Keith and Anor and Hall and Anor - [2011] FMCAfam 469

FEDERAL MAGISTRATES COURT OF AUSTRALIA

KEITH & ANOR & HALL & ANOR

[2011] FMCAfam 469

FAMILY LAW – Competing parenting applications between mother, father and paternal grandparents – interim relocation.

Family Law Act 1975, s.60CC

Goode & Goode (2006) FLC 93-286
Morgan & Miles (2007) FamCA 1230

First Applicant:

MS J KEITH

Second Applicant:

MR K KEITH

First Respondent:

MS HALL

Second Respondent:

MR L KEITH

File Number:

WOC 930 of 2010

Judgment of:

Altobelli FM

Hearing date:

7 April 2011

Date of Last Submission:

7 April 2011

Delivered at:

Sydney

Delivered on:

11 April 2011

REPRESENTATION

Solicitors for the Applicants:

Mr Cumming

Solicitors for the first Respondent:

Ms McCrohon

Solicitors for the second Respondent:

Ms Matyear

Solicitors for the Independent Children’s Lawyer:

Ms Yousef

ORDERS

THE COURT ORDERS PENDING FURTHER ORDER THAT:

The Children [X], born [in] 2006, and [Y], born [in] 2008, live with the Mother.
The Mother be restrained from relocating the Children out of the [W] area pending Final Hearing.
The Father’s contact with the Children is to take place at [C] Contact Centre.
Each party must
(a)contact [C] within 7 days and arrange an appointment for assessment for suitability for supervised of time a child spends with a parent;
(b)attend the assessment;
(c)comply with all reasonable rules of the Contact Service; and
(d)comply with all reasonable requests or directions of the staff of the Contact Service
If after the assessment intake procedure the contact service is unable or unwilling to provide supervised of time a child spends with a parent in accordance with a parenting order then each party and the independent children’s lawyer has leave to restore the matter on 7 days notice to the other party and the court.
Commencing Wednesday 20 April 2011, the Grandparents are to spend time with children as follows:
(a)For 3 weeks from 10am until 12 noon
(b)For 3 weeks from 10am until 2pm
(c)Thereafter from 10am until 3pm.
The Father is not to be present during any time the Children spend with the Grandparents.
Changeover is to be at:
(a)An agreed place; or failing agreement
(b)At a neutral public venue, geographically proximate to the home of the Mother, as nominated by the Independent Children’s Lawyer.
The parties be restrained from:
(a)Speaking or permitting any other person to speak to or about the other parent or their family in a negative, offensive or unpleasant fashion in the child/ren’s hearing.
(b)Discussing any proceedings between the parents or the parental relationship in the presence or hearing of the children or permitting any other person to do so.
That within 24 hours of the date of this order, the Mother and Father forthwith attend upon on a General Practitioner to obtain a referral to a reputable pathologist in the local area for the purpose of undertaking supervised urinalysis to be conducted in accordance with the Australian/New Zealand Standard 4308:2001: “Procedures for the specimen collection and the detection and quantitation of drugs of abuse in urine” to test for the presence of: illegal drugs and/or substances; amphetamines, cannabis or cocaine.
That the Mother and Father undergo such supervised urinalysis on occasions as requested by the Independent Children’s Lawyer, such requests to be:
(a)made in writing; and
(b)with a frequency no greater than one test in every 2 week period.
Any test so requested must:
(a)be completed within 24 hours of receipt of the relevant party or his or her solicitor of such a request;
(b)be verified by a Certificate which includes a temperature endorsement;
(c)be carried out at the relevant party’s cost, except in the event of a positive confirmatory test where the relevant will be responsible for the costs.
A copy of any Certificate issued consequent upon a test so requested shall be provided to the solicitors for the relevant party within 48 hours of receipt of the Certificate by the person undergoing the test.
Each party do all things necessary to authorize the results of such testing to be made available to the Independent Children’s Lawyer.

THE COURT FURTHER ORDERS THAT:

Leave be granted to the Independent Children’s Lawyer to file a minute of order in Chambers appointing at Pt 15 Expert or a Family Report.
The matter be set down for 3 day Final Hearing on 27, 28 and 29 June 2011 at 10am in Sydney.
The parties file and serve any further material on which they seek to rely no later than 4pm on June 17 2011.
The Applicant is to comply with the payment of any setting down and/or daily hearing fee in accordance with the Federal Magistrates Court Regulations 2000 or as otherwise directed by the Registry Manager by the date of filing of further material.
No later than two (2) working days prior to hearing each party forward to my Associate a document setting out:
(a)The affidavits on which each party will rely at hearing; and
(b)The Orders sought at hearing.
Leave be given to the Independent Children’s Lawyer to file a minute of order in chambers either appointing a Pt 15 Expert or for the preparation of a Family Report.
Leave be given to the parties to relist the matter on 72 hours notice.

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

FEDERAL MAGISTRATES
COURT OF AUSTRALIA
AT SYDNEY

WOC 930 of 2010

MS J KEITH

First Applicant

MR K KEITH

Second Applicant

And

MS HALL

First Respondent

MR L KEITH

Second Respondent

REASONS FOR JUDGMENT

I provide the following oral reasons for judgment in this matter of Keith. [X] is five years old. [Y] is three years old. They currently reside with their mother, who is the first respondent in these proceedings, and she is 28 years old. The applicants are, in effect, the paternal grandparents, and they are aged respectively 67 and 54, and the other respondent is the children’s father. He is 32. All parties currently live in [W]. This case is about, firstly, whether the mother should be allowed to relocate with the children to Queensland and, secondly, whether, and if so, how the children should spend time with their father and the grandparents.
The mother and father separated in about December 2008 when [X] was nearly three and [Y] was nearly one. The father had been in gaol in 2008 and, it appears, again in 2010. Up until September 2009, the grandparents were involved in the care of the children. The father has not spent time with them since January 2010 and the grandparents no time since September 2009. Since separation, the mother had been in Queensland but is now back in [W].
The competing proposals are as follows:
Firstly, the applicant grandparents’ proposal is contained in their application filed 24 December 2010, and in short, they seek to spend time with the children from 10 to 3 each Wednesday and then from Friday to Sunday on the first such weekend of each calendar month. The mother’s proposal is contained in her amended response. She seeks permission to relocate with the children to Queensland and that the children spend time with the grandparents as agreed. She also seeks sole parental responsibility and that the father be restrained from spending any time with the children pending further order of the Court. The mother’s proposal articulated during the hearing is that if relocation is not allowed, then the grandparents’ contact with the children would be supervised by the mother or by her sister. The father’s proposal is contained in his response filed 28 February, and he seeks time on the same basis as the grandparents.
The evidence before me consisted of the affidavits of the respective parties. There is a child dispute conference memorandum, and there is a substantial quantity of subpoenaed documents to which I will make reference. The documents produced by Corrective Services became exhibit ICL1, documents produced by Department of Human Services ICL2, New South Wales Police was ICL3, the father’s treating doctor ICL4, and I have made the child dispute conference memorandum ICL5.
The applicable law in these applications is contained in the Full Court’s decision in Goode & Goode (2006) FLC 93-286, and I incorporate into these oral reasons a number of paragraphs from that decision, including paragraph 82, paragraph 68 and paragraph 72. The law about interim relocations is contained in the Full Court’s decision of Morgan & Miles (2007) FamCA 1230, and I incorporate into these oral reasons a number of paragraphs from the judgment of Boland J, specifically paragraph 27 and paragraph 88 of her Honour’s reasons for judgment. Of course, this application is governed by Part VII of the Family Law Act.
There is little common ground or uncontested facts that emerge from the evidence and the submissions before me. For example, up until September 2009, it seems clear on everybody’s case that the grandparents were involved in the lives of the children, but especially [X]. It also seems common ground that the mother has been the primary carer for the children since separation in December 2008.
There is a separate category of facts that I will describe as uncontestable facts. These are facts that emerge from the evidence either by way of admissions or concessions or, alternatively, facts that emerge from the subpoenaed documents which by their very nature are in a category where they are hard to contest in the context of an interim hearing.
I think the first set of uncontestable facts emerges from exhibit ICL5, the child dispute conference memorandum, and the relevant facts there are that the mother has a good relationship with the paternal grandmother, that [X] has spent regular time with the grandparents and has had an affinity with them up until September 2009, also that [Y]’s relationship with the grandparents is not on the same level as [X].
In the memorandum, the father acknowledges that the children’s time with him since January 2010 is limited, and, in fact, I think the evidence indicates there has been no such time. The father acknowledges in the memorandum that the children would not know him. The memorandum records that the father is angry and resentful about the lack of contact, though I make the observation that, curiously, he makes no application to the Court before the grandparents’ application, and the memorandum records the father’s strong views as to his rights as a father.
The second set of uncontestable facts is as follows:
There is an inconsistency in the father’s evidence about his drug use. For example, his affidavit of 28 February 2011 asserts that he is drug free. His solicitor submitted to me, presumably on instructions, that he has been drug free for 12 months. However, the Corrective Services records indicate that on 29 September 2010 that the father admitted that he had taken amphetamines within the last three months and cannabis within the last three weeks.
Another set of uncontestable facts arises in the inconsistency in the father’s evidence about his involvement with the police. For example, at paragraph 8 of his affidavit of 28 February, there is an assertion by the father that he has had no trouble with the police for 14 months. However, the New South Wales Police records indicate that on 7 July 2010, the father appeared in [omitted] Local Court on three charges: goods in custody, stalk and intimidation, and contravened AVO. This resulted in convictions in January this year in which he was sentenced to 12 months imprisonment but suspended.
The fourth category of uncontested facts arises in the inconsistency between the father’s denials of family violence towards the mother and stalking the mother, which is contained in his affidavit of 6 April 2011 when compared to documents produced in Court by both the New South Wales Police Service and Department of Corrective Services. These documents indicate that the father has in fact been convicted of stalking the mother and of breach AVO.
Let me outline the cases that have been presented. The grandparents’ case is, in effect, that they were involved in the lives of the children up until September 2009, especially [X]. The fact of the inability to continue that relationship with the children was not a matter attributable to them, they say, but to the mother. Interestingly, even the mother acknowledges the strength of the relationship with the grandmother in particular and previous role in the children’s lives, and the grandparents’ case is that there is the absence of any objective reason why there would be no contact.
The mother’s case for interim relocation is, in effect, based on her need to be close to her family. She expresses a number of issues with her health, specifically heart problems. She says there is no relationship between [Y] and the father and the grandparents. She points to health concerns with the grandfather, and in particular, she points to a long history of family violence perpetrated by the father and expresses concerns for her welfare.
The father’s case is that he wants to re-establish a relationship with the children, that his criminal and drug issues are in the past, and he has indicated that he will abide by any reasonable restriction that is imposed on his time with the children.
The independent children's lawyer’s case is that the mother has made no case for interim relocation, that there is no case for supervision of the grandparents’ time and that there would be concerns about anything except supervised contact between the father and the children because of family violence issues. However, it is submitted there is no reason why the grandparents should not have a role in the children’s lives, and it is submitted that their lives would be enriched by this. However, the ICL submits that there are concerns about the role that the grandparents might take in supervising the father’s time with the children.
I want to put on the record observations taken from the subpoenaed documents. For example, the father’s criminal history commences from 1995 and includes various driving offences, improper use of telecommunication device, breach AVO, contravene AVO, possess prohibited drug, larceny - in respect of this offence, he was sent to gaol for 32 days from 18 November 2008. Then there was a break, enter and steal, goods in personal custody, intimidate and contravene AVO. In relation to these last three offences, he was convicted and given a suspended prison sentence of 12 months. There is also a common assault.
What is apparent from the records is that some of these offences relate to the mother, particularly the intimidation and contravene AVO. There is a current AVO in place that expires on 13 October 2012. The documents produced by police indicate that there are 144 events involving the father, and, of course, not all of these are offences. The documents produced by the Department of Human Services contain concerns about the mother and the children, but the concerns seem to be based upon the mother’s reports of a long history of family violence as well as drug use by both parents. There is no evidence of a formal intervention of any sort by the department.
The Corrective Services documents indicate that the father was imprisoned from 5 November 2008 to 4 November 2009 with a non-parole period of six months, and this was for the break, enter and steal. However, he was paroled on 4 May 2009. He was imprisoned on 18 November 2008 for
32 days, and this was for being accessory after the fact larceny. There are clear records of admissions as to problematic drug use by the father certainly as at November 2008. However, the January 2010 Corrective Services records refer to use of amphetamines. He was observed to show aggression towards the mother, to suffer depression and to be on medication, and, indeed, the notes record an assertion by the father’s mother that he was not taking his medication. The records of 29 September 2010 indicate, as I have previously referred, admissions by the father as to consumption of ice within the last three months and cannabis within the last three weeks of that date.
I turn now to discuss the evidence and the submissions, dealing firstly with the interim relocation. The mother’s case for interim relocation simply fails. Even the mother acknowledges that her own mother, for whom she relies on for support, is not relocating until the end of the year. In relation to her health concerns, there is no evidence that she could not be treated as well in New South Wales as in Queensland. The authorities are quite clear as to why interim relocation should not be permitted except in very unusual circumstances. There are none here. I refer the parties to the passages that I have referred to in the Full Court decision. In any event, this matter has been allocated a hearing date in June. I make this observation: the mother’s case for relocation is certainly an arguable one, but ultimately, it falls to be decided on a final basis and not an interim basis.
Let me consider the parenting issues relating to contact with the grandparents and the father. I want to acknowledge from the outset that what I propose to do in this interim application is to treat the grandparents as if they were parents for the purposes of section 60CC even though in certain parts of section 60CC the sections only refer to parents and not grandparents. Nonetheless, I am satisfied that section 60CC subsection (3) paragraph (m) does enable me to do this, though I must say it is a legal matter in respect of which I welcome submissions at the final hearing.
Considering the question of meaningful relationship in section 60CC(2)(a) and the nature of relationship in section 60CC(3)(b), the material before me indicates that the grandparents certainly had a relationship with [X] till September 2009, and, indeed, paragraph 24 of the grandparents’ affidavit suggest that [X] still recognises the grandparents as at 24 November 2010. The mother does not dispute the event that is referred to here. I am satisfied there is a sufficient basis in the relationship between the grandparents and [X] in particular to resume contact with the grandparents subject to other matters to which I will refer.
Now, [Y], of course, is in a different situation. Even the grandparents acknowledge it is not the same relationship as [X]. Notwithstanding that, in the absence of evidence to the contrary, I am prepared to rely on my own experience in saying that [Y] will be comforted by [X]’s presence, at least in the context of the quite limited contact that I am considering. Hence, the two children will probably cope with contact with the grandparents and, indeed, will probably cope better with both of them being there than if it was just one.
The question of the children’s relationship with the father is far more complex. Even the father acknowledges that they do not know him. He wants to reintroduce himself to the children’s lives. Without having time, he will never even have the opportunity of a meaningful relationship. Even he concedes it will probably be supervised either by his parents or otherwise.
Are there issues about protecting the children from harm? In relation of the grandparents, the mother proposes supervision either by herself or her sister, but she fails to make out her case for this. I note her concerns about what has allegedly occurred in the past, but I think her concerns are singularly inconsistent with her own stated relationship with the grandmother. In short, there is no need to protect the children from any harm whilst they are in the care of their grandparents.
In relation to the father, however, it is quite a different proposition. It is clear that there are significant inconsistencies between the evidence he gives in his affidavit about drug abuse, criminal activities and the family violence and the more objective and independent evidence that is contained in the exhibits of the subpoenaed documents. Now, this really raises concerns about the father’s frankness to the Court about these issues. Despite the father’s assertions to the Court, he himself admits taking amphetamines as recently as June 2010 and cannabis in September 2010.

There is a real issue in this case about the father’s continued drug use. Moreover, there are real issues about the extent of the father’s criminal activities, some of which are clearly related to family violence-type offences against the mother. The father is plainly an unreliable historian about these matters. Moreover, there is substance to the mother’s solicitor’s assertions that he is minimising the family violence that was perpetrated against the mother.
Amongst all of these considerations, I know nothing about the impact on the children of the family violence that was perpetrated against their mother. I do not know whether the children were present or were otherwise exposed to it, whether directly or indirectly. I have no idea how this may have affected their relationship with the father. I have no idea how the mother’s capacity to parent will be affected by the children having contact with the father.
All of these are issues for expert evidence, but what is significant is that I have none of this information in the context of the decision I have to make. Clearly, then, there is a risk of harm to the children in respect of which they need to be protected. This needs to be weighed against the likely benefit to the children of a relationship with their father. The question I have to ask myself is whether supervised contact is the way to balance perceived risks against likely benefit.
I reject the option of supervised contact by the grandparents. The Corrective Services records do give a glimpse of a very strained relationship between the father and his mother and one where I think she may have been persuaded to do things that she was initially very reluctant to do – for example, to give bail.
The submission was made, that I should I have real concerns about the grandmother’s capacity to resist her son’s influence. I agree, moreover, I have no idea about the extent to which the grandparents accept that there are issues of family violence in this case. Hence, they would not be appropriate supervisors of the father’s time with the children.
What about a supervised contact centre? On the one hand, I do not know how either the mother or the children will cope with even supervised contact in the circumstances of this case. I must also acknowledge the possibility that at a final hearing, relocation will be allowed or, irrespective of this, no contact ordered. If I were to order the supervised contact, it could end up being a futile experience for the children and ultimately counterproductive. I must also acknowledge that it could take months for the father to gain access to a centre. Nonetheless, it is a cautious, closely scrutinised re-establishment of the father’s contact with the children. The concerns I have are mitigated by the close supervision offered by the centre. Now, on balance, and even though I must acknowledge the decision was very finely balanced between having no contact or supervised contact at a centre, I am satisfied that the children will be adequately protected from the risk of harm by contact at a centre.
Another relevant factor is the willingness and ability to facilitate and encourage the children’s relationship with the other parent. I apprehend that it will be the father’s case that the mother has failed to facilitate the children’s relationship with him. This might even be the grandparents’ case. This is a matter for final hearing. I acknowledge it is an issue, but it is an issue that must be considered with all the other issues, including the mother’s reasons for not facilitating contact.
I turn to consider the likely effect of changes on the children. The changes for the children I am prepared to contemplate in these interim orders will be modest. For the reasons articulated, the father’s time with them will be at a supervised contact centre, which means almost inevitably that it won’t be more than once a fortnight. I am confident that children will cope with this change to their routine as well as the separation from their mother.
The grandparents propose weekly contact on Wednesdays and then one weekend each month. I am satisfied that weekly contact is a change that the children can cope with. However, I think that five hours is too much in the early stages, given the lengthy period of no contact. I propose to start with two hours and then build it up to five hours per week over a period of time. I think weekend and overnight time is, in my opinion, too much too quickly. Even if [X] could cope, I am unsure that [Y] would cope at her age. It must be remembered that even for the grandparents, there is a component of re-establishing contact with the children.
Another issue is about the capacity of the parents to meet the children’s needs as well as their attitudes to parenting. The Department of Community Services file indicates that the children have been known to them and that their involvement in the mother and the children’s lives has not actually warranted intervention by them. Of course, I acknowledge it is a very high threshold indeed for intervention by the department. Nonetheless, there is little in the file to suggest capacity issues on the mother’s side. There are issues about drugs for both the mother and the father. Each make allegations against the other. There is certainly evidence to suggest that there are concerns on the father’s part about recent drug consumption, and I propose to empower the independent children's lawyer to require random urinalysis.
The father’s capacity and attitudes to parenting is affected by his criminal activities, imprisonment and family violence. These are issues that need to be looked at a final hearing but certainly influence the interim hearing. In terms of these issues affecting the mother, despite the father’s concerns about the mother’s drug taking, even he concedes that she should be the primary carer of the children, and I take that as an indication as to some reservation about the concerns. I note that there are no identified concerns in relation to the grandparents. Clearly there are issues in this case about family violence and whether and to what extent the father might be minimising the same.
The mother proposes sole parental responsibility, the father equal shared parental responsibility. There is no evidence of difficulties with decision making. Whilst I acknowledge there is some evidence that might rebut the statutory presumption – for example, based on violence – I prefer to not make this order at this time. It is not necessary on the facts, and in any event, the hearing will be within a short period. Accordingly, I make no order about parental responsibility.
Now, whilst technically, therefore, I am not required to deal with equal time or substantial and significant time, if I were dealing with it, I would be saying that equal time is neither in the best interests of the children nor reasonably practicable, and substantial and significant time is certainly not in the best interests of the children for the reasons that I have set out above.

ORDERS DELIVERED

I certify that the preceding forty-one (41) paragraphs are a true copy of the reasons for judgment of Altobelli FM

Date: