MCKINNEY & CHANDLER
[2019] FCCA 709
•8 March 2019
FEDERAL CIRCUIT COURT OF AUSTRALIA
| MCKINNEY & CHANDLER | [2019] FCCA 709 |
| Catchwords: FAMILY LAW – Interim parenting – risk assessment – concerns about Father’s mental health – where time should continue to be suspended. |
| Legislation: Family Law Act 1975 (Cth), ss.60B, 60CA, 60CC, 61DA, 65DAA |
| Cases cited: Goode & Goode [2006] FamCA 1346 |
| Applicant: | MR MCKINNEY |
| Respondent: | MS CHANDLER |
| File Number: | CSC 1018 of 2018 |
| Judgment of: | Judge Altobelli |
| Hearing date: | 8 March 2019 |
| Date of Last Submission: | 8 March 2019 |
| Delivered at: | Cairns |
| Delivered on: | 8 March 2019 |
REPRESENTATION
| Solicitors for the Applicant: | WGC Lawyers |
| Counsel for the Respondent: | Mr Longworth |
| Solicitors for the Respondent: | Bassano Law |
| Solicitors for the Independent Children's Lawyer: | Ms Susan Gray Solicitor |
ORDERS PENDING FURTHER ORDER
That Order 2 (b) of the Orders of 5 February 2019 be varied to read as follows:
2 (b) From 7:15 am to 4:30 pm each Tuesday.
Leave is granted to the parties to file in chambers any necessary minute of order to facilitate the preparation of a family report and/ or an expert’s report.
The matter be adjourned to 17 June 2019 at 11:30 am for Mention. The purpose of the mention is to consider the family report and psychiatric report if it is available.
IT IS NOTED that publication of this judgment under the pseudonym McKinney & Chandler is approved pursuant to s.121(9)(g) of the Family Law Act 1975 (Cth).
| FEDERAL CIRCUIT COURT OF AUSTRALIA AT CAIRNS |
CSC 1018 of 2018
| MR MCKINNEY |
Applicant
And
| MS CHANDLER |
Respondent
EX TEMPORE REASONS FOR JUDGMENT
Introduction
I am asked this afternoon to make orders in relation to a child [X], who was born … 2015 and who is just over 3 years old. [X] currently lives with her mother and spends time with her father pursuant to an interim order that was made on 5 February 2019 by consent. I have to decide whether I should change that interim order or keep it as it is.
[X]’s father would like me to change it and, in effect, to revert to an arrangement similar to an equal shared care arrangement that was in place before his time with [X] stopped towards the end of last year. The Independent Children's Lawyer and the Mother would like the existing order to continue. Whatever order I make, it will probably endure for a relatively short period of time. That is because a Family Report and a psychiatric evaluation will be obtained quickly.
It is quite possible that any decision I make today will be reviewed some time in May. It is important for the parents then to understand this is a temporary decision only. On the question of reports, I mention this in passing for the parties’ representatives to consider. I understand that the Family Report can, in theory, become available before the Psychiatric Report, and I encourage the parties’ legal representatives to have a think about that and whether, in fact, the psychiatric evaluation should come first so that the Family Consultant has the benefit of that report at the time he or she is doing the Family Report.
I am not making any orders. I am simply encouraging everybody to think about that. In any event, I intend to bring this matter back in for Mention some time early in June with the expectation that at least one and hopefully both of those reports will, in fact, be available.
Background
Matters of historical background relating to the parents and to [X] are largely not in dispute. I had the benefit of extensive, indeed, impressive case outline documents which refer to the historical matters and contain chronologies. In particular, the Independent Children's Lawyer’s case outline was helpful. I am simply going to incorporate the chronology as a statement of the background history of this family at the First Schedule to these Reasons for Judgment.
Issues
The issue for the Court today is, as I indicated earlier, whether to change the existing arrangement. Having read the case outline documents and heard the submissions, in many respects the issue can be defined somewhat more clearly and in legal terms as follows, that is, whether there is a risk of harm to [X] that continues to warrant her time with her father being, firstly, limited in its present terms, that is, in accordance with the interim order, and, secondly, whether it continues to need to be in the presence of [X]’s paternal grandmother.
Ultimately, that issue is reflected in section 60CC subsection (2) of the Family Law Act 1975 (“the Act”), and that is whether there is a need to protect [X] from physical or psychological harm, from being subject to or exposed to abuse, neglect or family violence. The need to protect her in that regard needs to be considered having regard to the importance of [X] having a meaningful relationship with her father.
This case is about assessing risk to [X] in the relatively short period until there can be further evaluations both of a psychological and psychiatric nature.
Evidence
In the Father’s case, he relied on the following documents:
a)Initiating Application filed 8 January 2019;
b)Affidavit of Mr McKinney filed 7 March 2019;
c)Affidavit of Mr McKinney filed 4 March 2019;
d)Affidavit of Ms A filed 7 March 2019;
e)Affidavit of Ms B filed 6 March 2019;
f)Affidavit of Ms C filed 4 March 2019;
g)Affidavit of Mr D filed 4 March 2019; and
h)Affidavit of Ms E filed 4 March 2019.
In the Mother’s case, she relied on the following documents:
a)Response to Initiating Application filed 5 February 2019;
b)Affidavit of Ms Chandler filed 5 February 2019;
c)Affidavit of Ms Chandler filed 6 March 2019;
d)Affidavit of Mr F filed 6 March 2019; and
e)Affidavit of Ms G filed 5 March 2019.
In addition, in evidence, there was a Child Dispute Conference Memorandum. I had the benefit, as I foreshadowed, of very good case outline documents and very, very good oral submissions as well. In particular, I want to record that Mr Lago for the Father said everything that could be said in the Father’s case.
The applicable law
The applicable law is found in Part VII of the Family Law Act 1975 (Cth) (hereafter referred to as ‘the Act’). In determining parenting matters under Part VII of the Act the Court must regard the best interests of the child as the paramount consideration: s.60CA.
The objects and principles of Part VII are set out at s.60B:
60B Objects of Part and principles underlying it
(1) The objects of this Part are to ensure that the best interests of children are met by:
(a) ensuring that children have the benefit of both of their parents having a meaningful involvement in their lives, to the maximum extent consistent with the best interests of the child; and
(b) protecting children from physical or psychological harm from being subjected to, or exposed to, abuse, neglect or family violence; and
(c) ensuring that children receive adequate and proper parenting to help them achieve their full potential; and
(d) ensuring that parents fulfil their duties, and meet their responsibilities, concerning the care, welfare and development of their children.
(2) The principles underlying these objects are that (except when it is or would be contrary to a child’s best interests):
(a) children have the right to know and be cared for by both their parents, regardless of whether their parents are married, separated, have never married or have never lived together; and
(b) children have a right to spend time on a regular basis with, and communicate on a regular basis with, both their parents and other people significant to their care, welfare and development (such as grandparents and other relatives); and
(c) parents jointly share duties and responsibilities concerning the care, welfare and development of their children; and
(d) parents should agree about the future parenting of their children; and
(e) children have a right to enjoy their culture (including the right to enjoy that culture with other people who share that culture).
(3) For the purposes of subparagraph (2)(e), an Aboriginal child’s or Torres Strait Islander child’s right to enjoy his or her Aboriginal or Torres Strait Islander culture includes the right:
(a) to maintain a connection with that culture; and
(b) to have the support, opportunity and encouragement necessary:
(i) to explore the full extent of that culture, consistent with the child’s age and developmental level and the child’s views; and
(ii) to develop a positive appreciation of that culture.
At the very core of Part VII of the Act is the creation of a presumption of equal shared parental responsibility in s.61DA. Section 61DA provides:
61DA Presumption of equal shared parental responsibility when making parenting orders
(1) When making a parenting order in relation to a child, the court must apply a presumption that it is in the best interests of the child for the child’s parents to have equal shared parental responsibility for the child.
(2) The presumption does not apply if there are reasonable grounds to believe that a parent of the child (or a person who lives with a parent of the child) has engaged in:
(a) abuse of the child or another child who, at the time, was a member of the parent’s family (or that other person’s family); or
(b) family violence.
(3) When the court is making an interim order, the presumption applies unless the court considers that it would not be appropriate in the circumstances for the presumption to be applied when making that order.
(4) The presumption may be rebutted by evidence that satisfies the court that it would not be in the best interests of the child for the child’s parents to have equal shared parental responsibility for the child.
If the presumption applies, the Court is required to consider certain things:
65DAA Court to consider child spending equal time or substantial and significant time with each parent in certain circumstances
Equal time
(1) If a parenting order provides (or is to provide) that a child’s parents are to have equal shared parental responsibility for the child, the court must:
(a) consider whether the child spending equal time with each of the parents would be in the best interests of the child; and
(b) consider whether the child spending equal time with each of the parents is reasonably practicable; and
(c) if it is, consider making an order to provide (or including a provision in the order) for the child to spend equal time with each of the parents.
Substantial and significant time
(2) If:
(a) a parenting order provides (or is to provide) that a child’s parents are to have equal shared parental responsibility for the child; and
(b) the court does not make an order (or include a provision in the order) for the child to spend equal time with each of the parents; and
the court must:
(c) consider whether the child spending substantial and significant time with each of the parents would be in the best interests of the child; and
(d) consider whether the child spending substantial and significant time with each of the parents is reasonably practicable; and
(e) if it is, consider making an order to provide (or including a provision in the order) for the child to spend substantial and significant time with each of the parents.
(3) will be taken to spend substantial and significant time with a parent only if:
(a) the time the child spends with the parent includes both:
(i) days that fall on weekends and holidays; and
(ii) days that do not fall on weekends or holidays; and
(b) the time the child spends with the parent allows the parent to be involved in:
(i) the child’s daily routine; and
(ii) occasions and events that are of particular significance to the child; and
(c) the time the child spends with the parent allows the child to be involved in occasions and events that are of special significance to the parent.
(4) Subsection (3) does not limit the other matters to which a court can have regard in determining whether the time a child spends with a parent would be substantial and significant.
Reasonable practicality
(5) In determining for the purposes of subsections (1) and (2) whether it is reasonably practicable for a child to spend equal time, or substantial and significant time, with each of the child’s parents, the court must have regard to:
(a) how far apart the parents live from each other; and
(b) the parents’ current and future capacity to implement an arrangement for the child spending equal time, or substantial and significant time, with each of the parents; and
(c) the parents’ current and future capacity to communicate with each other and resolve difficulties that might arise in implementing an arrangement of that kind; and
(d) the impact that an arrangement of that kind would have on the child; and
(e) such other matters as the court considers relevant.
Because s.65DAA refers to the best interests of the child the Court must then go back to consider s.60CC which specifies how the Court must determine what is in a child’s best interests.
Determining child's best interests
(1) Subject to subsection (5), in determining what is in the child's best interests, the court must consider the matters set out in subsections (2) and (3).
Primary considerations
(2) The primary considerations 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.
Note: Making these considerations the primary ones is consistent with the objects of this Part set out in paragraphs 60B(1)(a) and (b).
(2A) In applying the considerations set out in subsection (2), the court is to give greater weight to the consideration set out in paragraph (2)(b).
Additional considerations
(3) Additional considerations are:
(a) any views expressed by the child and any factors (such as the child's maturity or level of understanding) that the court thinks are relevant to the weight it should give to the child's views;
(b) the nature of the relationship of the child with:
(i) each of the child's parents; and
(ii) other persons (including any grandparent or other relative of the child);
(c) the extent to which each of the child's parents has taken, or failed to take, the opportunity:
(i) to participate in making decisions about major long-term issues in relation to the child; and
(ii) to spend time with the child; and
(iii) to communicate with the child;
(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;
(d) the likely effect of any changes in the child's circumstances, including the likely effect on the child of any separation from:
(i) either of his or her parents; or
(ii) any other child, or other person (including any grandparent or other relative of the child), with whom he or she has been living;
(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;
(f) the capacity of:
(i) each of the child's parents; and
(ii) 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;
(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;
(h) if the child is an Aboriginal child or a Torres Strait Islander child:
(i) 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
(ii) the likely impact any proposed parenting order under this Part will have on that right;
(i) the attitude to the child, and to the responsibilities of parenthood, demonstrated by each of the child's parents;
(j) any family violence involving the child or a member of the child's family;
(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:
(i) the nature of the order;
(ii) the circumstances in which the order was made;
(iii) any evidence admitted in proceedings for the order;
(iv) any findings made by the court in, or in proceedings for, the order;
(v) any other relevant matter;
(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;
(m) any other fact or circumstance that the court thinks is relevant.
The Case Law
In MRR v GR [2010] HCA 4, the High Court referred to s.65DAA(1) and said
9. Each of sub-ss (1)(b) and (2)(d) of s 65DAA require the Court to consider whether it is reasonably practicable for the child to spend equal time or substantial and significant time with each of the parents. It is clearly intended that the Court determine that question. Sub-section (5) provides in that respect that the Court "must have regard" to certain matters, such as how far apart the parents live from each other and their capacity to implement the arrangement in question, and "such other matters as the court considers relevant", "[i]n determining for the purposes of subsections (1) and (2) whether it is reasonably practicable for a child to spend equal time, or substantial and significant time, with each of the child's parents".
A little later in the judgment the High Court said:
13. Section 65DAA(1) is expressed in imperative terms. It obliges the Court to consider both the question whether it is in the best interests of the child to spend equal time with each of the parents (par (a)) and the question whether it is reasonably practicable that the child spend equal time with each of them (par (b)). It is only where both questions are answered in the affirmative that consideration may be given, under par (c), to the making of an order.
At [15] the High Court emphasised the need for a practical approach:
15. Section 65DAA(1) is concerned with the reality of the situation of the parents and the child, not whether it is desirable that there be equal time spent by the child with each parent. The presumption in s 61DA(1) is not determinative of the questions arising under s 65DAA(1). Section 65DAA(1)(b) requires a practical assessment of whether equal time parenting is feasible.
The Full Court’s decision in Goode & Goode [2006] FamCA 1346 provides some guidance about the interpretation of Part VII and the way to proceed in interim hearings.
68. In our view some of the comments of the Full Court in paragraph 18 are still apposite. For example, the procedure for making interim parenting orders will continue to be an abridged process where the scope of the enquiry is “significantly curtailed”. Where the Court cannot make findings of fact it should not be drawn into issues of fact or matters relating to the merits of the substantive case where findings are not possible. The Court also looks to the less contentious matters, such as the agreed facts and issues not in dispute and would have regard to the care arrangements prior to separation, the current circumstances of the parties and their children, and the parties’ respective proposals for the future.
…
72. In our view, it can be fairly said there is a legislative intent evinced in favour of substantial involvement of both parents in their children’s lives, both as to parental responsibility and as to time spent with children, subject to the need to protect children from harm, from abuse and family violence and provided it is in their best interests and reasonably practicable. This means where there is a status quo or well settled environment, instead of simply preserving it, unless there are protective or other significant best interests concerns for the child, the Court must follow the structure of the Act and consider accepting, where applicable, equal or significant involvement by both parents in the care arrangements for the child.
…
82. In an interim case that would involve the following:
(a) identifying the competing proposals of the parties;
(b) identifying the issues in dispute in the interim hearing;
(c) identifying any agreed or uncontested relevant facts;
(d) considering the matters in s 60CC that are relevant and, if possible, making findings about them (in interim proceedings there may be little uncontested evidence to enable more than a limited consideration of these matters to take place);
(e) deciding whether the presumption in s 61DA that equal shared parental responsibility is in the best interests of the child applies or does not apply because there are reasonable grounds to believe there has been abuse of the child or family violence or, in an interim matter, the Court does not consider it appropriate to apply the presumption;
(f) if the presumption does apply, deciding whether it is rebutted because application of it would not be in the child’s best interests;
(g) if the presumption applies and is not rebutted, considering making an order that the child spend equal time with the parents unless it is contrary to the child’s best interests as a result of consideration of one or more of the matters in s 60CC, or impracticable;
(h) if equal time is found not to be in the child’s best interests, considering making an order that the child spend substantial and significant time as defined in s 65DAA(3) with the parents, unless contrary to the child’s best interests as a result of consideration of one or more of the matters in s 60CC, or impracticable;
(i) if neither equal time nor substantial and significant time is considered to be in the best interests of the child, then making such orders in the discretion of the Court that are in the best interests of the child, as a result of consideration of one or more of the matters in s 60CC;
(j) if the presumption is not applied or is rebutted, then making such order as is in the best interests of the child, as a result of consideration of one or more of the matters in s 60CC; and
(k) even then the Court may need to consider equal time or substantial and significant time, especially if one of the parties has sought it or, even if neither has sought it, if the Court considers after affording procedural fairness to the parties it to be in the best interests of the child.
Firstly, there is a decision called Insley & Insley [2018] FCCA 438, a decision of mine from 2018, where at a number of paragraphs, I deal with the challenges of making factual decisions in interim hearings, and I’m going to incorporate into these reasons a number of paragraphs from that decision;
The Challenge of Fact-Finding in this Case
[61] This Court is in a very difficult position. Whilst all the material before the Court can be closely scrutinised, the fact is that the evidence has not been tested and, in reality, cannot be tested for many months, simply because of the demands on the Court’s time from other cases. The Supplementary Written Submissions proposed by Mr Knox SC highlight the evidentiary issues and emphasise the importance of credit, even in an interim hearing.
[62] If the Court believes that there is substance to the Mother’s concerns, it is more likely to accept her proposal to remain in Melbourne, and to thus focus on what is the most appropriate arrangement for X to spend time with his Father and paternal family, but in Melbourne. If the Court accepts the Mother’s concerns about family violence and abuse, it is unlikely to accede to a proposal that involves the Mother and X to the (omitted), even if all the financial issues are satisfactorily addressed by the Father. The Court accepts that whether there is an objective basis for the Mother’s fear or not to bring her back to the (omitted) where she would be alone, and completely financially dependent on the Father, is merely likely to re-traumatise her, at least from her perspective.
[63] In Goode & Goode the Full Court warned against making findings of fact where findings are not possible. The Court did not rule out making findings of fact and, it must be remembered that findings can be made on the basis of uncontested matters, or admissions. To the extent, moreover, that findings may be differentiated from inferences, inferences may certainly be drawn from all of the material available before the Court.
[64] Senior Counsel for the Father quite properly referred the Court to the Full Court’s decision in Goode & Goode. Of course there have been later Full Court decisions that suggest in that, particularly in cases where there are allegations of family violence, a more nuanced approach is warranted. For example, the Full Court in SS & AH [2010] FamCA 13 at [100] noted that sometimes judges will have little alternative but 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. The Full Court stated that 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. Nonetheless, the Full Court warned, findings must be couched with circumspection.
[65] The Full Court in Marvel & Marvel (No.2) [2010] FamCAFC 101, in referring to its earlier decision in SS &AH stated at [120] that decision-making in interim proceedings is difficult, and thus a conservative approach is warranted, or one which is likely to avoid harm to a child.
[66] In Reece & Reece [2011] FamCAFC 24, the Full Court warned at [76] about the consequences of failing to have regard to expert evidence simply because it was untested in cross-examination. In that case the evidence was a Family Report. In this case, of course, it is a Child Dispute Conference Memorandum.
[67] In Deiter & Deiter [2011] FamCAFC 82, at [54] the Full Court suggested that s.60K (now s.67ZBB) of the Act signalled a clear policy imperative of ensuring that allegations of family violence are treated seriously and dealt with expeditiously. In an ideal world, these allegations could be dealt with at a discreet issues hearing, or an expedited final hearing. In reality, in a registry of this court where almost all of the cases involve allegations of family violence, neglect, abuse, drugs or alcohol and mental health, neither a discreet issues hearing, nor expedition is possible. It is nonetheless imperative that allegations of family violence are treated seriously.
[68] At [61] in Deiter, the Full Court discussed risk analysis:
The assessment of risk is one of the many burdens placed on family law decision makers. Risk assessment comprises two elements – the first requires prediction of the likelihood of the occurrence of harmful events, and the second requires consideration of the severity of the impact caused by those events. In our view, the assessment of risk in cases involving the welfare of children cannot be postponed until the last piece of evidence is given and tested, and the last submission is made. We accept, however, that it is always a question of degree depending on the evidence that is before the Court.
[69] The Full Court at [77] noted that it is not open to a trial judge to simply ignore an allegation because it had not been tested.
[70] The Full Court in Enmore & Smoothe [2014] FamCAFC 131 at [39] explained that a finding of risk of abuse may be reached on the basis of evidence which falls short of that required for a finding that abuse has occurred. However, that is not to suggest that evidence aimed at establishing a possible risk of abuse should not be subject to careful scrutiny, since serious consequences can also flow from a finding that a child is at risk of abuse.
[71] In 2015, the Full Court in Eaby & Speelman [2015] FamCAFC 104 at [18] expressly stated that the comments of the Full Court at [68] in Goode did not mean that merely because the facts are in dispute the evidence on the topic must be disregarded and the case determined solely by reference to the agreed facts. Moreover, at [21] the Full Court recognised:
Much of what occurs in families takes place in private, as a consequence of which corroboration is often not available. It follows that the absence of corroborating evidence does not necessarily undermine a person’s evidence on that topic.
[72] In Salah & Salah [2016] FamCAFC 100 the Full Court in 2016 focused on s.60CG, which requires a Court when considering what parenting order to make, to ensure that whatever order is made, it does not expose a person to an unacceptable risk of family violence. Again, trial judges were reminded in that judgment that corroboration or objective support for allegations is not always necessary, especially because family violence often takes place in private in circumstances where no corroboration is available.
I should mention I intend to have these Reasons taken out so that any later judicial officer dealing with this case will have the benefit, such as it may be, of these Reasons for Judgment.
Finally, I want to refer in passing to a decision of the Full Court, a recent decision called Hendy& Penningh [2018] FamCAFC 257 (‘Penningh’) where at about paragraph 13, the Full Court tissues a warning about what they describe as adopting a binary view of understanding a person’s seemingly inconsistent behaviour. For example at paragraph 13, it becomes clear that they are talking about family violence allegations, but I want to suggest that the potential application of this warning applies beyond family violence cases and that, perhaps, reconsideration needs to be given to what is described as the orthodox view that an inconsistency between a stated concern and a later action somehow undermines the validity of the stated concern. That, of course, came up during the course of submissions.
Discussion
The Court has decided that it will not make any further changes to [X]’s arrangement to spend time with her father. Ultimately, this is because it has decided that there is a need to protect [X] from the risk of her father’s mental health relapsing or lapsing. It is because of this concern that the Court believes that [X]’s time with her father needs to be, firstly, limited, as it is in this order and in the existing order, and, secondly, needs to continue to be monitored by the presence of the paternal grandmother.
The Court is satisfied that, firstly, [X] does have a meaningful relationship with her father. There is nothing in the Mother’s case that contends to the contrary. The Court is comfortable that the current level of contact between [X] and her father will continue to facilitate that meaningful relationship. That is not the concern in this case. The concern is somehow managing the uncertainty that the Court has about the Father’s mental health. The concerns are partly historical and partly current and, it must be said, partly future-based or prognostic.
The Mother, in her evidence, sets out an incident that occurred between approximately February and May 2018 which, in her mind and certainly in the Court’s mind, gave raise to concerns about the Father’s mental health. A later event involving an allegation that the Father in the course of his duty as a public servant assaulted a young man is part of the factual matrix, but probably of itself is not indicative of a potential risk of harm to [X]. When the events from February 2018 to the more later event involving the Father in the course of his duty are seen overall, the Court accepts the Mother’s case that the Court must, of necessity, be cautious until there is a much deeper understanding of the Father’s mental health.
To say that he has had a stressful time since the beginning of last year would be an understatement. The stress to the Mother must also be acknowledged. The reality is that it has not been an easy time for this family, including for [X]. The concerns about the Father’s mental health are, in the view of this Court, amply established. Perhaps the clearest basis for the concern is, in fact, the Father’s own evidence. In the course of the exchange between the bench and the bar table, reference was made, for example, to paragraphs 14 and 15 of the Mother’s Affidavit of 5 February 2019 and paragraph 40, for example, of the Father’s Affidavit of 4 March 2019. I raised a number of concerns. Mr Longworth, Counsel for the Mother, raised a number of further concerns.
Doing the best the Court can, it seems that the Mother makes some specific allegations about what the Father did on 19 February 2018. In his evidence, which is filed a month after the Mother had filed her evidence, what is of concern to the Court is what the Father does not say. He does not deny, for example, the words attributed to him by the Mother. He does not deny that he had locked himself in the bedroom. He does not deny that he opened the gun safe. The context being that, even on his evidence, this was a rare event. He does not deny that he was crying.
Clearly this was a stressful event. Clearly this was an event that gave rise in the Mother’s mind at the time, and certainly to the Court today, about how the Father was coping with the stresses that included the stresses of the relationship breakdown. It goes further, however. For example, the Mother in her Affidavit gives evidence that she rang the paternal grandmother, such was her concern about what she saw the Father doing. It is noticeable that, even though the paternal grandmother gave evidence by way of Affidavit, she does not deny that the Mother, in fact, made this telephone call to her.
The events of 19 February 2018, even on the Father’s case, seem to have taken place and provided justification for both the Mother and the Court to be concerned about any mental stress that he was under at the time. It goes further though. For example, in paragraph 16 of the Mother’s evidence, she deals with what was, I think, described in submissions as suicide notes. The period in question, doing the best the Court can, is between 19 February and 9 May 2018.
The notes in question are annexed to the Mother’s Affidavit and largely speak for themselves. At paragraph 41 of the Father’s Affidavit, he describes them as apology notes designed to externalise feelings and not suicide notes and he contends that the notes were never delivered. The Mother puts in contention that last point. That is not something I can resolve.
What the Court is entitled to do, however, is to read these notes and attempt to understand them in the context that they were written or discovered in the first half of last year and then to try to understand those notes from the perspective of subsequent events and then to try to understand what potential risk this might raise for [X]. These notes do signal concerns about the Father’s mental health at the time. Whilst it might, in fact, not be incorrect to describe them as apology notes, they probably go further than that from the Court’s perspective. Again, this is another example of concern about what sort of mental health the Father was in during the periods in question.
The Mother’s evidence goes further. At paragraph 17 of her Affidavit she describes and indeed annexes to her Affidavit a number of photos on which the Father has written certain words. Whilst there is a dispute about who blacked out what and who slashed photos, and whilst there is a dispute about whether the Mother, in fact, had done something similar in another context, what is clear from these documents is that the Father wrote certain things on the photos that again raise concerns about how he was travelling in a psychological and emotional sense at the time.
The Mother gives further evidence about her concerns at paragraphs 18 and 19 and these are responded to in various ways at, for example, paragraphs 44, 45 and 46 of the Father’s Affidavit. As I said before, these events need to be understood in the context of what happened afterwards. Two significant things happened afterwards. Firstly, the parents seems to have engaged in an alternative dispute resolution process and entered into arrangements in relation to [X] that included a shared-time arrangement.
The Father’s case was that such an action is inconsistent with the Mother’s concerns about his mental health. The Mother’s case is that she felt disempowered to do anything about it. It is not possible to decide what, in fact, occurred at that time. The argument, however, that the Court should accept that the Mother did not hold the concerns that she articulated and which I have referred to just before – that is to say that she did not hold these concerns, certainly not genuinely – because she subsequently agreed to [X] spending time with her father – is the sort of binary thinking that the Full Court in Penningh warns against.
In any event, and as I said during submissions, the fact is that the Court needs to make its own independent assessment of risk and whilst how the parents behaved is one factor to be taken into account, ultimately, it is this Court’s job to make a decision about whether [X] is at risk today, having regard to what has happened in the past. It is possible that the Mother made a bad call in doing what she did. From this Court’s perspective, in a case where it is agreed that [X] is going to continue to live with her, that is not a consideration that weighs heavily on the Court’s mind.
In short, the fact that the Mother agreed for [X] to spend generous and unsupervised time with her father, notwithstanding the concerns that she now raises about the Father’s emotional and mental wellbeing in the first half of 2018, does not dissuade this Court that there are reasons to be concerned. The most recent event, of course, is this allegation that has been made against the Father in the course of his duty.
I must say, from this Court’s perspective, the issue is not whether the Father assaulted the person as is alleged. The issue is the inevitable stress that this would place on the Father in combination with the inevitable stress of the present proceedings. When all those matters are taken into account, there are reasons to be concerned for the Father’s emotional and psychological health and, in circumstances where this issue could be resolved with much greater precision and clarity in as little as three months, one would have to ask why would the Court take the risk in relation to [X].
Well, the answer is this Court is not prepared to take the risk in relation to [X] and when this is thought through, if the Court is wrong and it should not (with the benefit of hindsight) be restricting the Father’s time with [X], the problem is not one that cannot be fixed. Such is the strength of [X]’s relationship with her father that this restriction is not going to change anything from her perspective, but if the Court allowed unregulated time and makes a mistake, then the consequences for [X] are potentially grave. In the circumstances, on any risk assessment basis, the least risk to this Child is for the Father’s time with her to continue to be with the benefit to both [X] and to the Father of the presence of the paternal grandmother.
The evidence, and it seems common ground, is that [X] has a very strong relationship with her grandmother who is accepted even on the Mother’s side as being fiercely protective of her. There is no downside for [X] here, especially in circumstances where the decision can be revisited in a matter of months.
The Act, of course, prescribes a number of other considerations that are described in section 60CC as additional considerations. I acknowledge their presence. I acknowledge the submissions that were made in writing by each of the parties.
I ultimately make this decision, though, on the basis of the need to protect [X] from harm. At a later stage, those other considerations may become far more important. Accordingly, the interim orders will remain as they are. I grant leave to the parties to file in chambers any necessary minute of order to facilitate the preparation of a Family Report and/or an Expert’s Report.
I certify that the preceding forty-two (42) paragraphs are a true copy of the reasons for judgment of Judge Altobelli
Date: 3 April 2019
Schedule One
Chronology prepared by the Independent Children’s Lawyer
| DATE | |
| … 1988 | Mother Ms Chandler born current age 30 years |
| … 1989 | Father Mr McKinney born current age 29 years |
| … 2014 | Parties commenced a relationship |
| … 2014 | Parties commenced living together |
| … 2015 | Child [X] born current age 3 years 3 months |
| February, 2016 | Father returned to full time shift work to support the family financially |
| August, 2016 | Mother returned to work on part time basis 3 days per week and one weekend in a 28 day period various shift times |
| February, 2017 | Mother attends six counselling sessions with Ms H psychologist between February and December 2017. Mother deposes the reason she attended counselling sessions was to receive support during the break down of the relationship with the father. Paragraph 5 of affidavit filed 6 March, 2019 |
| March 2017 | Father deposes to the relationship between he and the mother went into decline |
| April 2017 | Mother began working an additional day being Thursdays and the child was enrolled at Town J Early Learning Centre where she attended each Thursday |
| November 2017 | Parties attended upon Mr D Psychologist for couples counselling |
| 1/12/2017 | Parties final separation under the same roof |
| 11/8/2018 | Father attended upon Mr D psychologist for counselling until July 2018 |
| 18/4/2018 | Father deposes to the mother smashing a mug and glass display cabinet and causing upset to the child |
| 11/5/2018 | The mother left the former shared home |
| 12/5/2018 | Father returns to the home and allegedly finds one his razor blades in the main bathroom took a photo and sent it to the mother on snap chat with a question mark. Father deposes mother has previously told him she had self harmed by cutting her wrists with a razor blade. Paragraphs 46 and 47 father’s affidavit sealed 4 March, 2019 page 9 |
| … 2018 | Mother commenced a relationship with Mr F |
| 26/6/2018 | Parties attend Family Dispute Resolution and reached an agreement as attached to the fathers affidavit at annexure M 1 page 9 |
| Sept 2018 | Mother introduced Mr F to the child [X] |
| 6 /9/ 2018 | Parties attend further mediation with the Family Dispute Resolution service where a further agreement was reached attached to the father’s affidavit at annexure M2 page 11-12 |
| October 2018 | Mr F stayed at the mother’s home for the first time when child was present |
| November 2018 | Mother deposes to attending upon Ms G psychologist on 3 occasions to deal with the communication breakdown between the father and her paragraph 6 Affidavit filed 6 March 2019 |
| 19/11/2018 | Allegation made that father assaulted an 11 yo child in course of his duty as a public servant |
| December 2018 | Mr F moved in fulltime in or about December with the mother and child |
| 13/12/2018 | Father spent time with the child |
| 14/12/2018 | Mother’s solicitor sends letter to father’s solicitor dated 13 December 2018 informing the father that the mother has unilaterally suspended the father’s time with the child due to the circumstances surrounding the alleged assault of the 11 yo child annexure M3 page 14 |
| 16/12/2018 | Mother sends father a text message citing her reasons for suspending the father’s time with the child para 13 father’s affidavit filed 21/12/2018 |
| 17/12/2018 | Father’s solicitor sends letter to mother’s solicitor in response to the mother’s decision to suspend the father’s time with the child annexure M4 pages 24 to 27 |
| 20/12/2018 | Father’s lawyer requested by email to the mother’s solicitor requesting supervised time and telephone contact with the child |
| 21/12/2018 | Father files Initiating Application Affidavit and Notice of Risk |
| 22/12/2018 | Father attempted to arrange to spend supervised time with the child for her birthday. the mother did not answer his telephone calls or respond to his messages |
| 8/1/2019 | Fathers documents were processed and sealed |
| 5/2/2019 | Mother files Response to Application for Final Orders Affidavit and Notice of Risk |
| 6/2/2019 | Parties attend Child Inclusive Conference with Ms K |
| 12/2/2019 | CIC Memorandum to the Court released |
| 27/2/2019 | ICL received file from Legal Aid Queensland |
| 4/3/2019 | Father’s Affidavit filed |
Key Legal Topics
Areas of Law
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Family Law
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Evidence
Legal Concepts
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Procedural Fairness
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