on alternate weekends, but only X would stay overnight. The father alleged that the mother would not allow Y to stay the night, whereas the mother indicated that the father was reluctant to care for Y overnight.
s)On 29 March 2014, the father’s fortnightly time with the children stopped, as the mother alleged that the father abused and assaulted her in the presence of the children after a social function ((omitted)) at X’s school. The mother said that the father had the appearance of one who had taken drugs. The father tried to take the car keys from the mother and tried to pull the mother out of the car. The mother drove away. The mother stayed at a friend’s place that night. When the mother returned home, the property and some of the belongings therein had been damaged. The Police attended on the mother and observed bruising to her left arm and scratches to her wrist.
t)On 30 May 2014, the mother filed her initiating application in this Court.
u)On 21 July 2014, a second ADVO was made against the father for the protection of the mother for a period of 12 months, arising out of the events described in (s) above.
v)On 4 December 2014, an Independent Children’s Lawyer was appointed for the children.
w)On 16 December 2014, interim orders were made by this Court, including that the children live with the mother and spend time supervised by (omitted) Family Services with the father each alternate Sunday from 11.00am to 1.00pm. No time was spent by the children with the father pursuant to this order, as (omitted) Family Services were unable to assist in supervision.
x)On 19 February 2015, the father was sentenced on charges of break and enter, destruction of property and a breach of his previous s.10 Good Behaviour Bond, in relation to the incidents on 29 March 2014. The father was given a 12 month sentence of imprisonment, which was suspended upon him entering into a s.12 bond with supervision by the NSW Probation and Parole Service for a period of 12 months.
y)On 24 February 2015, further interim orders were made by this Court, including that the father submit to urinalysis drug testing and for the father to spend fortnightly time with the children, as supervised by the Sydney Children’s Contact Centre. No time was spent by the children with the father pursuant to this order as the father failed to complete the intake forms for the Sydney Children’s Contact Centre.
z)On 2 June 2015, the father did not appear in this Court and the matter was listed for undefended hearing.
aa)On 29 September 2015, in accordance with the interim orders, the Independent Children’s Lawyer (then Ms M) emailed the father with a request to undergo supervised chain of custody urinalysis within 48 hours. The father refused to undertake the urinalysis as it did not fit in with his work schedule and wrote an abusive email to the Independent Children’s Lawyer.
bb)Between 25 April 2015 and 17 October 2015, the children saw the father on 6 occasions, for 2 hours each time, all supervised by the father’s friend, Mr G (“Mr G”).
cc)On 21 October 2015, further interim orders were made by this Court, which provided for the children to spend time with the father, supervised by Bridging Families, for 3 hours each alternate weekend.
dd)Between 21 October 2015 and March 2016, the children saw the father on 4 occasions, for 3 hours on each occasion, supervised by one of the Bridging Families supervisors.
ee)On 10 February 2016, further interim orders were made by this Court. The Court noted, on that occasion, that the father said that the costs of maintaining supervision for his time with the children were prohibitive.
ff)The children have not spent time or communicated with the father since 5 March 2016, as the father has declined to continue to pay for supervision.
gg)On 15 March 2016, a family report was ordered.
hh)On 11 July 2016, the father provided a forensic psychiatrist report from Dr S to the Court, being made Exhibit “1”. The parties consented to orders for the father to contact Mr G to ascertain whether he would supervise the children’s time with him and, if so, the children would spend time supervised by Mr G, as agreed by the mother and Mr G.
ii)On 28 October 2016, the family report of Mr W (“Mr W”) was released to the parties.
jj)On 15 November 2016, the parties consented to further orders for the father to spend time with the children, in accordance with the orders made on 11 July 2016, supervised by Mr D or any other person agreed in writing between the parties.
kk)On 21 November 2016, the mother filed an application in a case seeking that she and the children be allowed to relocate to (omitted).
ll)On 7 December 2016, this Court made interim orders that the children spend time with the father each alternate Saturday from 10.00am to 2.00pm commencing on 17 December 2016, with such time to be supervised by the father’s friend, Mr D, with the father to do all acts and things to ensure that Mr D files an undertaking in Court and serves the same on the mother and the Independent Children’s Lawyer. No such undertaking has ever been filed.
mm)On 7 February 2017, Mr D advised the mother by text message that the father had not contacted him to initiate time with the children. The children have not spent any time with the father pursuant to this order, as the father has not contacted Mr D to arrange for supervision.
nn)On 25 July 2017, the parties were divorced. Neither party reported as having re-partnered.
oo)The mother’s occupation is described as “(occupation omitted)”. She has worked in positions as a (occupations omitted).
pp)The father’s occupation is as an (occupation omitted), working on a contract basis. At the time of the family report, the father was unemployed. At the time of the interim hearing, he had been employed for at least some 7 months on a contract basis at (omitted).
qq)The father stated that he lives at (omitted), NSW. The father describes that residence as a share house.
rr)The mother lives in a 2 bedroom flat in (omitted) with the children within walking distance of the children’s school. The children share a bedroom.
ss)The children both attend (omitted) School. Y is in kindergarten and X is in year 5 in 2017.
The Court notes, from an examination of Exhibit “A”, including specifically the Police records produced, the chronology of events as set out above appears to be accurate.
There appear to be a number of disputed facts, as follows:
a)The mother alleges that on 19 August 2011, the father told her that, as well as his prescription drugs, he had been taking heroin and other drugs for more than 3 years and smoking marijuana daily.
b)On 2 and 3 January 2012, the mother alleges that the father made a number of calls to her from overseas in which he made threats including: “When I get back there is going to be blood” and “You’re fucked. You better not be there when I get back”.
c)When the father returned from the (country omitted) on (omitted) 2012, the mother alleges that she had an argument with him, wherein he told her that he had met (nationality omitted) males who would be leaving her brother shot in a pool of blood. He also said to her: “Shut up or I will kick you in the head”.
Mother’s evidence
The mother’s affidavit of 30 June 2017 deposes to the following:
a)Her relationship with the father, both prior to and after separation, was characterised by family violence, the father's use of drugs and his consumption of alcohol to excess.
b)When the parties lived in a rented apartment in (omitted) for about 3 years from (omitted) 2000, the father often arrived home from work heavily intoxicated. He would fly into moods and told the mother stories of his violence towards other people. He threatened the mother when he was in these alcoholic rages, including saying on one occasion: “I will smash your head in if you keep talking to me.” The father was smoking marijuana heavily during this time.
c)When the parties moved into another rental apartment together in (omitted) in (omitted) 2003, the father had consulted a psychiatrist and was diagnosed with depression. His behaviour went up and down. Around that time, the father would be agitated and upset and then angry and morose. He was using drugs a lot and smoking marijuana. He said to the mother, on many occasions: “I behave like this because of the medication I am on for anxiety and depression”.
d)When the parties purchased the property (omitted) in (omitted) 2006 and moved in there, the father continued to smoke marijuana and his erratic behaviour continued. He told the mother on many occasions that he had changed doctors and tried different medications. The mother saw him take tablets. The father said to the mother: “The doctor said I have to take more” but she formed the view that he was self-medicating.
e)The father was using drugs other than prescription drugs. He often disappeared in the car. To the mother’s observation he could not concentrate on anything until he had obtained and taken the drugs. He was often abusive to the mother, calling her: “a waste of space” and “poor excuse for a human being” and “mediocre.”
f)After X’s birth, the father left her care almost entirely to the mother, rarely taking her to the park or attending to any of her needs, such as putting her to bed or feeding her. He did not attend family gatherings or visit friends. He would say: “I have to work” or “I feel too anxious.”
g)On a regular basis, when the mother returned home the father was asleep on the couch, or was out and then returned home drunk. He would often sleep all weekend and he would come home early from work to chain smoke joints of marijuana or sleep. He would then wake and go out in the car. From his erratic behaviour and glazed appearance on his return, the mother formed the view that the father went out to buy and consume illegal drugs.
h)During 2010, the father’s behaviour worsened. The father:
i)threw and destroyed a fan in anger at something the mother had said. The father said to the mother: “You better get out of the room or you will seriously regret staying”;
ii)was unsatisfied with the washing the mother had done and started throwing clothes around violently and said to the mother: “What do you do all day, why haven't you brought any money in yet?”; and
iii)informed the mother when they were on holiday in the (country omitted), that he had met up with old friends in (omitted) and that he had done “heroin and other drugs” with them.
i)During 2011, the mother said that the father:
i)said to her: “I have been taking heroin and other drugs for more than 3 years on top of my prescription drugs. I have also been smoking marijuana daily”;
ii)had not told his psychiatrist, Dr W, about his use of drugs, notwithstanding that he had told her he would;
iii)had said to her on 3 December 2011: “If any of your family come anywhere near me I will make them pay” and: “If you get in the way of me seeing the kids I will break your legs”;
iv)had said to her on 12 December 2011: “If your dogs of parents get in the way they had better watch out. The same goes for your fucking sister”;
v)in one of his text messages, had said: “Because you've taken from me, I'll take from you.”; and
vi)started sending her text messages about putting her belongings into the rubbish, destroying photo albums, financial documents and her photographic images.
j)During 2012, the mother said that the father:
i)had, when he was in the (country omitted), in (omitted) 2012, telephoned her and said: “You little whore”, “you stupid little bitch”, “cunt” and many other expletives and then said: “when I get back there will be blood, you had better not be there or else” (see “M5” Exhibit “A”). He also said: “Your family had better watch out too”; and
ii)in December 2012, stated: “I wanna see the kids and if you get in my way, I will break your legs” (see “M5” Exhibit “A”).
k)During 2014, the mother said that the father:
i)had physically tried to pull her out of a motor vehicle in the presence of the children and said to her: “You’re going to get it now” and “I am going to fuck you up Ms Kamara”. The mother said that she had driven off with the door open and then called the Police. The father said that he had been hit by the door and asserted that he had been dragged under the car; and
ii)had gone to her flat and had destroyed her personal possessions.
l)During 2016, the mother said that the father:
i)had sent her an email stating saying: “you are deluded and absolutely shit at everything you have ever tried”;
ii)had sent abusive and offensive emails to the Independent Children’s Lawyer, referring to her as: “petty little disgusting cunt”, “sick fucking cunt” and “dumb cunt”; and
iii)sent an email to the Independent Children’s Lawyer on 1 December 2016 stating: “Bravo for supporting a malicious bitch and abusing my children. You must be so proud!”
m)The mother had attended with the father’s psychiatrist, Dr W, but said that the father became abusive towards her after it became apparent that he needed to give up smoking marijuana.
n)The father was often irritable with X and would snap at her.
o)Y had never stayed overnight with the father.
p)At present neither child participates in any extra-curricular activities, as the mother is required to work full time to support herself and the children, with the children attending before and after school care every day.
q)The father pays child support of $15.87 per fortnight, which is less than $3.97 per child per week. The mother, otherwise, fully financially supports the children from her own income and from borrowing money from her parents.
r)In relation to the mother’s attempts to arrange for Mr D to supervise the father’s time with the children, she said that Mr D appeared willing and able to do so, but advised her that he had not heard from the father in relation to arranging for that. The Court enquired of Mr Fowler and Ms Maitland as to whether Mr D or someone like him could be agreed to provide ongoing supervision. The Court accepts the mother’s and the Independent Children’s Lawyer’s submission that, given the elapse of time since the father has seen the children, there is a real need for an independent, experienced service to provide for such supervision, where notes can be taken as to how that time has progressed and for a professional assessment of how that time has progressed. This weighs in favour of the proposal for supervision of the father’s time as articulated by the Independent Children’s Lawyer.
s)Her wish to relocate to (omitted) with the children is timed so that the children are ready to commence school in (omitted) at the start of term 1, 2018.
t)She can no longer afford to live in Sydney, with her rent at $410.00 per week for a small 2-bedroom flat in (omitted). The children were obliged to share a bedroom with a shared laundry, shared garden area and very little storage space.
u)Between July 2015 and February 2017, as she was not working full-time, her monthly income was $2,686.33, which, together with her $1,400.00 per month from Centrelink, after deducting her rent of $1,776.67 per month, left her only $533.00 per week for all other expenses for the children. There have been occasions when her account had a negative balance in it, causing significant stress and an inability to meet basic obligations such as buying food. There have been weeks when the children and the mother have eaten rice and potatoes only.
v)On (omitted) 2017, she commenced full-time employment with (employer omitted), receiving approximately $4,800.00 per month, with no Centrelink payments. As she is working full-time, her childcare expenses have escalated with the children using both before and after school care
w)Her proposal to enrol the children in the (omitted) School in (omitted) and her investigations with that school, indicate that the school has music and creative writing programs which would benefit X. The Court accepts that it is likely that the children’s current school in (omitted) would have similar programs.
x)The mother says that (omitted) School is a smaller school with some 565 students, compared to (omitted) School which has some 649 students. The Court accepts that little turns on that difference.
y)Her parents live in (omitted), and have lived there for 9 years. They live on an 8 acre property just out of town, and there is a separate 2 bedroom residence on the farm in which she can live rent free. This separate residence has a number of separate living areas one of which can be converted into a third bedroom.
z)The children have visited their grandparents in (omitted) frequently since 2008.
aa)There are a number of extra-curricular activities available for the children in (omitted), including (activities omitted).
bb)The financial assistance provided by her parents, with the saving of rent and with part-time employment, would enable her to be more actively involved with the children.
cc)Her enquiries of the job market in (omitted), indicates she has ample opportunities in her field to obtain employment.
dd)Her mental health is likely to improve if she is given the opportunity of overcoming the financial strain that she currently experiences and is able to obtain the further assistance from her parents by way of emotional and logistic support.
ee)Her proposals for the father to spend time with the children are now as contemplated by the Independent Children’s Lawyer. She has investigated the costs of travel to (omitted) by air ($400.00 return), by coach ($100.00 to $165.00 return) and train service ($100.00 to $150.00 return). The mother says the same transport services are available between Sydney and (omitted).
ff)She has investigated the (omitted) Family Support Services Contact Centre and its availability to assist in supervised time with the father. The Independent Children’s Lawyer has also investigated that and has indicated that the Centre can provide reasonably flexible supervised time arrangements, provided appropriate notice is given (see Exhibit “ICL3”). Such flexibility would enable time to be spent on consecutive days, if the father was travelling from Sydney. The father may, given his current working commitments, be able to utilise that by direct travel from (omitted), rather than Sydney.
gg)She has investigated available accommodation for the father in (omitted) and (omitted), including caravan park accommodation and its costs.
hh)She is unable to communicate about any issues regarding the children with the father. The Independent Children’s Lawyer directed the Court’s attention to a consent order made on 7 December 2016 (see paragraph 5 above), which effectively restrained the father from directly communicating with the mother regarding parenting arrangements for the children. The Court accepts the Independent Children’s Lawyer’s submission that the mother has effectively, implemented all parenting decisions since the parties’ separation and certainly since March 2016, after which the father has spent no time with the children. The father is agreeable to an order that the children live with the mother. The Court is of the view that she should, in those circumstances, exercise sole parental responsibility. The Court has observed the parties’ interactions and is of the view that shared parental responsibility is not in the children’s best interests, as it is likely to cause these parties to become further conflicted. Further, the Court for the reasons referred to below is of the view that the application of the presumption as to equal shared parental responsibility has been negated and given the need to have the children enrolled in schools and other activities in light of her relocation proposal and the mother should be given that parental responsibility solely.
Maternal grandparents’ evidence
The maternal grandmother’s affidavit filed on 7 July 2017 deposes to her being 73 years of age and, otherwise, fit and healthy. She holds a current driver’s licence.
The maternal grandmother and her husband, Mr B, live on an 8 acre property on the outskirts of (omitted), where they have lived since (omitted) 2008. She describes the living arrangements on the property, which includes a self-contained flat, which they are prepared to make available rent free to the mother and the children, which would provide them with separate bedrooms.
The maternal grandmother would be able to provide the mother with a motor vehicle being a (omitted) Vehicle.
The maternal grandmother would be able to assist the mother in taking the children to their various activities and in looking after them before and after school and in the school holidays.
The services available on their property including solar electricity and hot water would be provided to the mother at no cost.
The maternal grandmother deposes to a close and loving connection with the children, having spent holiday time with them on a regular basis and having engaged with them in many enjoyable activities.
The maternal grandfather’s affidavit filed on 7 July 2017 deposes to him being 76 years of age and, otherwise, fit and healthy. He also holds a current driver’s licence.
The maternal grandfather supports his wife in her evidence and the mother’s proposal to move the children to (omitted).
Father’s evidence
The father says that the mother has deliberately denied any access to the children as a demonstration of her malice towards him and without any regard for their wellbeing.
The father denies being in breach of any orders.
The father says that moving the children to (omitted) would not be in their best interests, but only in the interests of the mother. He says that the expense of travelling for him would be totally unacceptable and not practical. The father says that if she can waste money on having lawyers, she can afford to live with the children in Sydney. The Court notes that during the conduct of these proceedings the mother has been at times self represented.
The father says that recently he has provided Child Support with appropriate details of his income and has provided approximately $300.00 each week in child support, with the exact value to be dependent upon his next Business Activity Statement to the Australian Taxation Office, due to be submitted in October 2017. The mother responded that she had received some 6 payments from the Child Support Agency since 25 July 2017 (being approximately 10 weeks) in odd amounts, with the lowest being about $23.80 and the highest about $574.20, with a total of $1,748.17, being approximately $175.00 per week during that period.
The father says that he has done a parenting course and several substance abuse tests. The father’s hair follicle test conducted by Dr J, was negative except for amphetamine.
The father says that during a mediation (although objection was taken to what was said at the mediation), the Independent Children’s Lawyer had chosen to call his general practitioner, Dr J a “cheat”, along with the company that facilitated the ordering of tests and the laboratory used. The father said this was not based on any evidence. Ms Maitland denied making such a statement and the father asserted from the bar table that he had a recording of the same. The mother did, however, report to Mr W her allegation that the father had taken illicit substances in the past with the general practitioner who had administered the hair follicle test and, therefore, questioned its validity. Mr W did not ask the father about that issue. The Court notes, however, that Dr J was aware of that issue on 11 July 2016, in his discussion with the father as to the “wife’s lawyer apparently insinuating that PT (patient) and I fudged his hair sample test”. The Court notes that nothing was obtained from Dr J in affidavit form filed on behalf of the father.
Family Report
Mr W provided a report, in terms of that dated 26 October 2016 (being Exhibit “Court 1”) (“the Family Report”). While the Independent Children’s Lawyer relied, specifically, on paragraphs 27 to 30, 54, 57 to 58, 60 to 72 and the recommendations at paragraphs 73 to 80, the entirety of the report is included in these reasons, as if fully set out herein. The Court notes that while it has had the benefit of the Family Report, at this interim hearing stage, the recommendations and the assumptions upon which it is based have not been tested.
The Family Report was not prepared with the mother’s current relocation to (omitted) in mind. Given that Mr W is no longer a family report writer employed by the Court, it is likely, therefore, that a further report will be required. The Court notes that this should be considered on the adjourned date.
Mr W referred, in the Family Report, to the interim orders made on 10 October 2015, which specified that the father was to undertake a hair follicle test for hair analysis of, but not limited to, testing of amphetamines, opiates and cocaine. Mr W records his understanding that the results of this hair follicle test were clear.
Mr W confirmed that the mother stated that she would like the children’s time with the father to eventually, be unsupervised, but that she was insistent that a phased process be undertaken, inclusive of the time, initially, being supervised and also being dependent on the father producing further clean drug results.
The mother described the obstacle to unsupervised time as being due to her concerns about the risks associated with the father’s alleged longstanding substance misuse problems with heroin, cannabis and prescription drugs. The mother said that she believes that the father’s substance misuse negatively impacts on his mental health and behaviour and affects his parenting capacity to the degree that she feels the children would be at risk of emotional harm in his care. She asserted that due to his substance misuse, the father’s behaviours were characterised by unpredictability, irritability, a preoccupation with drugs and, therefore, he was and, possibly still is, emotionally unavailable to the children.
The mother described the father as being friendly, charming, strong, but violent. She reported that the violence was, primarily, of an emotionally abusive and threatening nature and was exacerbated by his drug dependency and unstable mental health. The mother reported that the father’s alleged violent behaviours were, frequently, exhibited while the children were present.
The mother denied that she has ever been controlling with the father, although she acknowledged that she had been responsible for managing the parties’ finances and that she would budget a certain amount of money for the father to spend on a weekly basis. The mother said this was required because the father had, on one occasion, spent $3,000.00 on drugs.
The mother said that she did not believe that the father would ever physically harm X, but expressed concern about Y, due to his gender, particularly as the father, reportedly, held views about the need for boys to be “toughened up”. The validity of this latter statement was not verified with the father.
The mother reported as suffering from Post Traumatic Stress Disorder (“PTSD”), but was not currently receiving any professional support for her distress.
The mother said that she would like to be able to co-parent with the father in the future, but was uncertain about whether she could, effectively, communicate with him.
Notwithstanding her current application, she did not think that it would be in the children’s best interests to have no time with the father. The Court gives weight to the mother’s views in that regard.
The father presented as intelligent and strong-willed. Both the father’s parents and a sister are deceased and his other immediate family live in other parts of the world.
The father described his parenting strengths as being able to positively connect with both of the children and his capacity to encourage them and help in their education. He also described the mother’s parenting strengths as the loving, caring and nurturing relationship she has with the children.
The father expressed his displeasure about his need to see them in a supervised arrangement. He believed that the mother has been obstructive in failing to reach agreement about people who could supervise his time which he says, has hindered his capacity to develop his relationship with the children. In this regard, the Court notes that the mother had agreed to both Mr D and Mr G supervising the father’s time with the children and it appeared that it was the father who had failed to take up that supervised time. This weighs against the father’s proposal.
The father said that he had been subjected to family violence by the mother, primarily of a controlling nature and gave as an example, that she would limit his finances by providing only an allowance of $400.00 per fortnight.
The father conceded that he would throw objects around the house and had on one occasion, kicked a desk and chair and that this had been witnessed by X.
The father conceded that he had destroyed items within the mother’s (hobby omitted) studio.
The father conceded that he had assaulted his former boss.
The father reported that he had used drugs such as cocaine, ecstasy and LSD, in his teens and that he had also smoked cannabis at various stages in his life. He, however, denied a history of using heroin and asserted that the mother’s accusations about his drug use were: “completely fabricated”.
The father referred to the expensive cost of hair follicle testing and refused to complete any further drug screening.
The father too was concerned about the parties’ ability to co-parent and stated that he was not certain that he and the mother would ever be able to work together. The Court gives weight to the father’s view, in that regard, in support of the mother’s proposal as to parental responsibility.
The father did not believe that his time with the children should be supervised and said that he was, in any event, unable to afford supervision.
The father said that if he does not get the orders he wants, he is going to initiate a widespread international social media campaign against the Court and the Independent Children’s Lawyer involved in this matter. The father reported that he has recordings of interactions with the Independent Children’s Lawyer, which, he said, he would use as evidence to support these plans.
Both parties were observed with the children.
Neither parent expressed concern about X’s academic ability or her peer relationships.
X had some recollection of the parties arguing and of the father throwing objects.
X reported enjoying spending time with the father and that she would like to start seeing him again. She did not feel scared when with him.
Neither parent expressed concern about Y’s development or the relationships he has with his sister or peers.
Similarly, Y reported that he liked seeing the father.
At the end of the Family Report interviews, the father was observed to say goodbye to the children. He embraced Y, who pulled away from the exchange, whereas X seemed extremely pleased to be embracing the father.
The mother was observed to play in an engaged manner with X, with both of them smiling and laughing. Y continued to play on his own with limited interaction with the mother and X. When it was time for the children to leave, X followed the mother’s instructions and Y required some verbal prompts to follow the mother out of the childcare room.
While X was assessed to have a longing to spend more time with the father, she was not assessed to be of an age and stage of development in which she was able to appreciate risks or to protect herself and, therefore, her views were to be given limited weight. The Court accepts that view.
Y’s primary attachment was with the mother. His focus, primarily, appeared to be on independent play.
Mr W carried out an extensive review of various documents produced under subpoena, including the Police records which he said indicated that the father had at times behaved in a confrontational manner with Police officers, confirmed the father’s assault of his boss, referred to a number of domestic incidents between the parties and to the father’s scheduling under the Mental Health Act (NSW) 2007 in 2012.
Of particular relevance is Mr W’s examination of the notes of Dr O, Consultant Psychiatrist, Psychotherapist and Addiction Specialist, who the father had been referred to by Dr J. The father said that he had only seen Dr J for 10 minutes. The father’s email of 30 January 2016 to the Independent Children’s Lawyer said “20 minutes”. Dr O’s notes record that the father had been diagnosed with a mood disorder, anxiety disorder and Attention-Deficit Hyperactivity Disorder. Dr O's records note that the father had longstanding substance misuse problems starting from the age of 13 years when he was using crack cocaine, cannabis and heroin. Dr O's assessment in 2011 was that the father was dependent on cannabis and heroin. The father’s reported use of heroin at that time was a quarter gram intravenously injected every 2 to 3 days. Dr O concluded that the father was suffering from Polysubstance Dependence.
Mr W refers to the records produced from (omitted) Psychology Services, which indicated that the mother had seen a counsellor in 2007, following the birth of X, for Post-Natal Depression. The mother also sought professional support in 2011 to manage the stress associated with the father’s alleged mental health problems, including that the mother presented with concerns about the physical violence she had experienced in her marriage, the children’s exposure to physical violence and about the father’s use of illicit substances, including heroin and ice.
Mr W provides his evaluation that while it was important for the children to spend regular and consistent time with the father, the information available suggested that there were potentially significant risks for them in the father’s care. Despite the father’s own admission of past violent and aggressive behaviour, he seemed to have limited insight about the impact of his behaviour on himself or others, particularly on the children.
Mr W stated that while the results of the father’s recent clear hair follicle test may indicate that he has once again been able to abstain from using drugs, his apparent long standing use of drugs was still possibly a cause of concern for the children, particularly given that relapse was a common feature towards obtaining long term abstinence and that he was now refusing to undertake any further drug screening. This position of the father’s heavily weighs against his proposal and in favour of that of the mother and the Independent Children’s Lawyer.
Mr W was further concerned that the father had not been candid to him about the extent of his prior drug usage.
Mr W was further concerned that the father had not been candid to Dr S in February 2016, including about his being scheduled for mental health problems.
The father was particularly concerned as to why the Court would not adopt and accept the report of Dr S (Exhibit “1”). Clearly, as Mr Fowler submitted, Dr S’s report was limited as there were no interviews conducted with the mother, the children or any other party to the proceedings. The Doctor refers to the father reporting historic drug usage and denied any use of illicit substances for 9 years. That timing, as Mr Fowler submitted, was inconsistent with the report of Dr O, dated November 2011. Dr S had seen no records from Dr O. Of particular concern was that Dr S reports that the father was experiencing severe depression following the breakdown of his marriage, citing the disturbance to the relationship with his children as having the most detrimental impact on his wellbeing. While Dr S reports that the father had some concerns about the mother’s parenting of the children, it should be noted that he does not seek to disturb a live-with order in her favour. Dr S records that the father has experienced difficulties in managing his anger. This supports the anger management order as sought by the mother and the Independent Children’s Lawyer. Dr S also records that Dr J noted that the current Court action was greatly increasing the father’s stress levels and was a major contributing factor to his current inability to work. The Court notes that the father is now working on a contract basis. Dr J was of the view that the father’s numerous physical and psychological effects, due to his stress were contributing to an inability to perform his normal work duties, including heavy sweating, feverish episodes, inability to concentrate, inability to remember things and fatigue.
Mr W was of the view that the father should provide to the Court information as to how he has been able to manage his mental health problems and how he will continue to do so and, further, as to how he has achieved his drug abstinence as he asserts. The Court accepts that these matters weigh in favour of some ongoing testing of the father and for the provision of a psychiatric/psychological report. Further, the Court is of the view that there is a need for the father, if he does not have a treating psychologist or psychiatrist that he attend upon a General Practitioner to obtain a mental health plan and/or referral to either a clinical psychologist or psychiatrist or counsellor for the purpose of anger management counselling and for a requirement that he attend to effect some form of counselling and to follow the reasonable directions of such a counsellor. Further, the father should notify the Independent Children’s Lawyer within 7 days of the name, address and phone number of his treating psychiatrist, clinical psychologist or counsellor with the Independent Children’s Lawyer given leave to provide those persons with a copy of the Family Report of Mr W.
Mr W was concerned that if the father was drug-free, then that was positive, but if he was not, his dishonesty and denial would potentially expose the children to risks. This position supported some ongoing testing of the father in terms of that proposed by the mother and the Independent Children’s Lawyer.
Mr W was of the view, given that both parents raised questions about their capacity to exercise equal shared parental responsibility and, to date, they were yet to show any capacity to make joint decisions for the children and given the allegations of family violence and the other concerns identified in his report that equal shared parental responsibility is likely to be problematic. Therefore, an order for sole parental responsibility to the mother might require consideration. The Court gives this view significant weight in support of the mother’s application for interim sole parental responsibility.
Mr W was of the view that supervised time should continue until the father is in a position to reassure the Court that the risks that have been outlined in his report no longer remain. The Court accepts that recommendation which weighs in favour of the mother’s and Independent Children’s Lawyer’s proposal. In the event that the father is able to provide such reassurance to the Court, then day time only would initially be suggested. To date, Y has not spent overnight time with the father post-separation and X has not done so since 2014. Therefore, regular and consistent day time would be required prior to the introduction of overnight time.
The father reports that he currently lives in a share house, therefore, the suitability of this accommodation would need to be canvassed by the Court before any overnight time could be considered in Sydney. There is no information before the Court relevant to the availability of supervisors for the father in (omitted)/(omitted) outside that of the Contact Centre proposed by the mother and the Independent Children’s Lawyer.
Mr W opines that from the information available there are potentially significant risks for the children in their father’s care. Mr W proposes that to balance the need of the children to develop a meaningful relationship with the father with the need to ensure that they are safe and secure requires that, in the interim, there be supervised time. The Court accepts that position.
Additional considerations
The Court refers to the decision of Banks & Banks [2015] FamCAFC 36 and in light of that decision will focus on the s.60CC factors that are plainly relevant to the determination that the parties ask the Court to make on this interim decision.
In this matter, the Court will focus on the following s.60CC factors.
(a) any views expressed by the child and any factors (such as the child's maturity or level of understanding) that the court thinks are relevant to the weight it should give to the child's views;
In R & R: Children’s Wishes (2000) FLC 93-000, the Full Court of the Family Court of Australia said:
There are many factors that may go to the weight that should be given to the wishes of the children and these will vary from case to case and it is undesirable and indeed impossible to catalogue or confine them in the manner suggested. Ultimately it is a process of intuitive syntheses on the part of any trial judge weighing up all the evidence relevant to the wishes of the children and applying it in a common sense way as one of the factors in the overall assessment of the children’s best interests.
The mother submits that there is no objective evidence of the children’s views in relation to (omitted) as a relocation destination.
The Court notes that the mother herself reported that the children enjoy spending time with the father.
Considering the age and maturity level of the children, the Court accepts Mr W’s observation that while X would like to spend more time with the father, she was not assessed to be at an age and stage of development where she was able to appreciate risks or to protect herself and, therefore, that view could only be given very limited weight.
(b) the nature of the relationship of the child with: (i) each of the child's parents; and (ii) other persons (including any grandparent or other relative of the child);
When the parties separated, X was aged 4 years and Y was aged 3 months.
The mother says that the children have spent limited time with the father since separation and that Y does not know his father at all, while X remembers her father, but was always a little scared of him. Mr W’s observations of the interactions between the father and the children support a view that the father does have some relationship with them and that they enjoy spending time with him.
The mother says that the children have a strong and loving relationship with the maternal grandparents. The Independent Children’s Lawyer submitted that when she spoke to the children about their grandparents, they were positive and effusive about them and reported that they enjoyed visiting them in (omitted).
The mother refers to staying with her grandmother when the parties separated in 2011, in (omitted), for 6 weeks. There was no evidence as to this great grandmother’s relationship with the children.
The Court accepts that the mother has a close and loving relationship with the children. The mother has been primarily responsible for attending to all of their needs since their births and they have lived with her since the parties’ separation. This weighs in favour of the mother’s proposal.
The Court accepts the Independent Children’s Lawyer’s submission that, given that Y has not seen the father since he was 4½ years old he would require a period of reintroduction to him.
The mother reported to Mr W that the father’s strength as a parent was his love for the children.
The father concedes that the children should live with the mother.
The father’s parents and sister are deceased and the balance of his family reside overseas.
(c) the extent to which each of the child’s parents has taken, or failed to take, the opportunity: (i) to participate in making decisions about major long-term issues in relation to the child; and (ii) to spend time with the child; and (iii) to communicate with the child;
The Independent Children’s Lawyer submitted that it was up to the father to provide some evidence in terms of that referred to by Mr W, that he had attended to the identified mental health issues and that they were being adequately treated. If the father failed to take that up, then it was necessary for the father to have supervised time with the children as the appropriate mechanism to ensure their safety. The Court gives this weight in support of the mother’s and the Independent Children’s Lawyer’s proposal.
The mother said that the father has not availed himself of time available for him to spend with the children pursuant to previous interim orders, including the orders of the 7 December, 2016. Those orders provided for the children to spend time with the father supervised by Mr D. Previous orders provided for supervised time with Mr G. The father’s evidence is silent as to what steps he took to engage with either of those persons but, particularly Mr D, to implement supervised time. That weighs heavily against the father’s proposal.
(ca) the extent to which each of the child’s parents has fulfilled, or failed to fulfil, the parent’s obligations to maintain the child;
The mother stated in her affidavit of 4 July 2017 that the father pays child support in the sum of $15.87 per fortnight and as at 6 April 2017 the father had the sum of $80.49 outstanding (after a payment of $723.65 made on 21 September 2016).
The mother said that the father had failed to provide a proper level of financial support for the mother to assist with the children’s maintenance expenses. The mother supports the children from her employment income and money provided by her parents.
The father says that he has recently increased payments for child support as referred to in paragraph 46, above. The Court accepts that for a substantial period, the father had difficulty obtaining employment and that the mother has been the parent who has substantially borne the costs of maintaining the children.
The father at various points in time maintained that he was unable to afford the costs of supervision. The father’s latest position was that he was employed on a contractual basis 5 days a week in (omitted). The Court is of the view that it is likely that that employment will give him some resources to meet the costs of supervision.
(d) the likely effect of any changes in the child's circumstances, including the likely effect on the child of any separation from: (i) either of his or her parents; or (ii) any other child, or other person (including any grandparent or other relative of the child), with whom he or she has been living;
The mother’s proposal would see a change in the children’s residence and school. The mother seeks to implement that change so that their schooling year in 2017 is not affected. Y would start a new school in year 1 and X will start year 6 in 2018. For X that will involve some adjustment and the need to make friends in her final year of her primary school education. This supports the counselling order as sought in X’s favour. The Court will also grant leave to the Independent Children’s Lawyer to provide a copy of these orders to the children’s school and to X’s counsellor.
The children have lived with the mother since the parties’ separation and have not spent any time, nor communicated with, the father since March 2016.
The mother submitted that the effect of the proposed relocation will be to the children’s benefit and that it would not reduce time between them and the father as he has not spent time with the children since March 2016, although orders have been in place to allow for time. The Court accepts that and gives this weight in terms of the mother’s relocation proposal.
The mother puts a proposal for time to be spent by the children with the father following relocation. If the father takes that time there will be an increase in the time the children spend with the father from the current position and again, weight is attached to that.
The Independent Children’s Lawyer submitted that the proposed orders allow for the father to spend time with the children at a contact centre in (omitted), which can be flexible about their scheduling. For instance, the contact centre is able to facilitate 2 visits within 2 days when the father is in the (omitted) area, perhaps more with negotiation between the Centre and the father. The father appears to have made no enquiries about this, simply asserting that it should not happen.
The father submits that the relocation is solely for the benefit of the mother and not the children. This to an extent fails to take into account the mother seeking to relocate to alleviate financial pressures for her, so that she can better parent the children. The Court accepts that, even on the father’s own evidence, circumstances have prevented him from making any appropriate contribution to their support.
The Court has to weigh carefully the father’s position with respect to earlier interim orders which provided for supervision when considering whether time should now be spent unsupervised, as sought by him. Some weight would need to be given as a reflection of a concession by the father that supervision was in the children’s best interests and while not specifically excluded on a Rice & Asplund threshold given the interim nature of the orders made, an investigation as to what had changed may be considered important. Although such concession may have been noted as made to obtain spend time orders in circumstances where the Court had insufficient time to deal with an application for unsupervised time in its busy duty lists: Salah & Salah [2016] FamCAFC 100. However, notwithstanding that supervised time orders having been made, they have not substantially been implemented by the father. This seems to be based on his view that he does not need supervision. Whilst this is an interim decision, the Court notes that it would greatly assist the father’s case if he was to take up supervised time until he is able to establish the matters identified by Mr W in the Family Report. If there is no agreement between the parties, those are the identified matters that the Court would need to deal with on a final hearing. Given the father’s position to date and the risk factors identified for the children, the Court is of the view that the father’s time will need to be supervised.
(e) the practical difficulty and expense of a child spending time with and communicating with a parent and whether that difficulty or expense will substantially affect the child's right to maintain personal relations and direct contact with both parents on a regular basis;
The mother reports that she is currently working 2 jobs and while noting that both positions have flexible working hours, this still requires the children to attend both before and after-school care and the mother advises that this is particularly tiring for Y. This issue has the potential to be removed if the mother’s relocation is permitted.
The mother is currently paying rent for her flat in (omitted) at $410.00 per week. The relocation to her parents’ property in (omitted) will mean that this ongoing expense will be removed as well as the costs of before and after school care given that her parents can provide some assistance in that regard. That will enable the mother to fund extra-curricular activities for the children which she says she cannot currently fund. This weighs in favour of the mother’s proposal given the father’s previous lack of financial support for the children.
The mother said that (omitted) is a 6 to 8 hour drive from Sydney, however, other transport options are available including flights, train and bus. The mother sets out these options and her proposal for time in paragraphs 81 to 86 of her affidavit. The Court accepts the Independent Children’s Lawyer’s submission that the mother has researched these options so as to assist the father in spend time arrangements following any relocation. The father has not, relevantly, made any enquiries of his own, nor does he dispute the outcome of the mother’s enquiries.
The Independent Children’s Lawyer submitted that various documents identified that the father was in fact working/living in the (omitted) area (Exhibit “ICL4”, being an Express Post tracking record) and had been since March 2017. The father confirmed orally that that was the case, in that he was working in the (omitted) area on a weekly basis, for what he described as a “short term contract”. However, that contract appears to have been extended and the father is still working in that area at present. That is, the father has been working there for at least 6 months. The Independent Children’s Lawyer says that in those circumstances, the travel time between (omitted) and (omitted)/(omitted) is substantially less being 3 hours, compared to that between Sydney and (omitted)/(omitted) (6 to 8 hours), which would potentially assist the father to spend time with the children in (omitted).
The Independent Children’s Lawyer submitted that, while the mother’s relocation with the children to (omitted) has the potential to make it more difficult for the father to spend time with the children, steps have been taken to best mitigate this and these are contemplated in the proposed orders. The Court accepts the Independent Children’s Lawyer’s submission in that regard.
(f) the capacity of: (i) each of the child's parents; and (ii) any other person (including any grandparent or other relative of the child); to provide for the needs of the child, including emotional and intellectual needs;
The mother reported to Mr W that she wanted the children to have regular time with the father and that she would like to reach a point when it could be unsupervised. However, she described the obstacles to that in paragraph 34 above.
The mother said that the father lacks the capacity to properly care for the children, both physically and psychologically, as he has exposed the children to violence and aggression. Mr W says that the father has limited insight about the impact of his behaviour on others including the children.
The mother says that the father rarely assisted her with the care of the children before separation and has spent limited time with them since separation.
The mother says that she suffers from PTSD as a result of the father’s violence towards her during the relationship. The father denied the mother’s assertion to the extent of any violence.
The mother has a proven capacity to provide for the needs of the children. The Court accepts that the children are meeting their milestones. This view weighs in favour of the Independent Children’s Lawyer and the mother’s proposal.
The Court is very concerned as to the father’s current capacity to care for the children. The Court has had regard to the evidence from documents produced under subpoena by (omitted) Medical Centre, namely that between 19 February 2015 and 5 June 2017, there were 17 occasions on which the father requested that Dr J either provide a replacement or additional script for Dexamphetamine or Rivotril, or authorise the provision of a supply of Dexamphetamine in advance, due to either the father having lost or misplaced his scripts, his Dexamphetamine supplies having been misplaced or stolen or the father going away for an extended period of time. Dr J’s notes (“M9” in Exhibit “A”) record that the father had lost his repeat scripts when they fell overboard from a boating incident in (omitted) 2016. He also records that the father had left his Dexamphetamine with a friend with whom he went (activity omitted) in (omitted) 2017. Dr J rang the pharmacy at (omitted), which indicated that they would “keep an eye on things closely”. This matter requires further investigation and clarification, potentially, by way of some expertise from Dr J.
The Court is also concerned as to what information the father has failed to provide the various doctors in their treatment of him. The Court notes the mother’s concerns that the father had not reported matters to Dr W about his drug use. Similarly, it would appear that the father has not reported to Dr S the facts of any drug use or provided a full and comprehensive history. While the father denies having recently used illegal substances, the Court notes that the father saw Dr O, who recorded an extensive history of drug use, inconsistent with that reported by the father to Dr S. The father disputed Dr O’s involvement, stating that he only saw the doctor for 10 minutes and in terms of seeking information about drug users generally. The father did not provide any affidavit evidence from Dr O, in terms of his version. The referral to Dr O from Dr J dated 16 November 2011 (Exhibit “C”) is ambiguous as to its purpose. The notes of Dr O are, however, reasonably extensive and inconsistent with a 10 to 20 minute interview. They are clearly directed and record the father’s substance abuse. The notes form the basis for “M11” in Exhibit “A”, which is Dr O’s report to Dr J. That report notes that, while the father appeared restless and uncomfortable, there was no evidence of abnormality of thought or perception and that he had good insight into his condition. It, nevertheless, concluded that the father suffered from polysubstance dependence with underlying mental disorders which, in the presence of severe substance disorders, were difficult to determine. The treatment of choice was noted as residential detox. The father had indicated that he could not tolerate that at present. Dr O was, therefore, hopeful to see him with his wife (the mother herein) to organise a more closely supervised home detox from heroin. This did not occur. Of particular note is that Dr O reports that while the father is currently seeing a psychiatrist, the father reported that that psychiatrist was unaware that he was dependent on cannabis and heroin. That version was entirely consistent with what the mother said was her understanding as to what the father had failed to report to medical practitioners. This uncertainty as to the father’s medical position again weighs in favour of supervised time for the children pending a further investigation as to those matters.
(g) the maturity, sex, lifestyle and background (including lifestyle, culture and traditions) of the child and of either of the child's parents, and any other characteristics of the child that the court thinks are relevant.
The Court notes that the father was born in (country omitted) and is of (nationality omitted) origins and the mother is Anglo-Australian.
The Court notes and gives weight to the Independent Children’s Lawyer’s submission that in relation to Y, her enquiries with his school indicate that he is somewhat overtired, given his young age and that he is attending both before and after school care, due to the mother’s work commitments. The mother says that her relocation to (omitted), with the assistance of her parents, will alleviate this issue for Y. This weighs in favour of the Independent Children’s Lawyers and the mother’s proposal.
The Court also gives weight to the Independent Children’s Lawyers and the mother’s proposal for X to obtain counselling as recommended by Mr W upon any relocation to (omitted). Such counselling to be confidential with neither party permitted to subpoena the notes of any counsellor and the father being restrained from contacting the counsellor unless the counsellor elects to contact him. The Independent Children’s Lawyer is to be granted leave to provide a copy of Mr W's Family Report and to speak to the counsellor about the said counselling. The Court will make orders directed to the mother, as promoted by her, to make arrangements to effect that counselling.
(h) if the child is an Aboriginal child or a Torres Strait Islander child: (i) the child's right to enjoy his or her Aboriginal or Torres Strait Islander culture (including the right to enjoy that culture with other people who share that culture); and (ii) the likely impact any proposed parenting order under this Part will have on that right;
These factors do not apply to these children.
(i) the attitude to the child, and to the responsibilities of parenthood, demonstrated by each of the child's parents;
The mother said that the father has not demonstrated an appropriate attitude to the children and his responsibilities as a parent.
The father said that the mother has raised issues of violence, drug usage and mental health issues designed to require him to spend supervised time with the children, which he does not believe he needs. As a result, he has not spent time with the children since March 2016.
The Court has made various interim orders designed to promote a meaningful relationship between the children and the father in a supervised environment. The father, initially, reported that he wanted to take up that time, if he could afford to do so. The father is now employed and has taken a different position, namely, that he does not wish to have supervised time. The father’s attitude is not reflective of appropriate parenting or being particularly child focused. It is focused on what he believes is appropriate for him and not the children.
(j) any family violence involving the child or a member of the child's family;
The mother said the father had perpetrated family violence towards her and, at times, the children have been exposed to it. The father has admitted incidents in the past of violent and aggressive behaviour to Mr W. This matter weighs in favour of the mother’s proposal.
(k) if a family violence order applies, or has applied, (be it final, interim, contested or consented to) to the child or a member of the child’s family-any relevant inferences that can be drawn from the order, taking into account the following: (i) the nature of the order; (ii) the circumstances in which the order was made; (iii) any evidence admitted in proceedings for the order; (iv) any findings made by the court in, or in proceedings for, the order; (v) any other relevant matter;
The mother and the children were named as the protected persons in a final ADVO made on 12 March 2012 for a period of 2 years.
A further final ADVO was made with the mother (only) named as the protected person on 21 July 2014, for a period of 12 months.
The father has also been charged with and pleaded guilty to charges of assaulting his employer and damaging the mother’s property.
There is no current ADVO in place.
(l) whether it would be preferable to make the order that would be least likely to lead to the institution of further proceedings in relation to the child;
These current Court proceedings have been ongoing since 2014.
The Court finds that, as this is an interim hearing, this factor must be assessed in this light. The Court notes that the mother proposes a relocation on an interim basis. Whilst it is preferable to deal with relocation cases on a final basis, the mother is entitled to seek to relocate before the final hearing.
(m) any other fact or circumstance that the court thinks is relevant;
There are no other matters relevant to the Court’s determination under this factor.
Live with
There is no issue that the children will live with the mother. The father’s proposal contemplated that and, accordingly, an order can be made by consent to implement that agreement.
Relocation
The determination of the “live with” order is not determinative of the relocation issue.
The mother submits as follows:
a)The Act does not treat relocation cases as a special category of parenting orders: Morgan & Miles [2007] FamCA 1230.
b)The core principle in parenting cases, including relocation, is the “paramountcy principle” found in s.60CA of the Act. That is, a Court must regard the best interests of the child as the paramount, but not the sole, consideration. The legitimate interests of parents are not irrelevant, simply subservient: AMS & AIF (1999) 199 CLR 160; Sayer & Radcliffe [2012] FamCAFC 209.
c)A requirement in relocation cases is that judges must consider the competing proposals of both parties: Morgan & Miles [2007] FamCA 1230.
d)The Court must consider the competing proposals of the parties against the criteria in s.60CC informed by s.60B of the Act: Morgan & Miles [2007] FamCA 1230.
e)The Court is required to consider s.60CC, s.61D and s.65DAA in dealing with all interim applications for parenting orders including applications involving relocation: Morgan & Miles [2007] FamCA 1230; Goode and Goode [2006] FamCA 1346.
f)In many relocation cases what is relevant is the consequence of the move. The issues to be determined may be quite different for an infant or toddler developing attachments to those of older children: Morgan & Miles [2007] FamCA 1230.
The asserted advantages of the mother’s proposal are:
a)She will be able to source much more economical accommodation, in terms of moving onto her parents’ property.
b)She will be able to obtain the benefit of her parents’ assistance in her parenting of the children, including assisting with before and after school and holiday care and in implementing travel arrangements, as well as in providing her with emotional support.
c)She will be able to source extra-curricular activities for the children.
d)The proposed school for the children is smaller than their current school. The Court does not give this significant weight.
e)The mother will have more time available to her to parent the children, given that she is currently working 2 jobs to fund living in Sydney.
The Court accepts that the mother’s relocation proposal is genuinely maintained by her and has the advantages referred to in paragraph 185 above.
The asserted disadvantage of the mother’s proposal is that she will be further away from the father, which may impact on him spending time with the children. At present, he has not spent any time with them since March 2016, notwithstanding that he had the ability of doing so in a supervised environment. The Independent Children’s Lawyer and the mother’s proposal allows for supervised spend time for the father until she is to move to (omitted) and then provides for supervised time at the nearest supervised contact centre in (omitted). The father is currently working in (omitted) and, at least, has some ability to source contract jobs in that area. The father has filed no evidence as to his inability to source contract (omitted) jobs in an area closer to (omitted)/(omitted). This weighs against the father’s proposal.
The Court is of the view that the identified disadvantage of the mother’s proposal does not outweigh the advantages and, accordingly, the Court is of the view that her proposal should be allowed.
Time
Given that the presumption is not applied, the issue of the father spending time with the children must be determined in accordance with their best interests.
The Court has considered the following factors:
a)The parties’ inability to communicate;
b)The father’s lack of respect for the mother’s parenting capacity;
c)The parties’ different approaches to parenting;
d)The mother’s historical role as primary caregiver; and
e)The unresolved (in terms of the lack of evidence going to) issues concerning the father’s historic drug use and mental health issues.
The basis for a supervision order was described by Carmody J at paragraph 58 in Murphy & Murphy [2007] FamCA 795 as follows:
Time with a dangerous or deficient parent may have to be regulated by the court for the child’s own protection but only to the extent necessary to avert or manage perceived risks while at the same time supporting worthwhile parent-child relationships. This may involve reducing the amount or nominating the place of contact eg, limited day time only supervised at a contact centre or by a designated person.
For the reasons set out above, the father’s time with the children will need to be supervised. The Court accepts the mother’s and the Independent Children’s Lawyer’s proposal for the arrangements for that supervision of the father’s time. The time itself must be reflective of that which can be realistically and practically accommodated by the relevant supervision centre. The father proposes no other arrangements for supervision, nor for the payment of any costs of supervision. Therefore, the Court will order the parties to do all things to enable supervision of the father’s time to occur in the terms agreed to by the mother and the Independent Children’s Lawyer. The Court will make the consequential orders sought by the Independent Children’s Lawyer and the mother to implement that supervised spend time arrangement including requiring the father to make appropriate bookings and to confirm proposed visits within the times stipulated, otherwise, such visits would be suspended. This position is further strengthened by the father’s present attitude regarding his need for supervision and his failure to take that up including with the parties agreed supervisor, as referred to in earlier interim orders.
The Court is further of the view that the time arrangements promoted by the mother and the Independent Children’s Lawyer in both Sydney and (omitted) are in the best interests of the children and should be ordered. The Court is not of the view that the father should, at this stage, have video conference time with the children until they have had the ability to settle in (omitted). That is a matter the Court may consider at the adjourned date, on the basis that the father has engaged with the orders made herein.
Previous interim orders should be discharged. Consequential orders to ensure the parties are informed of each other’s mobile phone number and email address should be made. Further, orders as promoted by the mother and the Independent Children’s Lawyer in terms of providing irrevocable authorities to ensure any school the children may attend from time to time forward the father with copies of school reports and merit cards, should be made to ensure the father is updated as to the children’s progress.
Conclusion
Finally, the Court must have regard to all the matters set out in s.60CC of the Act, to consider how together, they should give effect to either or both of the primary considerations in determining the children’s best interests.
The Court is satisfied on balance, having considered and weighed the primary and additional considerations referred to above, that the orders set out above at the commencement of these reasons, are in the children’s best interests and, accordingly, will so order.
The Court will give the matter a further mention date. At that time, the Court would wish to consider having a further family report prepared, dealing with the relevant issues following the mother’s relocation of the children. The father would then have the opportunity of putting before the Court the evidence referred to by Mr W and for the father’s time in the interim to be supervised with a relevant supervisor’s notes available for the Court to assess as to how that time has progressed.
I certify that the preceding one hundred and ninety-seven (197) paragraphs are a true copy of the reasons for judgment of Judge Kemp
Date: 3 November 2017
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Family Law
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