Lowell and Jordan

[2015] FamCA 1057

FAMILY COURT OF AUSTRALIA

LOWELL & JORDAN [2015] FamCA 1057

FAMILY LAW – CHILDREN – Interim parenting – The circumstances in which the father should spend time with the child – Where long-standing proceedings – Where the father presses his application for interim parenting orders subsequent to the release of Chapter 15 Expert Report – Best interests of the child – Ordered that the father shall spend significant time with the child – Ordered that the father shall ensure the child shall not come into contact with the paternal grandmother.

Deiter & Deiter [2011] FamCAFC 82.
G & C [2006] FamCA 994.
George & George [2013] FamCAFC 182.
Goode & Goode (2006) FLC 93-286, (2007) 26 Fam LR 422, [2006] FamCA 1346.
Mazorski & Albright (2007) Fam LR 518.
McCall & Clark (2009) FLC 93-405; 41 Fam LR 483; [2009] FamCAFC 92.

APPLICANT: Mr Lowell

RESPONDENT: Ms Jordan

INDEPENDENT CHILDREN’S LAWYER: Ms Baker

FILE NUMBER: PAC 2289 of 2013

DATE DELIVERED: 30 October 2015

PLACE DELIVERED: Parramatta

PLACE HEARD: Parramatta

JUDGMENT OF: Hannam J

HEARING DATE: 30 October 2015

REPRESENTATION

COUNSEL FOR THE APPLICANT:

SOLICITOR FOR THE APPLICANT: Rafton Family Lawyers

COUNSEL FOR THE RESPONDENT: Mr Hall

SOLICITOR FOR THE RESPONDENT: Leslie Hargrave Lawyers

SOLICTOR FOR THE INDEPENDENT CHILDREN’S LAWYER Peter Baker Solicitor

Orders

1. The document headed Proposed Interim Orders by the Applicant Father dated 29 October 2015 shall become Court’s Exhibit “2” in today’s proceedings.

1. Orders, pending further order, are made in accordance with paragraphs 1 and 2 of Court’s Exhibit “2”, being:

1.   That the Applicant father shall spend time with the child B born … 2012 (“the child”) each Sunday from 9.00 am until 6.00 pm on an unsupervised basis.

2.   In addition to Order (1) above, the Applicant father shall continue to spend time with the child at the Central West Contact Service on each second Friday from 5.00 pm until 7.00 pm and the father is permitted to facilitate the paternal grandparents attending with him at the Contact Centre during these periods.

1. The Applicant father’s time with the child is to commence this Sunday, 1 November 2015.

1. The father shall ensure that the child shall not come into contact with the paternal grandmother, Francis Lowell, during the time he spends with the child in accordance with Order (1) of Exhibit 2.

IT IS NOTED that publication of this judgment by this Court under the pseudonym Lowell & Jordan 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 PARRAMATTA

FILE NUMBER: PAC 2289 of 2013

Mr Lowell

Applicant

And

Ms Jordan

Respondent

REASONS FOR JUDGMENT

1. This matter concerns the child B, a little girl who is three years old, the parties’ only child.  The child’s young parents, Mr Lowell, who is 24, and Ms Jordan, who is 22, formed a relationship and the mother became pregnant when they were at high school.  There were some difficulties in the relationship between the mother and her parents which appear to relate to the shock of the mother’s pregnancy which led to the parents in this matter living with the paternal family throughout the pregnancy and until May 2013 when the parents separated.  After the parents separated, the child lived with her mother and at some point moved with her mother to the home of the parents of the mother’s current partner, Mr C, who live some distance from the paternal home.

2. The father commenced proceedings in May 2013, a couple of weeks after the parents separated.  He sought orders on an interim and final basis that the child live with the mother and spend time with him, though subsequently he has changed the final orders that he seeks and proposes orders that the child live with him and spend defined time with the mother.  Initially, the matter was filed in the Federal Circuit Court where the mother filed her Response in August 2013.  She sought – and I understand continues to seek – orders that the child live with her, that she have sole parental responsibility for the child on an interim and final basis and that the child spends supervised time with the father for four hours once a week on an interim basis and for eight hours supervised once a week on a final basis. 

3. On the same date as filing her Response, the mother filed a Notice of Child Abuse, Family Violence and Risk of Family Violence in which she alleged that the father had smacked and otherwise physically harmed the child, that the paternal grandmother sexually abused the child, that the father used illicit drugs and acted sexually inappropriately in the presence of the child and that the father perpetrated family violence against her to which the child was exposed. 

4. Prior to the mother filing her Response and prior to an interim hearing in the matter, orders were made which were described as pending an interim hearing in the matter. Pursuant to these orders, which were made by consent, the child was to live with the mother and spend time with the father for three hours each Friday evening supervised by a professional supervision service.  That arrangement has continued to date. 

5. It appears that the interim hearing, which had been listed to proceed on 13 August 2013, did not proceed though on that date an Independent Children’s Lawyer was appointed.  In November 2013, a Family Report was ordered which is relied upon by the mother in these proceedings.  That Family Report was released in September 2014 and the family consultant recommended that the parties be subject to an assessment by a child and family psychiatrist prior to any long term parenting arrangements being made.  After the Family Report was released, the matter was transferred to this Court and it appears that at the time of the transfer in September 2014 the father’s application for interim orders had still not been considered. 

6. The matter was then considered by the Magellan registrar for inclusion in the Magellan program due to the allegations of sexual abuse which had been made by the mother.  The matter was allocated into the Magellan protocol and a Magellan report was ordered.  The Magellan report indicates that the allegations made by the mother of the father’s physical abuse of the child, the father’s use of illicit drugs and complaints of sexual abuse against the paternal grandmother have been considered by the Department of Family and Community Services.  A JIRT investigation was carried out with respect to the sexual abuse allegations but the complaints have not been found to be substantiated and the Department have closed their file.  They do not propose intervening in these proceedings.

7. On 16 March of this year, Foster J made directions in the matter including appointing Dr D, a family, child and adult psychiatrist, as the Chapter 15 expert in the matter.  The mother had, at this stage, filed an Application in the Case seeking orders in relation to the child’s travel overseas which was adjourned generally.  The mother’s and father’s competing interim applications, from their original Initiating Application and Response, had still not been dealt with at this stage and the orders put in place which were made pending the interim hearing with respect to the child’s time with the father simply continued. 

8. Dr D’s report was released on 14 September 2015 and the matter was then relisted before me for future directions. At that stage the father indicated the he wished to proceed with an application for interim orders. 

9. It is in that context that the matter was listed on short notice before me, as I indicated that I did not have any time available for any other interim hearing prior to the end of the year.  At the hearing earlier this week, the father handed up his proposed minute of interim orders which had been circulated to the mother and Independent Children’s Lawyer, as it differed a little from the interim orders that he had originally proposed in his Initiating Application.  In that Minute of Order, the father proposed orders on an interim basis that he spend time with the child each Sunday between 9 am and 6 pm on an unsupervised basis and made provision with respect to changeover and also sought that the current orders for him to spend time with the child at the Central West Contact Service each alternate Friday for two hours and that his mother be permitted to attend continue.

10. In the course of the argument, it became clear that the mother had also indicated that she would consent to orders for the father to spend time with the child each Saturday as proposed, but only on the basis that it were supervised by her.  I also indicate that, of relevance, although the father had indicated that he would give an undertaking that he would not allow the paternal grandmother to be present during his time with the child on the Sunday in the event those orders were made, in the course of argument he indicated that he would consent to an order in these terms.  The Independent Children’s Lawyer supported the orders sought by the father and also sought that the issue of contact with the paternal grandmother be dealt with by way of an order rather than an undertaking.

11. Being an interim application, in accordance with Goode & Goode[1] and the other authorities, the Court is to determine the matter on the basis of the uncontested facts. However, also in accordance with cases such as Dieter & Dieter[2] and George & George[3] I must have regard to some of the matters in dispute, especially where the matters in dispute relate to issues of risk such as in this case.  And in that regard, the Court must make an assessment of the likelihood of the events having occurred on the limited information available to it and also the impact if those risk factors were found to be true.  There is no doubt that if the allegations that the mother makes against the father are found to be true that these would be highly relevant to the best interests of the child. 

    [1] (2006) FLC 93-286, (2007) 26 Fam LR 422, [2006] FamCA 1346.

    [2] [2011] FamCAFC 82.

    [3] [2013] FamCAFC 182.

12. The mother makes serious allegations against the father that he was violent to her throughout the relationship, that he used illicit drugs which impaired his parenting capacity, and that he behaved in a sexually inappropriate manner such as masturbating in the presence of the child. Similarly the allegations against the paternal grandmother, if true, that she had sexually abused the child, would raise an unacceptable risk of harm to the child if the paternal grandmother were to have unsupervised time with the child in the future.  However, this application does not relate to time with the paternal grandmother and although the father earlier indicated that he would give an undertaking that the child not come into contact with her, he now accepts and consents to an order in these terms.  That order is not only in terms that he supervise any time between the child and the paternal grandmother, but that he not allow the child to come in contact with the paternal grandmother.

13. The mother raised, in the course of this interim application, that the father lives in the paternal grandmother’s house and it is submitted on her behalf that the father has not provided sufficient detail about how he would manage the arrangements to ensure that the paternal grandmother and child did not come into contact.  In relation to that submission, I note that the father is 24 years old.  There are no concerns raised by Dr D or in the contact centre reports in relation to his capacity and in my view the court does not require that level of detail in relation to exactly how he would spend the time with the child and it does not seem to be that there would be any great difficulty for him to ensure that he would comply with that order.

14. So far as the allegations against the father are concerned, they are matters which, of course, must be tested at the final hearing.  I note that it has been consistently asserted by the mother from the outset that she has these concerns about the father, as opposed to the matters relating to the paternal grandmother which only arose after the matter had been before the Court on a couple of occasions.  However, with respect to the mother’s complaints about the father, I note that she has sufficient confidence and a lack of fear about being in the father’s presence that she offers to supervise the time with the child and this appears to me to be inconsistent with any issue that she would have about the fears of family violence or abuse.

15. So far as the best interests considerations are concerned, I think that one of the most significant matters in this case at this stage on the limited information known is the consideration of the child receiving the benefit of a meaningful relationship with each of her parents and clearly, with respect to the relationship with her father, that arises in this matter.  The mother’s own position with respect to orders is clearly that she is of the view that even on an interim basis the child would benefit from a meaningful relationship with both of the parents. 

16. Having regard to the meaning of meaningful relationship as set out in the various Full Court authorities,[4] I am not of the view that the few hours in a supervised setting currently being provided for the child and her father is sufficient to foster that meaningful relationship, especially for a child of this age. 

    [4] See McCall & Clark (2009) FLC 93-405; 41 Fam LR 483; [2009] FamCAFC 92; Mazorski & Albright (2007) Fam LR 518; G & C [2006] FamCA 994.

17. As far as I understand it, the major issue for the mother is the second of the primary considerations which, of course, is the consideration which must be given greater weight.  That is the need to protect the child from harm from being exposed to or subjected to abuse, neglect or family violence.  As I referred to earlier, the most serious allegations in this matter relate to sexual abuse but those are matters alleged to have been perpetrated by the paternal grandmother and this application does not relate to time with the paternal grandmother and the father consents to an order that he will not bring the child into contact with her.  I do assume for the purposes of this application that the father will comply with that order as I am of the view that he would not jeopardise the time with his child at this stage by not complying with it. 

18. I earlier expressed the view about the likelihood of the allegations of family violence in this matter having occurred in light of the mother’s offer to supervise the time between the child and his father.  Although I can’t be satisfied at this stage on an interim basis as to those allegations as asserted by the mother, I am satisfied at this stage that there is still some level of conflict between the parties and I accept the submission made by both the mother and the Independent Children’s Lawyer that it is likely that the child will be exposed to a greater degree of conflict between the parties on the proposal put forth by the mother than on the father’s proposal. 

19. So far as the other best interest considerations are concerned, in my view, three of the particularly relevant ones in this application concern the nature of the child’s relationships and in particular with her father, the capacity of the father to provide for the child’s needs and the impact upon the child of the likely change in circumstances.  The relationship between the child and her father is described in Dr D’s report as “close”.  So far as the father’s capacity to provide for the child’s needs are concerned, Dr D formed the view that the father had that capacity and had the child’s best interests at heart.  He expressed the view that the father showed: “…impressive restraint and understanding for the child’s position in not overreacting to not being called dad.” In my view, the impact upon the child of the change in circumstances of increased time with her father is likely to be of benefit to her and is in accordance with Dr D’s recommendations. 

20. I do have some concern in relation to the consideration about the likelihood of the father’s proposal leading to the institution of further proceedings in that the mother did express to the family consultant that she would not comply with orders for the father to have unsupervised contact with the child and said that that “would not happen”.  Although there is some concern in this regard that the orders proposed by the father are more likely than the mother’s proposal to lead to contravention proceedings, I do not attach significant weight to this as the mother will undoubtedly be provided with advice as to the importance of complying with the orders made by the Court.  And for the other reasons given, I am of the view that the father’s proposal is in the best interests of the child. 

21. The mother submitted, as I understand it, that if I were to determine the application in accordance with the father’s proposal on an interim basis, that would, in effect, amount to determining the application on a final basis.  I am of the view that this is not correct as the father now seeks or has sought since November 2014, final orders that the child live with him and spend time with the mother.  Having regard to all of the matters that I have referred to, I am of the view that on an interim basis it is in the best interests of the child to make the orders as set out in his minute headed Proposed Interim Orders by the applicant father. 

I certify that the preceding twenty one (21) paragraphs are a true copy of the reasons for judgment of the Honourable Justice Hannam delivered on 30 October 2015.

Legal Associate:

Date:  30 November 2015