Middleton and Boylin

[2007] FamCA 823

FAMILY COURT OF AUSTRALIA

MIDDLETON & BOYLIN [2007] FamCA 823

FAMILY LAW – CHILDREN – Interim parenting orders

Family Law Act 1975 (Cth)

APPLICANT: MR MIDDLETON

RESPONDENT: MS BOYLIN

FILE NUMBER: MLC 6897 of 2007

DATE DELIVERED: 27 June 2007

PLACE DELIVERED: Melbourne

JUDGMENT OF: Cronin J

HEARING DATE: 27 June 2007

REPRESENTATION

COUNSEL FOR THE APPLICANT: Mr Robinson

SOLICITOR FOR THE APPLICANT: Morrison & Sawers

COUNSEL FOR THE RESPONDENT: Mr McLeod

SOLICITOR FOR THE RESPONDENT: O’Farrell Robertson McMahon

Orders

1. The Order of the Magistrates Court in regional Victoria made on 14 June 2007 is discharged.

2. That until further order all parenting orders made on 16 December 2002 are suspended.

3. All outstanding applications including interim applications be adjourned to a date to be fixed.

4. Pursuant to s 33B(1), all outstanding applications are transferred to the Federal Magistrates Court of Australia for listing on a date to be fixed by the Registrar of that Court with a request that the matter be listed for an interim hearing as a matter of urgency.

5. That until further order, the child E born in December 2000 live with the father.

6. That until further order, the mother spend time with the child as follows:

   (a)for the period from 12 noon on Thursday 28 June 2007 until 6.00pm on Sunday 7 July 2007 conditional upon the maternal grandmother first signing a written acknowledgement to be provided to the solicitors for the father before 12 noon on 28 June 2007 indicating that she will:

   (i)monitor the child’s welfare with the mother during the period mentioned; and

   (ii)advise the father by telephone immediately in the event that the child expresses to the maternal grandmother distress, fear or unhappiness at being in the mother’s care; and

   (b)thereafter, on each weekend from 10.00am on Saturday to 6.00pm on Sunday commencing the first Saturday of the term three school year without any supervision of the type referred to in paragraphs 6(a) hereof.

7. That the father deliver the child to the mother at 12 noon on 28 June 2007 at her residence subject to the condition referred to in paragraphs 6(a) hereof and the mother deliver the child to the father at 6.00pm on 7 July 2007 at his residence.

8. That until further order, the father deliver the child to the mother at 10.00am on each Saturday at the post office at R and the mother deliver the child each Sunday at 6.00pm to the father at the post office at R

9. That pursuant to Section 68L(2) the Family Law Act 1975 the child E born on in December 2000 be separately represented AND IT IS REQUESTED that Victoria Legal Aid arrange such separate representation.

10. That forthwith upon appointment by the said Victoria Legal Aid or otherwise the Independent Children’s Lawyer file a Notice of Address for Service.

11. That within 48 hours of notification of such appointment the parties, and if represented the solicitors for the respective parties, provide to the Independent Children’s Lawyer copies of all relevant documents relied upon.

12. That the parties immediately do all things required to seek assistance from Victoria Legal Aid for the funding of an independent family report and IT IS REQUESTED that Victoria Legal Aid give urgent attention and consideration to the issue of that funding.

IT IS CERTIFIED

1. That pursuant to Rule 19.50 of the Family Law Rules 2004 this matter reasonably required the attendance of counsel.

2. That pursuant to s.65DA(2) and s.62B, the particulars of the obligations these orders create and the particulars of the consequences that may follow if a person contravenes these orders and details of who can assist parties adjust to and comply with an order are set out in the Fact Sheet attached hereto and these particulars are included in these orders.

FAMILY COURT OF AUSTRALIA AT MELBOURNE

FILE NUMBER: MLC 6897 of 2007

MR MIDDLETON

Applicant

And

MS BOYLIN

Respondent

REASONS FOR JUDGMENT

1. I am dealing in this matter with an interim application which comes to me in the Judicial Duty List and as a consequence, the parties have had to have the matter heard on submissions and on the material that they have filed.  It is a sad case involving a daughter who was born in December 2000 and as a result of that, she is six.

2. There is a tragic background in this case that even in her first year of life, the parties were before the courts.  Perhaps that is not unusual, but in her case there was significant involvement by the Department of Human Services.  That seemed to have resolved itself for a number of years and it looks like the ball is about to start all over again.

3. In this particular case, I am going to make orders to change the residence situation in the short term and I do so and record in these reasons that I am making this on an interim basis only because of the fact that there are significant and serious allegations made by both parties about the other but there is also a lot of material missing that might otherwise help to determine the future of this little girl on a serious basis.

4. I want to record that I am making the orders I am - and I shall explain them as best I can in the limited time I have - because notwithstanding the parties are at loggerheads, if not at war with one another, I am looking at a primary issue here of the protection of the child.  It may very well be that my concern is misplaced, but if that is the case, then no major harm should be done, having regard to the orders that I propose to make.  I am not locking the mother out of the child 's life.  It behoves her to produce material to show that her proposal for the child 's future is the appropriate one, in the same way that when a court ultimately looks at this matter, the father does so.

5. As I indicated earlier, in the child’s very first year of life, she had the intervention of the Department of Human Services.  That has become a significant issue for me.  The father lives in a rural Victoria town with his new partner and there is a stepchild in that household and also a young child apparently of their relationship.  Although the material did not set out much about that, I am satisfied on what I have been told by counsel that the father's new partner will have a significant role in caring for the child for at least the short‑term period.

6. The mother, for her part, has two other children subsequent to the child 's birth and ironically enough, there is no intervention in relation to those children and I shall come to that in a moment.

7. By 16 December 2002, the parties were sufficiently competent and content to make an order that the child live with the mother on a full‑time basis and that there be ongoing contact between father and child.  To some extent, the evidence seems to suggest that that has worked reasonably well.

8. From the father's perspective today, there have been two major reasons for this application.  The first - and these are my words - is that history is repeating itself; the second is that there is this serious protection issue in relation to the child. 

9. From the mother's perspective, she also has two main issues.  She says that the father is less than candid about what has been happening, particularly on historical matters subsequent to the department's involvement in 2001, and secondly, that she tried to discuss the problems that she concedes she has with the child, and to use counsel's words, "got whacked".

10. Whatever the dispute is between these people, my focus in law is what is in the best interests of the child, even on an interim basis.  To the extent that the status quo is not only relevant but also important, I want to make it very clear that I have not ignored it, but that is a matter about which some emphasis has changed subsequent to 1 July 2006 when the new legislation came into operation and I will deal with that in a moment.

11. I also want to make it very clear that I am not condoning self-help or unilateral action where people simply decide on their judgment, to keep children in an overholding position;  far be it from that.  I am saying that this is an unusual situation where under s 60CC, parliament has decreed that the protection of a child is of primary importance.  It is for that reason that I propose to make some orders.

12. In terms of the proceedings themselves, I will come to the facts.  The mother applied for a recovery order in a regional Magistrates Court on an ex parte basis.  I make no criticism of her for doing so on the basis that I believe in this case that it was probably a decision by her lawyers to take that course of action.  I am a little disconcerted about the fact that a magistrate might make that order without first considering the ramifications but I suspect that that matter will be the subject of some contentious evidence at trial.

13. After the magistrate made the recovery order, it appears that the local police, who were handed the unenviable responsibility of trying to execute the order, worked out that it was inappropriate for them to do so because of some spelling issue.  To the extent that any criticism needs to be made, I am critical of them for doing that, having regard to the whole focus of the legislation and that the particular order related to the welfare of a child. 

14. Needless to say, the father then made an application to this Court and the proceedings came into the duty list on 20 June, some six days after the magistrate had made his order.  Although the order has never been taken out or is certainly not on the file, it certainly appears that it was not a consent order on that day, but the proceedings were adjourned to this court today before me and the order of the Magistrates Court in regional Victoria was stayed until further order.  I propose to not only stay that order, but discharge it.

15. The parties since then have filed further material and a lot of it is of very little assistance to me today in determining what I should do because, as I have indicated a number of times, I am making orders for a holding position only and, more importantly, I am not able to make any determination on any of the disputed facts.  As such, I intend only to deal with the issues that I think are of significance in the affidavit material and upon which I am basically relying.

16. In the father's affidavit, he has set out the background to the matters and said that throughout 2006 at various changeovers of the child, the mother made it clear she was not coping with the child 's behaviour.  There were comments made about the child saying that if she did not start to be good, she would have to go and live with her father.  There were also complaints about the use of language, but it would appear that both parties suffer from the same problem.  I find it difficult to understand how anybody could have an adult dispute using language that is as colourful as has been described to me in front of a child who is in Grade 1 and at this age.  Perhaps that is a matter that the parties can contemplate.

17. In any event, in December 2006, the child was sent to her father for a weekend with medication and according to the father, he had to find out what it was.  He was told it was a form of antidepressant.  I make no criticism of the mother in relation to that issue, other than perhaps if it is true, the fact that the father should have been given details.  That highlights the fact that there is a problem here.  The father went on to say that a week prior to the Easter school holidays in 2007, the mother telephoned and asked if he could have the child because she was not coping and needed a break.  I want to make clear that I acknowledge that all of these facts are in dispute but I am concerned and have taken a cautious approach here.

18. The father reports verbatim comments by the mother including, "That child is nothing but trouble.  She hits me and [L]".   L who is the younger child I referred to.  "She does not do what she is told.  I have to tell her 100 times to stop doing things and she does not listen."  According to the father, his wife asked if the child was safe and the mother's response was, "I'm ready to kill her."  Now, that statement would probably be made everywhere in Australia by parents day in, day out, and it would have little offensive connotation, but in a circumstance like this, with the background that I am about to refer to, it causes me some anguish. 

19. In early May 2007, according to the father, the mother advised that she had made a decision that the child would be coming to live with him at the second term school holidays.  That is an issue that is in dispute.  On 17 May 2007 the mother rang him and asked if he could have the child for the weekend because she could not cope.  That obviously was six weeks prior to the end of the term.  The father says that he agreed and picked the child up the next day.  He says that he asked if she still intended for the child to come and live with him in the future, by which I presume to mean Term 3 and onwards, and he said that she said yes.

20. Now, exactly what all that was intended to mean by the mother, I am unsure, but I have been told today that she says there was no agreement.  There was certainly discussion, and that goes back to the comment that counsel made that when the mother tried to discuss matters with the father, "she gets whacked".  According to what I have understood of the mother's case, she acknowledges there is a problem, is trying to sort it out, tries to get assistance from the father and gets very little assistance other than for him to bring this application.  I am not convinced that that is necessarily what this is all about.

21. During a visit on Saturday, 26 May, the father says that the child told him that she was excited about coming to live with him and happy about the new school.  I am unable to make any finding about that issue, but it tends to suggest that at least in the child's mind, something was about to happen.  Things seemed to come to a head on Friday, 8 June when the father rang the mother, and this is where the incidents seem to stem from that brought the proceedings.  According to the father, the mother said that the child had run off and could have been killed by running into a car.  The mother went on to say that, "Mum will probably tell you that I yelled at [the child] when I arrived home and called [the child] 'mental' and kicked [the child] in the leg."

22. These facts, as I have indicated, are all to a very large degree disputed, but I have some difficulty about the circumstances under which they arise because each of them tends to suggest that there was a problem between the mother and the child.

23. The father then says that on 9 June as a result of what he was told, he made a notification to the Department of Human Services.  The cycle in that case seems to be starting all over again.  The mother's response to that is that when she contacted the department, they were not particularly interested in the matter, but it may very well have been - and I do not know - that the department took the view that the child was in the care of the father and therefore there was no protective issue.

24. On 10 June with the child then being in the care of the father, he had a telephone conversation with the mother, who accused him of kidnapping the child.  According to the father, and this is disputed, the mother then said, "You don't know what this child has put me through the last five years.  I've been saying there is something wrong and you won't believe me and no-one will listen."  Then the father says the mother told him about various things that she had done to try and resolve the problems that she had.

25. There was an incident also reported in which the paternal grandmother was involved in a discussion with the mother.  According to Mrs M, who is the mother of the applicant father in these proceedings on 8 June she attended a regional Victorian city to collect the child for the weekend visit by her son and whilst waiting there, the mother drove up, put her window down, shouting at her then partner, "What are you fucking doing home?  Go back to fucking work.  I don't want you home annoying me."  Adults talking to each other like that in the presence of a child seems to me totally inappropriate.

26. The incident went on, according to the paternal grandmother, and mother and the child alighted from the car, for the transfer whereupon the mother started shouting at the child in language similar to what I have just referred to.  Again, I would say if that occurred, and I appreciate there is a dispute about this, it is totally inappropriate.

27. The mother responded to that particular paragraph and made reference to the fact that the child really was not fazed by it, and whilst that might be so, it does not really respond to the issue of the fact that the child has been a witness to some poor conduct.  Worse still, if the child did in fact respond in the way the mother says, then it tends to suggest to me that this child is becoming conditioned to that sort of conduct.

28. The mother counters in a comprehensive affidavit which I have taken into account very carefully and which I appreciate will be the subject of significant cross‑examination, reporting that after the department became involved in 2001, the parties actually reconciled, but then she reports a significant issue of violence.  In the report to which I will turn in a moment by the Department of Human Services, that same sort of violence was mentioned. 

29. Whilst I do not condone any sort of behaviour like that, if it is true, the father is to be criticised significantly and no doubt in the future, when these proceedings are conducted as a full trial, it will become a significant issue.  But for my purposes, looking forward in the short term, I intend to ignore it on the basis that subsequent to that incident, the mother was at least content for the father to care for the child and vice versa.  The mother also asserts that she has been “set up” by the father and points to the fact that he has been endeavouring to do this by stealth over the last few years.  I am not in a position to determine whether that is right, and if it is correct, then the father is to be criticised and no doubt will be in the trial. 

30. What I do have to deal with, however, is that there is an acknowledgment that this child has been diagnosed with ADHD and the mother seems to be having some difficulty.  I have no evidence of the mother's current psychiatric status, although I see there are attendances upon a psychiatrist, nor do I have anything from the child's paediatrician.  It is for those reasons that I propose to adjourn the matter to another date.  I propose to transfer it to the Federal Magistrates Court so that the matter can be dealt with quickly.

31. I have also got the complication in this interim case that I have to consider that there are two siblings of this child with whom she has been living and whom the Department of Human Services has not removed.  However, it seems common ground that it is the child who is the problem here.

32. As I said earlier, one of the issues that was troubling me was the fact that history was repeating itself.  I was handed a confidential court report provided to the regional Children's Court on 14 August 2001 and whilst I do not use that in any significant way as evidence, some of the matters referred to in that report, which are chronologically reported by a worker from the Department of Human Services, seem clearly to be popping up again.  I quote now some of them: 

    On 23 May 2001, the mother presented as very aggressive, uncooperative, berating of services and professionals, not willing to accept that past issues impact on her current responses to the baby. 

33. I am very conscious in this case that this report was done at the time that this child was only a year old.

    On 28 May, this reporter said that there was a possible diagnosis of antisocial personality disorder. 

1. The person who wrote that may not very well have been in a position to make that sort of diagnosis, but there were certainly indications of problems.  In June of 2001, at a home visit, the reporter referred to the fact that the mother said that at times she felt like strangling the child, but she went on to say that the mother's overall perception was that things had improved.

2. It must also be remembered at that time that the mother was only 20 years old and had a very young baby and was separated from the father, but it was quite clear that there were all sorts of physical and psychological problems that required the department to intervene.  Probably the most significant thing in that report is on page 9 of the report where the reporter, who was described as a protective worker, said:

   [The mother] minimises the protective concerns for [the child].  She fails to accept responsibility for any issues relating to the medical wellbeing of [the child] and sees herself as being the victim of other people's abuse of her, including [the child].

3. There is a certain ring of reality about all that happening again.  For that reason, I am taking the view that I have to take a cautious approach and accordingly need to look at the protective issue very carefully.

4. For me in this case there are five issues.  The first is that this child has got some difficulties and that seems to be common ground; the second is the report that I have just referred to and my comment that I think history may very well be repeating itself and I hope that I am wrong.  The third is that there was some sort of agreement, if that is not putting it at its lowest, that the child was to go to the father in Term 3.  The mother's affidavit in respect of that issue is unsatisfactory but I accept that she does not concede that any deal was done on the subject.  It is quite clear, however, that it was certainly something that was being contemplated and that is consistent with the issue in number 1, which is the difficulty of this child.

5. The fourth issue really relates to the fact that there is a dispute about whether the child was struck or kicked by the mother in the incident which was witnessed or whether the child was tapped.  I do not know what exactly happened and no doubt it will be the subject of cross‑examination in a trial, but it seems to me that that issue highlights the need for me to be cautious about just how this child needs to be protected. 

6. The fifth incident is the one that I have referred to in relation to the child being handed over to the paternal grandmother.  I am very uncomfortable about that incident, not because of any physical issue but because of the psychological consequences for the child of what occurred.

7. When the Court deals with a parenting order, the law now requires the Court to start with the presumption that the parents have equal shared parental responsibility.  There are a number of exceptions to that rule or rebuttals.  My view is that the presumption has to be addressed even on an interim basis.  But leaving that issue aside, I see that in this case, there are allegations of violence, not only in respect of the parties towards each other and allegations of drug usage, but also allegations of physical violence towards the child.  I am not able to make any finding about those, such that I could rebut the presumption. 

8. However, the presumption is rebutted if I was satisfied that it would not be in the best interests of the child to apply the presumption.  In a case where the parties are now at loggerheads and particularly, and perhaps sadly, the mother is saying that, having regard to the fact that she sought assistance from the father and “got whacked”, it seems to me that it would be inappropriate for me to have an order that the parties have equal shared parental responsibility.  They already have that under the existing orders, but in my view, it seems appropriate for me not to apply the presumption here.  But even if I am wrong about that, then I also have the provision in s 61DA where I do not have to apply the presumption in an interim hearing if I am not satisfied that there is sufficient evidence upon which I could make findings.  That would certainly apply in this case.

9. Ultimately, therefore, I have to make the decision based upon what I think, at the moment on an interim basis, is in the best interests of this child.  To do that, I am obliged to look at each of the factors set out in s 60CC.  Parliament has divided s 60CC into a number of subsections, but primarily into two parts.  The first is the primary considerations in sub-s (2).  There are two of those; the first is that the child is to have the benefit of a meaningful relationship with both parents.  The orders that I propose to make, even on an interim basis, will certainly ensure that that occurs.  The second, and I think this is the more important in this case, is the need to protect the child from physical or psychological harm, from being subjected to or exposed to abuse, neglect or family violence.

10. As I have already indicated, I have serious concerns about what has been going on in the mother's household here and that needs to be tested, but certainly both from a physical and psychological harm point of view, I need to protect the child at the moment. 

11. Having said that, however, as you will hear in a moment the orders that I propose to make, I do not propose to go so far as to have the orders supervised.  I do certainly propose to have them monitored, but I do not think that this is a case where physical and psychological harm is such that the child needs to be supervised in the presence of her mother.  However, in the event that anything occurred which suggested that the sort of behaviour I have been reading about and hearing about, is repeated, then I would have little hesitation in either discharging my orders or putting in place something more stringent like proper supervision.

12. Sub-section (3) goes on to refer to the additional considerations, and whilst these are equally important to the primary considerations, I do not think in this case they have quite the same emphasis because I am making the decision for a very short-term period of time.  I am not in a position to take into account anything about the views of the child because the facts themselves are disputed and I am not convinced that I can give any weight to the child's views anyway.

13. The nature of the relationship with the child with each parent is obviously something that is going to be the subject of some dispute.  However, neither party seems to be saying that the father does not have a good relationship with the child.  There is some suggestion that the child at times does not want to go on those visits with her father, but I do not see that as being a significant issue in this case.

14. The third issue is the willingness and ability of each of the parents to facilitate and encourage a close and continuing relationship between the child and the other parent.  I am not sure what the father's position is at the moment about that, but I am going to make orders that will ensure he is going to be somewhat inconvenienced by putting his hand up to take on the role for this child and certainly the period in the future will test his resolve as to whether he is going to foster the relationship between the mother and the child.

15. The next one relates to the likely effect of any changes on the child's circumstances, including the separation from not only the mother but also the siblings.  I do not have any evidence in this case that I could make any determination on, but I am convinced, at least on a short‑term basis, that if there are problems, they will be addressed by further submissions from an independent children's lawyer and hopefully by someone with some expertise in social science.

16. The next issue relates to the practical difficulty and expense of a child spending time with the other parent.  I do not see that as an issue in this case.  Both parties have been doing some travelling between the two towns for a number of years now and that will continue.

17. The capacity of each of the parents to provide for the needs of the child, including emotional and intellectual needs, really worries me.  I do not know enough about the father's capacity to care for this child on a full‑time basis and neither his affidavit, nor that of his new partner, really goes into the detail about which they will put effort into the care of this child for the future.  That will be a significant issue for any trial judge in this case.  It needs to be addressed in some depth.  However, I have the assurance that with the father's new partner having a very young child, she will have a significant role in that little girl's life and as a result, will become a significant person in the child's life as well.  Whether or not the mother has the capacity to see the difficulties that she faces I suppose depends upon whether, over the ensuing months, if not weeks, she provides some evidence to show that the problems that I have alluded to are either exaggerated or in fact can be controlled.

18. I do not have to consider the questions of maturity, sex and lifestyle, nor the Aboriginality of the child.  I do consider the attitude to the child and the responsibilities of parenthood demonstrated by each of the parents.  This is an interesting issue because each party is critical of the other in terms of their responsibilities.  The mother describes the father as having taken this as some sort of a tactical move and if that is right, then he is to be criticised for it.  She also says, however, that there have been times where he has gone off on his own frolic of activities on weekends when he should have been spending the time with the child.  If that turns out to be right, then he would be criticised by me as a trial judge for that as well.  The role of caring for children is difficult enough without parents fulfilling their own private aspirations at the expense of the child. 

19. I cannot make any decision in relation to the family violence and there are no family violence orders that I have been told about that are relevant in this case.

20. I have also been obliged to look at s 60CC(4) about the capacity of each party to fulfil their obligations and to facilitate the other parent participating in the decisions about the child's life and I have no evidence about any of those issues, so I propose to ignore that as well.

21. In summary, therefore, I am making a very short-term order based upon a need, as I see it, for some immediate protection, but it is not protection that will be all that simple to enforce, and as a result of that, I say that both parties, even until the next hearing date, are going to be under substantial scrutiny.

I certify that the preceding Fifty Four (54) paragraphs are a true copy of the reasons for judgment of the Honourable Justice Cronin

Associate: 

Date:  15 August 2007

IT IS NOTED that this judgment for all publication and reporting purposes be referred to as MIDDLETON & BOYLIN