LAKE & PARNELL

[2020] FCCA 483

FEDERAL CIRCUIT COURT OF AUSTRALIA

LAKE & PARNELL [2020] FCCA 483

Catchwords:
FAMILY LAW – Parenting – interim hearing – two children aged 4 and 3 years – where the father has retained the children in his care since Boxing Day 2019 – where there are concerns regarding the mother’s mental health – where there are concerns regarding the father’s alcohol abuse – where there are mutual allegations of family violence – where the parties are now living three and a half hours apart – Orders made for the children to live with the father and spend time with the mother each weekend under the supervision of their adult half-sister.

Legislation:

Family Law Act 1975 (Cth), ss.60CA, 60CC, 60CC(2), 61DA, 61DA(3), 65DAA, 65DAA(3), 65DAA(5)

Cases cited:

Goode & Goode (2006) FLC 93-286

Applicant: MS LAKE

Respondent: MR PARNELL

File Number: ADC 425 of 2020

Judgment of: Judge Kari

Hearing date: 14 February 2020

Date of Last Submission: 14 February 2020

Delivered at: Adelaide

Delivered on: 5 March 2020

REPRESENTATION

Counsel for the Applicant: Ms Lindsay

Solicitors for the Applicant: Gallagher & Co

Counsel for the Respondent: Mr Praolini

Solicitors for the Respondent: Adelaide Family Law

ORDERS UNTIL FURTHER ORDER

1. That the children X (born in 2015) and Y (born in 2017) do live with the father.

2. That the children spend time with the mother each week from 10am Saturday until 4pm Sunday with all such time to be supervised by the mother’s adult daughter Ms B.

3. That for the purposes of handover, all handover be effected inside the Suburb C Police Station between the father and Ms B.

4. That the father facilitate the children communicating with the mother each Tuesday and Thursday at 6pm, with the mother to telephone the father for that purpose.

5. That the father be restrained and an injunction is granted restraining him from consuming alcohol twenty-four (24) hours prior to and during any period of time that the children are in his care.

6. That the mother do all things necessary to undertake a psychiatric evaluation and obtain a report with the same to be filed no later than 29 May 2020 and in relation to the same the parties are to agree a letter of instruction within 14 days.

7. That pursuant to section 62G(2) of the Family Law Act 1975 (Cth), the parties and the children attend upon a family consultant 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, with a request that such report be released by 30 July 2020.

8. The Family Report deal with the following matters:

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

   (b)The matters set out in ss.60CC, 61DA and 65DAA of the Family Law Act 1975; and

   (c)Any other matters that the Family Consultant considers important to the welfare or best interests of the said children.

9. The solicitors for the parties shall forward copies of all documents filed with the Court to the nominated report writer in accordance with the directions of the Child Dispute Co-ordinator.

10. The parties shall do all things necessary to facilitate the completion of the Family Report, including making themselves available for appointments and executing any authorities for the release of information to the report writer.

11. The report writer shall be at liberty to liaise with any person in relation to the welfare of the children.

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

13. Unless a party objects, in writing, within fourteen (14) days of the release of 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 children 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.

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

15. That the proceedings be adjourned for mention only to 9:30am on 17 August 2020.

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

FEDERAL CIRCUIT COURT
OF AUSTRALIA
AT ADELAIDE

ADC 425 of 2020

MS LAKE

Applicant

And

MR PARNELL

Respondent

REASONS FOR JUDGMENT

Introduction

1. These proceedings relate to two young children X who will be five in 2020, and Y who has just turned three.

2. The proceedings come before the court at a stage relatively proximate to the separation of the children’s parents on 17 September 2019 and at a point where a preliminary risk assessment needs to be undertaken by the court against the backdrop of limited information.

3. At this early stage there is a very real dispute about the children’s primary living arrangements as a result of safety concerns that have been raised by each of the parents.

4. From the date of separation until the father retained the children they were living with the mother and two of their half siblings D who is 12 years old and E who is 10 years old.

5. The children are now however living with the father in circumstances where he retained the children as and from Boxing Day 2019 following a disagreement with the mother regarding the location of handover and where he asserts that he “continued to hold grave concerns for the children whilst they were in the Mother’s care due to her mental health issues.”[1]

   [1] Affidavit of the Father filed 12 February 2020, [21].

6. The father asserts that at this juncture the mother poses an unknown risk to the children as a result of her mental health given her admission that in 2019 she overdosed on paracetamol and was hospitalised for a period of approximately 17 days.

7. The mother commenced the proceedings on 2 February 2020 asking the court to urgently return the children to her primary care.

Background

1. The short history of the parties and their relationship is as follows:

   a)The father is 33 years of age.

   b)The mother is 41 years of age.

   c)The parties lived in a de facto relationship from some time in 2011 until they separated on 17 September 2019.

   d)Aside from the two children of the relationship, the mother has four children from a previous relationship, D who is 12 years of age, E who is 10 years of age and two adult children MS B and MR F.

   e)The mother’s two adult children now live independently whereas her two younger children have at all times lived in the mother’s household with the children the subject of these proceedings.

   f)During the relationship the parties lived in a home in Town G.

2. The father acknowledges that at the time of separation he moved out of the Town G property and initially into a house with a friend in Suburb H, although he is now living with his mother and the children in Town J.

3. There is no dispute between the parties that there is now a 3 ½ hour travel time between the mother’s home in Town G and the father’s home in Town J.

4. The parties agree that at the time they separated X and Y remained living with the mother in Town G and spent limited time with the father, albeit that the father asserts that the mother refused to facilitate as much time with the children as he would have liked.

5. Both of the parties make a range of allegations in their affidavit material.  Given the interim nature of these proceedings it is impossible to make findings about those allegations.  Those allegations however include:

   a)An allegation on the mother’s part that the father has been heavily abusing alcohol for approximately the last 18 months and that connected with his alcohol use she has been the victim of both physical and verbal abuse.

   b)Allegations by the father that the children were victims of physical violence at the hands of the mother including being slapped, punched, choked and bitten.

   c)An allegation by the father that the mother’s child D habitually watches hard-core pornography.

6. The father additionally asserts that at the time of separation there was a serious incident of family violence instigated by the mother in which she assaulted him by punching him to the head and face, ripping at his hair and attempting to rip his earrings out resulting in him locking himself in the bathroom and the mother trying to kick the door down.  The father asserts that as he tried to pack his bags to leave the home during the incident, the mother picked up an iron cage wine bottle holder and repeatedly struck him in the head.  The father asserts that the mother ultimately left with the four children and that approximately five minutes later the police arrived.  The father says that shortly thereafter he left the home.

7. The mother also asserts that the father lost his license for a drink-driving offence in late 2019.

8. While the mother has not had a chance to respond to the father’s allegations given the urgent manner in which these proceedings have come before the court, the father has responded to the mother’s allegations identifying:

   a)That he is not an alcoholic and he did not drink alcohol daily;

   b)That it would be have been impossible for him to consume alcohol excessively as asserted by the mother and maintain his work regime, given he was working “12 hours a day, 6 days a week” and was subjected to regular worksite testing;

   c)That at most when he did drink alcohol he would drink 2-3 drinks per night.

   d)That he did lose his license for drink-driving in 2019 in circumstances where he asserts he had driven after drinking 3-4 alcoholic beverages.

   e)The father explains the drink-driving incident as an “unwise decision” on his part due to coming to terms with the separation, his new living arrangements, not seeing the children and coping with his terminally ill father (who has since died).

9. When the mother filed her affidavit in support of her urgent application, she made an admission in the following terms:

   “[In] 2019 I overdosed with paracetamol and went to hospital and spent three days at the [K Hospital] and 14 days at the [L Hospital].  I came home [in] 2019.”

10. In that affidavit the mother did not in any way explain the circumstances that led to her taking an overdose in 2019, nor what has occurred in the period of time since her discharge from hospital.  Nor did the mother in any way address or acknowledge the seriousness of the incident in 2019 nor any other obvious questions and concerns about her mental health that must flow from such a serious incident.

11. The mother did however annex to her affidavit a report from her GP dated 6 January 2020.  The report is brief and reads as follows:

    “[Ms Lake] has recently become estranged from her former de facto partner.  I understand that there are significant issues relating to custody and visitation rights for their mutual children.

    I have been [Ms Lake]’s regular family Doctor for almost 20 years now, having delivered most of her children.  During that time, she has had her ups and downs with several stresses in life, but has always, in my experience, been a sensible lady, making the best of her circumstances, and providing loving and dedicated care to her children.

    She was hospitalised in 2019 with major depression following an overdose of Paracetamol.  This was in the context of significant financial and relationship stressors.

    She is presently taking antidepressant medication daily).

    On examination today she was certainly mentally stable and appropriate, despite the enormous stress of her present family circumstances.

    I would have no reservations about her capacity to safely and satisfactorily look after her children.”

12. The father asserts that while he knew the mother had been hospitalised he did not know that the mother had been hospitalised for overdosing on paracetamol until he received the report from the mother’s GP after he had retained the children and nor did he know that she had been hospitalised for several weeks 2019 until reading the mother’s affidavit.

13. The father asserts that in 2019 (four days after her hospitalisation) the mother sent him a text message at 3.38 pm in reply to his text message request to see the children sent at 3.19 pm that same day.  The mother’s text message to the father  read as follows:

    “You will have to ring [Ms B] to arrange it as she is looking after them as I am in hospital”

14. The father responded to that text message at 3.54 pm stating “that was nice to let me know this can’t continue like this and are they here or in Town M”.  There was a further text message from the father some time thereafter which read “??”.

15. The mother responded to the father’s messages in the following terms:

    “They are at home and have been home

    And why do I need to let u know it is not one of your kids sick… And [Ms B] is beyond capable and they have been doing their usual school kindy and their normal routine etc… And she is their sister and has had all of them kept them together.. I don’t understand why that is a n issue… You can see them But I’m not there to organise it.  And I have told u centre care is going to arrange mediation etc… But no appointments until Nov…” 

16. To say that the mother’s communication and candour with the father about her very serious circumstances was less than optimal would be a gross understatement.

17. While not contained in her affidavit material, during the hearing the mother’s counsel advised the court that in the period of her hospital admission the father had indeed liaised with the adult child Ms B and saw and/or communicated with the children as follows:

    a)Face-to-face for between one and six hours on each 27 October 2019, 1 November 2019, 3 November 2019, 10 November 2019; and

    b)Spoke to the children on 29 October 2019, 5 November 2019, 12 November 2019 and 13 November 2019.

18. It is the mother’s case that in those circumstances and given the father had knowledge firstly that the mother was in hospital and needed to liaise with Ms B, the court can infer that the father knew that the mother remained in hospital across that period of time.  In the absence of the benefit of cross-examination of the father I’m not satisfied that I can at this stage draw such an inference.

19. That is particularly so because the father ultimately instructed his solicitors on 12 December 2019 to enquire about not only time spending arrangements with the children, but significantly the mother’s recent hospitalisation.  The father asserts that he suspected that the mother’s hospitalisation was due to her mental health issues, and clearly the correspondence from his solicitor to the mother’s solicitors sought information in that regard.

20. The parties agree:

    a)That the father was scheduled to spend time with the children by agreement on 26 December 2019 for a few hours.

    b)While the children were with the father the parties agreed that they would stay with him until the following day.

    c)On 27 December 2019, the father travelled to Town G to return the children, but ultimately did not hand the children over as he wanted to effect handover at the local Supermarket and the mother insisted that handover be at her home.

    d)The mother has not seen the children since that time.

21. As a result of the father retaining the children:

    a)He moved from his brother’s home in Suburb H to his mother’s home in Town J to live with the children.

    b)He enrolled and has been taking the child X to N School in Town J as against N School in Town G, where the parties had intended X would attend school.

22. The matter proceeded to argument on 14 February 2020 with the court reserving judgment.  The court however made orders by consent during the period of the adjournment for the mother to spend time with both children from 10am Saturday until 4pm Sunday each weekend, supervised by their half sibling Ms B.

The legal principles

1. In any case involving children the court must regard the best interests of the child as the paramount consideration.[2]

   [2] Family Law Act 1975 (Cth), s.60CA.

2. In determining what is in a child’s best interest the court must take into account a range of factors set out in section 60CC of the Family Law Act 1975 (Cth) (‘the Act’), with those factors separated into primary considerations and additional considerations.

3. The Act also contains a presumption that it is in a child’s best interests for his or her parents to have equal shared parental responsibility.[3] That presumption can be rebutted in certain circumstances, namely situations relating to abuse and/or family violence.

   [3] Ibid s 61DA.

4. At an interim stage of proceedings, such as here, the court has the discretion not to apply the presumption if the court “considers that it would not be appropriate in the circumstances for the presumption to be applied…”[4]

   [4] Ibid s 61DA(3).

5. If the presumption of equal shared parental responsibility is to be applied, then the court is required to consider whether the child should spend equal time with each of their parents provided that any such equal time arrangements are in the child’s best interest and are reasonably practicable.[5]

   [5] Ibid s 65DAA.

6. In the event that the court rejects an equal time spending arrangement between the parents, the court is required to consider the child spending “substantial and significant” periods of time with each of his or her parents, taking into account the child’s best interests and whether the arrangements are reasonably practicable.[6]

   [6] Ibid s 65DAA(2).

7. The Act defines substantial and significant time as including days that fall on the weekend and days that do not fall on weekends or holidays.  Significantly substantial and significant time is defined as time which enables a parent to be involved in the child’s daily routine and occasions of significance to the child or his or her parents.[7]

   [7] Ibid s 65DAA(3).

8. In determining the practicalities of the arrangements for a child, the court is required to consider matters relating to the distance between the parents homes, the parents capacity to implement a shared care living arrangement, the parents capacity to communicate with each other and resolve parenting issues, and finally the impact of the arrangement on the child.[8]

   [8] Ibid s 65DAA(5).

9. In Goode & Goode (2006) FLC 93-286 (‘Goode’) at 82, the Full Court set out the “legislative pathway” that is to be followed in interim parenting cases as follows:

   a.  identifying the competing proposals of the parties;

   b.  identifying the issues in dispute in the interim hearing;

   c.  identifying any agreed or uncontested relevant facts;

   d.  considering the matters in s60CC that are relevant and, if possible, making findings about them (in interim proceedings there may be little uncontested evidence to enable more than a limited consideration of these matters to take place);

   e.  deciding whether the presumption in s61DA that equal shared parental responsibility is in the best interests of the child applies or does not apply because there are reasonable grounds to believe there has been abuse of the child or family violence or, in an interim matter, the Court does not consider it appropriate to apply the presumption;

   f.   if the presumption does apply, deciding whether it is rebutted because application of it would not be in the child’s best interests;

   g.  if the presumption applies and is not rebutted, considering making an order that the child spend equal time with the parents unless it is contrary to the child’s best interests as a result of consideration of one or more of the matters in s60CC, or impracticable;

   h.  if equal time is found not to be in the child’s best interests, considering making an order that the child spend substantial and significant time as defined in s65DAA(3) with the parents, unless contrary to the child’s best interests as a result of consideration of one or more of the matters in s60CC, or impracticable;[80904]

   i.   if neither equal time nor substantial and significant time is considered to be in the best interests of the child, then making such orders in the discretion of the Court that are in the best interests of the child, as a result of consideration of one or more of the matters in s60CC;

   j.   if the presumption is not applied or is rebutted, then making such order as is in the best interests of the child, as a result of consideration of one or more of the matters in s60CC; and

   k.  even then the Court may need to consider equal time or substantial and significant time, especially if one of the parties has sought it or, even if neither has sought it, if the Court considers after affording procedural fairness to the parties it to be in the best interests of the child.

Orders sought by the parties

1. The mother asks that the children immediately be returned to her care.  Whereas the father asks the court to make orders providing for the children to live with him and spend supervised time with the mother.

2. Significantly, the mother seeks orders that the parties share parental responsibility.  The father however asks the court to make an order that he have sole parental responsibility for the children.

3. While I decline to make an order with respect to parental responsibility given the interim nature of these proceedings, it is not insignificant that the mother asks the court to make orders for shared parental responsibility particularly with reference to the legislative pathway identified in Goode.  Implicit in the mother’s position must be an admission that despite her concerns about the father’s alleged alcohol use, she is satisfied that he is appropriately able to meet the children’s needs and make sound decisions in relation to them.

4. During the hearing the mother’s counsel made a concession that in the event that the court is satisfied that there are any risks associated with the children being in the mother’s care requiring protective measures be put in place, then the mother’s adult child Ms B, who is also a childcare worker, is an appropriate person to supervise the mother’s time.

5. With some reluctance the father ultimately through his counsel agreed that Ms B would be an appropriate supervisor given the absence of any other available alternative outside of a contact service.

6. The mother’s position if the children are returned to her is that they spend alternate weekends with the father from 4pm Friday until 5pm Sunday.

7. The mother’s position if the children remain in the father’s care, given the distance between the two homes, is that children spend alternate weekends with her from 4pm Friday until 5pm Sunday.

8. The father’s initial position if the children were to remain in his care are those time spending arrangements between the mother and the children that have now been ordered by consent.

9. The father’s position if the children were to be returned to the mother is that he would return to live with his brother in Suburb H and that the children spend time with him on alternate weekends from 4pm Friday until Monday.

Discussion

1. One of the vexed issues in this matter is the distance that now exists between the parties homes. Ideally, the parents would be living closer together enabling each of them to spend greater time with children, and not limiting time to weekend time arrangements for the non-residential parent.

2. Sadly however that is not the parties’ new separated reality, and the court is having to do the best that it can to ensure that the children maintain a meaningful relationship with each of the parents balanced against the need to protect the children from harm.

3. This is a case where the balancing of the primary considerations in section 60CC are prominent as a result of the concerns that each of the parents have raised about the other.

4. While there is no dispute that the father now has a drink-driving conviction. I am not otherwise in a position at this juncture to make any findings about the balance of allegations made by the mother regarding his alleged alcohol consumption.

5. I also accept that in light of the drink-driving conviction there is some added force to the mother’s concerns regarding the father’s drinking, however the fact of the recent offence does not prove the mother’s allegations about the father’s alcohol consumption and family violence during the relationship. At this juncture, and in the absence of oral evidence I cannot exclude the father’s explanation that the drink driving incident was a one off situational event.

6. Having considered the manner carefully, and cognisant that the mother otherwise considered the father until more recent times to be a “good step-father,”[9] I am satisfied that if I were to make injunctions restraining the father from consuming alcohol 24 hours prior to, and during any period of time that the children are in his care, that the children would be appropriately protected from the potential of any harm resulting from alcohol use when they are in the father’s care.

   [9] Affidavit of the Mother filed 3 February 2020, [10].

7. Unfortunately, however the concerns in relation to the mother are not so easily dealt with at this early stage. This is because the mother herself has not been forthcoming with all of the information pertaining to her very recent overdose. It may be that in time and with further information I will be satisfied that the concerns that have been raised about the mother’s mental health are no longer relevant considerations, but in my view I am not currently in that position.

8. While I am concerned about a range of issues, including the change to the children’s primary living arrangements, the separation of the children from their siblings and the father’s apparent inability to facilitate any relationship between the mother and the children prior to the proceedings coming before the court, those concerns must, as the Act requires come secondary to my consideration of the primary considerations in section 60CC(2).

9. For all of those reasons, I now make the orders that appear at the commencement of these reasons.

I certify that the preceding fifty six (56) paragraphs are a true copy of the reasons for judgment of Judge Kari

Associate: 

Date:  5 March 2020