LOCKHARDT & SEARLE

[2019] FCCA 1407

FEDERAL CIRCUIT COURT OF AUSTRALIA

LOCKHARDT & SEARLE [2019] FCCA 1407

Catchwords:
FAMILY LAW – Interim parenting orders – respondent mother unilaterally relocated from Melbourne to Perth – orders for recovery – drug testing orders not complied with, or complied with in delayed manner – parties agree in consent orders they will not communicate other than in relation to the child – respondent mother engages in unrelenting abuse of the applicant father – DHHS reports indicate high level of abuse – respondent fails to attend with child at s.11F conference – respondent observed to be erratic and drug affected – order for change in residence supported by ICL – applicable principles – relief granted.

Legislation:

Family Law Act 1975 (Cth), ss.4, 4AB, 11F, 60B, 60CA, 60CC, 61DA, 61DB,

64B,65AA, 65D, 65DAA, 69ZL  

Cases cited:

Banks & Banks [2015] FamCAFC 36

Bondelmonte & Bondelmonte (2017) 259 CLR 662

CDJ & VAJ (1998) 197 CLR 172

Deiter & Deiter [2011] FamCAFC 82

Goode & Goode (2006) 36 Fam LR 422

Habib & Ibrahim [2019] FamCA 116

Harridge & Harridge [2010] FamCA 445

M & M (1988) 166 CLR 69

Marvel & Marvel [2010] FamCAFC 101

Morgan & Miles (2007) FLC 93-343

Norbis & Norbis (1986) 161 CLR 513

Reid & Lynch (2010) FLC 93-448

Slater & Light [2013] FamCAFC 4

SS & AH [2010] FamCAFC 13

Stott & Holgar [2017] FamCAFC 152

Applicant: MR LOCKHARDT

Respondent: MS SEARLE

File Number: MLC 11353 of 2018

Judgment of: Judge A Kelly

Hearing date: 23 May 2019

Date of Last Submission: 23 May 2019

Delivered at: Melbourne

Delivered on: 30 May 2019

REPRESENTATION

Counsel for the Applicant: Ms Parker

Solicitors for the Applicant: Cahill & Rowe Family Law

Counsel for the Respondent: Ms Blair

Solicitors for the Respondent: V M Family Lawyers

Counsel for the Independent Children's Lawyer: Ms Metherell

Solicitors for the Independent Children's Lawyer: Coulter Roache Lawyers Pty Ltd

THE COURT ORDERS THAT:

Living Arrangements/Time Spent

1. The Father collect the child [X] born … 2015 ([X]) from day-care at 3.00pm this day.

2. [X] live with the father.

3. [X] spend time and communicate with the mother each Sunday from 12 noon until 6.00pm, commencing Sunday 26 May 2019, such time to occur within the area of greater Town A.

4. The respondent mother, whether by herself her servants or agents or howsoever otherwise be restrained from collecting, or arrange or procuring the collection of [X] from day-care/kindergarten and a copy of this Order is permitted to be provided to any day-care/kindergarten at which [X] is enrolled.

5. Without admitting the necessity for same, the father and his agents be restrained from leaving [X] unsupervised with his paternal cousin [B].

Changeover/Communication

1. The parties do all acts and things to register for the Contact Centre changeover service at the father’s expense, with the changeover to occur at Town C Police Station until a position is available at Contact Centre.

2. All communication between the parties occur via MyMob and be only in relation to matters concerning the welfare of [X] or matters arising out of compliance with this Order.

Drug Testing/Restraint on Drug Use

1. The mother forthwith undertake a hair follicle test, at the expense of the father, and provide copies of the results to the parties within 24 hours of receipt.

2. The purpose of the hair follicle testing shall be to test for:

   (a)amphetamines, methamphetamine and ecstasy;

   (b)marijuana and its metabolites; and

   (c)Benzodiazepines and opiates.

3. Until further order, paragraph (13) of the Interim Order made 16 October 2018 be discharged.

4. The parties shall each refrain from taking any step which may interfere with the provision of hair samples or to interfere with the tests results including taking any step to shave, cut, shorten, bleach any scalp or body hair and the parties shall each be restrained from cutting their head hair shorter than 4cm in length.

5. The mother and father shall within 24 hours of a request being made by the Independent Children’s Lawyer (such request being made on not more than twice in any 4 week period), do all acts and things and sign all documents necessary to facilitate supervised and chain of custody drug urine screens, at the mother and father’s respective expense.

6. For 24 hours immediately prior to the commencement of any time spent with [X] (including any period during which [X] lives with each party), the parties are restrained by injunction from ingesting, consuming, using or otherwise being under the influence of any legal or illegal drug or substance, or having a BAX above 0.05, save and except for:

   (a)any legal medication prescribed for each party by a registered medical practitioner, and taken or used by each party strictly in according with such prescription;

   (b)any over-the-counter pharmaceutical substance ordinarily sold in major supermarkets, and taken or used by the mother strictly in accordance with the directions appearing on such medication or pharmaceutical substance.

7. Within 7 days, the mother provide evidence of her enrolment at Town D Health drug and alcohol counselling to the Independent Children’s Lawyer and the father’s solicitor.

Attendance at courses

1. Each party forthwith provide evidence to the other party’s solicitor and the Independent Children’s Lawyer of their enrolment in a post separation parenting course, and provide a certificate of completion upon conclusion of the course.

2. Within 7 days, the father provide the mother’s solicitor and the Independent Children’s Lawyer with evidence of his continued enrolment in a Men’s’ Behaviour Change Course.

3. Until further Order, the parties and their servants and agents be and are hereby restrained by injunction from abusing, insulting, belittling, rebuking or otherwise denigrating the other party either directly or in the presence or hearing of [X] and from permitting any other person to do so.

Trial directions

1. The matter be adjourned for Mention at 10.00am on 28 October 2019 in the Federal Circuit Court of Australia at Melbourne.

2. The matter be fixed for Final Hearing at 10.00am on 15 July 2020 in the Federal Circuit Court of Australia at Melbourne before Judge A Kelly with an estimated hearing time of 2 days.

3. The following directions are made respecting discovery and use of documents at trial:

   (a)no later than four months before the trial date, the parties are to confer and identify all documents upon which they propose to adduce in evidence at trial (Documents);

   (b)no later than two months before the trial date, the applicant shall prepare, serve and file an indexed paginated folder of the Documents arranged in chronological order;

   (c)no Documents (including any valuations, family report or other expert reports) are to be attached to any affidavit, but may only be referred to in an affidavit by page number and volume (if necessary), from the folder(s) of Documents;

   (d)save with leave of the Court, no document identified pursuant to paragraph 3(a) of this Order may be relied upon or adduced in evidence at trial.

4. Each party be permitted to rely upon only one affidavit of evidence in chief for any witness including the applicant and respondent (noting that affidavits relied upon for previous hearings cannot be relied upon as evidence in chief) and further:

   (a)the applicant electronically file and serve any affidavits to be relied upon at the final hearing not later than 28 days prior to the hearing;

   (b)the respondent electronically file and serve any affidavits to be relied upon at the final hearing not later than 21 days prior to the hearing.

5. Other than as provided in this Order, no party may file or rely upon any further evidence without leave of the court.

6. The evidence in chief of each party and any witness be by way of affidavit as provided by paragraphs 21 and 22 of this order.

7. Not later than one month prior to the final hearing all parties do electronically file and serve an Outline of Case Document (not exceeding 12 pages) including the following:

   (a)a list of the material relied upon;

   (b)a brief chronology listing significant events;

   (c)a list of the significant factual issues requiring determination;

   (d)a list of contentions with respect to each of the considerations relevant to determining the best interests of the child/ren (s 60CC factors);

   (e)a list of contentions relevant to the operation of s 65DAA;

   (f)a list of any other contentions relevant to the decision; and

   (g)the actual orders sought.

8. In default of compliance with the obligations in any paragraph of this Order, either party may apply to the Chambers of Judge A Kelly for the matter to be listed for mention.

9. The costs of the parties and independent children’s lawyer be reserved.

10. The parties are at liberty to apply before the trial if the Independent Children’s Lawyer considers it is necessary to do so.

11. Pursuant to r 21.15 of the Federal Circuit Court Rules 2001 (Cth), this matter reasonably required the attendance of counsel.

AND THE COURT NOTES THAT:

A.Paragraphs (6) to (17) of this Order were made by consent.

B.Pursuant to ss 65DA(2) and 62B of the Family Law Act1975 (Cth) the particulars of the obligations these orders create and the particulars of the consequences that may follow if a person contravenes these orders are set out in Annexure A and these particulars are included in these orders.

C.The party responsible for the payment of any fee including a setting down or hearing fee do pay or cause to be paid such of the Fees as shall be payable by that party in accordance with, and within the time specified in, the Family Law (Fees) Regulations 2012 (Cth).

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

FEDERAL CIRCUIT COURT
OF AUSTRALIA
AT MELBOURNE

MLC 11353 of 2018

MR LOCKHARDT

Applicant

And

MS SEARLE

Respondent

REASONS FOR JUDGMENT

Introduction

1. These reasons for judgment explain why orders were made on 23 May 2019 for a change of residence of the child of the parties’ relationship.  The child is presently aged four years.  Consistently with the submissions of the applicant and Independent Children’s Lawyer, I determined that he should, until further order, reside with his father. 

2. On 1 October 2018, the father filed an Initiating Application seeking parenting orders, including that the child should live with him and for urgent relief to restrain the respondent mother from relocating permanently out of Town A. A location order was sought together with a recovery order and for the mother to enrol at a contact centre and for the child to spend time with his mother. Ancillary orders were made to restrain the parties from using illicit substances, consuming alcohol and for supervised drug testing. Orders were sought for the respondent to be assessed by a psychiatrist and for a family consultant to prepare a report pursuant to s 11F of the Family Law Act 1975 (Cth) (Act).

3. An affidavit filed by the applicant's solicitor deposed to the several attempts that were made to communicate with the respondent mother in the period immediately before the first return date of the application.  However, as stated above, the mother had unilaterally relocated with the child to Western Australia.

4. On 16 October 2018, the matter was listed in a duty list.  The parties were represented by counsel.  Orders were made for the mother to return with the child from Western Australia to Victoria, conditioned upon the father providing the sum required for the purchase of airline tickets to enable the respondent and child to do so.  Orders were made for the child live with the mother and spend time with the father each Sunday until further order.  The mother was required to furnish a report from her treating psychologist and general practitioner and to undertake drug and alcohol counselling.  Similar orders were made respecting the father's provision of a report as respecting his drug and alcohol consumption and referral to counselling.  Orders were made for hair follicle testing together with random drug screens and for behavioural programs.

5. On 10 December 2018, orders were made fixing the matter for trial on 29 May 2019 an order was made for section 11F report. A notation to the order recorded that questions were raised whether the respondent had contravened the Order made on 16 October 2018.

6. On 18 February 2019, orders were made, by consent, vacating the listing on 29 May 2019 and a mention listed for March 2019.  The proceeding was adjourned for mention on a date to be fixed.  Interim parenting orders were made extending the child’s spend time with his father and orders were made so as to facilitate a psychiatric assessment of the respondent.  Non-denigration orders were made with orders that the parties only communicate via text message or email and only do so in relation to matters concerning the welfare of the child, or matters arising out of compliance with the orders.  The Independent Children's Lawyer (ICL) was granted leave and has now issued many subpoenas.

7. Pursuant to the parties’ consent orders the matter was then listed for hearing on 23 May 2020. 

8. On 21 May 2019, the father filed an Application in a Case seeking a location order, a recovery order and to vary previous parenting orders.

9. The matter proceeded as an interim hearing for a change of the child's residence such that he should, until further order, live with his father.

10. For the purposes of that hearing, I have had regard to the following:

    a)the applicant's affidavits sworn 27 September 2018, 19 December 2018, 15 February 2019, 15 May 2019 and 20 May 2019;

    b)affidavits of the applicant's partner sworn 13 May 2019 and 16 May 2019;

    c)affidavit of the applicant's mother sworn 17 May 2019; and

    d)the respondent's affidavits sworn 15 October 2018 and 14 February 2019.

11. As the matter proceeded as an interim hearing, there was no cross-examination upon the parties’ affidavits and consideration of the application proceeded on the basis that, where there was disagreement as to the occurrence of particular events, those matters were in contest.

Interim parenting applications

1. The application which was made concerned parenting orders: Act, s 64B. Part VII of the Act, which concerns the subject, Children, is arranged in 16 Divisions comprising ss 60-70Q.  Part VII has frequently been described as providing a legislative pathway which governs parenting decisions. 

2. By way of overview, that pathway includes the following:

   a)objects and principles underlying Part VII: s 60B;

   b)child’s best interests as the paramount consideration in making a parenting order: s 60CA;

   c)how a court is to determine a child’s best interests: s 60CC;

   d)primary and additional considerations which are relevant: s 60CC;

   e)presumption of shared parental responsibility: s 61DA;

   f)assessment of equal or substantial and significant time: s 65DAA;

   g)assessment of reasonable practicability: s 65DAA(5).

   See, eg, Goode & Goode (2006) 36 Fam LR 422, [5]-[13]; Morgan & Miles (2007) FLC 93-343, [62]-[71]. It is not essential that the court should refer, either to the legislative pathway or to specific provisions of the Act.

3. In Goode & Goode, the Full Court set out the pathway to be followed, recognising that the procedure for making interim parenting orders is an abridged process where the scope of the enquiry is significantly curtailed.  The court cannot be drawn into making findings of fact on an interim hearing and, where possible, should look to independent objective evidence which may inform consideration of the child’s best interests: see Habib & Ibrahim [2019] FamCA 116, [60].

4. The objects of Part VII are stated in s 60B(1). They include to ensure that the best interests of children are met by protecting them from physical or psychological harm from being subjected to, or exposed to, abuse, neglect or family violence: para 60B(1)(b). The principles underlying those objects recognise certain manifold rights of children with respect to their parents: s 60B(2). The rights of the child expressed in s 60B(2) remain subject to an exception to be applied in those cases “where it is or would be contrary to the child’s best interests”. 

5. Section 65D concerns the subject, Court’s power to making parenting orders.  By sub-s 65D(1), power is conferred on the court to make such parenting orders as it thinks proper.  The discretion conferred on a court by s 65D is a broad one.  In Bondelmonte & Bondelmonte (2017) 259 CLR 662 at [32], the High Court said of s 65D:

   A parenting order made under s 65D involves the exercise of a judicial discretion because it is made by reference to a paramount consideration of a general kind, the best interests of the child, which involves an overall assessment of a number of other considerations, either statutorily prescribed or considered by the Court to be relevant. The primary considerations in s 60CC(2) are matters to be borne in mind as consistent with the objects of Pt VII. The additional considerations in s 60CC(3) require assessments of the matters there listed by reference to the circumstances of the case. They involve value judgments in respect of which there may be room for reasonable differences of opinion, as does the overall assessment of what is in the best interests of the child. (emphasis added)

6. The power created by s 65D confers a largely unfettered discretion, albeit one that must be exercised judicially: cf Norbis & Norbis (1986) 161 CLR 513, 519 (Mason and Deane JJ) 536 (Brennan J agreeing), 522-533 (Wilson and Dawson JJ). The ambit of that statutory discretion explains why a court will not interfere with such orders, merely because it might have taken a different view of the matter: CDJ & VAJ (1998) 197 CLR 172 at [151]-[152] (McHugh, Gummow and Callinan JJ).

7. While the discretionary power conferred by s 65D(2) to make a parenting order is largely unfettered, it is to be construed as being subject to s 65AA: Reid & Lynch (2010) FLC 93-448, [232]-[233] (O’Ryan J, Finn and Strickland JJ agreeing). Section 65AA confirms that, by s 60CA, the court must have regard to the best interests of the child as the paramount consideration in deciding whether to make a particular parenting order. By this route, the obligation in s 60CA is engaged in the exercise of power under s 65D(2). This is because an order under that sub-section is a parenting order: Reid & Lynch, supra. 

8. In determining the best interests of a child, there are certain primary considerations which the court must take into account: sub-s 60CC(2).  The court must consider:

   a) the benefit to the children of having a meaningful relationship with both of their parents; and

   b) the need to protect the children from physical or psychological harm,  from being subjected to or exposed to abuse, neglect or family violence.

   See ss 4(1) (abuse); 4AB(1) (family violence); 60B(1)(c), 60CC(1) (determining child’s best interests); 60CC(2) (primary considerations).  Additional considerations are prescribed by sub-s 60CC(3)(a)-(m).

9. In addition, amendments to the Act effected by s 60CC(2A) now require that the court is to give greater weight to the need to protect children from physical or psychological harm from being subjected, or exposed, to abuse, neglect or family violence. Thus, where the circumstances require, the need for protection from harm as prescribed by sub-s 60CC(2)(b) assumes prominence over the child enjoying a meaningful relationship with both parents as addressed in sub-s 60CC(2)(a).

10. The assessment of the need to protect a child from risk is not confined to a determination of the occurrence, or risk of the occurrence, of events which may constitute abuse, neglect or family violence but must be undertaken within the broader context of the ultimate determination of what is in a child’s best interests when making a parenting order: M v M (1988) 166 CLR 69, 76-77; Slater & Light [2013] FamCAFC 4, [34]. As those authorities hold, an assessment of the magnitude of risk is appropriately evaluated against a standard of ‘unacceptable risk’ upon a civil standard of proof: cfM v M (1988) 166 CLR 69, 78; Slater [2013] FamCAFC 4, [35]-[37]; Stott & Holgar [2017] FamCAFC 152, [34]-[38]; Harridge & Harridge [2010] FamCA 445, [73].

1. When deciding what parenting orders ought to be made in proceedings under Part VII of the Act, the best interests of the child are the paramount consideration: s 60CA. Accordingly, the principles contained in s 60B(2), which express rights of children in relation to their parents, may yield to the paramount consideration expressed in s 60CA that in deciding whether to make a particular parenting order, a court must have regard to the best interests of the child.

2. Since Goode & Goode, s 69ZL of the Act has been enacted which provides that the court may give reasons in short form for a decision that it makes in relation to an interim parenting order. Section 69ZL may be understood in the context that an inherent difficulty in the determination of an interim parenting application is that the court must necessarily proceed upon contested evidence. The court must do so on an interim hearing because it is only at the final hearing that evidence will be tested.

3. The capacity to evaluate and weigh the material on an interim hearing is constrained by those considerations and for that reason the conclusions expressed at an interim hearing are necessarily couched in qualified terms: Marvel & Marvel [2010] FamCAFC 101, [120]; SS & AH [2010] FamCAFC 13, [88].

4. The court is nonetheless not required to ignore a contention or evidence merely because it is untested: SS & AH [2010] FamCAFC 13, [100]. To the contrary, having regard to the imperative requirements of s 60CC(2A), the court must give greater weight to the risk to a child of exposure to abuse, neglect or family violence and for those reasons must assess the risk of such harm. This assessment requires a predictive evaluation of the likelihood of the occurrence of harmful events and then consideration of the severity of the impact caused by those events, neither of which can be postponed: Deiter & Deiter [2011] FamCAFC 82, [61]. Equally, because there will be little uncontested evidence at an interim hearing, only limited consideration of the factors identified in s 60CC may occur and such consideration as is required at an interim hearing is in large measure defined by the manner in which issues are joined by the parties: Banks & Banks [2015] FamCAFC 36, [47]-[50].

5. The court well recognises that, while they should be considered, an exhaustive discussion of the factors in s 60CC is not required. Indeed, to do so may risk that sight is lost of the forest for the trees, including where the available evidence leads inexorably to a particular conclusion. Instead, the paramount consideration is to have regard to a child’s best interests. The fact that I have not traversed each of the considerations identified by s 60CC or every aspect of the parties’ evidence does not mean that they have not been considered. It largely reflects that I have examined the issues that were emphasised by the parties’ submissions. Put another way, while I have regarded the parties’ submissions as identifying the relevant considerations, I have not disregarded the considerations addressed by s 60CC unless they are plainly irrelevant.

6. Finally, it is to be recognised that any allocation of parental responsibility made at an interim hearing is to be disregarded at the final hearing: s 61DB.

Consideration

1. The court received substantial assistance from counsel for the applicant, respondent and ICL respectively.  The orders as sought by the father and as made on 23 May 2019 received the substantial support of the ICL.

2. Since the matter proceeded as an interim hearing, the matters addressed below do not represent ultimate findings of fact and are conditioned upon their being tested and evaluated at trial.

3. As presently appears, the respondent is afflicted by substance abuse and mental health issues. Substantial allegations of abuse are recorded in the report of the Department of Health and Human Services (DHHS).  While the allegations of family violence are reciprocal, and as yet untested, the DHHS report includes the following:

   . . . it is alleged there has been family violence on multiple occasions, including the mother punching the father approximately 40 times, threatening to kill the father and sending hundreds of abusive text messages to the father.

4. Although the court attempted to provide some resources so as to assist the parties in resolving the conflict, the respondent did not comply with the order that she attend with the child a s 11F child inclusive conference. Neither the child mother nor the child attended that conference and the suggested explanation for non-attendance was at best belated. There was tendered in evidence a medical certificate which post-dated the s 11F conference by some five days and contained little which was of any assistance in persuading me that the respondent had proper reason not to attend the s 11F conference or to make provision for the child to attend.

5. The applicant father did however attend the s 11F conference. The family consultant addressed the question of future directions and observed that the level of risk detailed in the affidavit material was concerning and that it would be in the interests of the child to have the proceeding resolved in a timely manner. The family consultant gave qualified support for the proposition that a requirement for the applicant to spend time with the child and supervised basis appeared to be redundant, including in circumstances where the applicant spends unsupervised time with another son of another relationship.

6. The respondent has again unilaterally terminated the child's spend time arrangements with the applicant father, having done so on several occasions.  Contextually, such conduct was the catalyst for the initiation of this proceeding.  Orders for the recovery of the child were conditioned on the applicant father incurring the cost of the mother and child taking flights from Perth to Melbourne.  The parties are of modest means.

7. Evidence has been filed by the applicant's partner and his mother which may be supportive of a conclusion that the mother continues to behave in an erratic and drug affected manner.

8. Objectively, there has been a systemic failure to comply with requests for drug screening and, on several occasions, when screening has occurred the respondent has tested positive for amphetamines and benzodiazepine.

9. The mother's affidavit material warranted close consideration.  In several respects it seemed to have been drafted in a manner which lacked a proper, evident or objective basis.  For example, somewhat incredibly, the respondent gave an account of a report by the four year old child which the mother described in terms as involving a seven-year-old child ejaculating onto the four year old child.  The physiological improbability of this sworn evidence is self-evident.

10. The respondent mother acknowledged that despite the orders for hair follicle testing she had not done so.  She gave belated evidence to having undertaken one test which she ‘hoped to have available for a hearing’.

11. I find that the manner in which the respondent has conducted herself to this point is confirmatory of an ongoing failure to comply with court orders and, more importantly, to respect the importance of the child's relationship with his father. Those matters notwithstanding, the respondent's counsel acknowledged the importance of the child having a relationship, and contact, with his father.  While I have no doubt as to the sincerity of the submission as made by counsel, the respondent’s past conduct left me unconvinced that there would be any immediate change.

12. There is a swathe of text messages which have been sent by the respondent to the applicant, including of recent date.  The respondent's text messages are remarkable for their lack of restraint and abuse of the applicant.  Contrastingly, the applicant has not responded in that manner to the respondent's texts.  The respondent's conduct in sending such text messages is to be considered in the context that the parties agreed in consent orders that such communications as they had would be confined to parenting issues alone.  The Order has been systematically ignored.

13. I accept the submission of counsel for the applicant that he has complied with all requests for drug screening and, moreover, that he has taken the initiative and actively invited the respondent's lawyers to seek random drug screening of him (including before any such orders were operative).  While there is evidence that the father has engaged in the ingestion of illicit substances, his recent conduct is clear of positive drug results.

14. Whilst the respondent's counsel submitted that her client was trying to establish herself in a more stable environment, I was not persuaded that this withstood scrutiny in the face of persistent non-compliance with orders and unilateral conduct which ignored the importance of the child having the benefit of a relationship with each of his parents.

15. As I indicated upon the conclusion of submissions, I am satisfied to the requisite standard that the child faces and objectively lesser risk of harm by being in the care of the father until further order.

I certify that the preceding forty-two (42) paragraphs are a true copy of the reasons for judgment of Judge A Kelly

Date: 30 May 2019