LUDLOW & NETTLE
[2018] FCCA 4002
•24 December 2018
FEDERAL CIRCUIT COURT OF AUSTRALIA
| LUDLOW & NETTLE | [2018] FCCA 4002 |
| Catchwords: FAMILY LAW – Interim parenting – best interests of the children – family violence. |
| Legislation: Family Law Act 1975 (Cth), ss.60CC, 60B, 60CA, 67U, 67V |
| Cases cited: Banks & Banks (2015) FamCAFC 36 |
| Applicant: | MS LUDLOW |
| Respondent: | MR NETTLE |
| File Number: | PAC 5790 of 2018 |
| Judgment of: | Judge Newbrun |
| Hearing date: | 24 December 2018 |
| Date of Last Submission: | 24 December 2018 |
| Delivered at: | Parramatta |
| Delivered on: | 24 December 2018 |
REPRESENTATION
| Counsel for the Applicant: | Mr Byrne |
| Solicitors for the Applicant: | Prime Lawyers |
| Counsel for the Respondent: | Ms Palos |
| Solicitors for the Respondent: | Selvaggio Lawyers |
ORDERS
The mother’s recovery order application is dismissed.
Pending further order, the children shall live with the father.
Pending further order, the children shall spend time with the mother in accordance with the agreement of the parties.
The proceedings are adjourned for mention to 4 February 2019 at 9.30am. The Independent Children's Lawyer is requested to attend this mention.
IT IS NOTED that publication of this judgment under the pseudonym Ludlow & Nettle is approved pursuant to s.121(9)(g) of the Family Law Act 1975 (Cth).
| FEDERAL CIRCUIT COURT OF AUSTRALIA AT PARRAMATTA |
PAC 5790 of 2018
| MS LUDLOW |
Applicant
And
| MR NETTLE |
Respondent
REASONS FOR JUDGMENT
These are reasons for judgment in the matter of Ludlow & Nettle. The subject children are [X], born … 2012, and [Y] and [Z], born … 2013.
Proposals
The mother seeks an urgent recovery order from the father in relation to the children, which is opposed by the father. The mother seeks other interim parenting orders, including an order that the children live with the mother; that the children spend time with the father supervised; and that the father attend anger management and parenting programs.
The father also seeks interim parenting orders that the children live him; the children spend time with the mother on a supervised basis; and other ancillary-related proposed interim parenting orders.
The focus of the parties at this urgent recovery order hearing has been the mother’s proposed recovery order application. No express submissions were made by either party as to their proposed time with orders and other proposed ancillary-related and interim parenting orders. The Court proposes to deal with the mother’s recovery order application accordingly, but subject to the Court’s remarks under section 60CC, subsection (3)(m) Family Law Act 1975 (Commonwealth) (the Act) below. The Court will have these proceedings returned to the Court in about six weeks’ time, when an Independent Children’s Lawyer will have entered the proceedings. Once fulsome material can be marshalled by the parties and the Independent Children’s Lawyer, an interim hearing can be conducted to consider relevant live with and time with issues and other relevant parenting-related issues.
Material Relied Upon by the Parties
The mother’s initiating application was filed 3 December 2018, and her affidavits were filed 3 December 2018 and 13 December 2018. Her Notice of Risk document was filed 3 December 2018.
The father’s Response was filed 10 December 2018, and he also relied upon his affidavits filed 10 December 2018 and 13 December 2018. He relied on Ms A’s affidavit, filed 10 December 2018. He relied upon a case outline of some 22 pages in length.
The Department of Family and Community Services (‘FACS’) personal history document was marked exhibit A. A photocopy photograph was exhibit B. Each party tendered certain documents from FACS material produced to the Court under a section 69ZW order: exhibit C. The tendered material from NSW Police, also pursuant to a section 69ZW order, formed part of exhibit C.
Agreed Facts Unless Otherwise Stated
The mother is aged 24 years. The father is aged 30 years. The father and his new wife, Ms A, married in … 2018. Ms Nettle is aged 46 years and has two children from a previous marriage, aged 26 and 21.
It appears the mother has been the primary carer of the children from birth. However, the child, [X] came into the father and Ms Nettle’s primary care from the mother in July 2018 and the two youngest children came into the father and Ms Nettle’s care from the mother in about early November 2018.
The parties commenced cohabitation in about 2011. The father asserts the parties separated in about September 2014.
The father asserts that in about the last three months of 2015, the children were taken out of the mother’s primary care for about three months by FACS and placed in foster care in Town B.
The father asserts that during the parties’ relationship that both parties engaged in violence when they had taken illicit drugs or drank alcohol to excess.
Legal Principles
The relevant principles in relation to parenting proceedings, including interim proceedings, are well settled: see Goode & Goode [2006] FLC 93-286.
In Marvel & Marvel (2010) 43 Fam LR 348, the Full Court of the Family Court of Australia discussed the problems associated with making findings on disputed evidence as follows:
[120] As has frequently been emphasised interim parenting proceedings, and orders made as a consequence, are a necessary but temporary measure until all the evidence can be tested, evaluated and weighed at a final hearing by the making of final parenting orders. Decisions judicial officers have to make in interim proceedings are difficult and, often for very good reason, a conservative approach, or one which is likely to avoid harm to a child is adopted. This is often to the understandable distress of a party who may not achieve the outcome he or she desires, or thinks to be in the best interests of their child or children. Interim parenting orders are frequently modified or changed after a final hearing, and any allocation of parental responsibility made at an interim hearing is disregarded at the final hearing (s 61DB).
[122] In SS & AH [2010] FamCAFC 13 the majority (Boland and Thackray JJ) discussed at paragraph 88 of their reasons the care necessary to be exercised in making findings in interim parenting proceedings. Their Honours said:
In our view, findings made at an interim hearing should be couched with great circumspection, no matter how firmly a judge’s intuition may suggest that the finding will be borne out after a full testing of the evidence.
[123] Later, at paragraph 100 their Honours amplified their comments and said:
The intuition involved in decision-making concerning children is arguably of even greater importance when a judge is obliged to make interim decisions following a hearing at which time constraints prevent the evidence being tested. Apart from relying upon the uncontroversial or agreed facts, a judge will sometimes have little alternative than to weigh the probabilities of competing claims and the likely impact on children in the event that a controversial assertion is acted upon or rejected. It is not always feasible when dealing with the immediate welfare of children simply to ignore an assertion because its accuracy has been put in issue.
Of this, the Full Court of the Family Court of Australia in Eaby & Speelman said at [19]:
As would be immediately apparent, this approach enables the Court to appropriately and carefully deal with contentious issues relevant to the welfare of the child, and for those issues to not be ignored.
The Court also refers to the decision of the Full Court of the Family Court of Australia in Banks & Banks [2015] FamCAFC 36, especially at paragraphs 46 to 52.
Section 60B of the Act sets out the objects of part 7 of the Act relating to children that inform the making of parenting orders.
In deciding whether to make a particular parenting order in relation to a child, a Court must regard the best interests of the child as a paramount consideration: section 60CA of the Act.
Section 60CC of the Act provides that in determining what is in the child’s best interests, the Court must consider the matters set out in subsection (2) and (3).
As to relevant legal principle relating to recovery order applications, the Court refers to section 67U of the Act, providing that, ‘In proceedings for a recovery order, the Court may, subject to section 67V, make such recovery order as it thinks proper’, and section 67V of the Act providing that, ‘In deciding whether to make a recovery order in relation to a child, a Court must regard the best interests of the child as the paramount consideration.’
The Best Interests of the Children
Section 60CC Considerations.
Subsection (2)(a): the Meaningful Relationship Primary Consideration
The child, [X], came into the father’s care from the mother in about July 2018. Since then, the mother has spent little time with him. The mother’s current relationship with the child, [X], is somewhat unclear at present. The Court would infer that the relationship is probably positive and meaningful, but it might be strained to some extent, noting that the mother had [X] go into the father’s care, as discussed above. It would appear that [X] probably has a meaningful relationship with the father.
The other two children came into the father’s care from the mother, again, in about early November 2018. It would appear that these children have a meaningful relationship with the mother. However, as discussed below, under the need to protect primary consideration, there is a significant suggestion on the material before the Court that one or both of these younger children may be somewhat fearful of the mother. It would appear that these children probably have a meaningful relationship with the father.
As discussed previously at the introduction of these reasons for judgment, the Court does not propose to presently deal with time with issues, noting the manner in which this urgent recovery order application was dealt with by the parties before the Court. Again, the Court proposes to deal with live with and time with issues on an interim basis in the New Year following the Independent Children’s Lawyer entering the proceedings and the parties having marshalled relevant evidence touching upon these issues.
Again, as referred to in the Court’s introduction, the previous remarks are subject to the Court’s comments below under section 60CC, subsection (3)(m).
The Court notes that the child, [X], appears to have spent some quite limited time with the mother since the child came into the father’s primary care in July 2018 (for example, that child appears to have presented with the mother on 2 and 10 October 2018 at a GP together). Nevertheless, it is positive that the child, [X], is keeping in contact with the mother.
It does not appear that the mother has spent any significant time with the two youngest children since they came into the father’s primary care in early November 2018.
In the absence of agreement between the parties, in the short-term, it would be beneficial if the children could spend some regular day-time time with the mother, provided it is safe for them to do so, so as to maintain their meaningful relationship with her. The Court will make an interim order, pending further order, that the children spend time with the mother in accordance with the agreement of the parties.
Subsection (2)(b): The Need to Protect Primary Consideration
In the view of the Court, there is an unacceptable risk that the children will be exposed to abuse (both physical and psychological), neglect or family violence if returned to the mother’s primary care, pursuant to her proposed recovery order application. In this context, by reference to the material before the Court, the Court takes into account, inter alia:
a)the mother caused the child, [X], to be placed into the father’s primary care in about July 2018; there is a significant suggestion on the material before the Court that the mother caused this child to be placed into the primary care of the father because she was struggling in managing [X]’s difficult behaviour.
The mother, herself, admits to slapping the child across the face at about this time (see paragraphs 41 to 45 of the mother’s affidavit, filed 3 December 2018, inter alia, referring to the slapping incident and the mother’s frustration). There is a significant suggestion in the tendered FACS material that at least initially, the mother sought to conceal the mark left on [X]’s face after the slapping incident. [X]’s school had made a mandatory report in relation to the mother slapping this child, and FACS interviewed the mother who admitted the occurrence. [X] is only six years of age.
There is a significant suggestion on the material before the Court, including the FACS material, that [X] is more settled presently living with the father (see tab I of the FACS material).
The Court’s concerns in relation to this child being returned back into the mother’s primary care remain, despite the mother’s assertions that, inter alia (see for example, paragraphs 1 to 6 of the mother’s affidavit, filed 13 December 2018), her 17 year old brother, [C], and her partner, Mr L, will assist her in the care of the children. The Court observes there is no affidavit from the mother’s partner, Mr L. The Court observes, in this context, that the mother has just given birth to a new child with likely demands on her time accordingly.
The Court observes there is no material before the Court to indicate that the mother has sought professional assistance (for example, psychological assistance) since this incident occurred with [X].
b)The allegation by Ms A, the father’s partner, that the child, [Z], reported to her on about 9 November 2018 that the mother had cut this child on his leg (see the exhibit B photograph, which is alleged by the father to be a photo taken of the child’s leg a short time after the alleged cutting incident). The mother denies this alleged occurrence. In this context, the Court takes into account Ms Nettle’s allegation that following this alleged occurrence, the child, [Z], was placed in a dark room at the mother’s residence and that the mother’s partner, Mr L, had told the children that there were monsters in this dark room. These occurrences appear to have been reported by Ms Nettle and/or the father to FACS.
In the context of these allegations (and also in the context of (c) below), being allegations made in relation to incidents occurring post-July 2018, it is not without relevance that the mother asserts that she has not felt frustrated with the children since the slapping incident regarding [X] in July 2018.
c)The contents of a letter from Suburb E Learning Centre, being annexure H to the affidavit of Ms Nettle. This letter appears to have been prepared at some time post 17 November 2018. The two youngest children were enrolled at this centre on 30 July 2018. The letter is written by the learning centre in relation to the children, [Z] and [Y]. One issue was the two children became concerned that if they got dirty at the centre, the mother would “get them into trouble”. Another issue was the child, [Y], soiling herself at the centre, which “caused [Y] to become frightened that she will get into trouble from her mum”. These incidents have been brought up with Ms Ludlow. [Z] had disclosed to the teachers that [Y] did not come to school on a certain Monday because, ‘She wee’d in her pants on Friday’, and that, ‘Mum kicked her up the bum’. There is FACS material relating to a notification allegation in this context (on about 19 October 2018) that the child, [Y], is made by the mother to clean her own clothes and bedding if she soils herself, ‘which is considered an unrealistic expectation for a child of five years.’
d)The contents of the letter from Suburb F Child Care & Preschool, dated 1 August 2018. There is a significant suggestion from the contents of this letter that the mother was experiencing difficulties in appropriately caring for the two youngest children in respect to their hygiene, appropriate clothing and food consumption. It is not without relevance that the letter asserts that at one point, the mother disclosed to the centre that the child, [X], would not be making ‘the move with the family as (the mother) was under too much stress.’
e)The father alleges (see paragraph 10 of his affidavit, filed 10 December 2018) that during his discussions with FACS, he was advised that if he did not initiate family law proceedings for the care of the children, they will be placed in foster care due to the concerns that FACS had regarding the children’s welfare whilst they were in the mother’s care. In this context, the father had annexed a letter from FACS dated 16 November 2018, ‘To whom it may concern,’ stating that FACS was aware that the two youngest children were currently in the care of the father and his partner, Ms Nettle. In tab 5, page 2, in the FACS tendered material, the father refers to a FACS case worker ‘Mr G’ having allegedly advised him not to return the children to the mother following the child [Z]’s alleged injury.
In any event, FACS would appear to be aware that the children are presently in the primary care of the father. The Court observes that FACS has taken no steps, apparently, to remove the children presently from his primary care:
i)see annexure G to the affidavit of Ms Nettle, filed 10 December 2018, being a letter from FACS, dated 16 November 2018;
ii)see paragraphs 40 to 41 of Ms Nettle’s affidavit; and
iii)see tab I in the FACS material; there is a significant suggestion from this document that as at 4 October 2018, FACS had no plans to remove [X] from the father’s care.
Ms Nettle asserts and alleges that a welfare check was conducted by the police on the children on about 15 November 2018 whilst the children were in the primary care of the father, with the police indicating that the children were safe and well in the father’s care.
f)There is a suggestion on the material before the Court that at least one of the younger children may be somewhat fearful of the mother by reason of, inter alia, the mother’s chastisement of them in certain circumstances.
The Court has considered the mothers’ concerns (both as asserted in her affidavits and in her Notice of Risk document) as to the children remaining in the father’s care. In this context, the Court observes that there is no significant suggestion of family violence occurring presently in the household of the father, and, again, there would appear to be no plans presently by FACS to remove the children from the care of the father.
The Court has not overlooked the brief medical certificate of GP Dr H, dated 13 November 2018, regarding the children. However, the Court’s concerns remain that it is not apparent from the brief medical certificate that this GP is aware of the current material before the Court at this recovery order application hearing.
The Court has also not overlooked that the allegations of the father and his partner, Ms Nettle, made against the mother are significantly denied by the mother. Nevertheless, the Court’s concerns remain that there exists an unacceptable risk of abuse, neglect or family violence posed to the children should they be returned to the mother’s primary care at this early interim stage.
The Court gives significant weight to this need to protect primary consideration.
Additional Considerations
Section 60CC(3)(a)
The Court refers to its discussion above under the need to protect primary consideration in relation to alleged statements made by the youngest children to the father and/or Ms Nettle and a third party.
Subsection (3)(d)
The Court refers to its discussion above under the meaningful relationship primary consideration.
Subsection (3)(f)
The Court refers to its discussion above under the need to protect primary consideration. Otherwise, on the material presently before the Court, it is not possible to meaningfully consider this additional consideration.
Subsection (3)(i)
Subject to the Court’s discussion above under the need to protect primary consideration, both parties would appear to have demonstrated appropriate attitudes towards the children and to their responsibilities of parenthood.
Subsection (3)(j)
The Court refers to its discussion above under the need to protect primary consideration.
Subsection (3)(m)
The Court refers to its previous remarks relating to this additional consideration in these reasons for judgment. It will be in the best interests of the children to make an interim order that, pending further order, the children live with the father – that will provide some certainty to the parties at this very early interim stage and minimise the risk of conflict between the parties.
a)Evaluating the above discussed relevant considerations under section 60CC of the Act, it will be in the best interests of the children to make the following interim orders, and the Court makes the following interim orders.
i)The mother’s recovery order application is dismissed.
ii)Pending further order, the children shall live with the father.
iii)Pending further order, the children shall spend time with the mother in accordance with the agreement of the parties.
iv)The proceedings are adjourned for mention to 4 February 2019 at 9.30am. The Independent Children's Lawyer is requested to attend this mention.
I certify that the preceding thirty-eight (38) paragraphs are a true copy of the reasons for judgment of Judge Newbrun
Date: 4 June 2019
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Family Law
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