Marecki & Samra
[2022] FedCFamC1F 808
Federal Circuit and Family Court of Australia
(DIVISION 1)
Marecki & Samra [2022] FedCFamC1F 808
File number(s): MLC 8264 of 2021 Judgment of: HARTNETT J Date of judgment: 21 October 2022 Catchwords: FAMILY LAW – Parenting – Interim Orders – Where the father sought a change in the child’s primary residency from that of the mother to him – Where the father sought orders that the child spend time with the mother each alternate weekend and each Wednesday after school – Where the father alleged the child only attends school when the father takes the child to school – Where the mother has had difficulty in having the child attend school – Father to assist with taking the child to and from school – Application otherwise dismissed. Legislation: Evidence Act 1995 (Cth) s 140
Family Law Act 1975 (Cth) ss 60B, 60CA, 60CC, 65D, 65AA
Cases cited: Deiter v Deiter [2011] FamCAFC 82
George v George [2013] FamCAFC 182
Goode v Goode (2006) FLC 93-286
Mazorski v Albright (2007) 37 Fam LR 518
McCall v Clark (2009) FLC 93-405
SS v AH [2010] FamCAFC 13
Division: Division 1 First Instance Number of paragraphs: 97 Date of hearing: 5 September 2022 Place: Melbourne Counsel for the Applicant: Mr Gates Solicitor for the Applicant: Plaza Legal (now Mukushi Cohen Lawyers) Counsel for the Respondent: Mr Allen Solicitor for the Respondent: Aston Legal Group Solicitor for the Independent Children's Lawyer: Wilkinson & Associates Family Lawyers ORDERS
MLC 8264 of 2021 FEDERAL CIRCUIT AND FAMILY COURT OF AUSTRALIA (DIVISION 1)
BETWEEN: MR MARECKI
Applicant
AND: MS SAMRA
Respondent
INDEPENDENT CHILDREN'S LAWYER
order made by:
HARTNETT J
DATE OF ORDER:
21 October 2022
THE COURT ORDERS THAT:
1.The child, X born 2015 (“the child”), continue to live with the mother.
2.At the written request of the Independent Children’s Lawyer both parties attend for alcohol and drug testing on a random basis not more than on one occasion each between now and the trial management hearing on 6 March 2023 and for that purpose:
(a)the request for hair follicle testing and urine testing are to be sent by email and not more frequently than twice each month and both parties to undergo the test within 24 hours of receiving the request and to be at the laboratories specified by the independent children’s lawyer and not at any other laboratory;
(b)collection is to be conducted by a qualified and certified collector;
(c)chain-of-custody procedure is to be applied to the sample. Testing is to be conducted at an approved AWDTS Clinic laboratory, accredited to conduct hair drug testing to the recognised International Standard ISO/IEC 17025:2005 by the relevant national accreditation body for that laboratory. Either head or body hair may be collected for testing;
(d)to give effect to this Order:
(i)both parties are required to maintain their head hair at a length of not less than four (4) centimetres; neither head nor body hair is to be cut, bleached or dyed between the date of this Order and the time of collection of hair;
(ii)each party or their legal representatives is at liberty to provide AWDTS with a copy of these orders;
(iii)both parties are to provide the collector with photographic identification to be recorded before the hair collection and authority, with this order also hereby authorising AWDTS or nominee to provide the results of each test to both parties and their legal representatives upon receipt of such test results;
(iv)the hair collection may screen for alcohol and drugs of abuse, including amphetamine-type substances and metabolites, cannabis and metabolites, cocaine and metabolites, opioids and metabolites and any other drug specified in this Order as required;
(v)AWDTS is required to utilise the testing services of an appropriate laboratory accredited to conduct hair drug testing to the recognised International Standard ISO/IEC 17025:2005 by the relevant National Accreditation Body; AWDTS’ selection is to be based on the type of test required, the specific drug or drugs to be tested, the laboratory’s compliance level with international Society of Hair Testing (SoHT) guidelines, cost, and time required for results to be made available; and
(e)the cost of the hair drug test and urine tests is to be met by both parties.
3.Otherwise the Amended Application in a Proceeding filed 1 September 2022 and the Response to an Application in a Proceeding filed 19 August 2022 be dismissed.
4.There be no order as to costs.
Note: The form of the order is subject to the entry in the Court’s records.
Note: This copy of the Court’s Reasons for judgment may be subject to review to remedy minor typographical or grammatical errors (r 10.14(b) Federal Circuit and Family Court of Australia (Family Law) Rules 2021 (Cth)), or to record a variation to the order pursuant to r 10.13 Federal Circuit and Family Court of Australia (Family Law) Rules 2021 (Cth).
Section 121 of the Family Law Act 1975 (Cth) makes it an offence, except in very limited circumstances, to publish proceedings that identify persons, associated persons, or witnesses involved in family law proceedings.
IT IS NOTED that publication of this judgment by this Court under the pseudonym Marecki & Samra has been approved pursuant to s 121(9)(g) of the Family Law Act 1975 (Cth).
REASONS FOR JUDGMENT
Introduction
On 5 September 2022, at an interim defended hearing, the primary issue before the Court was whether there should be a change in residence of the child, now aged 7 years, from his mother’s primary care to that of his father, due to the father’s concerns with the child’s lack of attendance at school whilst in the mother’s care. The secondary issue before the Court was whether both the father and the mother should complete a psychiatric assessment.
The father sought orders as set out in his Amended Application in a Proceeding filed 1 September 2022 (which amended his Application in a Proceeding filed 14 July 2022) including that all previous parenting orders, save for orders 5, 7 – 12 of the orders dated 10 March 2022 be discharged; that the child live with the father during weekdays during the school term and on the last weekend of each month; and that the child spend time with the mother each alternate weekend from the conclusion of school until the commencement of school on Monday, albeit accommodate his father’s weekend time with the child, and each Wednesday from the conclusion of school at 3.30pm until 7.00pm. The father also sought orders in relation to holidays; special occasion time; the location of changeover; that the parties use the parenting communication application ‘Talking Parents’; that the father take the child to any medical appointments required or recommended by a health professional; for each parent to ensure appropriate accommodation for the child; and for both parties to attend upon Dr B (“Dr B”) for psychiatric assessment; and that the costs of Dr B to be shared equally between the parties. The father sought his costs of and incidental to his application.
On 19 August 2022, the mother filed a Response to an Application in a Proceeding seeking that the father’s Application in a Proceeding be dismissed, and that the interim orders dated 10 March 2022 remain in full force and effect. The mother did not file an updated Response to the father’s Amended Application in a Proceeding. The mother sought in her affidavit filed 1 September 2022, an order that an agent of the mother attend changeovers to reduce the interactions between the father and the mother, and the possibility of conflict in the presence of the child. However at the hearing, counsel for the mother submitted that the mother’s Response to an Application in a Proceeding filed 19 August 2022 be dismissed and that the father’s Amended Application in a Proceeding filed 1 September 2022 did not alter her position being that the father’s time with the child under the orders made by the Court on 10 March 2022 remain in full force and effect save that school term time spent with orders be suspended during the Victorian term and summer holidays.
The ICL did not support a change of residence for the child, and proposed the father assist the mother taking the child to school from time to time. The ICL supported a psychiatric assessment of the parties to be undertaken.
The interim orders dated 10 March 2022, provided that the child live with the mother and spend time with the father each alternate weekend from 11 March 2022 at the conclusion of school or 3.30pm (if not a school day) until Monday at the commencement of school or 9.00am (if not a school day); each alternate week from Thursday at the conclusion of school or 3.30pm (if not a school day) until Friday at the commencement of school or 9.00am (if not a school day); each Tuesday from the conclusion of school or 3.30pm (if not a school day) until 7.00pm with this time being for the purposes of the father taking the child for sports lessons and dinner; and that the child spend time with the father in the Easter school holidays.
Further orders were made by consent on 10 March 2022, relevantly, for both parties to notify each other of any serious medical injury in respect of the child; for both parties to be restrained from contacting the other in the event of a notification from the school as to the child’s absence or late arrival, unless the child has a health emergency; and, in the event the child’s General Practitioner recommended the child be assessed for Autism Spectrum Disorder or Attention Deficit Hyperactivity Disorder, then the mother be at liberty to obtain the National Disability Insurance Scheme funding, including any counselling sessions that may be required to be attended by the child as part of that assessment, and the mother to have sole parental responsibility in this regard.
On 5 September 2022, and during the course of the hearing, orders were made by consent, for both parties to attend upon Dr B (“Dr B”) for psychiatric assessment; for the costs of Dr B to be paid equally by the parties subject to the ICL being able to obtain a grant from Victoria Legal Aid to fund the mother’s half share. In the event the ICL was unable to obtain funding, then the father will pay the full cost of the report; for Dr B’s psychiatric assessment to be made available to the Family Consultant; and for the child to spend time with the father from 9.00am on 9 September 2022 until 6.30pm on 11 September 2022, from 9.00am on 1 November 2022 until 6.30pm on 3 November 2022, and from 4.00pm on Christmas Eve until 4.00pm on Christmas Day 2022; the child to spend time with the father over the 2022 – 2023 school summer holidays from 5.00pm on 18 December 2022 to 4.00pm on 25 December 2022 and thereafter on a week about basis; and for the father’s fortnightly time during the school term to be suspended over the weekend commencing 16 December 2022.
Whilst consent was reached regarding holiday time, psychiatric assessments and many other ancillary matters, what remained in dispute at the conclusion of the hearing was the primary issue – with whom the child would reside, and what time spent with he would have with the other parent.
Legal principles
The relevant principles in relation to parenting and interim proceedings are set out in Goode & Goode (2006) FLC 93-286.
In applying the law to the facts, the Court must uphold the relevant objects and principles set out in Part VII of the Family Law Act 1975 (Cth) (“the Act”) that guide the making of orders in respect of children. Pursuant to s 65D of the Act, the Court has the power to make such parenting orders it deems proper. In doing so, the paramount consideration is the best interests of the child.[1]
[1] Family Law Act 1975 (Cth) ss 60CA, 65AA.
The objects of the Act in relation to parenting orders, as set out in s 60B of the Act, are to ensure that:
(a)children have the benefit of both of their parents having a meaningful involvement in their lives to the maximum extent consistent with their best interests;
(b)children are protected from physical and psychological harm;
(c)children receive adequate and proper parenting to help them achieve their full potential; and
(d)parents fulfil their duties and meet their responsibilities concerning the care welfare and development of their children.
When considering what interim orders should be made the Court identifies the competing proposals and issues in dispute on the basis of the agreed or uncontested facts. However, the Court may, and in some circumstances must, have some regard to the matters in dispute.[2]
[2] See for example SS v AH [2010] FamCAFC 13, Deiter v Deiter [2011] FamCAFC 82, George v George [2013] FamCAFC 182.
In Deiter v Deiter [2011] FamCAFC 82, the Full Court determined that when making an interim order, a Court should have regard to its likely duration, especially in cases where the interim order under consideration involves some disadvantages which may need to be endured by a child.
The Court must make orders as are in the best interests of the child as a result of a consideration of the matters set out in s 60CC of the Act.
The primary considerations, which are contained in s 60CC(2) of the Act, are:
(a)The benefit to the child of having a meaningful relationship with both of the child’s 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.
Section 60CC(2A) of the Act provides that in applying these considerations, I am required to give greater weight to the need to protect the child from harm than to the benefit to the child of having a meaningful relationship with both parents.
Although the meaning of “meaningful relationship” is not defined in the Act, it has been interpreted as meaning a relationship which is “important” or “significant”.[3]
[3] McCall v Clark (2009) FLC 93-405; Mazorski v Albright (2007) 37 Fam LR 518.
Further, in determining what is in the child’s best interest, the Court must consider additional considerations set out at s 60CC(3) of the Act.
Material relied upon
The father relied upon:
(1)his Amended Application in a Proceeding filed 1 September 2022;
(2)his affidavit filed 1 September 2022;
(3)his affidavit filed 14 July 2022;
(4)Annexure M-4 of his affidavit filed 25 February 2022; and
(5)Outline of Case filed 1 September 2022.
The mother relied upon:
(1)her affidavit filed 1 September 2022;
(2)designated paragraphs from her affidavit filed 17 December 2021; and
(3)Outline of Case filed 22 August 2022.
The Independent Children’s Lawyer (“ICL”) did not file any documents nor rely upon any of the filed material save for a proposed Minute of Orders sought.
No challenge in the form of cross-examination of either of the parties as to the contents of their respective affidavits occurred nor was any sought, it being an interim hearing.
Relevant background
The father was born in 1982 and was aged 39 years at the time of the hearing. The mother was born in 1975 and aged 46 years at the time of the hearing.
The father is currently self-employed as a tradesperson. The mother is currently engaged in part-time employment at C Store. The mother’s hours of employment facilitate her primary care of the child.
The parties commenced cohabitation in late 2014 and were never married. They separated on a final basis on 20 January 2021. During the parties’ relationship, they lived in rental accommodation with the paternal grandfather at D Street, Suburb E (“the Suburb E property”).
Following separation on 20 January 2021, the father vacated the Suburb E property and began living with the paternal grandmother and paternal uncle at F Street, Suburb G (“Suburb G”). At that time the child was in the father’s care two to three nights per week.
In or around mid- 2021, the mother and child moved to a rental apartment at H Street, Suburb J (“the Suburb J property”). The father moved back into the Suburb E property with the paternal grandfather. The father alleged the mother began decreasing his time spent with the child which caused considerable conflict between the parties.
In early 2021, the mother discovered that her sister had died. Shortly after her sister’s death, the mother ceased all time between the child and father. The father concedes the mother was deeply affected by her sister’s sudden death.[4] The father made numerous requests of the mother to reinstate the time the child spent with him. These requests were refused by the mother. Around this time, the father moved in with his new partner, Ms K (“Ms K”).
[4] Father’s affidavit filed 14 July 2022, paragraph 18.
In early 2021, an Interim Intervention Order (“IVO”) was made against the father listing the mother and the child as affected family members. The IVO was made as a result of the harassment and emotional abuse directed at the mother by the father post separation.
The Department of Health and Human Services (“DHHS”), now Department of Fairness, Families and Housing (“DFFH”), received a notification as to the mother’s care of the child. DFFH reported in response that it was apparent the child had missed some school which was believed to be as a result of the maternal aunt’s passing. However, the school raised no significant concerns for the child or the mother, and the school continued to remain in a position to monitor the family.[5]
[5] Section 67Z Report dated 2 September 2021, p.2.
In mid-2021, DFFH Child Protection (“Child Protection”) received a further notification in relation to the child alleging that the mother was withholding contact between the child and the father. Further allegations were made in relation to the mother engaging in illicit substance use, the maternal uncle’s incarceration for drug offences, and the child’s poor school attendance. Child Protection completed a criminal check in relation to the maternal uncle, and found no pending charges or convictions pertaining to drug offences. Child Protection also contacted the child’s school. The school confirmed that the child had missed three weeks of school in Term 2, and three days in Term 3.[6]
[6] Section 67Z Report dated 2 September 2021, p.2.
On 23 July 2021, the father commenced proceedings in the Court seeking a shared care arrangement for the child and that the mother undergo drug screening. Around this time, the father alleged the mother stalked him by driving past the Suburb E property on numerous occasions. The mother has since been charged for stalking and was placed on a Good Behaviour Bond until 2023.
In mid-2021, Child Protection received another notification in relation to the child in the care of the mother, alleging the mother was engaging in illicit substance use; the mother’s mental health was concerning and her behaviours “bizarre”; the child was left unsupervised; and the child’s school attendance was unsatisfactory.
On 29 November 2021, a Child Impact Report was prepared pursuant to orders made by the Court on 11 October 2021. At that time the child was living with the mother and had spent no time with the father since early 2021.[7] The mother was reluctant to introduce spend time between the child and the father due to her ongoing concerns as to the perpetration of family violence upon her by the father, and due to the child’s reported refusal to spend time with the father.[8] Both parties were reported as being supportive of engaging a family therapist to support a slow and gradual reintroduction of spend time between the child and the father. The father was willing to cover the costs.[9]
[7] Child Impact Report dated 29 November 2021, p.3.
[8] Child Impact Report dated 29 November 2021, p.3.
[9] Child Impact Report dated 29 November 2021, p.3.
In early 2022, the father became engaged to Ms K. The wedding is due to take place at the end of this year. The father and Ms K are expecting their first child at the end of the year. The father contends that the child will benefit from a “close and loving relationship with a sibling and playing the big brother role”.[10]
[10] Father’s affidavit filed 14 July 2022, paragraph 3.
Across two months in 2022, the child missed 20 days of school. Seven of those days missed were for medical appointments, in respect of which the mother provided no evidence to the father, and the other 13 days were for parental choice.[11]
[11] Father’s affidavit filed 14 July 2022, paragraph 38.
Over nine days in early 2022, when the child was taken to school by the mother, on two out of the nine school days, he attended school in the afternoon.[12] The child has missed over 20 days in the first semester of the 2022 school year according to his school attendance records. The father is increasingly concerned as to the mother’s consistent inability to prioritise taking the child to school.[13]
[12] Father’s affidavit filed 14 July 2022, paragraph 39.
[13] Father’s affidavit filed 14 July 2022, paragraph 16.
In early 2022, the mother applied for an IVO against Ms K, having never met or spoken to Ms K. That application was unsuccessful with the mother’s application described by the Magistrate as “malicious with no merit”. Subsequently, an IVO was granted against the mother, listing Ms K as the affected person. This IVO is set to expire in 2025.[14]
[14] Father’s affidavit filed 14 July 2022, paragraph 27.
In early 2022, at approximately 7.00am, Victoria Police conducted a search of the mother’s home pursuant to a warrant obtained for suspected false documents which the father alleges the mother placed before the Court in the course of these proceedings. As part of a wider search, on the same complainant’s information provided, the maternal uncle, whom is not a party to the proceedings, had his residence searched. Drugs were found. The mother asserts that she has no knowledge of, or explanation as to the discovery of the drugs in her brother’s possession.[15] It is the mother’s belief that it was the father who informed Victoria Police of the alleged false documents which lead to her home being searched. The mother claimed the search caused a high level of distress to herself and the child whom was present at the time of the search. The father alleged the mother’s laptop and phone were confiscated during the search and the mother was arrested due to drugs found on the premises. The mother’s evidence is that she has not been charged with any offence, nor does she have any details about the document in question. The mother denied that drugs were found on the premises.[16]
[15] Mother’s affidavit filed 1 September 2022, paragraph 8(b).
[16] Father’s affidavit filed 14 July 2022, paragraph 28.
Due to the highly disturbing events of 19 April 2022, the mother felt unsafe in her home and moved in with a close friend, Mr L (“Mr L”).
In mid-2022, Mr L dropped the child off at changeover at the mother’s request, due to the father intimidating the mother at the previous changeover. The father stated he did not know this person and neither did the child.[17] It was the mother’s evidence that the child and Mr L have a “great relationship”, and the father is well aware of Mr L having previously interacting with him during the course of their relationship.[18]
Consideration
[17] Father’s affidavit filed 14 July 2022, paragraph 42.
[18] Mother’s affidavit filed 1 September 2022, paragraph 15(a).
Primary considerations
Section 60CC(2)(a) the benefit of the child of having a meaningful relationship with both of the child’s parents
It is common ground between the parties that the child will benefit from having a positive and meaningful relationship with both of his parents. The mother was willing to support the re‑introduction of time spent between the child and the father provided such time was supported by a family therapist.[19]
Section 60CC(2)(b) the need to protect the child from physical or psychological harm from being subjected to, exposed to, abuse, neglect or family violence
[19] Child Impact Report dated 29 November 2021, p.9.
The father submitted the child is at risk of neglect and psychological harm in the mother’s care. That risk arises by virtue of the mother’s neglect primarily in her failure to ensure the child’s attendance at school. Additionally the father alleges drug use by the mother.
The father alleges that the child has had over 40 absent days from school across his first school year in 2021 without explanation due to the mother feeling it is not important to send the child to school.[20] The father further alleges that even on the days that the child attended school, he was late to arrive and unsettled according to his teachers.[21] The school has informed the father, as alleged by the father, that on three separate occasions when a psychologist was arranged specifically to work with the child, the child was not in attendance.[22]
[20] Father’s affidavit filed 14 July 2022, paragraph 36.
[21] Father’s affidavit filed 14 July 2022, paragraph 40.
[22] Father’s affidavit filed 14 July 2022, paragraph 41.
The mother contends the child’s attendance at school this year has improved from last year. This 2022 year, the child has been absent in Term 1 for over 10 days, Term 2, for over 10 days, and Term 3 for over 10 days.
The father alleges the child has missed further days of school, including but not limited to four days in mid to late 2022, additional to that asserted by the mother. Further the child has arrived late to school on a number of days whilst in his mother’s care.[23] The father alleges the only time the child has attended a full day of school is when the father takes him to school. The father claimed he received positive feedback from the child’s teachers when he is delivered to school by the father, in that the child is settled, focused and ready to learn. The poor school attendance of the child, as claimed by the father, has meant the child cannot properly form friendship groups or enjoy team peer activities.[24]
[23] Father’s affidavit filed 1 September 2022, paragraph 4.
[24] Father’s affidavit filed 1 September 202, paragraph 5.
The father also alleged the mother has been consuming a prohibited substance but was unable to provide information to substantiate this allegation. The father believes the child was likely exposed to the mother’s fluctuating mood when she would consume a prohibited substance. [25]
[25] Child Impact Report dated 29 November 2021, p.5.
The father agreed both parents engaged in drug use during the relationship, primarily two a prohibited substances prior to the birth of the child. However, the father claims he ceased his drug use at the time the child was born. The mother also denied using drugs since separation and reported she had completed a supervised urine drug screen for Child Protection during their most recent involvement.[26] The mother stated both parents consumed a prohibited substance approximately eight months prior to separation, although was reluctant to undertake a hair follicle test citing financial constraints. It was the belief of the Court Child Expert that there may be ongoing issues with parental substance misuse and if the matter remains unresolved it may be beneficial for the parents to undertake hair follicle tests.[27] This view was supported by the earlier Child Protection recommendation for supervised urine drug tests to be undertaken for a period of time to show abstinence from illicit substance use.[28] If the screens produced a result positive for illicit substances, Child Protection suggested that engagement with alcohol and other drug counselling should be considered given the parties’ history.
[26] Child Impact Report dated 29 November 2021, p.5.
[27] Child Impact Report dated 29 November 2021, p.6.
[28] Section 67Z Report dated 2 September 2021, p.4.
The child’s childhood experiences appear to have been impacted by family violence across multiple domains and this assessment is supported with information provided in the s 67Z Response Report provided by Child Protection on 2 September 2021.
According to the mother the child was exposed to elements of family violence which included physical and verbal abuse, significant property damage, financial abuse, systems abuse and sexual abuse. The mother remains fearful of the father, and concerned that the father knows where she and the child live, and claims that he is monitoring her movements. It is due to this belief the mother perceives the child’s difficult behaviours are a consequence of his exposure to family violence.[29]
[29] Child Impact Report dated 29 November 2021, p.4.
The father claims during frequent arguments, the mother would try and hit him and he would have to hold her arms down. Sometimes these arguments resulted in significant property damage. He agreed that the child would have experienced worry and concern when these arguments took place.
In October 2021, concerns were raised to Child Protection about historical family violence between the mother and father. It was reported that prior to the separation of the parties in January 2021, the father became physically violent toward the mother and the father had reportedly thrown objects. It was reported that the child had witnessed these incidents and run into his bedroom to hide.
In late 2021, a second report was received which raised concerns for the child’s display of violent behaviours at school. It was reported the child entered the classroom and threw tables and chairs around. Similarly in the staffroom, the child threw tables, chairs, books, toys and hand sanitiser bottles. It is not known what triggered this behaviour but the reporter advised these are ongoing behaviours that the child has been displaying that have been occurring regularly since the beginning of the year.[30]
[30] Section 67Z Response dated 3 December 2021, p.1.
The father alleged in early 2022, that the mother attempted to run the father over in her car in the child’s presence when the parties met at the Police Station for the purposes of changeover.
A family violence portal check by the DFFH reflected that the father had been involved in multiple recorded incidents of family violence between 2017 and 2021. Of these, the majority of incidents were reported to have occurred in 2021 and a number involved the father and the mother. In respect of the mother, there were concerns that the mother was engaging in sending “abusive” text messages to the father.[31] Consideration for the child to engage with counselling for his emotional health, given his exposure to family violence, illicit substance use, poor parental mental health and the ongoing parental acrimony was recommended by Child Protection in these circumstances.[32]
Additional considerations
[31] Section 67Z Response dated 3 December 2021, p.2.
[32] Section 67Z Report dated 2 September 2021, p.4.
Section 60CC(3)(a) any views expressed by the children
It was the view of the child, as reported in the Child Impact Report dated 29 November 2021, that he feels safer living with his mother. When his parents lived together, he expressed he felt sad when his mother and father would frequently argue.[33] The child expressed he felt safer, as at the time of the interview, he did not see his father. He said that when he did spend time with his father on earlier occasions, his father would sometimes physically discipline him when he was not behaving. When he is in trouble with his mother, she sends him to his room.[34]
[33] Child Impact Report dated 29 November 2021, p.3.
[34] Child Impact Report dated 29 November 2021, p.4.
The child expressed that he felt safe visiting the paternal grandfather, but worried about inadvertently seeing his father when he visited the paternal grandfather.[35]
[35] Child Impact Report dated 29 November 2021, p.4.
It was the mother’s evidence that the child had settled into the mother’s then residence, and appeared to be happier.[36] The child was excited to attend school, and had not been getting involved in any incidents at school. The child’s teachers had also noticed the change in his behaviour and would be giving him an award for his enthusiasm.[37] The child was assigned additional assistance at school, and was developing well according to the mother.
[36] Mother’s affidavit filed 1 September 2022, paragraph 3.
[37] Mother’s affidavit filed 1 September 2022, paragraph 3.
The child’s ability to make new, positive memories with his father will rely on, according to the Court Child Expert, his ability to feel safe and emotionally regulated when he spends time with his father. As referred to at [34], a family therapist in addition to therapeutic interventions aimed at supporting the child to understand his past experiences, and develop strategies to rebuild his relationship with his father may benefit the child. [38]
Section 60CC(3)(b) the nature of the relationship of the child with each of the child’s parents and other persons
[38] Child Impact Report dated 29 November 2021, p.7.
The Court Child Expert identified a number of risks in the parent-child relationship including allegations of family violence, parental substance misuse, and parental mental health.
The child expressed to the Court Child Expert that he was unable to recall any positive memories of the time he spent with his father in the past. Both parents have differing views of why this is the case, the father believing this to be a consequence of the mother denigrating the father and withholding the child, the mother believing this to be the child’s exposure to family violence.[39]
[39] Child Impact Report dated 29 November 2021, p.6.
Whilst there has been, at times, a positive relationship between the child and his father, the most reliable relationship the child has is the one with his mother. The father’s insistence on spending time with the child make it appear to the child, in the view of the Court Child Expert, as a threat to his relationship with his mother, whom he relies upon for shelter, sustenance, nurturing and love.[40]
[40] Child Impact Report dated 29 November 2021, p.7.
The Court Child Expert was of the view that the father’s distrust of the mother, poor view of her parenting, and his limited insight into how his past behaviours have impacted the child, made it unclear as to whether the father would be able to promote a positive relationship for the child with the mother, when the child spends time with him. If the father was to denigrate the mother during spend time with the child, it would likely have the effect of further diminishing his relationship with the child.[41]
[41] Child Impact Report dated 29 November 2021, p.6.
The Court Child Expert was further of the view that the child is likely to have a strong sense of loyalty to his mother, now that they live on their own. Although he is no longer exposed to family violence, he is aware of the parental acrimony and has developed his own version of the events leading up to separation. The child’s inability to recall any positive elements of his relationship with his father, in the view of the Court Child Expert, may be his way of managing the complexity of his situation, but also provide to him an understanding of the negative experiences he has had.[42]
[42] Child Impact Report dated 29 November 2021, p.7.
It is the evidence of Child Protection that there is insufficient information to confirm the mother has placed the child at an unacceptable risk of harm or that he is unsafe in the mother’s care. The mother’s mental health has been fluctuating, however, this seems to be in the context of the maternal aunt’s death and the mother’s grief process. The mother attended a General Practitioner to receive a mental health care plan and linked with a counsellor to assist her. The child’s school attendance was sporadic, due to the mother’s grief and COVID lockdowns. The child’s attendance improved in the later part of 2021 when he commenced onsite learning.[43]
[43] Section 67Z Report dated 2 September 2021, p.4.
It was the opinion of the Court Child Expert that the mother’s decision to relocate from the paternal father’s family home benefitted both the child and herself. The child is no longer exposed to parental conflict and family violence, and although his relationships have been disrupted, he has certainty and safety in his mother’s care.[44]
Section 60CC(3)(c)-(ca) the parents opportunity to participate in decision making, spend time and communicate with the child and the fulfilment of the parent’s obligations to maintain the children
[44] Child Impact Report dated 29 November 2021, p.7.
The mother has a current Interim IVO against the father which lists herself and the child as protected persons. The father as a result cannot attend the school outside of court orders without the mother’s prior written agreement.[45]
[45] Father’s affidavit filed 1 September 2022, paragraph 14.
The mother is alleged not to have responded to the father’s requests to attend the school assembly in late 2022, to see the child be presented with a special award, despite the father receiving an invitation from the child’s teacher on the Compass portal.[46]
[46] Father’s affidavit filed 1 September 2022, paragraph 13.
The father currently pays child support to the mother for the support of the child. The mother otherwise financially supports the child. Otherwise these matters are canvassed elsewhere in these reasons.
Section 60CC(3)(d) the likely effect of any changes in the child’s circumstances
The child has been living with the mother since the parties’ separation. Any change to his residency may cause further disruption to him and aggravate or trigger problematic behavioural traits.
During COVID-19 lockdowns, the child appeared disengaged with his school, and struggled with online learning. Given the resumption of onsite learning, the child has appeared more engaged with the school.
As referred to at [41], the mother and child are living with Mr L. The father is aware that they are living in a shared house but feels this maybe inappropriate accommodation as Mr L is an unknown man to the child.[47] The father alleges the child does not have his own bed and sleeps in the mother’s bed. The mother denied this and asserted that in this property both the mother and the child have their own bedroom, and there is now more space for the child to play and enjoy himself in comparison to the previous residence occupied by the mother and child.[48] The mother has not disclosed her new address to the father.
[47] Father’s affidavit filed 14 July 2022, paragraph 29.
[48] Mother’s affidavit filed 1 September 2022, paragraph 10(a).
It was the father’s position that the child should live with him during the school term to ensure the child attends school daily, save if the child is unwell. The father believes the child “deserves the best chance at reaching his developmental milestones and enjoying being enriched from a proper education”.[49]
Section 60CC(3)(e) the practical difficulty and expense of a child spending time with and communicating with a 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
[49] Father’s affidavit filed 14 July 2022, paragraph 45.
Despite an initial disagreement about the changeover location, that was resolved between the parties at the hearing by consent order. There is no practical difficulty or expense that precludes the child having a regular meaningful relationship with each of his parents.
Section 60CC(3)(f) the capacity of each of the child’s parents; and any other person (including any grandparent or other relative of the child) to provide for the needs of the child, including emotional and intellectual needs
The father is self-employed as a tradesperson and his hours of employment are flexible and shall continue to be so. This, the father claims has allowed the father to provide considerable care to the child, such as getting him dressed, feeding him, bathing him, taking him on outings, taking him to sports lessons and other activities advancing a close and loving father and son relationship.[50]
[50] Father’s affidavit filed 14 July 2022, paragraph 8.
As referred at [28], the mother has struggled with the loss of her sister. The father’s evidence is that the mother suffers from several related mental health conditions. He is aware that the mother attended upon a psychologist for support with her declining mental health (in 2021) whilst experiencing significant grief from her sister’s death.[51] Whether the father has an ability to support the child’s experience of the loss of his aunt was a matter not able to be determined by the Court Child Expert.[52]
[51] Section 67Z Report dated 2 September 2021, p.2.
[52] Child Impact Report dated 29 November 2021, p.4.
The mother stated to the Court Child Expert that following the death of her sister she found it difficult to parent effectively, however was working with a counsellor to address this. The Court Child Expert found that as the mother’s sense of safety increased, so did her ability to tune into the child’s needs and this seemed to have a direct impact on the child’s emotional wellbeing. Both parties were open to a family therapist supporting the child’s spend with time, and to assist with implementing positive and aligned parenting strategies.[53]
[53] Child Impact Report dated 29 November 2021, p.8.
The mother engaged Ms M for therapy and to better support the child. Ms M proposed to the mother there be a joint session with the father and herself. The mother expressed she was not comfortable doing so and was not in a financial position at the time to contribute to the costs of Ms M. However, the mother was willing to engage in any appropriate proposal that. The father was however not willing to pay the full costs of therapeutic support and accordingly that did not commence.
The mother also linked the child with a counsellor and believes that the child would benefit if his father was also involved with the child’s therapeutic supports.[54]
[54] Child Impact Report dated 29 November 2021, p.4.
The co-parenting relationship between the parties is likely to be more successful if the father attends a Men’s Behaviour Change Program, as recommended by the Court Child Expert. The father has expressed negative perspectives about women, and has limited insight into how his behaviour is experienced by women, and the impact these views are likely to have on his parenting and his capacity to engage in a meaningful co-parenting relationship.[55]
[55] Child Impact Report dated 29 November 2021, p.9.
As is expressed elsewhere in these considerations, the mother has provided for the child’s needs, in particular his emotional needs since his birth. It maybe that the father can provide for the child’s intellectual needs to a greater extent than the mother at the present time but the mother’s abilities in that regard are improving with the passage of time and with a return to at school attendance.
Section 60CC(3)(g) the maturity, sex, lifestyle (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 child is of an age whereby he is learning to negotiate peer relationships. The child’s ability to manage his emotions and resolve conflict with his peers in a non-confrontational manner will support him to make social connections at school. At present he is struggling with this particular aspect of his development and it is unclear whether his behaviours are a result of his exposure to family violence or a developmental delay.[56]
[56] Child Impact Report dated 29 November 2021, p.7.
In mid-2021, Child Protection contacted the child’s primary school who advised that the child presented as “pale, exhausted and with a sad face” at school during COVID-19 lockdowns. The school also received communication with the mother about her struggles and decline in mental health due to family violence perpetrated by the father and the passing of the maternal aunt. The school also received communication with the father but they were unsure if he was “trying to play the Court game”.[57]
[57] Section 67ZW Report dated 2 September 2021, p.2.
In following up on the child’s attendance over the investigation the school advised the child had only missed a few days, although he had been accepted to onsite learning so was improving his engagement in learning and relationships with other students.[58] The child had some behavioural issues which were exacerbated when he had to share with other children.[59]
[58] Section 67Z Report dated 2 September 2021, p.4.
[59] Section 67 Report dated 2 September 2021, p.4.
In late 2021, the child was suspended from school as he was violent towards others and threw objects around. His violence was described by the school as severe.[60]
[60] Father’s affidavit filed 14 July 2022, paragraph 37.
The mother has been working alongside the school and counsellors to assist with the implementation of strategies to support the child and manage his emotional outbursts.
Section 60CC(3)(i) the attitude to the child and to the responsibilities of parenthood, demonstrated by each of the child’s parents
The child is displaying challenging behaviours and has reported that the father has employed physical discipline as a means of managing his behaviour in the past. The father found it challenging to discuss with the Court Child Expert his parenting style, and the impact this may have had on his relationship with the child. It remained unclear whether the father was able to adjust his parenting style to meet the child’s needs.[61]
[61] Child Impact Report dated 29 November 2021, p.6.
The father is significantly concerned by the child’s school absences when in the mother’s care. His evidence is that he has received emails from the school relying upon him to confirm he has care of the child at certain times so the school is able to book support specialists for the child, as they can only rely upon the father for the child to be in attendance.[62]
[62] Father’s affidavit filed 1 September 2022, paragraph 8.
The child has allegedly told the mother that he is sick and forced to go to school whilst he is in the father’s care. The child has told the mother that when he is absent from school in the mother’s care, the father and his partner have questioned him and called him a liar if he tells them he is sick.
It was the mother’s evidence that the child has been absent from school primarily for medical reasons and on each occasion the mother has appropriately notified the school. The child has been sick on numerous occasions with a cough or cold as consistent with some of his classmates. On days when the child has been sick for a single day the mother did not obtain a medical certificate, as it was not required by the school. On days when the child has been sick for consecutive days the mother has taken him to the doctors and received a medical certificate. On other days when the child has been absent from school, this has been due to the mother’s illness and having no friends or family nearby to assist in these instances. The mother is now living with a close friend, Mr L and asserts that she would ask Mr L to take the child to school were she unable to do so.
Section 60CC(3)(j) and (k) family violence
The findings in respect of family violence have already been made and discussed in the context of s 60CC(2)(b).
Section 60CC(3)(l) whether it would be preferable to make the order that would be least likely to lead to further litigation in relation to the child
The mother restricted the child’s spend time with the father to protect the child from further exposure family violence. The mother is, however, cognisant that this is not a long term solution. The Court Child Expert stated that if both parents are able to engage in the relevant supports identified to ameliorate the identified risks, then there is scope for a Dispute Resolution Conference to be successful.[63].
[63] Child Impact Report dated 29 November 2021, p.8.
Section 60CC(3)(m) any other fact or circumstance that the Court thinks is relevant
The Court Child Expert expressed the view that the father would benefit from engaging in counselling to assist with working through his anger and frustration with the situation in which he finds himself, otherwise he risks further alienating himself from the child.[64]
[64] Child Impact Report dated 29 November 2021, p.9.
Conclusion
In coming to a decision about what orders are in the children’s best interest, the Court must balance the various matters to which I have referred. The Court is also mindful that some of the orders sought by the parties and on findings as sought by the parties are matters for trial, being matters of a factual nature that are in dispute, and more appropriately dealt with at trial. A trial in this matter is likely to occur in August 2023. A s 62G of the Act Family Report is due to be released to the parties in February 2023. A further interim hearing may occur after that time. The school attendance of the child is a matter in dispute that must be addressed at this stage, but in the context of the child remaining residing with his primary care giver which on the basis of my consideration of the above matters promotes the child’s best interests.
The mother is now more emotionally able to deal with supporting the child’s school attendance, and there is no COVID-19 impediment. On 5 September 2022, the Court made orders to ensure the mother addressed this issue. In my view no further order is warranted at this time and upon interim hearing.
There must be, before trial, some resolution of the mutual allegations of the parties as to drug use. I shall make an order for necessary evidence as to that matter to be before the Court.
Costs are a matter in the discretion of the Court. The orders made on 5 September 2022 and this day are orders not of a type that would see the need to make a costs order against a party. Rather, the usual provision that each party pay their own costs should prevail. Neither party has been wholly unsuccessful and neither parties issues were unmeritorious.
I certify that the preceding ninety-seven (97) numbered paragraphs are a true copy of the Reasons for Judgment of the Honourable Justice Hartnett. Associate:
Dated: 21 October 2022
0
5
0