Mallery and Cavendish
[2012] FMCAfam 1434
•19 December 2012
FEDERAL MAGISTRATES COURT OF AUSTRALIA
| MALLERY & CAVENDISH | [2012] FMCAfam 1434 |
| FAMILY LAW – Children – parenting – parenting orders – interim orders – best interests of the child – parental responsibility – equal shared parental responsibility – child aged five years ten months – substance abuse issues in respect of both parents – allegation of mental health issues – allegation of violence – where child is to commence school in 2013 – need for stability in a child’s life. |
| Family Law Act 1975 (Cth), ss.60CA, 60CC, 61DA, 65DAA, 68L Federal Magistrates Court Rules r.15.09 |
| Good v Goode [2006] FamCA 1346; (2006) 36 Fam LR 422; FLC 93-286 Re K (1994) 17 Fam LR 537; FLC 92-461 |
| Applicant: | MR MALLERY |
| Respondent: | MS CAVENDISH |
| File Number: | NCC2275/2009 |
| Judgment of: | Scarlett FM |
| Hearing date: | 19 September 2012 |
| Date of Last Submission: | 19 September 2012 |
| Delivered at: | Sydney |
| Delivered on: | 19 December 2012 |
REPRESENTATION
| Counsel for the Applicant: | Ms Hausman |
| Solicitors for the Applicant: | Paltos Briggs Family Lawyers |
| Solicitors for the Respondent: | Taylor & Scott |
ORDERS
UNTIL FURTHER ORDER
The child [X] born [in] 2007 is to live with the Respondent mother as follows:
(a)Each Tuesday from 3:00 pm with the child to be collected by the mother from [U] Childcare at [L] New South Wales until 9:00 am the following Thursday at which time the mother is to deliver the child to [U] Childcare;
(b)From 3:00 pm on Friday with the child to be collected by the mother from [U] Childcare until 6:00 pm the following Sunday in each alternate week with the child to be collected by the paternal grandmother MS H from the mother’s residence on Sunday or in the event that the paternal grandmother is unable to collect the child then the mother is to deliver the child to the Applicant father at his residence at [address omitted].
The child [X] is to live with the Applicant father at all other times AND IT IS A CONDITION OF THIS ORDER that the father must continue to reside at [address omitted].
The parties are to do all acts and things necessary to re-enrol the child [X] at [U] Childcare [L] as soon as is reasonably possible.
Under the provisions of section 68L of the Family Law Act the interests of the child [X] are to be independently represented by a lawyer and for this purpose Legal Aid NSW is requested to arrange such represented.
The parties are to forward to Legal Aid NSW for the use of the Independent Children’s Lawyer when appointed copies of all Applications, Responses, Affidavits and all other documents filed in these proceedings within fourteen (14) days.
Immediately after the filing and service of a Notice of Address for Service by the Independent Children’s Lawyer the parties’ solicitors are to communicate with the Independent Children’s Lawyer to discuss the appointment of a Court Expert under the provisions of Rule 15.09 to inquire into and report on matters relating to the welfare of the child [X].
The Applicant and the Respondent are restrained by injunction from administering to themselves any prohibited drug or substance at any time.
The parties are to do all acts and things necessary to commence or continue random urinalysis testing to determine the presence of illicit drugs as directed by the NSW Department of Family and Community Services.
IT IS NOTED that publication of this judgment under the pseudonym Mallery & Cavendish is approved pursuant to s.121(9)(g) of the Family Law Act 1975 (Cth).
| FEDERAL MAGISTRATES COURT OF AUSTRALIA AT SYDNEY |
NCC2275/2009
| MR MALLERY |
Applicant
And
| MS CAVENDISH |
Respondent
REASONS FOR JUDGMENT
Application
This is an Application by the father of a little boy named [X] for interim Orders that:
a)He should live with the mother:
i)From 3.00 pm on Tuesday until 9.00 am on Thursday; and
ii)From 3.00 pm Friday until 6.00 pm the following Sunday.
b)He should live with the father at all other times conditional on the father residing at his mother’s home in [L];
c)the child should recommence at [U] Childcare;
d)an Independent Children’s Lawyer should be appointed; and
e)a single expert be appointed to prepare a report on matters relating to the welfare of the child.
The mother, by her Response filed on 14 September 2012, seeks order that:
a)[X] should live with her;
b)He should spend time with the father:
i)Each Monday from 5:00 pm to 7:45 pm for the purpose of taking [X] to [activity omitted];
ii)Each alternate weekend from 4:00 pm Friday until 4:00 pm on Sunday;
iii)From 3:00 pm on Christmas Day until 10:00 am on Boxing Day; and
iv)The time should be supervised by the paternal grandmother with the child to sleep overnight at the grandmother’s house.
There are issues of substance abuse applying to both parties.
Background
The father was born [in] 1970. He is therefore 42 years of age.
The mother was born [in] 1971. She is about to attain the age of 41 years.
The father has one child by a previous relationship, a boy who was born [in] 1995 and has recently turned 17.
The parties commenced a de facto relationship in 2006.
There is one child of that relationship, the subject child [X], who was born [in] 2007. [X] is 5 years and 10 months old.
The parties separated in about May 2009, on the father’s evidence.[1]
[1] Affidavit of Mr Mallery 14.9.2012 at paragraph [7]
There were proceedings between the parties in the Family Court at Newcastle which were resolved by way of Consent Orders on 13 April 2010. Those Orders provided that:
a)the child would live with the father;
b)the parties would have equal shared parental responsibility for the child with the father to have specific responsibility for his education and health;
c)the mother would spend time with the child:
i)from 9:00 am each Thursday until 4:00 pm on the following Saturday;
ii)from 9:00 am to 4:00 pm on Mother’s Day;
iii)from 5:00 pm on Christmas Eve until 11:00 am on Christmas Day in odd numbered years;
iv)from 11:00 am on Christmas Day until 11:00 am on Boxing Day in even numbered years; and
v)by telephone by agreement or at 5:00 pm each Tuesday.
There were also these Orders:
6. The mother consents to the father being able to contact her treating psychiatrist or his or her nominees and further permits that person to comment upon the mother’s attendance or non-attendance upon the psychiatrist.
7. The mother shall comply with all reasonable directions of her treating medical practitioners and take her medications as prescribed on a regular basis.
8. The mother’s time with the child pursuant to these orders shall be suspended in the event that the person supervising changeover is of the opinion the mother is affected by an illicit substance or is displaying symptoms of mental illness and such “time with” shall resume upon the mother providing to the father evidence of her subsequent attendance upon her treating medical practitioner.
The current proceedings were commenced when the father filed an Application seeking urgent orders that the mother should return the child to him at his residence and, if the mother failed to do so, then he sought a recovery order.
On 4 September 2012 the parties were directed to attend a Child Dispute Conference with a Family Consultant and the father’s Application was listed for interim hearing on 19 September 2012.
The parties attended the Child Dispute Conference on 18 September. No agreement was reached. The Family Consultant prepared a lengthy Memorandum to Court in which she noted the mother’s allegations of family violence by the father and the father’s allegations of violence by the mother and the substance misuse issues raised by both parents.
The Family Consultant noted these issues impeding resolution:
· There is no communication between the parents
· Unresolved allegations of family violence
· The parents’ respective concerns that the other parent’s behaviour poses some sort of risk to [X]’s safety and wellbeing
· The parents each believe that what they are proposing is in [X]’s best interests.
· Both parents present as very fixed in their respective positions and each holds the opinion they require a judicial decision on both an interim and final basis.[2]
[2] Family Consultant Memorandum to Court 18 September 2012
The Family Consultant recommended the appointment of an Independent Children’s Lawyer for the child.
Evidence and Submissions
The father relied on the following affidavits:
a)his affidavit of 14 September 2012;
b)his affidavit of 18 September 2012; and
c)the affidavit of his mother, Ms H, of 18 September 2012.
It was the father’s evidence that he resides with his parents. He does not have a current drivers licence, saying:
My licence has been suspended until December 2014 for driving whilst disqualified and under the influence of drugs.[3]
[3] Affidavit of Mr Mallery 14.9.2012 at paragraph [5]
It is the father’s evidence that during their relationship both he and the mother used illicit drugs, including cannabis, cocaine and heroin. They have both spent time in rehabilitation clinics. He admitted that he relapsed between early June 2010 and 4 April 2012 and was using opiates on a daily basis. He claims not to have taken any illicit drugs since 22 May 2012. He attends upon a counsellor every fortnight, undergoes regular random urine analysis testing and attends Narcotics Anonymous 3 or 4 times a week.
Whilst he claimed to be unaware whether the mother is currently taking drugs, he claimed that when he and his mother collected [X] from the mother’s house “his clothes smelled of marijuana”.[4]
[4] Ibid at [20]
The father went on to depose:
Prior to our relationship [Ms Cavendish] was diagnosed with depression, bi polar disorder, borderline personality disorder and post-traumatic stress syndrome and had multiple suicide attempts and schedule(d) psychiatric admissions.[5]
[5] Affidavit of Mr Mallery 14.9.2012 at [21]
The father deposed that the child had been attending [U] Child Care Centre at [L] on Mondays, Tuesdays, Thursdays and Fridays. However, the mother had enrolled the child at the [L] Early Learning Centre at [omitted] without his consent.
The child is due to start school in Term 1, 2013. He is in the catchment area for [L] School and he is on the waiting list for [omitted] Public School, which is the father’s preference.
It is the father’s evidence that the events leading to his application commenced on or about 25 June this year, when the mother went into a Rehabilitation Unit at [C] Hospital. The child spent about 4 to 6 hours with his mother on a day of the weekend during this period.
On 27 July, after the mother had returned home from [C] she collected the child from [U] Childcare and retained him in her care until 30 July, when she sent the father a text message asking him to collect the child.
On 2 August the father delivered the child to [U] Childcare but he received a telephone call advising him that the mother was removing him from the centre. He attended the centre and had an exchange of words with the mother but she removed the child. He attended the mother’s home on 4 August to collect the child but neither she nor the child were in attendance.
The mother telephoned the father on 6 August and later sent him a text message, stating:
What I am doing is in the best interests of [X] and the best interests of myself. I am not willing to speak or text you as of now. Please do not attempt any contact with me or any person in my family…I will see you next in Court…[6]
[6] Ibid at [93]
The father’s solicitors wrote to the mother, without receiving a reply.
The child was not returned to preschool and on 8 August the father was advised by email from the preschool that the mother had said that she would be enrolling the child in another centre.
The father stated that he attended a meeting of Narcotics Anonymous in [suburb omitted] on 17 August. The mother was present with the child. He approached her after the meeting and asked her for the child, but the mother said in a raised voice:
“He is trying to abduct the child. He is trying to take my baby away.”[7]
[7] Affidavit of Mr Mallery 14.9.2012 at [105]
The father was later contacted by the police at [G] about the incident.
On 2o August the father sent a text message to the mother asking to speak to [X]. He states that he received this reply the next day:
[Mr Mallery], your behaviour on Friday night at the NA meeting was totally unacceptable. Your death stares and intimidation and harassment will not be tolerated. Do not approach me again or attempt to speak to me. If you do I will take an AVO out. Let me remind you I will communicate with you via a lawyer. As I recall the last words you spat at me where [sic] I’ll se you in court. I will continue to ignore your telephone calls, messages and texts. I will however allow [X] to call you if he requests to. He so far has made no request to speak to you or contact you. Non contact with you is not something new to him. It’s just like another ‘where’s wally’ extended period of time without you in his life.[8]
[8] Ibid at [112]
The father has spoken to the child on the telephone almost daily since 4 September 2012.
The affidavit of the father’s mother, Ms H, is largely corroborative of the father’s evidence.
The mother relies on her affidavit of 14 September 2012. It is her evidence that the time she spent with the child between 13 April 2010 and 10 June 2010 was rarely in accordance with the Consent Orders made in the Family Court and she mostly had the child for additional time than that provided by the Orders.
On 10 June 2010 the father left [X] in the mother’s sole care for 6 weeks whilst he entered a rehabilitation facility called [omitted], a healing centre for survivors of childhood trauma.
The mother deposes that from 10 June 2010 until the date of her affidavit she has been the child’s primary carer.[9]
[9] Affidavit of Ms Cavendish 14.9.2012 at paragraph [19]
The mother went on to depose that she and [X] were homeless as a result of the termination of her lease, so they temporarily moved into the home where the father lives with his parents on 1 April 2012. However, she moved out with the child on 3 April because the child had found a used needle in the home.
She obtained emergency housing in [omitted] for about two weeks and then moved back into the father’s home for a further two weeks.
The mother claims that she was telephoned by a woman named Ms F, a caseworker from the Department of Community Services, who told her there had been a report made about [X]. The two parents attended an interview with Ms F, who later visited the father’s parents’ on 2 May. The mother states that in about early June 2012 Ms F said to her:
“You must not leave [X] in [Mr Mallery’s] care”[10].
[10] Ibid at [29]
The mother deposed at paragraph [31] of her affidavit that she drove the father to [S] Hospital on 22 May 2012, where he remained as an inpatient until about 15 June. She says that the father’s mother, Ms H, then told her:
“[Mr Mallery] has developed a methadone habit in hospital and he is going to rehab at [omitted] Clinic for 8 weeks”.[11]
[11] Ibid at [31]
The mother decided that it would be in [X]’s best interest that she, too, should enrol herself into a rehabilitation facility, because she had been “drinking and smoking marijuana for a period of about 9 to 12 months”.[12]
[12] Ibid at [32]
She asked Ms H if she would look after [X] whilst she was away. Ms H agreed.
The mother entered the rehabilitation program at [C] Hospital on 26 June. She claims to have been sober and not to have used any illicit substances for 80 days.
The mother disclosed in her affidavit details of the abuse she had suffered in her childhood. She sets out her history of drinking alcohol and using illicit substances.
The mother gives details of her mental health history:
a)She was diagnosed with drug-induced schizophrenia and depression in 1995;
b)She was diagnosed with bipolar disorder in about 2000; and
c)She was later diagnosed with Post Traumatic Stress Disorder.
The mother stated that she was under the care of a general medical practitioner, Dr K, who had referred her to a consultant psychiatrist.
The mother’s account of her collection of the child [X] from his day care varies significantly from the mother’s account. She states that the father told her “You can’t have [X]” and called the Police. Two police officers attended, followed by a more senior officer. She showed them a copy of the Family Court Consent Orders and eventually was allowed to leave with the child.[13]
[13] Affidavit of Ms Cavendish 14.9.2012 at [54]
The mother concedes that she has not allowed the father to spend time with [X]:
Since 2 August 2012 I have not allowed Mr Mallery to spend time with [X] as I am genuinely afraid that Mr Mallery will not allow [X] to return to me.[14]
[14] Ibid at [56]
The mother has enrolled the child into [L] Early Learning Centre, where he attends for two days each week. She has enrolled him into [G] School to commence in 2013.
The mother deposes that she believes that it is [X]’s best interests to remain in her primary care.
In her submission on behalf of the father, Ms Hausman of counsel made the point that the mother had reduced the child’s time at preschool from four days a week until two. She urged the Court to appoint an Independent Children’s Lawyer.
Ms Hausman submitted that it was of relevance that the child had a strong bond with the paternal grandmother.
The mother’s solicitor, Ms Hekimian, submitted that the mother had become the child’s primary caregiver as a result of the father signing the child over to the mother in July 2010. The mother had not, as was submitted, “skated over” her mental health issues but had annexed reports to her affidavit, including a letter from her psychiatrist, Dr F.
The reduction in the number of days at preschool, she submitted, was dictated by cost.
The Law to be Applied
Section 60CA of the Family Law Act requires the Court, when deciding whether to make a parenting order, to regard the best interests of the child as the paramount consideration. The Court determines what is in a child’s best interests by considering the matters set out in subsections 60CC(2) and (3) of the Act.
The matters for consideration in subsection 60CC(2) are the primary considerations and are:
a)the benefit to the child of having a meaningful relationship with both parents; and
b)the need to protect the child from physical or psychological harm from being subjected to, or exposed to, abuse, neglect or family violence.
Subsection 60CA(2A) provides that greater weight must be given to the consideration set out in paragraph (2)(b), the need to protect the child from physical or psychological harm.
There are additional considerations set out in subsection 60CC(3), in paragraphs (a) to (m), fourteen in all, as there is a paragraph (ca). Not all of them will be relevant, and it will often be the case in interim proceedings that there will not be any evidence of certain matters.
The question of whether is family violence involving the child or a member of the child’s family, set out in paragraph (j), overlaps with the primary consideration of the need to protect the child from harm set out in paragraph 60CC(2)(b), and the matters can often conveniently be read together, especially if there is a family violence order in force, or recently in force (see paragraph 60CC(3)(k)).
Section 61DA requires the Court to apply a presumption that it is in the child’s best interests for the child’s parents to have equal shared parental responsibility for the child, unless:
a)the presumption does not apply in cases of abuse or family violence (s.61DA(2));
b)the Court considers it would not be appropriate to apply the presumption when making an interim order (s.61DA(3)); or
c)where the presumption is rebutted by evidence that it would not be in the child’s best interests (s.61DA(4)).
Where the Court makes an order that a child’s parents should have equal shared parental responsibility, the Court must then consider the maters set out in s.65DAA. Subsections (1) and (2) require the Court to consider whether it is both in the child’s best interests and reasonably practicable for the child to spend equal time with each parent or, if not, to spend substantial and significant time with each parent.
All of the above matters, where relevant, have been considered in this decision.
Conclusions
This is an interim hearing. The limitations on the Court in the “abridged process” of an interim hearing, “where the scope of the enquiry is ‘significantly curtailed’”,[15] are well known. Where the Court is faced with vastly differing accounts of the situation, as it is in this case, the Court is not usually in a position to make definitive findings of fact, because the parties’ evidence is untested by cross-examination. The Court is unable to assess the credibility of witnesses by listening to their oral evidence and observing their demeanour in the witness box.
[15] See Goode v Goode [2006] FamCA 1346; (2006) 36 Fam LR 422; FLC 93-286 at 442[68]
What is clear is that the arrangements so painstakingly worked out in the Consent Orders made in the Family Court on 13 April 2010 have broken down. One reason for that appears to be that the parties have insisted on strict compliance with the Orders and then departed from the Orders as it suited them.
Paragraph [12] of the mother’s affidavit provides an example of the father rarely or never following the Orders.
Paragraph [54] of that same affidavit gives an instance of the mother insisting on compliance with the Family Court Consent Orders when collecting the child from [U] Childcare on 2 August 2012. However, paragraphs [55] and [56] then describe how the mother has completely departed from the arrangements set out in the Orders because she believed that it was in the child’s best interests.
The parties cannot have it both ways. The Orders made by the Family Court were there to be followed, not insisted upon and ignored by the parties at their whim.
If the mother was of the view that she should keep the child from the father, remove him from his preschool, enrol him in another preschool for two days a week instead of four days, and unilaterally enrol him in a primary school, none of which actions was sanctioned by the Orders, she should have made an application to the Court to vary or discharge the orders.
She did not do any of that. Her application for orders only came in her Response to an Application filed by the father.
The Court must consider the benefit to [X] of having a meaningful relationship with both of his parents. Provided that they abstain from the use of illicit substances, which has on their own evidence been a battle for both of them, there is likely to be a benefit in having a meaningful relationship with each of them. However, that relationship must not be marked by abuse or abrupt changes in the child’s arrangements, which would clearly be destabilising for him.
The need to protect the child from physical or psychological harm is clearly related to the parents’ substance abuse issues. Until these matters are under control, the child will be at risk.
To my mind, there is merit in the Family Consultant’s recommendation and the father’s application for the interests of this child to be independently represented by a lawyer under the provisions of s.68L of the Act. There is a high level of longstanding conflict between the parents, exacerbated by their history of illicit drug use. The mother makes claims of family violence, which the father denies. There is no issue that the mother has been diagnosed with mental illness, currently described by Dr F as “adjustment disorder with anxious mood”,[16] but it appears that the mother is undergoing appropriate treatment in this regard.
[16] Affidavit of Ms Cavendish 14.9.2012 Annexure “M”
However, the issues in this case fall clearly within the guidelines for separate representation of the child set out by the Full Court of the Family Court in Re K[17]. An order will be made that the child’s interests will be independently represented, and Legal aid NSW will be asked to assist in providing a suitably qualified Independent Children’s Lawyer for [X].
[17] (1994) 17 Fam LR 537; FLC 92-461
The current Orders made by the Family Court will stand for the time being. Those Orders provide that the parties will have equal shared parental responsibility for the child with the father to have specific responsibility for his education and health. In the circumstances, I am of the view that this state of affairs should remain until the final hearing, when the question of parental responsibility can be considered anew.
The child should be returned to the care of his father until further order.
He is about to start his first year of school in Term 1 2013, which is a major step in his life and can be the cause of anxiety amongst children. What persuaded the mother that it was in this little boy’s best interests to remove him from the preschool where he was established and enrol him in another preschool in the middle of the year leading up to his starting at primary school is not adequately explained in her affidavit evidence, if at all. He needs stability and support from his mother and father, and should not be in the centre of a tug of war at a time when he is about to commence school.
This matter will be reconsidered when the Court has the benefit of the input of the Independent Children’s Lawyer.
I certify that the preceding seventy-eight (78) paragraphs are a true copy of the reasons for judgment of Scarlett FM
Date: 7 January 2013