Kimberley& Adamo

[2018] FCCA 420

FEDERAL CIRCUIT COURT OF AUSTRALIA

KIMBERLEY& ADAMO [2018] FCCA 420

Catchwords:
FAMILY LAW – Interim arrangements for care of child aged 2½ years – application for recovery order – parties have never lived together – mutual allegations of drug abuse – assessment of risk in context of interim hearing – presumption of equal shared parental responsibility – section 6OCC factors – best interests.

Legislation:

Family Law Act 1975, ss.60CC; 61DA; 65DAA

Deiter & Deiter [2011] FamCAFC 82

Slater & Light [2013] FamCAFC 4

Applicant: MS KIMBERLEY

Respondent: MR ADAMO

File Number: ADC 103 of 2018

Judgment of: Judge Brown

Hearing date: 22 January 2018

Date of Last Submission: 22 January 2018

Delivered at: Adelaide

Delivered on: 22 January 2018

REPRESENTATION

Counsel for the Applicant: Mr Walton

Solicitors for the Applicant: Paul John Walton Solicitor

Counsel for the Respondent: Ms Kelly

Solicitors for the Respondent: Lee Kelly Legal

ORDERS

1. This matter be listed for final hearing before Judge Brown on 7 & 8 June 2018 at 10.00am in Town A NOTING two (2) days hearing time has been allocated and will not be exceeded without leave of the Court.

2. Pursuant to Section 62G(2) of the Family Law Act 1975 the parties and the child of the relationship [X] born (omitted) 2015 attend upon a Regulation 7 practitioner as nominated by the Dispute Resolution Co-ordinator of the Federal Circuit Court of Australia on a date and at time/s to be advised for the purposes of the preparation of a family report, such report to be released as soon as possible.

3. The family assessment to deal with the following matters:

   (a)to include interviews with the parties, the child and relevant family members;

   (b)observed interaction between the child and the parties;

   (c)any views expressed by the said child and any factors (such as the said child’s maturity or level of understanding) that would affect the weight that the court should place on those wishes;

   (d)the matters set out in ss60CC, 61DA and 65DAA of the Family Law Act 1975;

   (e)any other matters that the family assessor considers important to the welfare or best interests of the said child.

4. The solicitors for the parties forward copies of all documents filed with the Court to the nominated report writer in accordance with the directions of the Dispute Resolution Co‑ordinator, Federal Circuit Court of Australia.

5. Upon the Report being provided to the Court, the Court will provide a copy to each party (or if represented the party’s lawyer) and to any Independent Children’s Lawyer in the proceedings.

6. Unless a party objects, in writing, within 14 days of the date of releasing the Report, copies of the Report may further be provided to the following, if the Court is requested to do so for a purpose related to the care, welfare or development of the child to whom these proceedings relate:

   (a)a Children’s Court;

   (b)a child protection authority;

   (c)a State or Territory legal aid authority; and

   (d)a convener of any legal dispute resolution conference

NOTING:

A.At the date on which a copy of the Report is provided to any of those identified above, it may not have been admitted into evidence and may be untested or if admitted would only form one part of the evidence in the proceedings.

B.Section121 of the Family Law Act1975 provides that it is an offence punishable by imprisonment for up to one year to publish or disseminate to the public any account of family law proceedings which identifies the parties, witnesses or other people concerned with the proceedings, unless specifically authorised by the Court

C.Unless otherwise ordered, no person shall release the Report, or provide access to the Report to any other person.

1. Until further or other orders the child [X] born (omitted) 2015 live with the mother.

2. The father return the child to the mother at a venue as agreed between the parties and failing agreement at (location omitted) by 4.00pm 23 January 2018.

3. The father spend time with the child each alternate Saturday commencing 3 February 2018 between 10.00am and 4.00pm with the child to be exchanged at the commencement and conclusion of time at (location omitted).

4. The parties be restrained and an injunction is hereby granted restraining them from abusing, denigrating, rebuking the other or discussing these proceedings in the presence or hearing of the child or from permitting any other person to do so.

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

FEDERAL CIRCUIT COURT
OF AUSTRALIA
AT ADELAIDE

ADC 103 of 2018

MS KIMBERLEY

Applicant

And

MR ADAMO

Respondent

REASONS FOR JUDGMENT

Introduction

1. These reasons for judgment were delivered orally, immediately following the interim hearing concerned.   The hearing took place in Adelaide.  As will become clear, the father ordinarily lives in Town B, whilst the mother lives in Town A. 

2. As such and given the urgency surrounding the matter, neither was able to be present in Adelaide to hear the reasons being delivered.  Given this circumstance and the obvious import of the case for both, I have arranged for the orally delivered reasons to be transcribed.

Background

1. This morning, I have to deal with an application in which Ms Kimberley is the applicant and Mr Adamo is the respondent.  The parties are the parents of a child, [X], who was born on (omitted) 2015. 

2. Accordingly, on my calculations, [X] is about (omitted), perhaps a little older than that now.  I will refer to Ms Kimberley as “the mother” and to Mr Adamo as “the father” in these orally delivered reasons. 

3. The mother commenced these proceedings on 10 January 2018.  She asked that her application be listed urgently.  At the same time, she asked that the court make what is commonly referred to as a recovery order in respect of [X].  A recovery order is, in effect, a warrant.  It is a direction to a police officer to, in effect, go and arrest a child and bring her to some nominated person, in this case, the mother. 

4. Significantly, the mother also asked that I make that application on an ex parte basis, that is, in the absence of Mr Adamo and without any evidence being received from him.  For obvious reasons, it is a very significant thing to make an order, relating to a child, in the absence of one of his or her parents.  It is also a very significant thing, and potentially very traumatic, for both child and parent affected, for a recovery order to be made, particularly if there is no prior notice of it. 

5. It is my experience that it is invariably the case that there is another side to most, if not all cases, which come before the court and therefore it is usually prudent for the court to approach all cases with caution.  For those reasons, I was not prepared to deal with the mother’s application on an ex parte basis.  

6. But, at the same time, I acknowledged that the case was urgent from her perspective.  For that reason, the case was listed on 17 January at 2.15 pm, so that the father could be given an opportunity to be heard, but also the case could be approached with some expedition. 

7. It is common ground between the parties they have never lived together and are not married.  The mother was born (omitted) 1986.  The father was born (omitted) 1984.  At this stage, neither party is in paid employment. 

8. It is the mother’s case that the parties have known each other for around a decade and have had a casual relationship from time to time.  The father has lived in Town B.  At the present time, the mother lives in Town A, although I understand she has family connections in Town B. 

9. It is the mother’s case that she has always been [X]’s main provider of care.  It is her case that she has a comfortable home in Town A, and her mother, [X]’s maternal grandmother, lives nearby and visits regularly. 

10. In addition the mother has deposed that, after [X] was born, the father came to visit [X] in Town A and was able to form a relationship with her.  She says that the father stayed in her home, in Town A, so that he could play with [X].  She also says that, from time to time, she went to Town B and stayed with the father, again, so that [X] could form a relationship with her father.

11. The mother is critical of the father in a number of regards.  She asserts that when she has visited him in Town B, and he has visited her in Town A, he drank regularly and to excess.  It is also her case that she saw him smoke cannabis regularly.  She believed that he took cannabis secretly at her home when he thought she was not looking.  She also alleges that Mr Adamo is a user of pills and has smoked ice. 

12. It is common ground that some time ago, Mr Adamo suffered a serious motor vehicle accident, which resulted in some form of brain injury.  It is his case that he is now fully recovered from his injury. 

13. From the mother’s perspective, she alleges that it still affects his temperament, and he becomes angry easily – a condition which is not assisted by excessive alcohol consumption or illicit drug use.  In these circumstances, she has concerns that he is not able to care for [X] properly.  It is also her case that she alleges that Mr Adamo does not always properly supervise [X]. 

14. As I say, Ms Kimberley has not been employed for some time.  It is her case that, in these circumstances, she has been exclusively financially responsible for [X]’s care.  It is only recently that she has applied for child support and has received only a very modest amount of child support from Mr Adamo. 

The circumstances which bring the parties to court

1. The matters which bring the case into court, against a background of some urgency and significant controversy, arose on 29 December 2017.  The mother asserts the father arrived at her home at about 10.30 am on that day.  She asserts that he told her he wanted to take [X] to Town B for a week. 

2. She did not agree because she was concerned that this would be too long a period for the child to cope with, given her tender years.  However, she says, in effect, Mr Adamo placed the child in his car on her child seat and said words to the effect, “Well, can I take her or what?”  It is in these circumstances that she agreed, with some reluctance, that the child could go to Town B until the following week.

3. Thereafter, it is her case that she texted Mr Adamo about whether the child would be returned but received no response.  Ultimately, on 4 January, she was told that the child would not be returned.  In these circumstances, it is her case that she wasted no time in bringing her application. 

4. It is also implicit in her case that, given the unilateral actions of the father and the fact that it is her case that she has been the child’s primary carer, it was appropriate that the court make the recovery order on an ex parte basis. 

5. As I said, it is frequently the case that the other parent concerned has a very different view as to what has occurred in respect of past arrangements for the care of the child.  On the day prior to the scheduling of the mother’s application, the father filed a response and an affidavit in support. 

6. It is his case that [X] should live with him and that the child should only spend supervised time, with her mother, at the Town B Children’s Contact Service.  In his affidavit, which, as with the mother’s, was hastily prepared, he has raised very many criticisms of the mother and her care of the child. 

7. It is his case that these issues have only recently come to his notice and are of such seriousness that they merit him, in effect, taking things into his own hands by electing not to return [X] to her mother’s care. 

8. He denies that he has issues with the excess use of alcohol or that he uses illicit drugs.  As I say, he acknowledges that the parties have never lived together.  In this context, he is critical of the mother and asserts that she lives something of a peripatetic life, moving regularly between Town B and Town A. 

9. In addition, he is very critical of the nature of the mother’s relationship with her partner between 2017 and now.  He alleges that the mother suffers from psychiatric instability and was hospitalised, following a suicide attempt, at some time in 2017. 

10. More significantly, he asserts that the mother and her partner have very significant substance abuse issues, particularly relating to the use of methamphetamines.  He says that these issues came to the fore when he saw the mother at the last handover on 29 December 2017. 

11. At this stage, he describes the mother’s eyes as being vacant and blank; that she personally looked underweight and drained; and she had scratches, sores and pimples on her face.  He further asserts that she was aggressive in her demeanour towards him.  It is his position that, after some reluctance, she agreed to the child coming into his care. 

12. It is common ground between the parties that the mother and her partner have now separated.  The father of the partner, who has not filed an affidavit in these proceedings, apparently contacted Mr Adamo directly and made very significant allegations concerning the mother’s care of [X], post his son’s separation from her.  At this stage, in the absence of sworn evidence from him, I am not in a position to assess whether he has any ulterior motives for becoming involved in the mother and father’s affairs, so far as [X] is concerned.

13. In any event, this person gave Mr Adamo to understand that the mother had been charged with trafficking methamphetamines and was otherwise leading a life of disarray.  Mr Adamo deposes that none of these matters were known to him until the first week of January 2018, and therefore he was very concerned about [X].  Given the distance between Town B and Town A, he was concerned that he was not able to keep an eye on the child.

14. He has a different view from the mother, as to his prior involvement with the child.  He concedes that when [X] was very young, he did spend time with her in the mother’s presence, but thereafter he says that he regularly spent time with her, including in Town B on an overnight basis, without the mother ever having raised any concerns about his parenting of her.  He asserts that he is now recovered from his brain injury and has had some casual work recently.  He describes himself as an involved parent, who adores his child and has a close and loving relationship with her.

15. Given these very serious allegations, I was not prepared to deal with the matter on 17 January.  I thought it was appropriate that the mother be given an opportunity to answer the allegations against her.  In addition, I was told by her solicitor, Mr Walton, that she had arranged that day to have a supervised drug screen test, which, from her perspective, would undoubtedly reveal that she was drug-free and that the serious allegations made against her had no moment. 

16. This morning, I have been provided with an affidavit from Ms Kimberley.  She denies that she has recently used ice.  She says that, in fact, she and the father used ice from time to time prior to [X]’s birth.  However, she stopped using the drug, when she found out she was pregnant.  As previously indicated, it is her position that the father did not do the same.

17. She concedes that she was in a relationship with a person – referred to as Mr Y – whom she now considers to have an antisocial personality.  She began that relationship in September 2016.  It is her position that the relationship is now over, and she ended that relationship because of his smoking of ice. 

18. There was an incident between her and Mr Y on 31 October 2016, which came to the attention of the police.  It is her case that she had been to a social occasion with her then-partner.  They were driving home.  He pulled out some amphetamines and suggested that they use them together.  She told him that she was not interested. 

19. For some unspecified reason, they came to the notice of the police.  Mr Y allegedly gave her the drugs and told her to hold on to them because he was already in trouble with the police.  She did so.  She was searched.  The drugs were found.  She was charged with the possession of amphetamines.  She pleaded guilty to the charge.  It is her case that the court accepted that they were not, in effect, her drugs, but were those of Mr Y. 

20. I have not been provided with any transcript of the relevant sentencing remarks.  As such, whether the relevant learned magistrate expressed any level of incredulity about her story, I do not know.  What other personal circumstances relevant to the mother were taken into account are also unknown to me.

21. It is the position, however, that the mother was placed on a good behaviour bond for 12 months, which was subject to supervision for 12 months by the NSW Department of Corrections.  A conviction was also entered.  It is also the case that the Department has now terminated that supervision and did so fairly shortly after it was issued.

22. It is the mother’s case that she was subject to regular and close oversight, during her probation, which included regular drug screen tests, which she passed.  It is also her position that the fact that she was placed on a bond and that her supervision passed without incident and has now been terminated must give some significant level of credence to her assertion that she is not an habitual drug user. 

23. She also concedes, in her case that she was subject to some family violence from Mr Y, in May 2017, which caused her to end the relationship with Mr Y and seek an apprehended family violence order against him.  Accordingly, it is her position that she has taken appropriate action to protect both herself and [X] from family violence.

24. The drug screen test, which the mother undertook voluntarily on 17 January 2018, indicates that the taking of the sample was supervised and that the sample itself was clear of adulterants, and, more significantly, no illicit substances were detected.  It is the mother’s case that she acted promptly in respect of the allegation of drug use against her and has nothing to hide.

25. The mother denies any mental instability on her part particularly ever having attempted suicide.  She does say that she was admitted to the hospital in Town A on 29 April 2017 as a consequence of having a ruptured ectopic pregnancy.  I have a discharge summary from the hospital to that effect, and necessarily that must have been very emotionally traumatic for the mother.  She deposes that she is in good health generally. 

26. As I say, it is her position that she has always been the child’s primary carer.  She asserts that Mr Adamo has some part-time work at (omitted).  Against that background she applied for an assessment of child support on 23 October 2017, which indicates that she has an adjusted child support income of just over $19,000, whereas Mr Adamo is just over $43,000. 

27. This has resulted in a weekly assessment of $44.50 payable to her by the father.  It is, essentially, I think, her case that issues to do with child support have motivated the father’s actions in this matter, particularly in respect of his over-holding [X].  The implication of this allegation being that the father is not fully focussed on the child’s best interest but has some ulterior motivations of his own.

The nature of an interim hearing

1. It is against this difficult and controversial background that I must determine these interim proceedings.  At the outset, it is appropriate for me to set out what an interim hearing can and cannot do.  An interim hearing takes place in a short form. 

2. Very often, as with this case, the court is asked to make some orders, about a child, because some crisis or emergency has arisen in the family concerned.  As a consequence, a decision is required from the court to put in place some clear arrangements for the care of the child, in the light of that emergency, until the court has more time available to it to allow a more exhaustive hearing.

1. This is the essential nature of an interim hearing – it is brief and the evidence led in it is limited and untested.  Because of the emergency, the parties concerned produce affidavits of their evidence.  These affidavits, because of the nature of the emergency, are frequently very hastily prepared and other relevant aspects of evidence just simply cannot be gathered in time for the hearing concerned. 

2. The most frequent piece of evidence missing is most usually a comprehensive assessment of the needs of the child concerned, particularly in terms of what is the nature of the child’s relationship with each of the parents concerned.  Such a report is likely to be important in a case such as the current one, given the controversy about the nature of [X]’s relationship with each of her parents.

3. Given their abbreviated nature, interim hearings do not allow the court to resolve competing controversies of fact.  There is not sufficient time for the documentary evidence of the witnesses concerned to be subject to scrutiny through oral examination.  Given these deficiencies, I will, in a moment, fix the parties’ competing applications for hearing in the sittings of the court to Town A. 

4. I will fix 7 & 8 June, this year, as the date for the final hearing. I will also order that a family report be prepared pursuant to section 62G of the Family Law Act, but until that report is available and until there can be a comprehensive hearing of the parties’ competing applications involving cross-examination, I am not in a position to resolve the very many issues of fact arising in this case. 

5. Rather, it is my responsibility to put in place provisional orders, until such time as that more comprehensive hearing in June 2018 can take place.  But in so doing, I must be aware that, not withstanding the inherent limitation of an interim hearing, the court cannot abrogate its responsibility to consider child protection issues merely because of the truncated nature of the hearing concerned and the evidentiary difficulties arising in making a positive finding that a child is or is not at risk of harm at the interim hearing stage.  This is because the best interests of the child concerned always remain the paramount or most important consideration in the case.[1]

   [1] See Deiter & Deiter [2011] FamCAFC 82

The legal principles applicable

1. The factors which the court must consider in determining a child’s best interests are set out in section 60CC of the Family Law Act 1975 “the Act”.  Priority is given to protecting a child from the consequences, both physical and emotional, of being exposed to abuse, neglect or family violence. [2]

   [2] See section 60CC(2A)

2. The court is also, given the structure of the Act, required to give close consideration to the benefits of the child concerned having a meaningful level of relationship with both his/her parents. 

3. Given the paramountcy of protective concerns, in many cases, at the interim stage, the fundamental task for the courts will entail assessing risk.  Risk arises when one parent says that the other parent represents a danger to the child concerned, and the other denies the truth or gravamen of the allegations made. 

4. This is the situation in this case.  Essentially, Mr Adamo says Ms Kimberley and her drug use and her psychiatric condition represent a risk for [X] which the court simply cannot take at this stage.  The court must assess this risk in this very conflicted and heated context. 

5. Risk cuts both ways.  There are also risks arising for the court in unduly restricting or even truncating a very valuable relationship for the child on the basis of uncertain evidence.  The test I am required to undertake is to determine whether the risk is of such moment that it would be unacceptable for me to take it.[3] 

   [3] See Slater & Light [2013] FamCAFC 4

6. In assessing the risk, I must put in place responses which are proportionate to the degree of risk which arises.  However, in so doing, I must also bear in mind that, at this stage, I really do not know the truth or otherwise of very many of the allegations raised, particularly by Mr Adamo, which if true, are potentially very serious indeed. 

Presumption of equal shared parental responsibility

1. Because the Act emphasises the importance subject to protective concerns of both parents being involved with their child, there is a presumption that the parties of the parents concerned should share parental responsibility for their child equally and shared. 

2. This presumption is rebutted if there are reasonable grounds to believe that a child has been exposed to abuse, neglect or family violence; it would not be in the best interests of the child concerned; or, at the interim stage, it would not be appropriate. [4]

   [4] See section 61DA

3. At this stage, given the distance between Town A and Town B, the serious allegations which both parties make against the other I do not think it would be in the child’s interest for the presumption to be applied.   In these circumstances, I need not consider a regime of either equal time or substantial and significant time.[5]

   [5] See section 65DAA

Consideration of section 60CC factors

1. However, notwithstanding this finding, I am still required to consider the evidence available to me against the considerations, as relevant, set out in section 60CC of the Act, bearing in mind that the task is fundamentally one of risk assessment at this stage and the evidence available to me remains far from complete.

2. For all sorts of reasons, the parties are likely to share very many social disadvantages.  I accept that neither is well resourced financially.  They both live in fairly remote towns, and in the case of Town A, I know, from my experience sitting there regularly, that it is a town with significant social disadvantage, particularly in terms of methamphetamine use and the lack of services for parents. 

3. It is also a long way between Town B and Town A – approximately 300 kilometres.  In this case, the parents concerned clearly have no long-term history of sharing the care of [X] together.  They concede that they have never really had a firm relationship with one another as parents. 

4. The mother, in fairly quick compass, has been able to provide documentary evidence refuting many of the father’s concerns.  She has produced a clean drug screen test.  She has produced a positive history in respect of her involvement with the New South Wales Department of Corrections. 

5. She has also provided evidence indicating that her recent hospitalisation was not relating to her psychiatric health.  In all these circumstances, I do not think that her resuming the care of [X] represents a significant risk for the child concerned. 

6. In addition, the evidence indicates to me that, at this stage, the most significant relationship the child has had, up to this stage, is with her mother.  On any view, Ms Kimberley has been [X]’s primary provider of care. 

7. At this stage, the father is not in a position to provide any definitive evidence, which indicates that, in objective terms, the child has not been thriving, whilst in the mother’s care.  I have not been provided with a medical report that indicates that she is underweight or that there are other issues in respect of her care.  There is no history of departmental involvement from any child protection authority, either in New South Wales or Victoria.

8. I acknowledge that there are very many question marks arising from Ms Kimberley’s involvement with her former partner, but there is also evidence which indicates that she has ended that relationship.  In addition, the provenance of many of Mr Adamo’s concerns is a person related to Mr Y, who, for all I know, may have an agenda of his own.

9. Clearly, this is a case where the parties do not have the ability to telephone one another or discuss concerns or issues about [X].  I am concerned that the evidence indicates that the father acted unilaterally, when he retained her in his care.  There are complex issues relating to the respective level of insight of each of the parties to the responsibilities of being a parent.  These issues are likely to be teased out when the family report is to hand. 

Conclusions

1. In those circumstances, until further or other order, I am going to direct that the child, [X], born (omitted) 2015, live with the mother.  As a consequence, I will direct that the father return the child to the mother’s care, at a location to be agreed between the parties, at no later than 4 pm tomorrow, 23 January 2018. 

2. In the short- to medium-term, I am of the view that Mr Adamo should spend some regular time with [X].  At this stage, I do not think that time needs to be professionally supervised.  However, a great deal of damage is likely to have been done to the parenting relationship between the parties as a consequence of what has occurred up to this stage.

3. As I say, it is my view that both parties are likely to find some social difficulties and disadvantage in their respective lives.  As I have summarised it, it is the mother’s case that the father has his own substance abuse issues notwithstanding his allegations against her.  It is also her case that he very recently had a significant injury which, from his perspective, he has recovered.  In all those circumstances, it is likely to be the case that, at this juncture, a cautious approach will be taken. 

4. However, as I indicated before I commenced these orally delivered reasons for judgment, it might be useful if the parties had at least the opportunity to discuss arrangements for [X] to spend regular time with her father and perhaps exchange their own ideas about how the practical issues can be best approached. 

5. I say this because during much of 2017, it appears to be the case that the parties have been able to cooperate, in respect of arrangements for [X] to spend time with her father and I do not want to prevent that cooperation perhaps taking hold once again, now that the issue of where the child will live in the short to medium term has been resolved and directions made for the final resolution of the various controversies arising between them. 

6. So I will make the orders relating to the final hearing and family report and in respect of the return of [X] to her mother’s care.  If the parties are unable to reach agreement in respect of interim time spending arrangements, I will deal with those issues in due course.   For those reasons I will stand this matter down so that those discussions can take place.

7. For all these reasons, the orders of the court will be as set out at the commencement of these reasons for judgment.

I certify that the preceding seventy five (75) paragraphs are a true copy of the reasons for judgment of Judge Brown

Date:     11 April 2018