LOCKE & HARDY (Interim Parenting)
[2016] FCCA 1778
•14 July 2016
FEDERAL CIRCUIT COURT OF AUSTRALIA
| LOCKE & HARDY (Interim Parenting) | [2016] FCCA 1778 |
| Catchwords: FAMILY LAW – Meaningful relationship between children and both parents – change of residence – role of “status quo” – high levels of parental conflict – issues of parental capacity especially of Mother – issues raised by Father and by family consultant about Mother’s mental health – Court’s consideration of evidence on an interim basis without making formal findings. |
| Legislation: Family Law Act 1975, ss.60B(1)(a) & (b), 60B(2); 60CA; 60CC(2)(a) and (b); 60CC(3)(ca), (f) & (d), 65DAA(2) and (3) |
| Cases cited: Banks & Banks [2015] FamCAFC 36 Crouper & Mitchell [2014] FamCAFC 246 Goode v Goode (2006) 206 FLR 212; (2007) 36 Fam LR 422 |
| Applicant: | MS LOCKE |
| Respondent: | MR HARDY |
| File Number: | CAC 385 of 2015 |
| Judgment of: | Judge Neville |
| Hearing date: | 24 February 2016 |
| Date of Last Submission: | 24 February 2016 |
| Delivered at: | Canberra |
| Delivered on (oral reasons): | 20 May 2016 |
Written reasons provided: | 14 July 2016 |
REPRESENTATION
| Counsel for the Applicant: | Mr G Stagg |
| Solicitors for the Applicant: | Pappas J Attorney, Canberra |
| Solicitor/Advocate for the Respondent: | Mr M Johnson |
| Solicitors for the Respondent: | Legal Aid ACT |
| Solicitor/Advocate for the Independent Children's Lawyer: | Mr K Robinson |
| Solicitors for the Independent Children's Lawyer: | Robinson + McGuinness |
ORDERS
Orders 2 and 3 of the Interim Consent Orders dated 19 March 2015 be discharged. The Orders of 19 March 2015 are otherwise to continue to operate.
The children, X (born (omitted) 2009) and Y (born (omitted) 2011) (“the children”) live with the Father.
The children spend time with the Mother for five nights every fortnight, on days to be agreed between the parties and the Independent Children’s Lawyer in writing.
Failing agreement in accordance with Order 3 above, the children are to spend time with the Mother as follows:
(a)In week 1, commencing Friday 27 May 2016, from after school to the following Monday before school, and every alternate week thereafter;
(b)In week 2 commencing Wednesday 1 June 2016, from after school to the following Friday before school and every alternate week thereafter;
The parties and the Independent Children’s Lawyer are to notify Chambers, by way of email, within 21 days from the date of these Orders whether or not a Final Hearing is required in this matter.
THE COURT NOTES THAT:
A.Should the parties require a Final Hearing, Orders (including Trial Directions) will issue in Chambers, setting the matter down for Hearing for two days in 2017, inclusive of an Order for an updated Family Report;
B.Should the parties not require a Final Hearing, the matter may be listed for further Directions on a date and time to be advised.
IT IS NOTED that publication of this judgment under the pseudonym Locke & Hardy is approved pursuant to s.121(9)(g) of the Family Law Act 1975 (Cth).
| FEDERAL CIRCUIT COURT OF AUSTRALIA AT CANBERRA |
CAC 385 of 2015
| MS LOCKE |
Applicant
And
| MR HARDY |
Respondent
REASONS FOR JUDGMENT
Introduction
On 20th May 2016, I delivered oral reasons for interim parenting Orders in relation to the two children of the relationship, seven year old X (born (omitted) 2009) and five year old Y (born (omitted) 2011). These are those reasons revised from the transcript.[1]
[1] In the original reasons, as delivered, the Court expressed its regret at the time between interim hearing and the delivery of reasons and pronouncement of Orders. The Court also noted that the immense volume of work of the Court was a reason for this delay; it was not an excuse. Also at the time of delivery of reasons, the parties, lawyers, and the Independent Children’s Lawyer (“ICL”), were advised that the reasons would be revised in the event that written reasons were required.
Outline of Principle
At the outset, it is as well to recall some of the basal principles that apply to the conduct of and other matters that pertain to the invariably fraught, discretionary determination of issues in interim proceedings. Such matters are conveniently set out in a number of relatively recent Full Court decisions, such as Crouper & Mitchell, Banks & Banks and Vanzin & Vanzin.[2] Those cases highlight the following matters, drawing as they do, from earlier well known Full Court decisions.
[2] Crouper & Mitchell [2014] FamCAFC 246, Banks & Banks [2015] FamCAFC 36, Vanzin & Vanzin [2014] FamCAFC 245.
First, in Banks & Banks, at [23] and [24], the Full Court (Thackray, Murphy and Kent JJ), said:
23. Given the appeal will be allowed on the basis of a miscarriage in the conduct of the hearing below, it will be instructive to set out what the Full Court said in Goode and Goode (2006) FLC 93-286 at 80,903 concerning the way in which an interim parenting application should be determined:
In making interim decisions the Court will still often be faced with conflicting facts, little helpful evidence and disputes between the parents as to what constitutes the best interests of the child. However, the legislative pathway must be followed.
82. In an interim case that would involve the following:
(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 s 60CC 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 s 61DA 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 s 60CC, 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 s 65DAA(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 s 60CC, or impracticable;
(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 s 60CC;
(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 s 60CC; 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.
24. Subject to what has since been said in SCVG & KLD (2014) FLC 93-582, we adopt this citation from Goode. We note only that it is the making of an order for equal shared parental responsibility that triggers the requirement to consider making orders for equal time or substantial and significant time.
In addition to the cases to which I have referred, there are also the (in my view, respectfully) still helpful comments of Brown J in Mazorski v Albright in relation to the twin pillars of Part VII of the Family Law Act 1975 (“the Act”),[3] namely, subject to any relevant statutory refinement, the children of a relationship should have, to the degree that it is in their best interests to do so, a meaningful relationship with both parents and equally, the children of the relationship should be protected from any relevant risk or harm.[4]
[3] Mazorski v Albright (2008) 37 Fam LR 515.
[4] I note that her Honour’s comments have been subsequently endorsed by various Full Court decisions, such as McCall v Clark (2009) 41 Fam LR 483 and Sigley v Evor (2011) 44 Fam LR 439.
In Mazorski v Albright at [3] – [6], her Honour said:
[3] The provisions in the Family Law Act 1975 (the Act) relating to children rest on twin pillars. The first is the importance to children of having a meaningful relationship with both parents; the second is the need to protect children from physical and psychological harm. These are stressed in s.60B(1) which sets out the objects of the legislation relating to children and are reiterated as the primary considerations in s.60CC(1).
[4] When deciding what parenting orders to make it is the best interests of the children which are the paramount consideration. In determining where those best interests lie, the Court must consider the primary and additional considerations set out in s.60CC.
[5] There is a presumption that it is in a child’s best interests for his or her parents to have equal shared parental responsibility for him or her (s.61DA). The presumption relates to the allocation of parental responsibility, not the time a child spends with each parent. The presumption does not apply if there are reasonable grounds to believe that a parent has engaged in abuse of the child or family violence. The presumption may be rebutted if the Court finds that it would not be in the best interests of the child for it to apply.
[6] If the presumption applies, and there is an order for equal shared parental responsibility, the Court must consider whether spending equal time with each parent would be in the child’s best interests (s.65DAA(1)) and, if no such order is made, consider whether spending substantial and significant time with each would be in the child’s best interests (s.65DAA(2)).
Her Honour also made important observations about “meaningful” as that term is used in Part VII of the Act in the context of what is comprehended by a “meaningful relationship.” At [20] - [26], her Honour outlined a range of relevant considerations. I set them out below and again respectfully (and gratefully) adopt Brown J’s observations, thus:
[20] The Family Law Amendment (Shared Parental Responsibility) Bill Revised Explanatory Memorandum (2006) refers to the concept of a meaningful relationship on a number of occasions. At para 52 it noted that the primary factors mirror the first two objects set out in the new s.60B and that the objects are elevated to primary considerations as they deal with important rights of children and encourage a child-focused approach. The paragraph continues:
The elevation of the object relating to the benefit to the child of having a meaningful relationship with both parents is consistent with the introduction of a presumption in favour of equal shared parental responsibility.
[21] Here, the concept of a meaningful relationship is closely tied with the introduction of the presumption of equal shared responsibility, and the passage links the concept of a meaningful relationship with the objects of the Division. The objects use the words “meaningful involvement”.
[22] At para 128, discussion of a meaningful relationship is again linked to discussion of the presumption of equal shared parental responsibility, the explanatory memorandum noting:
The government considers that it is important to ensure that a child has a meaningful relationship with both parents and that both parents participate in decisions about the child. The presumption of equal shared parental responsibility is not a presumption of 50:50 joint custody. The presumption relates solely to the decision making responsibilities of both parents. New section 65AA inserted by Item 31 is the provision dealing with the time a child spends with each parent and the circumstances where the Court should consider equal time arrangements.
[23] When considering s 65DAA, the explanatory memorandum states (at [196]–[199]):
[196] Subsection 65DAA(2) recognises that an equal time arrangement will not be appropriate in some cases but that the Court must consider other arrangements that promote a meaningful relationship. This provision places an obligation on the Court in situations where there is equal shared parental responsibility and equal time is not appropriate, to consider whether it would be in the best interests of the child and reasonably practicable for the child to spend substantial and significant time with both parents. This is intended to ensure that in making parenting orders related to time that the Court focuses not just on the substantial quantity of time that is spent with each parent, but also on the significant type of time. The note in this section emphasises that the best interests of the chid remain the paramount consideration for parenting orders. This is set out in s 60CA by item 9.
...
[199] Section 65DAA (2) – (4) is intended to ensure that the Courts consider arrangements that are much more than “1 weekend a fortnight and half of the holidays” or an 80:20 arrangement. It is intended to ensure a focus both on the amount of time and the type of time. It would include both day time contact and night time contact. It recognises that what is important is that the focus be on ways that both parents are able to develop a meaningful relationship with their children and share important events including everyday time with the child. It recognises that in order to have a meaningful relationship and to share equal shared responsibility that this would generally involve “both” parents spending both substantial and significant time with their children.
[24] The New Shorter Oxford English Dictionary on Historical Principles, Clarendon Press, Oxford, 1993, defines “meaningful” as “full of meaning or expression; significant; amenable to interpretation; having a recognisable function in a language or sign system; able to function as a term in such a system”. “Meaning” is defined as “having intention or purpose; chiefly with a qualifying adverb (as well-meaning)”. A second definition is “conveying or expressing meaning or thought; expressive, meaningful, significant; suggestive”. These definitions are repeated and further fleshed out in the Oxford English Dictionary, 2nd ed, Clarendon Press, Oxford, 1989. It defines “meaning” (in generalised use) as “significance”. The examples provided take the matter no further.
[25] The Macquarie Dictionary, 4th ed, Macquarie University Press, Sydney, 2005, defines meaningful as “full of meaning; significant”. Within the definitions of meaning, the relevant one defines the word as “expressive or significant: a meaning look”.
[26] What these definitions convey is that “meaningful”, when used in the context of “meaningful relationship”, is synonymous with “significant” which, in turn, is generally used as a synonym for “important” or “of consequence”. I proceed on the basis that when considering the primary considerations and the application of the object and principles, a meaningful relationship or a meaningful involvement is one which is important, significant and valuable to the child. It is a qualitative adjective, not a strictly quantitive [sic] one. Quantitive [sic] concepts may be addressed as part of the process of considering the consequences of the application of the presumption of equally shared parental responsibility and the requirement for time with children to be, where possible and in their best interests, substantial and significant.
Issues in Dispute
In circumstances where there has been in place, since interim orders dated 19th March 2015, for a 9:5 arrangement for the children (9 nights per fortnight with the Mother and 5 nights per fortnight with the Father), the principal issue for determination relates to whether there should be, following an interim hearing, a change of residence for the two children of the relationship, X, who will shortly turn 7, and Y, who is 5 years old.
Orders Sought
The Applicant Mother’s Orders sought were simply that the consent orders of March 2015 continue. In short, those Orders relevantly provided for the parties to have equal shared parental responsibility and that the children live nine nights per fortnight with their Mother and five nights per fortnight with their Father.
The Respondent Father’s Orders sought were:
1) That the children, X, born (omitted) 2009, and Y, born (omitted) 2011, live with the father.
2) That the mother spend time with the children as agreed between the parties, but failing agreement, as follows;
a) In week 1 and each alternate week thereafter: from 3:00pm Friday until 9:00am the following Monday.
b) In week 2 and each alternate week thereafter, from 3:00pm on Thursday until 9:00am the following Friday
3) That changeover shall occur at a location as agreed between the parties in writing, but failing agreement, changeover shall occurs at the children’s school on school days, and at the (omitted) Playground behind the (omitted) on non-school days.
4) That notwithstanding anything else in these Orders, the children shall spend time with the father from 5:30pm on Christmas Eve until 6:00pm Boxing Day in each odd numbered year, and with the mother from 5:30pm on Christmas Eve until 6:00pm Boxing day in each even numbered year.
5) That notwithstanding anything else in these Orders, unless otherwise agreed between the parties in writing, the children shall spend time with the Father from 10:00am on Good Friday until 6:00pm on Easter Monday in each even numbered year.
6) That notwithstanding anything else in these Orders, unless otherwise agreed between the parties in writing, the children shall spend time with the Mother from 10:00am on Good Friday until 6:00pm on Easter Monday in each odd numbered year.
7) That notwithstanding anything else in these Orders, unless otherwise agreed between the parties in writing, the mother’s time with the children shall be suspended on the Father’s Day weekend from 9:00am on Father’s Day until the mother’s next usual spend time period.
8) That notwithstanding anything else in these Orders, unless otherwise agreed between the parties in writing, the mother shall spend time with the children from 9:00am on Mother’s Day until 9:00am the following day.
9) That the father make the children available to communicate with the mother by way of telephone each Wednesday and Saturday between 6:00pm and 7:00pm, with the mother to initiate the phone call.
10) That without admission the parties are hereby restrained from consuming alcohol to excess, as well as any illicit drug whilst the children are in their care, and for the 12 hours prior to the commencement of the children’s time with either party.
11) That each party keep the other informed as to their residential address and contact telephone number, and that within 48 hours of the date of these Orders, the mother shall provide the father with her residential address.
12) That each party provide the other with 7 days’ notice of any travel or holiday involving the children in which it is intended that the children will spend overnight time away from the home of the parent with whom they are living, with such notice to include details of the children’s proposed accommodation, including address and contact phone number.
13) That the parties shall do all things necessary to enrol in and complete the next available Circle of Security program with (omitted) Child and Family Centres.
14) That the parties will advise each other within 24 hours of any medical or dental appointments at which the children attend and will advise the other party of the name and address of any medical or dental practitioners who provide examination, treatment or diagnosis to the children, and the parties are to authorise any treating medical or dental practitioner to provide any or all information to the other party.
15) That each party will notify the other as soon as practicable of any medical emergency in which the children require medical treatment. Should any such emergency arise, each parent will inform the other of the name and address of any treating medical practitioner and authorise that practitioner to speak to the other parent.
16) That each of the parties are restrained from speaking in a derogatory manner about the other, either to the children or in their presence, or allowing any other person to do so.
The ICL supported the Orders sought by the Father.
Independent Evidence: The Family Report
The Court has the benefit of a section 62G report, prepared by Ms W, which was released to the parties on 9th November 2015. It was admitted into evidence and has become exhibit A.[5]
[5] Material provided pursuant to an Order made under s.69ZW of the Act was released to the parties on 25th May 2015. That material has yet to be updated.
At pars.66 – 73, the Family Consultant opined that (emphasis added):
66. From the accounts of both parents their relationship with each other has been marred by conflict, resulting at times in violence, which the children have witnessed and possibly been potentially exposed to. Conflict between parents is profoundly damaging to children’s development. This is because without a relatively harmonious home life and the certainty that parents have each other’s and their children’s interests paramount, children experience intense insecurity. When the conflict is violent, the level of insecurity and instability experienced by children is manifold and extreme. It can manifest in children feeling confused, unloved, frightened, unable to concentrate, having difficulties interacting with peers and problems around their own sense of identity.
67. For children to develop optimally they require a meaningful relationship with both parents. A “meaningful relationship” is characterised by the child experiencing the parent as predictably and reliably responsive to their needs. To experience a parent in all contexts provides proper meaning to the relationship. For example, spending time with a parent during weekends, when the family can have more relaxed time provides children with a different environment and experience of the parent in comparison to time spent with the parent during the week, when structure and routine is required. Equal time between parents has not been empirically found to result in better quality of the parent-child relationship.
68. In circumstances where there has been high levels of conflict between the parents during their relationship and following separation there remain negative concerns for children’s emotional and psychological development. This is endorsed by the empirical evidence surrounding the impact of conflict on child development. Minimising parental conflict and ceasing any potential for domestic violence is vital to children developing normally. Therefore, in families with this background of risk factors, the protection of the children and structure around the children’s daily lives is required and is principal in decision making regarding children’s best interests in the short and long term.
69. The father alleges that both X and Y have been physically abused by their mother, when their behaviour has been difficult for her to manage. Obviously, if this is likely to have occurred and the children’s safety in their mother’s care is in question, further constraints may be warranted to safeguard the children when they are spending time with her.
70. In this matter there are allegations of each of the parents manifesting other problems that are also identified as negatively affecting the development of children. Each of the parents makes claims and counter claims against the other parent. The mother alleges that the father has a history of substance abuse and the father attests to the mother manifesting behaviour that suggests mental health issues. Both substance abuse and mental health can impact a parents’ ability to adequately meet their children’s needs. These risk factors can prevent the parent from being emotionally and psychologically available to meet a child’s needs. The younger the child the more frightening it is for the child to have a parent who is unavailable to them and the more safety concerns are present for that child.
71. During the assessment for this report there were factors in the mother’s presentation, during observation with the children and consistent with some of X’s statements during interview that suggested that she may have difficulty being emotionally and psychologically available to her children and understanding their needs when they become challenging or when she experiences emotions that overwhelm her. For example, during the interview with her she minimised the impact of the parental conflict and violence on the children. During the first observation with the children she did not respond to the children’s needs when they were becoming frustrated and unhappy during the play. The mother failed to respond to X’s enquiries regarding his father’s whereabouts, which might have further escalated X’s anxieties. Ultimately on this occasion it appeared that the mother used the situation of the car parking to absent herself from an interaction with her children that she was finding difficult to address. In the second observation of the children with their mother she appeared to be able to relate to the children when there was clear structure, such as the book reading. However, when the interaction was less structured, such as in the puzzle completion, the children’s mother was limited in her ability to meet the children’s need for structure and reassurance.
72. The children’s father appeared responsive to his children during both observations. In the second observation the father had trouble taking charge and keeping structure for the children when they were uncooperative and this resulted in X becoming gradually more dysregulated. Although the father was aware of this and remained present and emotionally available to the children he appeared to only able to address X’s expressed insecurity and emotional dysregulation in a limited manner.
73. The level of conflict between X and Y’s parents does not support a shared care arrangement. For the children’s best interests the parent with whom the children should primarily reside should be the parent who can best meet the children’s needs for safety, security and emotional support. From interview and observation for this report it appears that the children’s father has greater capacity and motivation to provide a safe and secure environment for the children’s long-term wellbeing. As long as there are no safety concerns for the children in their mother’s care they should spend regular time with her during weekends and weekdays.
In her recommendations, the Family Consultant said (at pars.74 – 80; emphasis added):
74. That the children live with their father.
75. That the parents share the parental responsibility of the children.
76. As long as there are no identified risk factors for the children with their mother, that they spend time with her each alternate weekend from after school on Friday until before school Monday; and in the other week for one overnight during the week.
77. If there are concerns for the children’s safety with their mother, then their time with her will require supervision. Presently the only supervision service in the Canberra area is (omitted) Contact and Changeover Service. It is understood that it has over 12 months waiting time.
78. The Court might be assisted in making final decisions in this matter by gaining a mental health assessment from the mother’s General Practitioner at the (omitted) Medical Practice.
79. That both parents consider gaining some further psycho –education training regarding understanding children’s needs and how they meet these. The intensive 20 week Circle of Security program that is facilitated by (omitted) Child and Family Services and some private practitioners such as (omitted) Psychology and (omitted) Psychology would be a highly suitable program for this purpose and build on their understanding from the shorter course.
80. That the parents consider how they will into the future; communicate effectively to make decisions regarding their children. A counselling service such as Relationships Australia may be of assistance to the parents for this purpose.
The Mother’s Counsel rightly stressed that all evidence, including the evidence of the Family Consultant, needed to be tested at a final hearing. There can be no contest about such a submission. However, at an interim hearing, where there is clear independent evidence such as here from an experienced family consultant and given how far away a final hearing is, the Mother’s submission would, in effect and in reality, require a Court to sit on its hands (so to speak) and to ignore independent evidence. To do so, I suggest, would be an abrogation of the Court’s responsibility to make Orders that (a) relevantly protect children and (b) take all appropriate steps to ensure, in accordance with the prescriptions in Part VII of the Act, that children have a meaningful relationship with both parents to the degree that it is in their best interests to do so.[6]
[6] See s.60B(1)(a) and (b); s.60B(2); s.60CA; s.60CC(2)(a) and (b).
In short, the Mother’s submissions would require the Court to ignore independent evidence pending all evidence being tested and assessed at a final hearing; in this instance, the independent evidence is the comments and observations by a family consultant. There is also, as noted below, (a) the Father’s clear drug screen, (b) the Mother’s lack of evidence in relation to her mental health, and (c) the Mother leaving the residence of her Father, thereby ostensibly depriving her (and the children) of important support, as well as “relationship time” between the children and one of their Grandparents.
True it is, as Counsel for the Mother stressed, that interim arrangements had been in place for quite some time and that the issues that are before the Court now were “live”, so to speak, when those interim arrangements were put in place. But such an argument conveniently ignores the fact that there was no family report available in March 2015 when those interim arrangements were entered into. Accordingly, a so-called “status quo” argument advanced by the Mother here does not carry much weight precisely because it ignores, among other things, significant independent evidence which is now available and certainly will be tested in due course. However, simply to wait or to “mark time”, in my view, is not an option for a Court that is charged with the statutory responsibility to determine and to make Orders that are in the children’s best interests.
No formal findings have been made, nor could they be.[7] But not making findings does not lead, inexorably or otherwise, to the Court ignoring relevant, independent evidence and determining, in accordance with jurisprudential principles and legislative requirements, Orders that are, in the Court’s admittedly discretionary view, on an interim basis, in the best interests of the children.
[7] Cf. the well-known comments by the Full Court in Goode v Goode (2006) 206 FLR 212; (2007) 36 Fam LR 422 at [68] and [81] – [82]. Note in particular that the Full Court did not say that findings were not to be made, or could not be made, at interim hearings; the Court said, at [82](d) that a trial Court is to consider matters in s.60CC that are relevant and “if possible” make findings about them.
For completeness, given the time between the date of the Family Report (9th November 2015) and the date of the interim hearing (24th February 2016), I simply note that neither the Mother nor the Father has filed any independent report to challenge the matters canvassed in and highlighted by the Family Report.
Submissions of the Parties
The written submissions of the parties, and the ICL, were as follows.
The Mother’s submissions stated (I have inserted paragraph numbers for ease of reference):
1) There are allegations raised by both the mother and the father in respect of the other. The mother is concerned, inter alia, about the father’s drug history and showing inappropriate age movies to the children. The father alleges that the mother has mental health issues and is violent.
2) The above allegations are currently untested. It is, however, acknowledged that the mother suffered from depression, but is obtaining appropriate measures by seeing a psychologist and taking medication as prescribed by her GP.
3) The Family Consultant, Ms W, recommends in her Family Report that the children live with their father based on what appears to be from the two observations that she had between the children and their parents. Ms W, in paragraph 53 of her Family Report, provided opinions on the mother’s interaction with the children. However, it is submitted that Ms W’s opinions were not based on any specific observations to enable her to reach such conclusions. Based on the mother’s instructions, there are materials contained in Ms W’s report that need to be cross-examined and determine if Ms W changes her recommendation.
4) Notwithstanding Ms W’s opinions of the mother, it is compelling to note that despite the children residing with the mother since beginning of 2015, there has been no urgent risk identified that places the children at risk, or in a detrimental situation, if they continue to live majority of time with the mother. Indeed the father even says in paragraph 38 of the Family Report that X “excels” at school and can be inferred that at least X is not at risk whilst living with his mother. There is no evidence that the children are not meeting their developmental milestones. There have been no reports to Child Protection Services made by the mother’s psychologist of any concerns that would place the children at risk due to the mother’s mental health.
5) The allegations raised by the both parties need to be tested. Matters and issues raised in the Family Report will also need to be tested through cross-examination. There is also the added possibility of the children’s living arrangement unnecessarily being altered on an interim basis if at the Final Hearing the court orders that the children live with their mother.
6) It is submitted with respect, that the important decision of the children’s residence should not be made at an Interim Hearing, but at the Final Hearing. This is especially the case since interim orders were made by consent in 2015 regarding the children’s residence and no serious allegations of risk towards the children, when in the care of the mother, have been raised since the Interim Orders made by consent.
The Father’s submissions stated:
1) The father seeks Orders pursuant to his Amended Response to Initiating Application, filed on 16 November 2015, being that the children live with him and spend time with the mother 5 nights per fortnight. The Orders sought by the father constitute a change of residence.
2) The father submits that the determination of this matter requires consideration of risk in accordance with Section 60CC(2)(b) of the Act. The mother alleges that the father regularly abuses Cannabis. The father submits that the mother has a history of mental health problems which impede her ability to provide appropriate care to the children and which place the children at an unacceptable risk of emotional and psychological harm.
3) The father denies using cannabis and relies upon the urinalysis drug testing results of 5 May 2015, which return negative results. The father has not been requested to participate in further drug urinalysis since that date and submits that the Court should draw an inference that he has abstained since at least that date.
4) The father will seek to rely upon and tender subpoena material from ACT Community Services, (omitted) Medical Practice, and the Australian Federal Police, as well as the section 69ZW report, to support his allegation that the mother has long standing mental health issues. This material shows that the mother consistently presents as irrational, unable to focus, and difficult to engage. The material demonstrates that as recently as March 2015, the mother was experiencing ‘cognitive distortions’ and that her communication was characterised by ‘convoluted diversions’. Her presentation was sufficient to cause one medical practitioner to “wonder whether she has a psychotic illness”.
5) Initially, the mother was not candid with the Court in relation to her mental health. The mother only offered evidence in relation to her health when responding to the father’s Affidavit filed on 19 March 2015. In her response, the mother downplays the significance of her ill health and its impact on her ability to care for the children.
6) The mother’s evidence, at paragraphs 9 and 10 of her Affidavit affirmed on 11 June 2015, is that she has engaged with a counsellor, has been prescribed with medication, and was participating in a ‘Living a Health Life with Long-Term Conditions’ course. The mother has not offered any further evidence to demonstrate that she has completed the relevant course, continued to engage in therapy or take medication as prescribed.
7) The father also relies upon the Family Report of 9 November 2015, and in particular paragraph 71 of that report, where Ms W writes that “…there were factors in the mother’s presentation… that suggested that she might have difficulty being emotionally and psychologically available to her children and understand their needs when they become challenging or when she experiences emotions that overwhelm her”. Later in the same paragraph, Ms W writes “…the children’s mother was limited in her ability to meet the children’s need for structure and reassurance”.
8) The father submits that Ms W’s observations in September and October 2015 are consistent with his own, and that the mother continues to experience poor mental health despite her assertion at paragraph 11 of her Affidavit of 11 June 2015 that “I now feel good”.
9) On about 20 July 2015, the mother relocated from the residence of the maternal Grandfather, Mr P. In making Orders on 19 March 2015 that the children live with the mother, the Court considered Mr P to be a supportive and protective factor. The father submits that the mother’s decision to relocate further demonstrates a lack of insight into the concerns as to her mental health and her need for support. The mother has not offered any evidence explaining her relocation, and the father respectfully submits that the Court should be concerned that the mother can no longer rely on the support of Mr P.
10) The father respectfully submits that on balance there is sufficient evidence before the Court to establish that the children are at an unacceptable risk of experiencing psychological and emotional harm while living primarily with the mother. The father respectfully submits that the only way to protect the children against that risk during the interim period is for the Court to order a change of residence. The father’s position is reflected by Ms W’s recommendations.
11) The father further submits that the mother’s unresolved mental health issues cause her to lack the capacity to provide for the children’s emotional and intellectual wellbeing.
12) The father submits that he is able to provide the children with a safe, stable and secure environment, and that is able to meet their emotional and intellectual needs. The father provides evidence in his Affidavit filed on 13 November 2015 as to how he would provide for the children’s needs and the routine that he would implement for them.
13) The father’s ability and willingness to meet all of the needs and provide stability of the children is affirmed by the Family Report writer at paragraph 73 of the report.
14) The father submits that his proposal in relation to time facilitates a significant and substantial relationship between the mother and the children. The father’s proposal is protective in that it allows the mother the benefit of regular ‘breaks’ from the children, thereby mitigating against the risk of her becoming overwhelmed by the children and thus ‘emotionally and psychologically unavailable’ to them.
The ICL’s submissions stated:
1) Pursuant to Orders made 23 December 2015, the parties and the Independent Children’s Lawyer are to file an outline of submissions and Minute of Orders Sought, for an interim hearing to be conducted on 24 February 2016. The interim hearing follows application by the Father for a change of residence subsequent to the release of a Family Report dated 9 November 2015 prepared by Ms W.
2) The submissions filed on behalf of the Mother seek that no change be made on the basis that the evidence has not been fully tested. An interim hearing is necessarily constrained and it is not possible to fully test all the evidence that is before the Court. This applies to the evaluation and conclusions contained in a Family Report as well as the affidavit evidence of the parties, and documents produced under subpoena. The best interests of the children remain the paramount consideration, and the inability to fully test all the evidence that is before the Court is not a basis for maintaining a “status quo”.
3) The submissions filed on behalf of the Father seek a reversal of the present 9/5 arrangement in favour of the Father. The Minute attached to the submissions provides for a 10/4 arrangement in favour of the Father.
4) The preponderance of the (untested) evidence, comprising the Affidavits of the parties, Family Report of Ms W, documents produced by the Community Services Directorate, and documents the solicitor for the Father has foreshadowed he shall seek to tender, together, it is submitted, would support a preliminary conclusion that it is in the best interests of the children to live primarily with their Father. Whether orders should be made on an interim basis reflecting this preliminary conclusion, it is submitted, turns on whether it is in the best interests of the children to undergo some change in the present arrangements when there is a possibility that, upon the evidence being fully tested, the arrangements that shall operate for the children shall return to those currently in place.
5) In circumstances where, due to the Court’s workload a final hearing is unlikely to occur before late 2016 or early 2017, it is submitted that the best interests of the children, as reflected by the present assessment of the evidence, leads to orders in accordance with the Minute prepared by the Father’s solicitor, that is a 10/4 arrangement. The balance of risk, that is, between the dislocation to the children by a return to the present arrangements (on the Mother’s case); and the children being placed in a situation where their emotional and psychological needs are not being met (on the Father’s case) also favours orders as sought by the Father.
6) It will assist the Mother’s case at trial if she has available at that time a detailed mental health assessment as recommended by Ms W (Family Report paragraph 78). The matter should otherwise be prepared for trial. In the event the Court makes orders as sought by the Father there may be some benefit in an updated Family Report closer to the time of trial. Any report to be relied upon by the Mother should, ideally, be available to Ms W in that event.
Consideration
Two particular issues, among others, should be highlighted: (a) the significant level of conflict between the parties, and (b) the Mother’s mental health. Of these matters of particular moment in my view, are issues surrounding the Mother’s mental health and their possible impact on the care and protection of the children. What is particularly concerning is the Mother’s failure to provide any relevant and up to date medical evidence in relation to her mental health. In my view, this is a significant difficulty both for the Mother and for the Court given that the Family Consultant referred and had regard to
(i)subpoenaed medical records from (omitted) Medical Practice and from (omitted) Community Health Centre,
(ii)those same records confirming that the Mother had been involved with mental health assistance for some years for depression and anxiety and that she had been prescribed medication for depression,[8]
(iii)the Family Consultant noted (at par.20) the Mother’s “confused” presentation at her first interview and that her “narratives” were unusual, and
(iv)the Family Consultant further noted (at par.45), the children’s comments about time at the Mother’s house – as basically only watching TV and that food provided by her “hasn’t been going that good”.[9]
[8] See the Family Report at par.11.
[9] More thorough-going comments by the Family Consultant regarding her observations of the children with the Mother are set out in pars.53 and 60, and between the Father and the children at pars.54 – 57, of the Family Report.
These and other matters led the Family Consultant to recommend (in November 2015), among other things that the Mother obtain a mental health assessment. Unfortunately, this has not occurred.
It might also be remarked that in comments to the Family Consultant, the Mother said (par.9) that she wanted there to be an equal shared care arrangement with the Father (when this is not actually what she seeks from the Court) and also said (at par.25) that the Father was “a loving man with his children.”
As already noted, currently the children live in a 9/5 arrangement in the Mother’s favour. The Family Consultant recommends in her report that the children change residence and live with their Father and spend 4 nights per fortnight with the Mother.
The ICL, while acknowledging the need to test evidence at a final hearing, supports the Family Consultant’s recommendations.
Indeed, given that the Family Report was released to the parties in November last year, it appears uncontested that the Mother has taken few steps either to challenge or to act upon any of the recommendations in it. Certainly, the Mother has not put anything before the Court by way of independent evidence in relation to her mental health. She has clearly had more than sufficient time in order to do so.
Accepting, as I do up to a point that evidentiary matters can only be tested at a final hearing and further that the Mother’s mental health issues were known to the Father at the time of entering the consent orders in March 2015, as recorded more than once already, the lack of medical evidence from the Mother since the release of the Family Report and in the light of its clear observations and recommendations leaves everyone in a very difficult position. Further, as the Father noted to the Family Consultant (pars.8 & 35), he entered into the consent Orders in March 2015 on the basis that the Mother was then living with her Father and would thereby have that support. That she no longer lives with the maternal Grandfather causes the Father to have serious concerns about the Mother’s general parenting capacity; he said that X has had “a lot of absences from school”, apparently during the time the children are with their Mother.
The Father said to the Family Consultant (par.35) that he does not know the Mother’s current address or her landline telephone number.
Summarised, the Mother’s submissions, particularly the oral submissions of her Counsel at the interim hearing, were that the issues that were ventilated in the family report and which will be tested at trial, have all been known and “on the table”, as it were, for quite some time, including when the parties came to consent orders on 19th March 2015. In those circumstances, it was said that there should not be any material change in the current arrangements pending the determination of the Court at a final hearing. Even more so, it was submitted, there should be no material change to the existing parenting arrangement because, for example, there has been no involvement of Care and Protection Services, which suggested (it was said) that there have been no relevant matters that would warrant a change in parenting Orders which will be and should be addressed only at a final hearing.
Respectfully, this submission does not come to grips with (a) the Mother’s lack of evidence regarding her mental health, and (b) the clear comments and recommendations of the Family Consultant. These comments and observations include (par.71 Family Report) that the Mother “may have difficulty being emotionally and psychologically available to her children and understanding their needs when they become challenging or when she experiences emotions that overwhelm her.”
For his part, the Father’s submissions focussed unsurprisingly on the general risk factors that have been identified in the material filed and notably in the Family Report. These are especially in relation to the Mother’s state of mental health and its adverse impact on her parenting capacity. Although the Minute provided with his submissions seeks orders for a 10/4 arrangement, the Father’s submissions actually seek a 9/5 arrangement in his favour of course.
The following further observations should be noted. They are not, of course, any formal findings.
First, Order 6 of the consent Orders of 19th March 2015 granted both parties’ lawyers leave to request random chain of custody urinalysis twice per month. The Father returned a negative drug test result on 5th May 2015. Rather curiously, he says that he has not been requested to undertake any further drug screens since that time. In these circumstances the Father asks the Court to draw an inference that he has abstained from drug use at least since the date of his one and only requested drug test in May 2015.
In circumstances where the Mother says her significant concern about the Father’s parenting capacity arises in relation to his alleged drug use, it is strange that further drug tests have not been requested by her. In circumstances where there is no evidence to the contrary, the Court accepts the Father’s submission and infers that he has been abstaining from drug use since at least May 2015.
Secondly, the Father also submitted that the interim consent Orders of March 2015 were predicated upon the Mother residing with her Father. Certainly, from the Court’s perspective, the support and presence of the maternal Grandfather was a significant protective factor for the children while in their Mother’s care in the light of the matters raised against her in the proceedings. The Mother’s decision to “relocate” (so to speak) from the maternal Grandfather’s residence is of concern to the Court because the additional support for the Mother and the children is no longer as readily available as it once was. This is of particular concern where the Mother has not provided any relevant medical evidence in relation to her mental health issues either as to history or as to current and or ongoing assistance.
Some other observations may be made relatively quickly and by general reference to the almost dreaded scaffold, or invariably fraught, “legislative pathway” in Part VII of the Act.
There is little independent evidence in relation to the so-called “views” of the children, save that in the Family Report (at pars.40 ff) the Family Consultant records the children expressing rather more positive views about the Father and his care compared with the Mother including (at par.50) that their preference was to live at “Dad’s place.”
Again because these are interim proceedings, in my view, it is best at this stage more to note such matters rather than make formal findings.
Evidence with respect to the children’s relationships with others is relatively scant. And now that the Mother no longer lives with her Father, matters in relation to even that relationship, as with anyone else at this stage, is problematic at least.
The children’s relationships with both parents have been treated, somewhat en passant, in the course of comments already recorded from the Family Report. The Family Consultant recorded the children’s obvious affection for both parents but their preference both to live with and to engage with their Father in a more orderly, structured and supportive way. Such observations and comments by the Family Consultant and the children, suggest areas of proper or reasonable disquiet for the Court about the Mother’s capacity appropriately to care for and parent the children.[10]
[10] Among other statutory “considerations” to which these comments relate, see s.60CC(3)(ca) and (f).
There is no doubt that a change in residence will have some not insignificant, immediate impact on the children and more likely on the Mother. However, in my view, in addition to the Court’s general protective responsibilities towards the children and most particularly its responsibility to make Orders that are in the children’s best interests (pursuant to s.60CA), s.60CC(3)(d) is perhaps one of the most critical considerations at this stage of proceedings.
In this respect having regard to the Family Consultant’s comments from the boys and her observations of the Mother and her concerns about the Mother’s parenting capacities due to her mental health issues, in my view it is critical that (i) the boys have an opportunity to spend time in the more structured and supportive environment provided by their Father, and (ii) the Mother have the best possible opportunity (albeit one that she has yet to take up following the release of the Family Report) to seek out assistance and to provide the Court with the best and latest medical evidence regarding her mental health that she can.
The Court can but hope that the Orders which it considers to be in the children’s best interests will provide the Mother with a degree of respite and enable her to secure the assistance that according to the Family Consultant she requires. Until this occurs, the Court remains in the unenviable (but not unusual) position of having little or no independent evidence from the Mother, the expansive and unchallenged but still formally untested evidence from the Family Consultant and the Father’s admittedly limited evidence that there are no drug issues for him based on his one clear drug screen and no further request for such tests from the Mother.
I note again that the Mother reported to the Family Consultant that the Father was loving towards the children.
In addition to the comments and observations I have made otherwise I accept the submissions by the ICL, which (in my view) provide compelling reasons why the Court cannot simply keep the parenting status quo going until a final hearing and why it is in the children’s best interests that there be a change in primary residence to the Father’s care on an interim basis.
Because the only substantive Orders now made relate to “residence and time-with” and therefore the consent Order of March 2015 in relation to equal shared parental responsibility shall continue, formally the Court is required to consider the terms of s.65DAA notwithstanding that no submissions addressed this provision.
In my view it is sufficient to note that the new Orders effectively reverse the March 2015 Orders in relation to the 5:9 arrangement. That arrangement, on any view, relevantly satisfies the terms of s.65DAA(2) and (3) in relation to “substantial and significant time”, in circumstances where no one has suggested (other than the Mother in comments to the Family Consultant) that an equal time arrangement is appropriate.
Disposition
Accepting, as I do the need to test evidence and that any radical change to parenting arrangements especially on an interim basis is necessarily and regularly fraught, in my view, here the most important element or consideration is the Court’s protective responsibilities towards the children. It is for that reason that, on an interim basis, there is to be a transition in the living arrangements from a 9:5 arrangement in the Mother’s favour to (not a 10:4 arrangement as recommended by the family consultant) but a 9:5 arrangement in the Father’s favour.
In my view, this will give some respite of sorts to the Mother so that she can attend to any and all of her health issues, while at the same time ensuring that the children continue to spend regular and significant time with her. I stress that this arrangement is on an interim basis. All evidence will be considered at a final hearing. That said, it might also provide a basis for some further discussions between the parties to see if the matter might be resolved on a final basis without the need for a final hearing.
The Orders of the Court are formally and in every relevant respect what it considers to be, on an interim basis, in the best interests of the children. They are certainly not designed to punish the Mother; in fact, as previously noted, they will hopefully assist her so that, among other things, the Court can have the best possible evidence available to it at the final hearing.
I request the parties and the ICL to notify Chambers within 21 days if a final hearing is in fact still required. If so, the matter will be listed for trial for 2 days in 2017 on dates to be advised. Given how long it will have been since Ms W’s 2015 report, an updated family report will also be ordered at that time.[11]
[11] Subsequent to delivery of the oral reasons, the parties confirmed that a final hearing was required. Final hearing dates have now been fixed for 16th and 17th February 2017.
I certify that the preceding fifty-three (53) paragraphs are a true copy of the reasons for judgment of Judge Neville
Date: 14th July 2016
Key Legal Topics
Areas of Law
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Family Law
Legal Concepts
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Consent
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Expert Evidence
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Jurisdiction
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Procedural Fairness
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Remedies
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