Knapp & Sutton
[2022] FedCFamC2F 135
FEDERAL CIRCUIT AND FAMILY COURT OF AUSTRALIA
(DIVISION 2)
Knapp & Sutton [2022] FedCFamC2F 135
File number(s): PAC 2644 of 2021 Judgment of: JUDGE NEWBRUN Date of judgment: 14 February 2022 Catchwords: FAMILY LAW – interim parenting – best interests of child – Orders made Legislation: Family Law Act 1975 (Cth), ss. 60B, 60CA, 60CC, 69ZL, 62G(2) Cases cited: Goode & Goode [2006] FamCA 1346; (2006) FLC 93-286
Marvel & Marvel (No 2) [2010] FamCAFC 101
Eaby & Speelman [2015] FamCAFC 104
Banks & Banks [2015] FamCAFC 36
Division: Division 2 Family Law Number of paragraphs: 82 Date of last submission/s: 14 February 2022 Date of hearing: 1 December 2021 Place: Parramatta Solicitor for the Applicant: Mr McCann Solicitor for the First and Second Respondents: Mr Anderson Solicitor for the Independent Children’s Lawyer Mr Samuel ORDERS
PAC 2644 of 2021 FEDERAL CIRCUIT AND FAMILY COURT OF AUSTRALIA (DIVISION 2)
BETWEEN: MS KNAPP
Applicant
AND: MR SUTTON
First Respondent
MS SUTTON
Second Respondent
AND: INDEPENDENT CHILDREN’S LAWYER
ORDERS MADE BY:
JUDGE NEWBRUN
DATE OF ORDERS:
14 FEBRUARY 2022
PENDING FURTHER ORDER THE COURT ORDERS THAT:
1.The Mother’s proposed interim parenting Orders sought in her Case Outline filed on 30 November 2021 be dismissed.
2.The time arrangements in the interim consent Orders made on 1 October 2021 are varied such that X lives with the paternal grandmother and spends time with the Mother as agreed and failing agreement on a fortnightly basis as follows:
(a)Week 1: from 10am or conclusion of daycare / preschool on Thursday for three (3) nights until 10am on Sunday.
(b)Week 2: From 10am or conclusion of daycare / preschool Wednesday for three (3) nights until 10am on Saturday.
(c)Changeover will take place as agreed between the parties and failing agreement the Mother will collect X from the paternal grandmother’s residence or daycare / preschool at the commencement of her time and the paternal grandmother will collect X from the Mother’s residence at the conclusion of the Mother’s time.
3.Order 6 of the interim parenting Orders made on 28 May 2021 is discharged.
4.In the event that the Father visits Sydney for an extended period of six (6) weeks during 2022 the Father will spend time with X when X is in the paternal grandmother’s care as agreed between the Father and the paternal grandmother and the arrangements in Order 8 below will not apply during the said extended visit.
5.The Court NOTES that the implementation of the following Orders as to the child’s time with the Father is subject to the travel and border restrictions imposed by the State and Territory governments in response to the covid-19 pandemic.
6.The Court NOTES that the Father presently works for two (2) weeks at the work site in Western Australia followed by one week off in Perth (“regular R&R leave”).
7.The Court NOTES that during 2022 (and subject to the applicable covid travel restrictions) the Father anticipates being in Sydney every six (6) weeks for five days at a time during his regular R&R leave and during the Father’s said visits to Sydney, and also during his extended visit in Order 4, he will stay with the paternal grandmother (who is currently living with X in the Father’s sister’s household in Suburb B).
8.The Father will spend time with X in Sydney during his regular R&R leave as follows:
(a)The Father gives the Mother and the paternal grandmother at least two weeks’ notice of his intention to travel together with the dates on which he will arrive in and depart from Sydney;
(b)X spends time with the Father for the duration of the Father’s visit to Sydney NOTING that during the said time the Father and X will be in the paternal grandmother’s household;
(c)X spends time with the Mother for four (4) hours from 12pm to 4pm or such other time as agreed between the parties on the middle day of the Father’s visit to Sydney
(d)If the Father’s visit to Sydney has two middle days (which will occur if the Father is in Sydney for an even number of days) X will spend time with the Mother on the first of the two middle days as set out in Order 8 (c) above;
(e)Changeover for X’s visits with the Mother pursuant to this Order will take place as agreed between the parties and failing agreement the Father or paternal grandmother will deliver X to the Mother at the start of the Mother’s visit with X and the Mother will return X to the Father or paternal grandmother at the conclusion of the Mother’s visit;
(f)The time arrangements in Order 2 above are suspended for the duration of the Father’s visit to Sydney with the duration of the visit being from the time that the Father departs Sydney airport after arriving from Perth until the time that the Father arrives at Sydney airport to return to Perth.
9.The Court NOTES the parties will use their best endeavours to ensure that X’s time with the Father pursuant to Orders 7 and 8 above will occur as much as possible during periods that X is otherwise living with the paternal grandmother pursuant to these Orders and in that regard the Father will provide to the Mother his work roster each 6 weeks.
10.The paternal grandmother is at liberty to take X to Perth to spend time with the Father twice per calendar year for up to one week per visit as follows:
(a)The Father and the paternal grandmother give the Mother at least four weeks notice of the paternal grandmother’s intention to travel to Perth with X together with the dates on which the paternal grandmother and X will depart from and return to Sydney;
(b)The time arrangements in Order 2 above are suspended for the duration of X’s visit to Perth with the duration of the visit being from the day on which the paternal grandmother and X depart Sydney to travel to Perth up to and including the day on which the paternal grandmother and X return to Sydney from Perth.
11.The Mother, the Father and the paternal grandmother forthwith do all acts and things to make an application for NDIS funding for X and in the event that the Mother does not sign her part of the said application or complete any document associated with or arising from the application within seven (7) days of that application or document being provided to her then the requirement for the Mother to sign or complete the said application or document is dispensed with.
12.The Mother, the Father and the paternal grandmother each do all acts and things to facilitate X receiving support with speech and language, self-direction, cognitive skills and any other intervention recommended by the C Service or such other service provider (including those identified in Order 13 below) and in the event that the Mother does not provide her consent for such intervention within seven (7) days of that consent being requested then the requirement for the Mother to consent to the said intervention is dispensed with.
13.Within seven (7) days of these Orders the Mother, the Father and the paternal grandmother each do all acts and things to complete the intake and referral process for the CICADA Service at D Hospital (“CICADA”) and the Child Development Service (“CDS”) at E Hospital and in the event that the Mother does not complete the said process then the requirement for the Mother to complete this process and/or to provide her consent as a precondition for X to receive healthcare services from CICADA or CDS is dispensed with.
14.The Mother, the Father and the paternal grandmother are at liberty to provide a copy of these Orders to the NDIS, to any associated service provider, to any provider of early intervention or other healthcare or support service for X, to any doctor or health practitioner who provides healthcare services for X, to any Local Health District in New South Wales and to any facilities operated by that District.
15.That the Mother and the Father forthwith enrol in and complete a Circle of Security parenting programme and provide corroborative evidence that they have done so to each of the parties and to the ICL.
16.That the Father is to forthwith undertake a hair follicle test such testing to be for the preceding three (3) months and to test for all illegal drugs and substances.
17.For the purpose of such hair follicle testing the Father shall not cut his hair shorter than 3 centimetres until the date specified in the preceding Order.
18.Such hair follicle testing is to be conducted at a laboratory accredited by the National association of testing authorities, Australia in accordance with the current Australian standard for the collection and detection of drugs of abuse.
19.That the Father shall pay all costs of such hair follicle testing.
20.Orders 8 and 9 of the Court’s consent Orders of 1 October 2021 are discharged.
21.The ICL be at liberty to have the Mother submit to a random drug and alcohol test on the following basis:
(a)A supervised random urinalysis and/or CDT test with such test to be conducted within 48 hours of such notice being given by the ICL to the Mother or her legal representatives;
(b)The results of such tests referred to above shall be provided to the ICL within 48 hours of receipt of the results being obtained by the Mother.
22.Pursuant to section 62G(2) of the Family Law Act 1975 the parties and the children of the relationship shall attend upon a family consultant nominated by the Dispute Resolution Coordinator 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 by September 2022.
23.The Family Report shall deal with the following matters:
(a)Any views expressed by the child(ren) the subject of parenting Orders sought in this case, provided that the child/ren shall not be required to express a view in relation to any matter.
(b)The nature of the relationships of the child(ren) with each of the child(ren)’s parents and with significant other persons;
(c)The willingness and ability of each of the child(ren)’s parents to facilitate and encourage a close and continuing relationship between the child(ren) and the other parent.
(d)The likely effect of any changes in the child(ren)’s circumstances, including the likely effect on the child(ren) of any separation from:
(i)either of the parents: or
(ii)any other child, or significant person, with whom the child(ren) has/have been living.
(e)The practical difficulty and expense of the child(ren) spending time with and communicating with a parent and whether that difficulty or expense will substantially affect the child(ren)’s right to maintain personal relations and direct contact with both parents on a regular basis.
(f)The capacity of each parent, or another person, to provide for the needs of the child(ren), including emotional and intellectual needs.
(g)The maturity, sex, lifestyle and background (including lifestyle, culture and traditions) other child(ren) and of either of the child(ren)’s parents and any other characteristics of the child(ren) that the reporter thinks are relevant.
(h)Each parent’s attitude to the child(ren) and to the responsibilities of parenthood.
(i)Any family violence involving the child(ren) or a member of the child(ren)’s family.
24.The parties shall attend all appointments with the Family Consultant and shall ensure the subject child/ren attend all appointments with the Family Consultant, as requested by the Family Consultant.
25.The Family Consultant may inspect the Court file, and any documents produced on subpoena access to which has been granted to a party or the Independent Children’s Lawyer.
26.The matter is to be listed on a date to be advised following release of the Family Report.
27.Liberty to the ICL to relist the proceedings on 7 days’ notice in relation to the facilitation and implementation of the above Orders.
Note: The form of the Order is subject to the entry in the Court’s records.
Note: This copy of the Court’s Reasons for judgment may be subject to review to remedy minor typographical or grammatical errors (r 10.14(b) Federal Circuit and Family Court of Australia (Family Law) Rules 2021 (Cth)), or to record a variation to the Order pursuant to r 10.13 Federal Circuit and Family Court of Australia (Family Law) Rules 2021 (Cth).
Section 121 of the Family Law Act 1975 (Cth) makes it an offence, except in very limited circumstances, to publish proceedings that identify persons, associated persons, or witnesses involved in family law proceedings.
IT IS NOTED that publication of this judgment by this Court under a pseudonym Knapp & Sutton has been approved pursuant to s 121(9)(g) of the Family Law Act 1975 (Cth).
REASONS FOR JUDGMENT
JUDGE NEWBRUN
These are short form reasons under section 69ZL of the Family Law Act 1975 (“the Act”) in relation to an interim parenting hearing held on 1 December 2021 relating to the child, X, born in 2017.
The Mother alleges that up until April 2021 she was the child’s primary carer. Thereafter, in the context of the Mother attending a residential rehab course for alcohol addiction in April 2021, the primary care of the child was provided by the paternal grandmother and has remained so. The Mother alleges that for some time now the Father has been residing and working in Western Australia and has only spent intermittent time with the child. The Mother has been spending time with the child since April 2021, initially supervised, and, since interim Orders of 1 October 2021, two nights each week.
On 1 October 2021, the parties entered into interim consent parenting Orders providing, inter alia, that the child continue to live with the paternal grandmother and spend unsupervised time with the Mother, on a graduating basis, leading to, from 15 November 2021, on Tuesday each week from 10 AM for one night until 10 AM on Wednesday, and on Saturday each week from 10 AM for one night until 10 AM on Sunday (that is, effectively, four nights each fortnight, but broken up into two nights each week). A fresh Order was made for the Mother to undertake supervised urinalysis testing on Monday each week (being an Order the compliance of which conditioned the Mother’s time with the child), and for six months the Mother undertake random CDT testing and supervised random urinalysis at the request of the ICL.
The Mother seeks interim Orders, as set out in her Case Outline filed 30 November 2021, inter alia, that the child live with the Mother, the child spent time with the paternal grandmother on a fortnightly basis as agreed between the Mother and the paternal grandmother, or failing agreement, for a period of 8 hours each alternate Saturday, and that the Father spent time with the child in Sydney for 8 hours per day for up to 5 days at a time, on certain prior notice being given to the Mother, and in the absence of agreement. The Mother’s proposed Order 7 provides for the ICL being at liberty to have either party submit to a random drug and alcohol test on a certain specified basis.
The Father and paternal grandmother, in their Updated Minute of Proposed Orders (sent via email to the Court on 1 December 2021) proposed, inter alia, that from 13 January 2022, the child live with the paternal grandmother and spend time with the Mother for three nights in week one and for three nights in week two.
The ICL sought interim Orders, inter alia, as discussed in his Case Outline.
The Mother relied upon her Case Outline filed 30 November 2021 and the documents set out in that document, together with her Affidavit filed 3 August 2021, and her tender bundle of documents restricted to 19 specific pages (139, 142, 170-178, 184-190).
The Father relied upon his Case Outline filed 1 December 2021 and the documents set out in that Case Outline.
The ICL relied upon his Case Outline filed 15 November 2021, and the Child Dispute Conference Memorandum dated 13 September 2021, marked Exhibit A.
EVIDENCE
The Court does not propose to set out the entirety of the material in this case.
The Mother is aged 35, and the Father is aged 38 years.
The parties met in 2016. They commenced to live together about 12 months after they met. They separated in early 2017.
The Mother’s extended family live in City F and she has no family in Sydney.
The Mother alleges that since the child’s birth (and at least up to about April 2021) she has been his primary carer.
The paternal grandmother and the Father first visited the child when he was about three months old. The paternal grandmother has stayed in touch with the Mother since that time.
The Mother describes a relationship with the paternal grandmother as having been mostly fine.
In about 2020 the Mother commenced a relationship with Mr G. He has twin girls aged about 15 years.
The Mother alleges that the Father did not visit the child on a regular basis and that about two years ago he moved to Western Australia and took employment with a construction company. Thereafter he would only visit the child intermittently, and he would stay with the paternal grandmother.
The Mother admits in her Affidavit filed 17 May 2021 that she has had a difficult time with alcohol and has done so for the last six months. She alleges that she recently acknowledged that she was making her life worse with consuming alcohol. She alleges that in consultation with Mr G they agreed that she needed to get off alcohol for good. She alleges that the best way for that to happen was for her to attend rehabilitation and that she enter into a 28 day residential rehab course with H Clinic at Suburb J on 27 April 2021.
The Mother alleges that she asked the paternal grandmother to care for the child while she attended the rehabilitation course, and the paternal grandmother agreed. The Mother entered H Clinic and commenced her rehab. The paternal grandmother then began to care for the child.
The Mother alleges that while she was in rehab the paternal grandmother and the Father told the Mother that they did not want the child to return to the Mother’s primary care. This led to the Mother commencing Court proceedings, with the Mother alleging that she was concerned and worried that the Father with the assistance of the paternal grandmother would take the child to Western Australia.
The child has been living with the paternal grandmother, aged 63, in Sydney since about April 2021.
On 28 May 2021, the Court dismissed the Mother’s Recovery Order application, and Ordered that the child live with the paternal grandmother and spend certain supervised time with the Mother. Interim Orders were made that the Mother undertake, inter alia, random CDT testing for six months, and supervised random urinalysis for six months.
The parties attended a Child Dispute Conference with the family consultant on 2 September 2021. The associated Memorandum to Court recorded, inter alia, the Mother as having told the family consultant that she considered herself an alcoholic and now recognises that she cannot have a drink, “ever”. The Mother alleged to the family consultant that she last consumed alcohol in April 2021 when she had been an emotional wreck due to problems in the maternal family and had gone on a two-week drinking binge. The Mother told the family consultant that she continues to attend individual and group treatment on an outpatient basis through H Clinic, as well as attending Alcoholics Anonymous meetings on a weekly basis.
The paternal grandmother told the family consultant that she has had past concerns about the Mother’s parenting capacity and the fact that the Mother appeared hostile to advice. The paternal grandmother said, for example, that over the years she had encouraged the Mother to get the child into a routine for eating and sleeping and she noted that the Mother “can’t cope with stress” and becomes “overwhelmed”. She said that, at the same time, the Mother is loving and affectionate to the child. The paternal grandmother said the Mother may benefit from completing a parenting program.
The Father told the family consultant that he has no concerns about the Mother posing a risk of harm to the child as long as she is sober. He said he is unsure about whether she could manage a routine for the child because he has never seen her parent sober for a long enough to be able to make such an assessment. He said that the Mother is a neglectful parent when intoxicated and had failed to care for the child and do housework. He said that the Mother has difficulty taking advice.
Neither parent, according to the family consultant, raised concerns about the paternal grandmother posing a risk of harm to the child.
The Mother told the family consultant that the paternal grandmother was a loving grandparent whom she respects and with whom she enjoys positive communication. The paternal grandmother told the family consultant that the child enjoys spending time and communicating with both parents and was very attached to her. The Mother told the family consultant that the paternal grandmother had reported to her that the GP suspects the child is suffering with some form of developmental delay and has referred him to a paediatrician. The paternal grandmother stated that the child has been assessed by an OT who believes he is behind in his motor skills. She stated that she has a referral to a paediatrician and was about to book an appointment.
The family consultant, under the heading Future Directions, stated that it was not in dispute that the Mother has had long term alcohol abuse problems and it was not considered that abstinence since April 2021 was a long enough period to have confidence that the Mother was now stable.
The family consultant stated that it was possible that the Father continues to use illicit substances and it was recommended that he be ordered to properly undertake a hair test.
The family consultant stated that although both parents gave the impression that they love the child, they also impressed as prioritising their own needs above the child’s needs. She stated that both parents presented as lacking maturity and lacking an understanding of the attachment needs and requirements of day-to-day care of a very young child. It was recommended that they complete the parenting program Circle of Security.
The family consultant stated that the paternal grandmother presented as a loving paternal grandmother who was acting in a role appropriate manner and providing good care to the child. It was positive that she had maintained good relationships with both parties and she may be able to continue to act as a communication point.
The family consultant stated that based on the information provided by both parents during the assessment, it appeared that the family violence that (allegedly) occurred was more likely poorly managed conflict rather than coercive controlling family violence, although its severity was likely increased by intoxication of one or both parents. She stated that it may be the case that future risk of harm from family violence can be adequately managed by Orders that restrain the parents coming into contact with each other.
The Mother spent supervised time the child from 11 June 2021 to 2 August 2021 and which time was positive.
Pursuant to the Court Orders of 28 May 2021, the Mother undertook regular urinalysis testing from 31 May 2021 and which results were clear. The Mother undertook CDT tests pursuant to those Orders. Since the Mother discharged from H Clinic on 25 May 2021, she has attended regular follow-up programs including regular weekly AA meetings and counselling.
The Mother and Mr G were engaged in late June 2021. They live in a three-bedroom residence that they share with Mr G’s three girls. Mr G spends time with his children week about.
The Mother has moved with Mr G to a residence in Suburb L.
The Mother states that since graduating from the H Clinic course she had engaged with the Relapse Prevention program with her counsellor. She continues to be engaged with AA. The Mother states she has been alcohol free and sober since April 2021.
The Mother has started a certificate IV at TAFE NSW. This course is being done online and she expects to finish the course sometime in 2022. She asserts that she is up to the job placement and work experience stage of the course. She is hopeful of obtaining work nearby sometime in 2022 once she completes the course.
The Mother states she is actively engaged in volunteering her time to residents in the program at H Clinic.
The Mother’s filed Affidavits from her counsellor Ms M and from Ms N assert, inter alia, the Mother’s commitment to her rehabilitation from previous alcohol dependency.
The paternal grandmother alleges that the child has been in her primary care since early April 2021. She asserts she is in good health and lives in Suburb B with her daughter and her 6 children. She has some commitments to care for her husband Mr O who is aged 94. She alleges that Mr O is in reasonable health for his age. She alleges that Mr O’s daughter from his previous marriage assists with his care.
The paternal grandmother alleges that the child attends day care two days per week on Wednesday and Thursday, at a day care centre in Suburb P.
The paternal grandmother alleges that since the child has been in her primary care she has noticed that he has some concerning behaviours. She alleges that the child often screams and demands things he wants, and he will get very angry and start screaming and crying if he doesn’t get his way, and from her perspective this is beyond the tantrums that she would normally expect from a four year old. She alleges other adverse behaviour by the child such as throwing himself on the floor or hitting his head and face with his hands. She refers to trying to intervene and manage these behaviours and has spoken to the child’s daycare about what help or intervention she can get for it. She alleges that she has asked the Mother on various occasions to keep an eye on the child’s health concerns but she has generally responded, “he is doing fine and just being a normal toddler.”
The paternal grandmother alleges that the Mother had previously taken the child to the C Service in Suburb Q in 2019. The paternal grandmother refers to re-contacting that service in about August 2021 and annexed to her Affidavit is a psychological assessment report from Ms R, clinical psychologist at the service, dated 19 August 2021.
The above report from Ms R refers to the paternal grandmother reporting that the child, although having made great progress in a number of areas over the past year, she was concerned that the child was behind other children of his age and a number of areas especially in terms of his emotional regulation and play. The paternal grandmother, inter alia, reported that the child can show a lot of anxiety if not in control, was a very poor eater and sleeper, was very clingy and still not toilet trained.
In the assessment, Ms R referred to her observations of the child having a lovely level of reciprocity in his interactions with the paternal grandmother and herself. Overall the child presented as a younger child and his language skills were clearly delayed. He had a very short attention span. The summary and recommendations of Ms R included, inter alia, the reference to the child’s history of vulnerability from in utero including exposure to alcohol. The current assessment of the child’s cognitive functioning indicated global developmental delay. The clinical observations were of a little boy with significant delay in a number of areas including his language, attentional control, play skills and ability to accept direction. An application for NDIS funding was strongly supported. He required significant support with speech and language, self-direction, cognitive skills such as puzzles, attentional control and play ideas. A review speech and language assessment with likely ongoing speech therapy is strongly recommended. The child would benefit from early intervention support in his preschool setting in 2022 in order to help prepare and for the transition to school in 2023. Ms R referred to the child’s presentation raising concerns about a possible diagnosis of foetal alcohol spectrum disorder (FASD). The Court takes into account the content of Ms R’s report whilst acknowledging that it remains untested at this interim stage.
The Mother alleges that shortly after Ms R’s report was released there was a conference call between the Mother, the Father, the paternal grandmother and Ms R to discuss her report. It is alleged that the Mother said, “I’m not happy with the report. I’m going to get a second opinion.” At the interim hearing, a submission was made on behalf of the Mother that the Mother has reservations regarding the diagnosis by Ms R of global developmental delay and wants to obtain her own report.
The paternal grandmother states that her daughter and herself have no issues with the Father staying with them either at her home in Suburb B or at the paternal grandmother’s home in Suburb S when the Father visits Sydney from Western Australia.
The paternal grandmother alleges that the child appears to be happy with the overnight stays at the Mother’s house, and seems happy and excited, inter alia, when she picks him up at the end.
The paternal grandmother alleges that in about April or May 2019 the Mother moved back to Sydney from City F and stayed with the paternal grandmother in Suburb S. Then the Mother, it is alleged, moved to accommodation in Suburb T and began drinking alcohol again. The paternal grandmother alleges that a short time later the police contacted her asking her to attend the Mother’s Suburb T residence. It is alleged that the police told the paternal grandmother that the Mother was drunk and suicidal. The paternal grandmother alleges that she attended the Mother’s residence and the Mother appeared vacant and dissociated, she was holding the child who was screaming in fear and appeared distressed. The paternal grandmother then cared for the child for a couple of days and alleges that the Mother was hospitalised overnight. Thereafter the paternal grandmother assisted the Mother with accommodation in Suburb S. The paternal grandmother alleges that in about mid 2020 the Mother began a relationship with Mr G and moved in with him in about November 2020. Thereafter the paternal grandmother was visited by the Mother and child almost every weekend and often during the week. There were occasions when the paternal grandmother babysat the child.
The paternal grandmother alleges that in about February or March 2021 she spoke with the Mother who told her that she was having lots of arguments with Mr G with some of them ending up in a physical fight.
The Father alleges that the Mother has been hospitalised and/or in rehabilitation for alcohol-related issues on at least three occasions since the child was born in 2017.
The Father alleges that he moved to Perth in early April 2018. He alleges that during his visits to Sydney in 2018 and 2019 he often saw the child on only two or three out of the seven days. He alleges that he spent time with the child at Christmas 2018 and in February 2019 the Mother and child visited him in Perth. He next visited Sydney to see the child, he alleges, during April 2019 and November 2019. He alleges he visited Sydney to spend time with the child in January 2020 and March 2020. He appears to allege that between March 2020 and April 2021 he was not able to spend face-to-face time with the child due to Covid reasons. He spent time with the child, he alleges, in about the second half of April 2021 up until early May 2021 when he returned to Perth.
The Father admits to consuming cocaine and marijuana at times in the past. He alleges he no longer uses these illicit drugs and has significantly reduced his alcohol consumption. He alleges that his employer has a strict alcohol and other drugs policy under which staff can be tested for drug and alcohol consumption at any time with disciplinary action if a test returns a positive result.
The Father admits to a previous problem with alcohol and related adverse behaviour by him. He alleges that each party were charged with assault and later convicted after a hearing in Court in about the first half of 2017. He alleges that there were ADVOs in place prohibiting both parties from contacting the other.
The Father alleges that he has provided financial support for the child as set out in his Affidavit filed 29 November 2021.
LEGAL PRINCIPLES
The relevant principles in relation to parenting proceedings, including interim proceedings, are well settled: see Goode & Goode [2006] FamCA 1346; (2006) FLC 93-286.
In Marvel & Marvel (No 2) [2010] FamCAFC 101, the Full Court of the Family Court of Australia discussed the problems associated with making findings on disputed evidence as follows:
[120] As has frequently been emphasised interim parenting proceedings, and Orders made as a consequence, are a necessary but temporary measure until all the evidence can be tested, evaluated and weighed at a final hearing by the making of final parenting Orders. Decisions judicial officers have to make in interim proceedings are difficult and, often for very good reason, a conservative approach, or one which is likely to avoid harm to a child is adopted. This is often to the understandable distress of a party who may not achieve the outcome he or she desires, or thinks to be in the best interests of their child or children. Interim parenting Orders are frequently modified or changed after a final hearing, and any allocation of parental responsibility made at an interim hearing is disregarded at the final hearing (s 61DB).
…
[122] In SS & AH [2010] FamCAFC 13 the majority (Boland and Thackray JJ) discussed at paragraph 88 of their reasons the care necessary to be exercised in making findings in interim parenting proceedings. Their Honours said:
In our view, findings made at an interim hearing should be couched with great circumspection, no matter how firmly a judge’s intuition may suggest that the finding will be borne out after a full testing of the evidence.
[123] Later, at paragraph 100 their Honours amplified their comments and said:
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.
Of this, the Full Court in Eaby & Speelman [2015] FamCAFC 104 said at [19]:
As would be immediately apparent, this approach enables the Court to appropriately and carefully deal with contentious issues relevant to the welfare of the child, and for those issues to not be ignored.
The Court also refers to the decision of the Full Court of the Family Court of Australia in Banks & Banks [2015] FamCAFC 36, especially at paragraphs 46 to 52. In that decision, the Full Court stated, inter alia, that (at paragraph 49), “It is also important to stress here that the requirement to “consider” each factor (under s60CC of the Act) does not mean each must be discussed, especially where the evidence leads inexorably to a particular conclusion: SCVG & KLD (2014) FLC 93-582”. Further, it stated, at paragraph 50, “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”.
Section 60B of the Act sets out the objects of Part VII of the Act relating to children that inform the making of parenting Orders.
In deciding whether to make a particular parenting Order in relation to a child, a Court must regard the best interests of the child as the paramount consideration: section 60CA of the Act.
Section 60CC of the Act provides that in determining what is in the child’s best interests, the Court must consider the matters set out in subsections (2) and (3) and in this regard the Court refers to Banks & Banks above.
Section 60CC (2A) provides that in applying the considerations set out in subsection (2), being the meaningful relationship primary consideration and the need to protect primary consideration, the court is to give greater weight to the need to protect primary consideration.
The child would appear to have a meaningful relationship with the Mother and will likely benefit from a continuance of that relationship provided it is safe, physically and emotionally, to do so.
The child would appear to have at least a positive relationship with the Father and will likely benefit from the development of that relationship provided it is safe, physically and emotionally, to do so.
Should the child spend time with the Mother, as proposed by the Father and paternal grandmother, effectively for three nights in week one and three nights in week two, there is a reasonable prospect that the child’s meaningful relationship with the Mother can be maintained and enhanced.
Should the child spend time with the Father, as proposed by the Father and paternal grandmother, there is a reasonable prospect that the child’s meaningful relationship with the Father can be maintained and enhanced.
The Mother seeks an interim Order that the child now live with her, and spend time with the paternal grandmother, in the absence of agreement, for a period of 8 hours each alternate Saturday. She seeks an interim Order that the child spend time with the Father, when the Father is visiting Sydney, 8 hours per day for up to 5 days at a time. She seeks Orders that the ICL be at liberty to have either party submit to a random drug and alcohol test on a certain basis.
The Mother told the family consultant that she considers herself an alcoholic and now recognises that she cannot ever have an alcoholic drink. There is a significant suggestion, on the material before the Court, that for a considerable period prior to April 2021 the Mother had a significant dependency upon alcohol and that at times her related behaviour was significantly adverse and antisocial. In this context, the paternal grandmother, for example, had alleged that previously the Mother was suicidal when adversely affected by alcohol with police intervention being called and the paternal grandmother, for about a day, assuming care of the child.
The Court recognises that there is a significant suggestion, on the material before the Court, that since the Mother’s rehabilitation course in about April 2021, she has been abstinent from alcohol and has taken positive and commendable steps to remain sober and non-dependent upon alcohol.
However, on the material before the Court, at this interim stage, firstly, the Court has a concern that the child may be exposed to a risk of harm if living with the Mother, as proposed by her. The risk of harm to which the child may be exposed would be neglect, both physically and emotionally, if the Mother was to relapse and resort to alcohol consumption. Whilst this risk would appear not to be great, the Court would assess that nevertheless it is a real risk for at least the following reasons, based on the material before the Court:
(a)The Mother had a significant dependency upon alcohol for a considerable period prior to April 2021. Again, the Mother has taken positive steps to rehabilitate herself since April 2021 and there is a significant suggestion, on the material before the Court, that she has remained alcohol abstinent since that time. However, that abstinence has only been for about 8 months, with the Court observing the comments of the family consultant, in her Memorandum of 13 September 2021, that abstinence since April 2021 was not considered to be a long enough period to have confidence that the Mother was now stable. The family consultant ultimately recommended that should the matter proceed to a final hearing the Court may be assisted in determining the matter by the parties participating in an assessment with a single expert with experience in assessing the impact of substance abuse on the parenting of young children, with another option being for the parties to be assessed by a single expert with experience in assessing drug and alcohol issues. The Court observes that the Mother has adduced no significant expert evidence in this context, in particular as to the Mother’s prospects of remaining abstinent from alcohol, including the nature and extent of any risks of the Mother resorting to alcohol. The Court should state that it has not overlooked the Mother’s filed Affidavits from the addictions counsellor and Ms N.
(b)The Court has a real concern that should the child now live with the Mother and only spend 8 hours each alternate Saturday with the paternal grandmother that the Mother will struggle to adequately care for the child (a child who has been assessed with developmental delay and associated challenging behaviours) and experience significant stress; if she were to experience such significant stress, the Court is concerned that the Mother may resort to alcohol. There is a significant suggestion, on the material before the Court, that the child suffers developmental delay and he is exhibiting challenging behaviours, to which Ms R, psychologist, and the paternal grandmother refer to. The Mother at this stage has some doubt as to Ms R’s assessment that the child suffers developmental delay and wants to obtain a second opinion for the child. Again, the Mother is seeking interim Orders that the child live with her and spend only 8 hours each alternate Saturday with the paternal grandmother. On the Mother’s proposed Orders the child would not be spending significant regular time with the Father, in particular by reason of the Father’s residence in Western Australia. Whilst there is a significant suggestion that prior to April 2021 the Mother was the child’s primary carer, since the Mother’s discharge from H Clinic in May 2021 the Mother has only cared for the child on a fairly limited basis, albeit recently culminating in beginning to spend two nights each week since shortly after the Orders of 1 October 2021. The paternal grandmother told the family consultant that she has had past concerns about the Mother’s parenting capacity and the fact that the Mother appeared hostile to advice. The paternal grandmother said, for example, that over the years she had encouraged the Mother to get the child into a routine for eating and sleeping and she noted that the Mother “can’t cope with stress” and becomes “overwhelmed”.
And secondly, the Court has a real concern that the Mother lacks sufficient parenting capacity to care for the child on a live with basis, as proposed by the Mother. In this regard, the Court observes the opinion of the family consultant that “Although both parents gave the impression that they love X they also impressed as prioritising their own needs above X’s needs. Both parents presented as lacking maturity and lacking an understanding of the attachment needs and requirements of day-to-day care of a very young child. Further, in this regard, the Court refers to its discussions above under B) relating to the Mother’s alleged inability to cope with stress, the child’s assessed developmental delay and related adverse behaviours, together with the Mother’s doubts as to the assessment of developmental delay in the child.
The Court notes that under section 60CC(2A) of the Act, the Court, in applying the meaningful relationship primary consideration and the need to protect primary consideration under section 60CC(2) of the Act, is to give greater weight to the need to protect primary consideration, and the Court does so, again having regard to its above discussions as to risk. The Court should state that it gives significant weight to the need to protect primary consideration at this interim hearing, by reference to its above discussions as to risk of harm if the child was to live with the Mother, as proposed by her.
The Mother contends that the Father has perpetrated family violence against her previously, and that the Father continues to ingest significant quantities of alcohol and that he has previously resorted to illicit drugs. The Court has considered carefully the Mother’s contentions and allegations in this context, together with her material in relation to the Father’s alleged previous adverse behaviour. The Father himself admits to previously assaulting the Mother, albeit that he alleges the Mother also assaulted him, and admits to a prior problem with alcohol consumption and related adverse and antisocial behaviour. The Court has taken into account the Father’s allegations that his employer has a protocol in place for, inter alia, alcohol consumption in the workplace, including random testing, and that the Father has been able to maintain his employment to date. The Court is of the view that should the child spent time with the Father as proposed by himself and the Paternal Grandmother, and which requires the Father to spend time with the child whilst he is in the paternal grandmother’s household, that there is a significant prospect that such requirement will act as a protective factor in relation to the child spending time safely with the Father.
The Court is concerned with the Mother’s proposed Order 5 relating to the child spending time with the Father in that the wording of that proposed Order namely, “such time shall be 8 hours per day for up to 5 days at a time” is insufficiently prescriptive and may afford the Mother the opportunity to significantly limit the child’s time with the Father when he is visiting Sydney from Western Australia. Such opportunity, if exercised by the Mother, may detrimentally affect the development of the child’s apparent positive relationship with the Father.
As to the Mother’s proposed random drug and alcohol test Orders (proposed Order 7), the Court is of the view that such proposed Orders will assist in ensuring that the Mother remains unaffected by alcohol when spending time with the child, subject to some amendments relating to the nature of the urinalysis (to be supervised) and deleting the reference to hair follicle testing, noting that the Court proposes separate Orders in respect to the Father undertaking a hair follicle test.
The Father and paternal grandmother’s proposed Orders 12-15 will be Orders in the best interests of the child because their compliance will assist the child in receiving adequate care for his developmental delay and other matters raised by Ms R, psychologist, in her assessment report.
The Father and paternal grandmother’s proposed Order 11 that the paternal grandmother be at liberty to take the child to Perth to spend time with the Father twice per calendar year for up to one week per visit will be an Order in the best interests of the child and assist in the timely development of the child’s positive relationship with the Father. The presence of the paternal grandmother during such visits will minimise the risk of the child being unsafe in the Father’s care. On the material before the Court, the Court would assess that there is not a significant risk that the paternal grandmother and the child would not return from Perth to Sydney in a timely fashion after such visits.
The Father and paternal grandmother’s proposed Order 16 that the parties complete a Circle of Security parenting program will be an Order in the best interests of the child with the Court observing that the family consultant recommended this should occur (see paragraph 37 of the CDC Memorandum).
Evaluating the above discussed relevant considerations under section 60CC of the Act, it will be in the best interests of the child, at this interim stage, to make the following Orders:
1.The Mother’s proposed interim parenting Orders sought in her Case Outline filed on 30 November 2021 be dismissed.
2.The time arrangements in the interim consent Orders made on 1 October 2021 are varied such that X lives with the paternal grandmother and spends time with the Mother as agreed and failing agreement on a fortnightly basis as follows:
(a)Week 1: from 10am or conclusion of daycare / preschool on Thursday for three (3) nights until 10am on Sunday.
(b)Week 2: From 10am or conclusion of daycare / preschool Wednesday for three (3) nights until 10am on Saturday.
(c)Changeover will take place as agreed between the parties and failing agreement the Mother will collect X from the paternal grandmother’s residence or daycare / preschool at the commencement of her time and the paternal grandmother will collect X from the Mother’s residence at the conclusion of the Mother’s time.
3.Order 6 of the interim parenting Orders made on 28 May 2021 is discharged.
4.In the event that the Father visits Sydney for an extended period of six (6) weeks during 2022 the Father will spend time with X when X is in the paternal grandmother’s care as agreed between the Father and the paternal grandmother and the arrangements in Order 8 below will not apply during the said extended visit.
5.The Court NOTES that the implementation of the following Orders as to the child’s time with the Father is subject to the travel and border restrictions imposed by the State and Territory governments in response to the covid-19 pandemic.
6.The Court NOTES that the Father presently works for two (2) weeks at the work site in Western Australia followed by one week off in Perth (“regular R&R leave”).
7.The Court NOTES that during 2022 (and subject to the applicable covid travel restrictions) the Father anticipates being in Sydney every six (6) weeks for five days at a time during his regular R&R leave and during the Father’s said visits to Sydney, and also during his extended visit in Order 4, he will stay with the paternal grandmother (who is currently living with X in the Father’s sister’s household in Suburb B).
8.The Father will spend time with X in Sydney during his regular R&R leave as follows:
(a)The Father gives the Mother and the paternal grandmother at least two weeks’ notice of his intention to travel together with the dates on which he will arrive in and depart from Sydney;
(b)X spends time with the Father for the duration of the Father’s visit to Sydney NOTING that during the said time the Father and X will be in the paternal grandmother’s household;
(c)X spends time with the Mother for four (4) hours from 12pm to 4pm or such other time as agreed between the parties on the middle day of the Father’s visit to Sydney
(d)If the Father’s visit to Sydney has two middle days (which will occur if the Father is in Sydney for an even number of days) X will spend time with the Mother on the first of the two middle days as set out in Order 8 (c) above;
(e)Changeover for X’s visits with the Mother pursuant to this Order will take place as agreed between the parties and failing agreement the Father or paternal grandmother will deliver X to the Mother at the start of the Mother’s visit with X and the Mother will return X to the Father or paternal grandmother at the conclusion of the Mother’s visit;
(f)The time arrangements in Order 2 above are suspended for the duration of the Father’s visit to Sydney with the duration of the visit being from the time that the Father departs Sydney airport after arriving from Perth until the time that the Father arrives at Sydney airport to return to Perth.
9.The Court NOTES the parties will use their best endeavours to ensure that X’s time with the Father pursuant to Orders 7 and 8 above will occur as much as possible during periods that X is otherwise living with the paternal grandmother pursuant to these Orders and in that regard the Father will provide to the Mother his work roster each 6 weeks.
10.The paternal grandmother is at liberty to take X to Perth to spend time with the Father twice per calendar year for up to one week per visit as follows:
(a)The Father and the paternal grandmother give the Mother at least four weeks notice of the paternal grandmother’s intention to travel to Perth with X together with the dates on which the paternal grandmother and X will depart from and return to Sydney;
(b)The time arrangements in Order 2 above are suspended for the duration of X’s visit to Perth with the duration of the visit being from the day on which the paternal grandmother and X depart Sydney to travel to Perth up to and including the day on which the paternal grandmother and X return to Sydney from Perth.
11.The Mother, the Father and the paternal grandmother forthwith do all acts and things to make an application for NDIS funding for X and in the event that the Mother does not sign her part of the said application or complete any document associated with or arising from the application within seven (7) days of that application or document being provided to her then the requirement for the Mother to sign or complete the said application or document is dispensed with.
12.The Mother, the Father and the paternal grandmother each do all acts and things to facilitate X receiving support with speech and language, self-direction, cognitive skills and any other intervention recommended by the C Service or such other service provider (including those identified in Order 13 below) and in the event that the Mother does not provide her consent for such intervention within seven (7) days of that consent being requested then the requirement for the Mother to consent to the said intervention is dispensed with.
13.Within seven (7) days of these Orders the Mother, the Father and the paternal grandmother each do all acts and things to complete the intake and referral process for the CICADA Service at D Hospital (“CICADA”) and the Child Development Service (“CDS”) at E Hospital and in the event that the Mother does not complete the said process then the requirement for the Mother to complete this process and/or to provide her consent as a precondition for X to receive healthcare services from CICADA or CDS is dispensed with.
14.The Mother, the Father and the paternal grandmother are at liberty to provide a copy of these Orders to the NDIS, to any associated service provider, to any provider of early intervention or other healthcare or support service for X, to any doctor or health practitioner who provides healthcare services for X, to any Local Health District in New South Wales and to any facilities operated by that District.
15.That the Mother and the Father forthwith enrol in and complete a Circle of Security parenting programme and provide corroborative evidence that they have done so to each of the parties and to the ICL.
16.That the Father is to forthwith undertake a hair follicle test such testing to be for the preceding three (3) months and to test for all illegal drugs and substances.
17.For the purpose of such hair follicle testing the Father shall not cut his hair shorter than 3 centimetres until the date specified in the preceding Order.
18.Such hair follicle testing is to be conducted at a laboratory accredited by the National association of testing authorities, Australia in accordance with the current Australian standard for the collection and detection of drugs of abuse.
19.That the Father shall pay all costs of such hair follicle testing.
20.Orders 8 and 9 of the Court’s consent Orders of 1 October 2021 are discharged.
21.The ICL be at liberty to have the Mother submit to a random drug and alcohol test on the following basis:
(a)A supervised random urinalysis and/or CDT test with such test to be conducted within 48 hours of such notice being given by the ICL to the Mother or her legal representatives;
(b)The results of such tests referred to above shall be provided to the ICL within 48 hours of receipt of the results being obtained by the Mother.
22.Pursuant to section 62G(2) of the Family Law Act 1975 the parties and the children of the relationship shall attend upon a family consultant nominated by the Dispute Resolution Coordinator 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 by September 2022.
23.The Family Report shall deal with the following matters:
(a)Any views expressed by the child(ren) the subject of parenting Orders sought in this case, provided that the child/ren shall not be required to express a view in relation to any matter.
(b)The nature of the relationships of the child(ren) with each of the child(ren)’s parents and with significant other persons;
(c)The willingness and ability of each of the child(ren)’s parents to facilitate and encourage a close and continuing relationship between the child(ren) and the other parent.
(d)The likely effect of any changes in the child(ren)’s circumstances, including the likely effect on the child(ren) of any separation from:
(i)either of the parents: or
(ii)any other child, or significant person, with whom the child(ren) has/have been living.
(e)The practical difficulty and expense of the child(ren) spending time with and communicating with a parent and whether that difficulty or expense will substantially affect the child(ren)’s right to maintain personal relations and direct contact with both parents on a regular basis.
(f)The capacity of each parent, or another person, to provide for the needs of the child(ren), including emotional and intellectual needs.
(g)The maturity, sex, lifestyle and background (including lifestyle, culture and traditions) other child(ren) and of either of the child(ren)’s parents and any other characteristics of the child(ren) that the reporter thinks are relevant.
(h)Each parent’s attitude to the child(ren) and to the responsibilities of parenthood.
(i)Any family violence involving the child(ren) or a member of the child(ren)’s family.
24.The parties shall attend all appointments with the Family Consultant and shall ensure the subject child/ren attend all appointments with the Family Consultant, as requested by the Family Consultant.
25.The Family Consultant may inspect the Court file, and any documents produced on subpoena access to which has been granted to a party or the Independent Children’s Lawyer.
26.The matter is to be listed on a date to be advised following release of the Family Report.
27.Liberty to the ICL to relist the proceedings on 7 days’ notice in relation to the facilitation and implementation of the above Orders.
I certify that the preceding eighty-two (82) numbered paragraphs are a true copy of the Reasons for Judgment of Judge Newbrun. Associate:
Dated: 14 February 2022
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