LINTON & WARNE

[2016] FamCA 109

FAMILY COURT OF AUSTRALIA

LINTON & WARNE [2016] FamCA 109

FAMILY LAW – CHILDREN – Interim orders – Where there are three children aged seven, nine, and 10 – Where the single expert expressed concerns in relation to the manner in which the report should be released – Where the report was initially only released to the Independent Children’s Lawyer and subsequently to each of the parents – Where the mother seeks orders that the children live with her and spend supervised time with the father, that she be released from an undertaking in respect of her partner, and that she be permitted to relocate with the children – Where the father opposes the orders sought by the mother and seeks that the mother’s Application be adjourned – Where the ICL is of the view that there is an unacceptable risk associated with the children being in the unsupervised care of the father – Where the ICL is of the view that the mother would not constitute an unacceptable risk to the children if there were certain requirements placed on her – Where the substantive interim proceedings are adjourned so that the issues can be properly ventilated – Where the Court is of the view that there is an unacceptable risk to the children if they are unsupervised in the care of the father – Orders made that the children live with the mother on the basis of certain undertakings and spend supervised time with the father once per week for a period of three hours.

Family Law Act 1975 (Cth)

APPLICANT: Ms Linton

RESPONDENT: Mr Warne

INDEPENDENT CHILDREN’S LAWYER: Legal Aid NSW Sydney Central Family Law

FILE NUMBER: PAC 1409 of 2014

DATE DELIVERED: 9 February 2016

PLACE DELIVERED: Sydney

PLACE HEARD: Sydney

JUDGMENT OF: Johnston J

HEARING DATE: 9 February 2016

REPRESENTATION

SOLICITOR FOR THE APPLICANT: Ms Worner of Karras Partners Lawyers

FOR THE RESPONDENT: Mr Warne in person

SOLICITOR FOR THE INDEPENDENT CHILDREN’S LAWYER: Ms Maitland of Legal Aid NSW Sydney Central Family Law

Orders

1. That the report of Ms B, psychologist may be released to each of the parents.

2. That the mother’s Application in a Case filed on 4 February 2016 is adjourned for hearing at 10.00 am on 3 March 2016.

3. That all affidavits in support be filed and served by the mother not later than 19 February 2016.

4. That the father file and serve a Response to the Application in a Case and all affidavits in response not later than 29 February 2016.

5. That the Court notes that Ms B will be available for cross-examination on 3 March 2016 and cross-examination may be by telephone.

6. That all existing orders in relation to the children's living arrangements and time with each parent be discharged.

7. That the Judicial Services Manager allocate the first day in the Less Adversarial Trial as soon as possible.

8. That until 4.00 pm on 3 March 2016 the children C born on … 2005, D born on … 2007 and E born … 2008 live with the mother on the basis of the mother's undertaking:

   8.1      That she will not consume alcohol;

   8.2      That she will not use illegal drugs;

   8.3That she will continue to attend upon her drug and alcohol counsellor, Mr F, in accordance with his recommendations;

   8.4      That she will continue to attend AA meetings;

9. That until 4.00 pm on 3 March 2016 the mother is restrained from bringing the children into contact with Mr G.

10. That until 4.00 pm on 3 March 2016 the children spend time with the father once per week for a period of 3 hours supervised by Wallis Family Services (or other private supervision agency agreed between the parties and the ICL) with the cost of supervision to be shared equally between the parties and the father is to notify the ICL of his requirement for this, if any, in writing on 3 days notice.

11. That until 4.00 pm on 3 March 2016 the father is restrained from approaching the children at any school the children may attend.

12. That the mother is permitted to collect the children from school on 9 February 2016 and the mother is not to discuss these proceedings with the children other than to explain that they will be living with her until 3 March 2016.

13. That until 4.00 pm on 3 March 2016 the expert report is not to be in the possession of either party but their solicitors are permitted to have a copy.

14. That in the event that the father instructs a solicitor, that solicitor have leave to request a copy of the expert’s report from Johnston J’s Associate.

15. That pursuant to s 62B and s 65DA(2) of the Family Law Act 1975 (Cth), the particulars of the obligations these orders create and the particulars of the consequences that may follow if a person contravenes these orders and details of who can assist parties adjust to and comply with an order are set out in the Fact Sheet [attached to the engrossed orders] and these particulars are included in these orders.

IT IS NOTED that publication of this judgment by this Court under the pseudonym Linton & Warne has been approved by the Chief Justice pursuant to s 121(9)(g) of the Family Law Act 1975 (Cth).

FAMILY COURT OF AUSTRALIA AT SYDNEY

FILE NUMBER: PAC 1409 of 2014

Ms Linton

Applicant

And

Mr Warne

Respondent

REASONS FOR JUDGMENT

1. These are interim parenting proceedings in respect of three children C born in 2005, D born in 2006 and E born in 2008.  Their parents are Mr Warne and Ms Linton.  For convenience, I shall refer to the parents as “the father” and “the mother”.

2. The brief background matters are that the parents commenced cohabitation in January 2001.  They separated on 17 October 2014.  They had consent orders made on 10 April 2015 by the Federal Circuit Court under which the children were to live with each of their parents in an equal shared care arrangement, changing over weekly at conclusion of school Friday.  But there were difficulties with that arrangement and the equal time arrangement did not eventuate. 

3. On 11 June 2015 further consent orders were made.  This was for a week about arrangement.  The mother was also restrained on a without-admissions basis from allowing the children to come into contact with her partner, Mr G.

4. The matter has come urgently before me in circumstances where a single expert report was prepared by clinical psychologist Ms B.  As I indicated at the outset this morning, the report raises serious parenting concerns about each of the parents, certainly in respect of their behaviour going back some years. 

5. Ms B was to interview both parents and the children in December 2015 and there was also an occasion in January 2016.  Ms B was so concerned about the father’s behaviour on 8 December 2015, that she formed the view and expressed this in her report, that in her opinion, the father is currently psychologically and emotionally unstable.  Ms B expressed serious concerns about his capacity to care for the children.

6. It was out of her concern about these matters that Ms B expressed concern about the manner in which the report was to be released and, ultimately, about parenting arrangements for the children. 

7. As I indicated to the parties, in those circumstances, I released the report initially only to the Independent Children’s Lawyer (“ICL”).  I have listed the matter today to release the report to each of the parents, which I have done and they have each had an opportunity to read what Ms B has said in that report.

8. To the father’s credit, he has informed the Court today that he proposes to re-engage with his solicitors and probably also counsel, to present his response to the mother’s urgent Application in a Case which was filed on 4 February 2016.  In that application, the mother seeks orders to the effect that all previous orders be discharged, that instead of the equal time arrangement under the current orders, she seeks an order that the children live with her and spend time with their father as agreed between the parties but on a supervised basis.

9. The mother also wants to relocate to H Town on the Central Coast.  She says that she has an offer of employment with Vodafone, for three or four days a week on the Central Coast.  She wishes to relocate there which would mean changing the children’s school from their current school at I Town, to a school on the Central Coast.  The mother also seeks to be released from undertakings in respect of Mr G.  That is a matter to which I shall come shortly.

10. The father opposes those orders and he has sought today an order that the mother’s Application in a Case be adjourned.  I have indicated to the parties that I would be able to hear that application on 3 March 2016.  I have been informed that Ms B could be available then, as could each of the parties, and the father indicates that he would be able to be legally represented on that occasion.  I have made directions for the father to file a response and his affidavits with a view to the parties being ready to have the matter heard on that occasion.

11. In the meantime, it is important to consider what arrangements would be in the best interests of the children. 

12. What had occurred is that prior to Christmas 2015 the mother informed the father that she wanted to take the children for a holiday to visit her mother who had health difficulties in the United Kingdom.  The father resisted that application.  Ultimately, that application came before the Federal Circuit Court and Judge Sexton made orders to facilitate that.  The father has indicated in Court today that he became very upset about that arrangement.  He said that there had been an earlier occasion when the mother wanted to take the children and he had become very upset about that.  The father said that his upset about that, the ongoing disputation about the children and the effect that it is having on the children appears to be reflected in a number of SMS messages, copies of which were annexed to the mother’s affidavit.

13. In any event, the father has not seen the younger two children since they went overseas.  He said that on 1 February this year he understood that the children were having a swimming carnival.  He went to the swimming carnival and he said the children told him certain things, which are not in evidence before this Court.  The father said this heightened his concern about the arrangements with their mother and, particularly, what he thought might have been involvement by Mr G in those arrangements at that time.  The father said that in those circumstances, and in circumstances where he had not seen the children in a long time, he went to the swimming carnival.  He said that C simply came with him from that carnival and she has remained living with him since that time.  I do not think there has been contact between her and her mother since that time.

14. The question is, what are the appropriate arrangements for the Court to put in place in the best interests of the children between now and 3 March 2016 when these issues can be ventilated?  The difficulty is that the current state of the evidence is the expert’s report by Ms B.  As I have said, Ms B has said her very clear view is that the father is currently psychologically and emotionally unstable.  She said that during her assessment, around 8 December 2015, his presentation, affect and behaviour indicated emotional dysregulation.  She said at [163]:

    Specifically, [the father] demonstrated poor insight, poor self control, and poor reflective functioning, [he] was unable to protect the children from his negative opinions about [the mother] and the manifestations of his own anger.

15. It is unnecessary to set out all the detail about those matters, but such was Ms B’s concern about the father’s presentation, what she said she thought had been things said by the children and also by the Department of Family and Community Services, that she thought there were risks to the children until perhaps the father was able to explain his behaviour or perhaps receive some intervention that might assist him with that. 

16. The father has informed this Court today that he felt far from his best on the occasion before Ms B, that he was very upset about how things were turning out and that he had been very upset about the prospect of the children going to the United Kingdom with their mother.  He says that he has an ongoing, very serious concern about Mr G.  

17. I infer from things which the father has said to me that he realised he did not his best foot forward on the day of the interview.  I cannot recall whether they were his words.  But certainly my perception of what the father was saying was that he really blew his opportunity to demonstrate appropriate behaviour on the occasion in with Ms B on 8 December 2015.  Certainly a reading of Ms B’s report would appear to confirm that was the case.  My understanding is that the father is going to get some legal advice.  It may even be that he will discuss with his legal advisers whether it is appropriate for him to seek some professional assistance in the form of perhaps a psychiatrist or a psychologist whom he can discuss these matters with and be advised by.  But, certainly, the very clear impression I have from the father is that he wants an opportunity to do a lot better than perhaps his frustrated behaviour and presentation on 8 December with Ms B indicated.

18. In my view, there are difficulties on each side in what the parents are offering these children.  The mother’s background is very worrying indeed.  She acknowledges a very serious and longstanding problem with alcohol.  She said that during the course of the parties’ relationship, not only did they both abuse alcohol, but she says they also used cocaine.  The father makes very serious allegations about the mother and Mr G and he suggested they are also users of ice.  He would have the Court understand that much of the mother’s erratic behaviour has been attributable to her problems with alcohol and substance abuse. 

19. When the orders were put in place there were a number of safeguards attached to these orders, including that the mother would abstain from alcohol and illicit substances.  The mother says that she has been abstinent from alcohol since, I think from memory, 23 September 2014 or perhaps December.  She says that she attends regular meetings of Alcoholics Anonymous, that she takes the safeguards in respect of the children to which she is subject very seriously. 

20. There is a requirement that she have appropriate alcohol and substance testing regularly and it is said on her behalf that in those circumstances this Court ought to entrust her with the care of the children over the next few weeks and, in the longer term.  She seemed to be able to impress Ms B as an alcoholic who recognises the seriousness of her condition, and it seems that Ms B has formed the view that although there is some risk to the children in the care of their mother, it is not an unacceptable risk for so long as the mother is able to remain abstinent from alcohol and other substances.  It seemed, on my reading of Ms B’s report, that on balance she thought the mother was able to do that at the present time.

21. That is really the view which has been arrived at by the ICL, namely, that at the present time there is an unacceptable risk of the children being in the unsupervised care of their father, based on these very serious observations and recommendations about the father’s situation in Ms B’s report.  The ICL is of the view that, on the basis of the recommendations and observations by Ms B, that the mother would not constitute an unacceptable risk to these children, certainly if there were certain requirements on her, such as that she would not consume alcohol, that she would not use illegal drugs, that she would continue to attend upon a drug and alcohol counsellor, Mr F, in accordance with his recommendations, that she would continue to attend Alcoholics Anonymous meetings and that she would not live with Mr G.

22. The ICL asks the Court to put those restraints in place, together with the restraint that the mother would not allow Mr G to stay overnight in any premises in which any of the children are present and that she would not leave any of the children alone in the care of Mr G at any time.  The father has a serious concern about Mr G.  He is not persuaded that if the Court was to place the children with their mother, even upon those restraints, that that would be sufficient for their protection.  The father thinks these children should not have anything to do whatsoever with Mr G and if the Court was going to put in place orders then there ought to be a restraint upon the mother bringing the children into contact with Mr G.  This would be the restraint which has been now standing for some time, and certainly since the orders of 11 June 2015. 

23. As I have said, I have a serious concern about the comparative risks to these children in each of the households of their parents.

24. It has gone across my mind that this might be a case where the Department of Family and Community Services might at some point have to be asked to formally intervene in the proceedings.  That is not something which I would do at this point, and not in the absence of the father having the opportunity to discuss that sort of matter with his legal advisors.  But I have very serious concerns about the mother’s stability and her ability to be able to deal with her longstanding problem.  Time will tell, I suppose, in respect of that matter. 

25. Courts operate and determine matters on the basis of the evidence.  The evidence at the moment stands in Ms B’s report.  There is, in my view, on the basis of that material an unacceptable risk to the children with their father, if they are unsupervised.  That may be something which is turned around in the fullness of time, when the father has had an opportunity to be able to prepare his material and perhaps take certain action following his discussions and advice from his legal advisors. 

26. Over the next three weeks, in my view, the situation of lesser risk to these children, on the basis of the evidence before the Court, is that they be with their mother.

27. However, I do not accept that the restraints as proposed by the ICL in respect of Mr G are sufficient.  In my view, out of abundant caution, the mother ought to be restrained from bringing these children into any contact with Mr G until we can have an opportunity to cross-examine Ms B, and see the father’s material about this arrangement.

I certify that the preceding twenty-seven (27) paragraphs are a true copy of the Reasons for Judgment of the Honourable Justice Johnston delivered on 9 February 2016.

Associate:     

Date:              29 February 2016