LUDLOW & NETTLE (No.2)
[2019] FCCA 1364
•4 May 2019
FEDERAL CIRCUIT COURT OF AUSTRALIA
| LUDLOW & NETTLE (No.2) | [2019] FCCA 1364 |
| Catchwords: FAMILY LAW – Interim parenting – best interests of the children – orders made. |
| Legislation: Family Law Act 1975 (Cth), ss.60B, 60CA, 60CC, 61DA, 65AA, 65D |
| Cases cited: Banks & Banks [2015] Fam7CAFC 36 |
| Applicant: | MS LUDLOW |
| Respondent: | MR NETTLE |
| File Number: | PAC 5790 of 2018 |
| Judgment of: | Judge Newbrun |
| Hearing date: | 2 April 2019 |
| Date of Last Submission: | 30 April 2019 |
| Delivered at: | Parramatta |
| Delivered on: | 4 May 2019 |
REPRESENTATION
| The Applicant appeared in person |
| Counsel for the Respondent: | Mr Rosic |
| Solicitors for the Respondent: | Selvaggio Lawyers |
| Solicitors for the Independent Children's Lawyer: | Ms Hernandez of Claremont Legal |
ORDERS
That the children [X] born … 2012, [Z] born … 2013 and [Y] born … 2013 (“the children”) live with the father.
That the children spend time with the mother as follows:
(a)Each Tuesday from 5:45 pm to 6:45 pm at [X]’s sports lessons and in the presence of Ms A. The mother and her baby [D] shall attend alone;
(b)That once the children start sport on a Saturday, the mother shall be at liberty to attend any of each of the three children’s sporting activities and the mother and her baby [D] shall attend alone. For the purpose of this Order:
(i)The father shall forward to the mother the sporting roster for each of the three children as soon as he receives same; and
(ii)In the event of last-minute changes to the roster for any reason, the father shall notify the mother of such changes as soon as is reasonably practicable.
(c)That the children shall spend time with the mother at Suburb J Contact Centre for two hours each alternate week, on such days and times at the contact centre’s availability.
(d)That for the purposes of facilitating the children spending time with the mother pursuant to Order 2 (c), both parents shall:
(i)No later than seven (7) days from the date hereof, arrange an appointment with the management of the contact centre for assessment for suitability of supervised time;
(ii)Attend such assessment as directed by the management of the contact centre; and
(iii)Otherwise comply with all reasonable rules of the centre, including but not limited to the delivery and collection of the children, the attendance of and departure from the centre and the provision of identification.
(iv)The mother is responsible for any costs associated with the mother spending time with the children at the centre;
(v)That for the purposes of implementing the mother’s supervised time with the children, the father shall deliver the children to, and collect the children from the contact centre at the commencement and conclusion of the mother’s supervised time.
(e)That the mother be at liberty to FaceTime the children each Monday and Wednesday between 6:30 pm and 7 pm, and each Saturday between 8:30 am and 9 am. The Saturday FaceTime shall cease once the children start sport.
That the mother and the father refrain from using any physical discipline, or allow any other person to use physical discipline on the children.
That the father be prohibited from drinking more than two standard alcoholic drinks per day when the children are in his care. The father is to ensure that he removes the children from the presence of any person who he believes to be affected by alcohol.
That the father ensures that he completes the 1-2-3 Magic and Emotion Coaching Parenting program at Family Childhood Services and provide a certificate of completion to the Independent Children’s Lawyer.
That within 7 days from the date of the making of these orders, the mother and father shall contact Catholic Care on …, and register and complete the ‘Keeping Kids in Mind’ parenting program. Each parent is to forward to the Independent Children’s Lawyer a certificate of completion.
That the mother take all steps necessary to engage with Brighter Futures and follow all of their recommendations should the mother be deemed suitable for their services.
IT IS NOTED that publication of this judgment under the pseudonym Ludlow & Nettle (No.2) is approved pursuant to s.121(9)(g) of the Family Law Act 1975 (Cth).
| FEDERAL CIRCUIT COURT OF AUSTRALIA |
PAC 5790 of 2018
| MS LUDLOW |
Applicant
And
| MR NETTLE |
Respondent
REASONS FOR JUDGMENT
Introduction
This interim hearing related to the child [X] born on … 2012, and the children [Y] and [Z] who were born on … 2013.
The parties separated in about September 2014. Thereafter the children remained in the mother’s primary care.
The child [X] then came into the father’s care in about late July 2018. The twins came into the father’s care in about early November 2018.
The mother filed a recovery application in respect of the children on 3 December 2018. On 24 December 2018 the Court ordered that the mother’s recovery order application be dismissed; and that pending further Order the children live with the father; and that the children spend time with the mother in accordance with the agreement of the parties.
On 4 February 2019, the Court made interim parenting Orders by consent providing that the mother be at liberty to FaceTime the children each Monday and Wednesday between 6:30 pm and 7 pm, and each Saturday between 8:30 am and 9 am. Saturday FaceTime was ordered to cease once the children started sport. Further, it was ordered that once the children start sport on a Saturday, the mother shall be at liberty to attend any of each of the three children’s sporting activities with the mother and her baby [D] to attend alone. A Court Notation was made that within seven days the mother shall contact Brighter Futures Suburb J and request an assessment for suitability. The Notation further provided that if the mother is deemed suitable by Brighter Futures Program, the mother shall fully engage with the program and comply with all recommendations of the program.
Proposals
The father and Independent Children’s proposed interim Orders are set out in Exhibit C; inter alia, they seek Orders that the children continue to live with the father; and that the children spend time with the mother both at their sporting activities and at [X]’s sports lessons, as well as fortnightly supervised time at the Suburb J Contact Centre.
The mother’s proposals were set out in her proposed Minute of Interim Orders filed 11 April 2019; inter alia, she sought Orders that, in the absence of agreement, the children live with the mother and spend time with the father every second weekend from 4 pm Friday to 4 pm Sunday.
Material relied upon
During the course of the interim hearing held on 2 April 2019, the Court informed the parties, following submissions, that, for the purpose of the subject interim hearing (held on 2 April 2019), it would be relying upon its earlier reasons for judgement delivered on 24 December 2018, together with the material referred to in those reasons for judgment. Accordingly, the court refers to, and relies upon, those earlier reasons for judgment delivered on 24 December 2018 and the material relied upon by the parties and referred to in those reasons.
The court now refers to and sets out the specific material adduced by the parties and ICL for the interim hearing held on 2 April 2019 which the court also relies upon for the purposes of this interim judgement.
The mother relied upon the following documents:
a)Proposed Minute of Interim Orders filed on 11 April 2019;
b)Affidavits of Ms Ludlow filed 3 and 13 December 2018 and 29 March 2019;
c)Notice of Risk filed 3 December 2018; and
d)Affidavit of Mr L filed 11 April 2019.
The father relied upon the following documents:
a)Response to Initiating Application filed 10 December 2018;
b)Notice of Risk filed 10 December 2018;
c)Consolidated Affidavit of Mr Nettle filed 12 March 2019;
d)Consolidated Affidavit of Ms A filed 12 March 2019.
The Independent Children’s Lawyer relied upon the following documents:
a)Child Inclusive Conference Memorandum to Court of Family Consultant Ms K dated 18 February 2019 (see below);
b)Certain subpoenaed documents (see below).
The following exhibits were relied upon:
a)Child Inclusive Conference Memorandum of Ms K dated 18 February 2019 (Exhibit A);
b)Document headed ‘Subpoena inspection notes’ and attached documents, and tabbed documents in Sleeves 2 and 9 of the subpoenaed material (blue for father, yellow for Independent Children’s Lawyer) (Exhibit B);
c)Joint Minute of Order of the father and Independent Children’s Lawyer (Exhibit C);
d)Letter from Brighter Futures and attached text messages (Exhibit D).
Agreed facts unless otherwise stated
The Court refers to the ‘Agreed facts unless otherwise stated’ section of the Court’s interim judgement of 24 December 2018.
Since the Court’s Orders of 24 December 2018, the mother has spent some day time with the children both on her own and on occasions supervised by the Ms M, at the latter’s home.
Relevant 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] FamCA 240, 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 in Eaby & Speelman [2015] FamCAFC 104 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 recent 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 Family Law Act 1975 (Cth) (“the Act”) sets out the objects of Part VII 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 the 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 subsections (2) and (3).
The best interests of the children
Section 60CC Considerations
Subsection (2a): the benefit to the child of having a meaningful relationship with both of the child’s parents: a primary consideration
The children would appear to have a meaningful relationship with both parents. They would benefit from a continuance of those relationships.
Should the children spend time with the mother pursuant to the father and the Independent Children’s Lawyer’s proposed interim parenting Orders set out in Exhibit C, there is a significant prospect that the children’s meaningful relationship with the mother will be maintained.
Subsection (2b): the need to protect the child from physical or psychological harm from being subjected to, or exposed to, abuse, neglect or family violence.
At this interim stage, there is an unacceptable risk of physical and psychological harm posed to the children should they live with the mother, or spend time with the mother other than as proposed by the Independent Children’s Lawyer and the father in Exhibit C. The Court has concerns in relation to the safety of the children should they be returned to the mother’s primary care or should they spend unsupervised time with the mother (other than as set out in proposed order 2 of Exhibit C). In this context of unacceptable risk, the Court takes into account, inter alia:
a)Those matters taken into account by the Court in its Reasons for Judgement of 24 December 2018, under the ‘need to protect primary consideration’ (including the relevant documentary material referred to therein), in respect to the Court’s view that 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.
b)The material in Exhibit B, which suggests that the mother appeared to have difficulties coping with and caring for her children, both physically and emotionally, whilst not overlooking the historical nature of such material. There is also a suggestion in this historical material that the mother, at least at certain times, did not appear to embrace the advice given to her by third parties in relation to caring for the children.
c)The father’s allegations that after separation, between about September 2015 to about mid December 2015, the children were taken out of the mother’s primary care and placed into foster care in Town B. The Court has not overlooked the mother’s allegations in this context, inter alia, that the children were not taken from her, but rather that she had notified Brighter Futures of her intentions to put the children into temporary foster care.
d)Allegations by the father’s new partner that the mother exercised excessive physical discipline upon the child [Z] in 2017.
Acting cautiously and conservatively, the above unacceptable risk posed to the children can be addressed by making interim Orders as proposed by the father and Independent Children’s Lawyer in Exhibit C.
As to the mother’s concerns in relation to the children remaining in the father’s primary care, the Court refers to its previous Reasons for Judgement on 24 December 2018, under the ‘need to protect primary consideration’, relating to the Department of Family and Community Services and the children remaining in the father’s primary care, including the reference to the documentary material in relation thereto.
The Court has not overlooked the mother’s denials in relation to the allegations made by the father and his new partner. However, according to legal principle, the Court cannot ignore an allegation simply because it has been denied; the Court is bound to consider any relevant risk issues arising from those allegations in respect of the children when determining what proposed parenting orders are in the best interests of the children.
The Court has not overlooked the mother’s recent attendance at the Triple P program and the 123 Magic & Emotion Coaching Parenting program, or the fact that in early February 2019 the mother approached Brighter Futures Suburb N and was allocated a worker who was to conduct a home visit on 1 April 2019. However, the Court’s concerns remain, noting that this support has only recently commenced, and that the mother appears to have had assistance from Brighter Futures previously in relation to the children.
The Court refers to the mother’s general practitioner’s referral letter of 7 February 2019 addressed to a psychologist, which states that the mother is being referred for an opinion and management of stress/anxiety. The mother states that she has had one consultation with the psychologist, in about mid-March 2019.
The Court takes into account the father’s assertion that the children appear to be happy and settled since they have been residing with the father and his new partner in their home on a full-time basis.
The Court takes into account the father’s assertion that he and his new partner have taken steps to assist the child [Y] with her toileting and also to enrol all the children into counselling with a child psychologist (in this regard the father refers to paragraph 71 of his partner’s Affidavit filed 12 March 2019).
The Court has not overlooked the mother’s allegations that the father was abusive towards her during their relationship when he drank alcohol. The father contends in his Affidavit filed 12 March 2019 that he now drinks alcohol very moderately and usually only on weekends. Nevertheless, acting cautiously and conservatively, the Court, to minimise the risk of the father being adversely affected by alcohol in the presence of the children, will make the father and Independent Children’s Lawyer’s interim proposed Order 6 in Exhibit C.
The Court has considered the mother’s further material filed and served in the proceedings and relied upon by her, including the Affidavit of her new partner. The Affidavit of the new partner indicates that he is aged 23 years. He confirms that he and the mother have a child together named [D] born … 2018. The Court has considered the content of this Affidavit. The Court’s concerns remain despite this Affidavit.
The child [Y] told the family consultant that she did not like it when the father smacked her. The court proposes to make the father and Independent Children’s Lawyer’s proposed restraining order (proposed order 5 in exhibit C) restraining the parties from using any physical discipline, or allowing any other person to use physical discipline, on the children.
The court places significant weight on this need to protect primary consideration.
Section 60CC(3) - additional considerations
(a) Any views expressed by the child and any factors (such as the child maturity or level of understanding) that the court thinks are relevant to the weight it should give to the child’s views
The father asserts that the children have told him that they wish to live with him.
The child [X], then aged six years and four months, told the family consultant, inter alia, that he wanted to live with the mother and spend time with the father. He stated that the mother played with him and was nice to him. He stated that the child [Z] had lied about the mother cutting him and that he was trying to get the mother and her new partner in trouble.
The child [Y] told the family consultant, inter alia, that the mother always put her in timeout, and that the mother’s partner loved putting her in the darkroom, which was scary. She stated that she wanted to live with the mother as she did not like it when the father smacked her.
The child [Z] told the family consultant that the mother had cut him on the leg and that the mother’s new partner kept putting him in timeout. He stated that the father and his new partner also put him in timeout when he was naughty. He stated that he liked living with the father and his new partner. He stated that he wanted to live with them and spend time with the mother.
The Court takes into account the children’s statements to the family consultant and to the father and his new partner, whilst noting their tender ages. The Court does not place significant weight on their views as to “live with” and “time with” issues.
(b) The nature of the relationship of the child with each of the child’s parents; and other persons (including any grandparent or other relative of the child)
The Court refers to its discussion above under the meaningful relationship primary consideration.
The father asserts that the children have a close and loving relationship with his new partner.
The mother’s new partner asserts that he has a close relationship with the children.
(c) The extent to which each of the child’s parents has taken or failed to take the opportunity; to participate in making decisions about major long-term issues in relation to the child; and to spend time with the child; and to communicate with the child
Both parents have sought to take such opportunities.
(ca) The extent to which each of the child’s parents has fulfilled, or failed to fulfil, the parent’s obligations to maintain the child
Subject to the Court’s discussion above under the need to protect primary consideration, both parents have sought to fulfil such obligations when the children have been in their care.
(d) The likely effect of any changes in the child’s circumstances, including the likely effect on the child of any separation from either of his or her parents; or any other child, or other person (including any grandparent or other relative of the child), with whom he or she has been living
The Court refers to its discussion above under the meaningful relationship primary consideration.
(e) The practical difficulty and expense of a child spending time with and communicating with the parent and whether that difficulty or expense will substantially affect the child’s right to maintain personal relations and direct contact with both parents on a regular basis
Not applicable.
(g) The maturity, sex, lifestyle and background (including lifestyle, culture and traditions) of the child and of either of the child’s parents, and any other characteristics of the child that the court thinks are relevant
The children have experienced adverse behavioural issues. The father asserts that he has caused the children to be referred to a psychologist.
(h) If the child is an Aboriginal child or a Torres Strait Islander child: the child’s right to enjoy his or her Aboriginal or Torres Strait Islander culture (including the right to enjoy that culture with other people who share that culture); and the likely impact any proposed parenting order under this Part will have on that right
Not applicable.
(i) The attitude to the child, and to the responsibilities of parenthood, demonstrated by each of the child's parents
The Court refers to its discussion above under the need to protect primary consideration.
(j) Any family violence involving the child or a member of the child's family
The mother alleges that the father perpetrated family violence against her during the relationship. The Court refers to the family violence order, which is discussed briefly below.
There is material before the Court suggesting that historically the mother’s previous other partners perpetrated family violence against her.
(k) If a family violence order applies, or has applied, to the child or a member of the child’s family – any relevant inferences that can be drawn from the order, taking into account the following: the nature of the order; the circumstances in which the order was made; any findings made by the court in, or in proceedings for, the order; any other relevant matter
There was an Apprehended Domestic Violence Order made against the father in about 2014 for the protection of the mother and the children. The father told the family consultant that he had been convicted of assault after the relevant incident relating to this order, with his sentence consisting of community service.
(l) Whether it would be preferable to make the order that would be least likely to lead to the institution of further proceedings in relation to the child
These are interim parenting proceedings.
m) Any other fact or circumstance that the Court thinks is relevant
The Court takes into account the comments and recommendations of the family consultant in the Child Inclusive Conference Memorandum to Court dated 25 February 2019, whilst noting that the family consultant’s comments and recommendations remain untested.
Parental responsibility
It will not be in the best interests of the children to make an express Order for parental responsibility at this interim stage.
Summary
Evaluating the above discussed considerations under section 60CC of the Act, it will be in the best interests of the children to make the following interim Orders:
(1)That the children [X] born … 2012, [Z] born … 2013 and [Y] born … 2013 (“the children”) live with the father.
(2)That the children spend time with the mother as follows:
(a)Each Tuesday from 5:45 pm to 6:45 pm at [X]’s sports lessons and in the presence of Ms A. The mother and her baby [D] shall attend alone;
(b)That once the children start sport on a Saturday, the mother shall be at liberty to attend any of each of the three children’s sporting activities and the mother and her baby [D] shall attend alone. For the purpose of this Order:
(i)The father shall forward to the mother the sporting roster for each of the three children as soon as he receives same; and
(ii)In the event of last-minute changes to the roster for any reason, the father shall notify the mother of such changes as soon as is reasonably practicable.
(c)That the children shall spend time with the mother at Suburb J Contact Centre for two hours each alternate week, on such days and times at the contact centre’s availability.
(d)That for the purposes of facilitating the children spending time with the mother pursuant to Order 2 (c), both parents shall:
(i)No later than seven (7) days from the date hereof, arrange an appointment with the management of the contact centre for assessment for suitability of supervised time;
(ii)Attend such assessment as directed by the management of the contact centre; and
(iii)Otherwise comply with all reasonable rules of the centre, including but not limited to the delivery and collection of the children, the attendance of and departure from the centre and the provision of identification.
(iv)The mother is responsible for any costs associated with the mother spending time with the children at the centre;
(v)That for the purposes of implementing the mother’s supervised time with the children, the father shall deliver the children to, and collect the children from the contact centre at the commencement and conclusion of the mother’s supervised time.
(e)That the mother be at liberty to FaceTime the children each Monday and Wednesday between 6:30 pm and 7 pm, and each Saturday between 8:30 am and 9 am. The Saturday FaceTime shall cease once the children start sport.
(3)That the mother and the father refrain from using any physical discipline, or allow any other person to use physical discipline on the children.
(4)That the father be prohibited from drinking more than two standard alcoholic drinks per day when the children are in his care. The father is to ensure that he removes the children from the presence of any person who he believes to be affected by alcohol.
(5)That the father ensures that he completes the 1-2-3 Magic and Emotion Coaching Parenting program at Family Childhood Services and provide a certificate of completion to the Independent Children’s Lawyer.
(6)That within 7 days from the date of the making of these orders, the mother and father shall contact Catholic Care on …, and register and complete the ‘Keeping Kids in Mind’ parenting program. Each parent is to forward to the Independent Children’s Lawyer a certificate of completion.
(7)That the mother take all steps necessary to engage with Brighter Futures and follow all of their recommendations should the mother be deemed suitable for their services.
I certify that the preceding fifty-eight (58) paragraphs are a true copy of the reasons for judgment of Judge Newbrun
Date: 4 June 2019
Key Legal Topics
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Family Law
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