Milford and Bicksall

[2009] FamCA 888

FAMILY COURT OF AUSTRALIA

MILFORD & BICKSALL [2009] FamCA 888

FAMILY LAW – CHILDREN – interim determination – serious allegations of family violence

Family Law Act 1975 (Cth), ss 60CC(2), 60CC(3), 60CC(4), 60CC(4A), 68L(2)

Goode & Goode [2006] FamCA 1346; (2006) FLC 93-286; (2007) 36 FamLR 422
Cowling & Cowling (1998) FLC 92-801

APPLICANT: Ms Milford

RESPONDENT: Mr Bicksall

FILE NUMBER: HBC 739 of 2009

DATE DELIVERED: 9 September 2009

PLACE DELIVERED: Hobart

PLACE HEARD: Hobart

JUDGMENT OF: Bennett J

HEARING DATE: 8 September 2009

REPRESENTATION

COUNSEL FOR THE APPLICANT: Ms Agh

SOLICITOR FOR THE APPLICANT: Butler McIntyre & Butler

COUNSEL FOR THE RESPONDENT: Ms Van Meer

SOLICITOR FOR THE RESPONDENT: Legal Aid Commission of Tasmania

Orders

IT IS DIRECTED:

1. That all subpoenae to produce documents be issued by not later than 3.00 pm on Thursday 10 September 2009 and be made returnable at 10.00 am 21 September 2009 before the Registrar and the parties should assume that unless a party or a recipient of a subpoena attends and objects to the release of the documents for inspection and photocopying the documents will, subject to the discretion of the learned Registrar, be released.

IT IS ORDERED:

1. That pursuant to section 68L(2) of the Family Law Act 1975 the interests of the child S born … September 2005 be independently represented by a lawyer AND IT IS REQUESTED that the Legal Aid Commission of Tasmania arrange such representation and the independent children’s lawyer be appointed with sufficient urgency for the independent children’s lawyer to liaise with the family consultant, Ms N, and to nominate a psychologist or psychiatrist to assess the parents at the earliest possible date and to provide a report to the Court.

2. That forthwith upon appointment by the said Legal Aid Commission of Tasmania or otherwise the independent children’s lawyer file a Notice of Address for Service.

3. That within 48 hours of notification of such appointment the solicitors for the respective parties provide to the independent children’s lawyer copies of all relevant documents relied upon.

4. That this matter be adjourned to a telephone mention before myself on 24 September 2009 at 12.00 noon when the parties are required to be represented and to attend themselves by telephone and the independent children’s lawyer should also appear.

IT IS REQUESTED:

1. That the independent children’s lawyer forthwith upon appointment and upon familiarising himself/herself with the evidence in the case nominate a psychologist or psychiatrist to assess the parents and, for this purpose, the independent children’s lawyer is at liberty to discuss the matter with Ms N, Family Consultant, as to what she means by the specialist report in relation to “adult issues” referred to in her memorandum to the Court dated 8 September 2009.

IT IS FURTHER ORDERED:

1. That the parents do all acts and things necessary to attend by themselves and, if necessary with the child S, on the psychologist or psychiatrist nominated by the independent children’s lawyer.

2. That before 5.00 pm on Wednesday 9 September 2009 the mother present herself and her child, M, for inspection by a medical practitioner, community health nurse or pharmacist of infestation of headlice and obtain from the person examining both of them a memorandum of the result.

3. That by 5.00 pm on 9 September 2009 the father do all acts and things necessary to submit to either a supervised urine test or a blood test for the detection of use by him of illicit substances including, but not limited to, marijuana.

4. That until there is a determination of what interim parenting orders ought to be made following the appointment of the independent children’s lawyer and the opportunity of all of the parties to inspect documents produced on subpoenae:-

   a)the child S born … September 2005 reside with the father;

   b)the child spend time with the mother:-

   i)from 10.00 am to 4.00 pm on Wednesday, Friday and Saturday;

   ii)from 4.00 pm on Monday to 4.00 pm on Tuesday; and

   iii)as may otherwise be agreed between the parties from time to time and confirmed in writing.

5. That the changeover point for the purpose of the mother spending time with S be at F Service Station at F, outside the service station and under cover.

6. That the mother communicate with the child on Thursdays and Sundays between the hours of 10.00 am and 12.00 noon by telephone, at which time the mother is to place a call to either … or, if there is no answer, to ….

7. That for the purpose of facilitating the communication by telephone the father is to do all acts and things necessary to ensure that S is available to receive the mother’s call and that either the landline or, if he is not at home, his mobile telephone are kept free, charged and available to receive calls.

8. That the mother attend with the child each Tuesday at the P Playgroup unless the playgroup is not convening on any Tuesday.

9. That the father provide the results of the pathology testing for drugs and the mother provide the memorandum in relation to the head lice inspection to the independent children’s lawyer as soon as practicable.

10. That within 7 days the mother attend upon an appropriately qualified medical practitioner for assessment of her health generally, but in particular her Hepatitis C condition and her liver functioning, and as soon as practicable provide to the independent  children’s lawyer a copy of the report of the doctor.

11. That where these orders provide for the parties to deliver reports to the independent children’s lawyer the independent children’s lawyer is requested to send a copy of the reports received by him or her to the other party.

12. That my reasons for decision be transcribed and, when transcribed, a copy be provided to the parties, including the independent children’s lawyer, and to Ms N, Family Consultant.

13. That pursuant to Sections 65DA(2) and 62B the particulars and 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 those particulars are included in these orders.

AND THE COURT NOTES that  it is expected that the representatives of the parties will have inspected all documents produced on subpoena and be in a position to address what is appropriate for further conduct of the matter at the telephone mention on 24 September 2009.

AND IT IS FURTHER NOTED that, pursuant to s61C of the Family Law Act 1975, each parent has parental responsibility for S and, as such, the father does not require any permission or consent to have the child assessed or tested for Hepatitis C which he proposes to do on Thursday 10 September 2009.

IT IS NOTED that publication of this judgment under the pseudonym Milford & Bicksall is approved pursuant to s 121(9)(g) of the Family Law Act 1975 (Cth)

FAMILY COURT OF AUSTRALIA AT HOBART

FILE NUMBER: HBC 739 of 2009

MS MILFORD

Applicant

And

MR BICKSALL

Respondent

REASONS FOR JUDGMENT

ex tempore

Introduction

1. These proceedings concern the child S, born in September 2005, and which parent she should live with. The current parties are the child’s mother, Ms Milford, aged 38, and the father, Mr Bicksall, aged 34. I have made an order that an independent children’s lawyer be appointed pursuant to s 68L(2) of the Family Law Act 1975 (Cth) to represent the child’s best interests.

2. The parents commenced a relationship in 2003 and separated on 15 August 2009.  S is the only child of their relationship. Neither parent has re-partnered.

3. Since a violent incident on 15 August 2009 the father has resided with the child at the home of his mother, the paternal grandmother, at her residence in O, which is approximately 20 minutes drive from the mother’s home.  The former family home, where the mother currently resides, is in P.

4. The mother has three other children:

   a)G, who is over 18 and is currently residing in Canberra where she has started a family of her own;

   b)K, who is 15 years of age and is visiting G in Canberra; and,

   c)M who is 12 years of age and is residing with the mother. 

5. M is a child who the mother says displays some anti-social behaviour.  She links this directly to the presence of the father.  By arrangement with O Primary School where M is in Grade 7 he attends only three days per week by agreement between the mother and the school.  I was informed from the bar table that he may return to full time attendance next term or next year.

6. The father is not employed.  He sees a Dr L, psychiatrist, once every six weeks and his general practitioner is Dr T.  Dr T has previously diagnosed the father with bipolar disorder for which he was for some time medicated.  The father now describes himself as having been off medication until recently when he was prescribed sleeping tablets in the short term.  The father describes himself as having lost a lot of weight and when he attended court his appearance was of a man of slim build.

7. The mother has been diagnosed with Hepatitis C.  She describes that as causing her “no ill effects” at this stage.  She says that she continues to see a psychologist in relation to past domestic violence from her former husband.  It was agreed in the course of the hearing that the mother would present medical evidence in relation to the management of her Hepatitis C condition and her liver functioning.

8. S is considered by the parties to be a healthy little girl.  Neither parent indicated that she was not meeting her developmental milestones.  The father says she has been unsettled, but relates it to violent incidents which occurred in the home prior to separation.  S attends P Playgroup every Tuesday with the mother, and the mother deposes to having enrolled S in Kindergarten for 2010.

The current proceedings

1. The matter comes before the court on the mother’s application initiating proceedings which was filed on 21 August 2009.  The father filed a response on 3 September 2009.

2. The mother relied upon her affidavits sworn 19 August 2009 and 7 September 2009.  The father relied upon a much lengthier affidavit which was sworn on 2 September 2009.  In addition, the father relied upon some oral evidence which I sought be given by the paternal grandmother.  The court heard submissions from the parties’ legal representatives.

3. The matter was initially before Baker FM on 7 September 2009 when her Honour referred it for counselling intervention.

4. The parties were seen by family consultant, Ms N, at 9 am on 8 December 2009.  Ms N’s memorandum to the court indicates that the only matter that the parties could agree upon was that the child needed some counselling involvement.  The parents were seen separately, but not together and it does not appear that the child was seen.  In summary, the memorandum states that this was a matter in which there was significant allegations of family violence;  the parties should be referred to an external agency for assistance;  further dispute resolution was unlikely to assist;  the court would benefit from information obtained from independent sources (that is, subpoenaed information);  a specialist report ought to be prepared in relation to ‘adult issues’ prior to consideration of a family report;  an independent children’s lawyer was strongly recommended. I will rely on the independent children’s lawyer to contact Ms N in order to clarify what she means by ‘adult issues’, and be, to the extent that the independent children’s lawyer considers it appropriate, guided by what Ms N has to say.

Independent evidence

1. The mother’s application was served on the father on 26 August 2009.  I was informed that the father had attended on Legal Aid by 28 August 2009 to obtain legal advice.  His affidavit in response, which is much longer and in more detail than that of the mother, was affirmed on 2 September 2009.  Six days before the matter came before me the father had described in his affidavit and in his response what subpoena he wished to have issued prior to the matter being dealt with.  However, no subpoena was sought to be issued, they have not been prepared, and there is no explanation as to why that is the case.  I am concerned that the proceedings not be unduly delayed and that one party does not obtain an advantage by that delay.

2. It has been agreed that a suite of subpoenae should issue as soon as practicable.  Reflecting resource difficulties, the representative for the father has asked until the afternoon of 10 September 2009 to have all subpoenae issued.  They will be returnable on 21 September 2009.  The parties are on notice that unless there is specific objection to anything being released, the documents will be released for inspection and photocopying, subject to the discretion of the learned Registrar.

3. It seems to me that it will take some little time for an independent children’s lawyer to be appointed and to familiarise himself or herself with the matter.  The appointment of an independent children’s lawyer is urgent, given that the facts presented to the court by both parties are difficult to reconcile without independent evidence and ideally evidence compiled by or from persons who do not have an interest in the proceedings. 

The parties’ proposals

1. On an interim basis, the mother sought a recovery order and to proceed ex parte, in the event that she was unable to serve the father with material.  Before me, the mother’s proposal was that the child return to her care immediately and see the father three or four days a week, between the hours of 10 am and 4 pm.  Changeovers would take place outside the F Service Station at F.

2. The mother sought final orders that S live with her and that the father spend such time with the child as may be agreed between the parties or failing agreement as specified by the court. 

3. The father sought interim orders for an adjournment of any interim disposition of the parenting issues whilst he has leave to issue subpoena to Tasmanian Police, to the police in the Australian Capital Territory, to a school attended by M and to child protection authorities in Tasmania and the Australian Capital Territory. He also sought on an interim basis that he have sole parental responsibility for S and that the child live with him and the mother spend time with her at the Hobart Children’s Contact Centre, at days and times to be agreed between the parents and the centre. The father sought final orders that the parents have equal shared parental responsibility; that S live with him; and that she spend time with the mother as agreed or as ordered by the court.

4. The father had not made any application to the Hobart Contact Centre.  During the course of the day the father’s representative telephoned the centre and ascertained that there was going to be a delay before the family could be accepted.  In particular, there were six other families ahead of them on a waiting list.  Later in the day, the father proposed that the mother spend time with S supervised by the paternal grandmother or the paternal grandfather.  The paternal grandfather did not provide any evidence, nor did he attend court.

5. The paternal grandmother is available to supervise the mother with S at her home on Mondays, Fridays and Sundays between the hours of 10 am and 4 pm.  There would be no difficulty in that continuing for a period of two weeks.  Otherwise, the paternal grandfather could supervise time seven days a week between 10 am and 4 pm at his home at O.  I was informed by the practitioner for the father that the mother and the paternal grandfather have a good relationship.  My observation of the mother’s reaction to the proposal was that this was not necessarily conceded.

6. The father’s fallback position in the event that he did not retain the primary care of S was that he see S each day between 10 am and 4 pm, with the changeover occurring at F Service Station.  The father does not drive a motor vehicle, he is relying on his brother, the paternal grandmother or someone else to provide transport.

Relevant facts

1. The children from the mother’s former relationship frequently have been, or were, members of the household of the mother and the father.  At the time of separation M was living in the former family home.  It is common ground that there had been disharmony in the parties’ relationship.  The mother and father were occupying separate bedrooms.

2. A violent incident on 15 August 2009 precipitated the parties’ separation and the father leaving the family home and later taking S to live at the home of the paternal grandmother.  It is agreed the incident arose because the father, and he says S, took exception to the manner in which the mother was restraining S whilst brushing her hair. 

3. On the mother’s part, she said the incident descended into her telling the father that:

   I had had enough of him abusing me and telling me that everything I did was wrong and I told him to get out and I started throwing his things out of the house.  He then hit me across the face so hard that it knocked my head sideways and twisted my reading glasses around.  I then started to phone the police and [the father] started to chase me around the house trying to hit me.  I ended up in the pantry and there was a knife there.  [The father] was grabbing me by the arm and trying to pull me out of the pantry, and I had bruises on my arms and hand where I had fought him off.  I grabbed the knife, slashed it and he let me go.  The police arrived.  The police did not charge him because of his mental health issues and because I had slashed him with a knife.

4. The father's version of the incident differs from that of the mother, in terms of provocation.  He deposes:

   Eventually the applicant grabbed [S] and held her on her lap and started raking through her hair with a brush.  I was going in and out of my room.  I could hear [S] making some noise of distress and went out.  I looked over [S] was really in distress, I realised she had been held for more than half a minute.  I freed [S] from her arms.  I was saying, “That’s not how you hold her, you might have done that to the boys, but you can’t do it to her, she’s too young.”  I was heading out the door, then she jumped up and went for the drawer saying, “Give me my baby.”  I backed towards the door.  I knew that she was going to grab a knife because she has done it before.  The applicant opened the drawer and pulled a knife out.  It was a big one, the biggest one we have in the drawer.  She held it up towards me again saying, “Give me my baby.”  I would not hand [S] over.  The applicant started stabbing me, striking me in my stomach and I ended up with a slight mark when she punctured my wrist (police noted the bleeding, but I did not want to tell them it was the applicant, I was more concerned about [S].”  I could dodge the rest of the strikes.  [S] was under one arm, I was holding my body between her and the knife.  I got out the door and it slammed.  I started to call 000.  I opened the door to tell the applicant that I was ringing them and so that she would have to calm down.  She went completely crazy, lost it, was hurling plates and knives and cups and the like at the door.  I was still holding [S] who was petrified.

5. The police attended.  The father left the former family home with S remaining in the care of the mother.  It is common ground that some hours later the father, his mother, his two brothers and the 16 year old friend of his youngest brother attended the family home and forcibly, or with the apprehension of force, removed the child from the mother.  It is agreed that during this later incident the mother again brandished an axe, in particular, ‘a block buster, a heavy axe for splitting wood.’  The father alleges that she did so upon seeing them, the mother alleges that she did so once her front door had been kicked in by the father and those who accompanied him. 

1. Since 15 August 2009, S has been in the care of the father at the home of the paternal grandmother.

2. The paternal grandmother resides in a four bedroom property which is divided into two houses.  She occupies one half of the property; the other half of the property is occupied by an elderly gentleman, V, who she cares for.  He receives palliative nursing care regularly from persons other than the paternal grandmother.

3. On the half of the dwelling that the paternal grandmother occupies there are two bedrooms, a lounge room and a kitchen.  There is the same make up of rooms on V’s side.  The two households share the one bedroom which has an indoor lavatory and there is an outdoor lavatory as well.  The paternal grandmother occupies one bedroom and her son R, who is 16 years of age, occupies the other bedroom.  R is in year 10 at the same school attended by M.  The paternal grandmother describes R as having learning difficulties, in that he cannot read or write and that his attendance at school is only adequate.

4. The father has been sleeping on an air mattress which the paternal grandmother has placed in the lounge room and S is sleeping on a large settee in the lounge room.  The paternal grandmother has another child, J, who is currently staying with her former husband (the paternal grandfather) at O. 

Legal Principles

1. The court must apply Part VII of the Family Law Act 1975, as amended in July 2006 by the Family Law Amendment (Shared Parental responsibility) Act 2006, following the legislative pathway as set out by the Full court in Goode & Goode[1], a decision of Bryant CJ, Finn and Boland JJ, delivered on 15 December 2006. 

   [1] [2006] FamCA 1346; (2006) FLC 93-286; (2007) 36 FamLR 422

2. Before setting out the steps in an interim hearing, the Full Court in Goodes’ case acknowledged some comments of a previous Full court in Cowling’s case (1998) FLC 92-801, as apposite. It acknowledged that the procedure for making interim parenting orders will be an abridged process where the scope of the enquiry is “significantly curtailed” compared to the ultimate hearing. It said (at paragraph 68):-

   …..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.

3. In observing that there are passages in Cowling that do not sit comfortably with the Act as amended, and must be re-considered in the light of changes to the Act, the Full Court then noted (at paragraph 72) that:-

   …..it can fairly be 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 practical.

4. As to status quo, it continued:-

   …..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 acre arrangements for the child.

5. The Full Court the said (at paragraph 73):-

   That is not to say that stability derived from a well-settled arrangement may not ultimately be what the court finds to be in the child’s best interests, particularly where there is no ability to test controversial evidence, but that decision would be arrived at after a consideration of the matters contained in s 60CC, particularly s 60CC(3)(d) and s 60CC(3)(m) and, if appropriate, s 60CC(4) and s 60CC(4A).

6. I note that I do not regard the period which S has spent with the father since 15 August 2009 as constituting a status quo.

Issues in dispute in the interim hearing

1. The issues in dispute involve where S should primarily live and how frequently she should see the other parent over the next two to three weeks.  It is conceded that since 15 August 2009 S has had no contact or communication from the mother. 

2. The parties conceded that during their relationship each of them contributed to the daily care of S and played a significant role in her welfare.  Each describes the other as a good parent, however on the father’s part he has grave reservations about the mother’s ability to protect S from her other children, in particular, M.

3. The family violence in this household is at an extreme and totally unacceptable level.  I refer to the mother wielding a knife twice in one day – first, a large kitchen knife and then an axe – so close to the father that on one occasion he had broken skin.  There is an allegation by the mother that the father hit her to the head with such force that it dislodged her glasses.  There is a concession that without notice, and in a way that could only have been terrifying and intimidating for all those at the mother’s home, the father attended to collect S some hours after the original assault.  He did not enlist the assistance of the police, who he had seen earlier in the day.  There was no attempt to amicably resolve anything.  There was no apparent attempt to find out when the mother was proposing he could spend time with S.  He attended with his mother, his two brothers and the 16 year old friend of his youngest brother.  One wonders what the father and the grandmother were thinking with respect to the care of two minors, and what impact would flow to those children from their involvement in the conflict.

A consideration of the section 60CC matters that are relevant

Primary considerations

1. I must consider the s 60CC matters that are relevant to S’s best interest and, if possible, make findings about them.  In urgent interim proceedings such as these, there may be little uncontested evidence to enable more than a limited consideration of the matters to take place. 

2. The first primary consideration, pursuant to s 60CC(2)(a), is the benefit to S of having a meaningful relationship with both of her parents. At this urgent hearing it was not suggested that it was not of benefit to S to have a meaningful and ongoing relationship with each of the parents.  The difficulty is how that can be implemented, having regard to the other matters that I need to take into account.

3. The second primary consideration, as set out in s 60CC(2)(b), is the need to protect S from physical or psychological harm and from being subjected to or exposed to abuse, neglect or family violence.  There is no doubt that this four year old child has been involved and exposed to more family violence, on 15 August 2009, than she should ever experience.

4. The mother’s case it is that whilst she and the father do not live together, S will not be exposed to any family violence or inappropriate behaviour in her household. The father’s case is that the mother’s other children, and in particular, M, represent a danger to S, whether he is present in the house or not. 

Additional considerations

Section 60CC(3)(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.

1. Section 60CC(3)(a) provides that the court ought to have regard to any views expressed by S, and any factors such as her maturity or level of understanding that I consider relevant to the weight that I should attribute to her views.

2. S is only four years old.  In my view that is too young to express views which are in any way determinative.  In addition, S has now been in the care of the father for 24 consecutive days without any communication or contact with her mother.  That is a highly artificial and, on my assessment, undesirable situation and one which would lead me to place great caution on assessing S’s views with regard to how she will react to the mother in the first few periods of time that she has with the mother.

3. For the mother’s part her demeanour in court leads me to conclude that she is likely to be very considerate and doting on S when S is returned to her care for the period set out in the orders that I have made. 

Section 60CC(3)(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 relative of the child.

1. I have regard to the nature of S’s relationship with each of the parents and any other persons, including grandparents or relatives. 

2. It is common ground that both parties were the primary caregivers for S during their relationship.  It appears that neither worked outside the home.  I consider that is indicative of S being closely bonded to both her mother and her father. 

3. I have regard to S’s relationship with her siblings who are the children of the mother from her earlier relationship.  S has lived all her life thus far in a household which has intermittently included M and his older brother.  I have regard to the fact that separation from the mother has also meant a separation of S from M.  On the father’s case that is a positive outcome.  He claims that M is violent to and abusive of S.  The mother denies that this is the case.

4. I expect that S also has a close and meaningful relationship with the paternal grandmother.  The paternal grandmother is the only person who gave evidence and was cross-examined during the interim hearing.  She impressed me as a direct witness.  She gave evidence about having permitted the mother’s children to reside in her home from time to time when life has been difficult for them in the mother’s home, or for various reasons they felt that they did not want to reside with the mother and the father.  The paternal grandmother stated that K, the mother’s eldest son, had been living with her for the last three months up until June.  During this time, he slept on an air mattress in the lounge room.  Up until recently M had spent a week in her care, also sleeping on an air mattress in the lounge room.  She deposed to owning four air mattresses, although they were not all at use at any one point.  I am left with the picture of a woman who runs a household into which young children have been welcomed from time to time, and I think that she would be a considerate grandmother to S.

Section 60CC(3)(c) the willingness and ability of each of the child’s parents to facilitate, and encourage, a close and continuing relationship between the child and the other parent

1. I take into account pursuant to section 60CC (3)(c) 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. 

2. The mother’s evidence refers to the father as being a good father who acted inadvisably and inappropriately on the day the parties separated on 15 August 2009. 

3. It is a concern to me that since 15 August 2009 the father has not done anything to allow S to spend time or communicate with the mother.  It is more than apparent from the mother’s material that she wanted to spend time with S.  The father agreed that he told the mother he would consider it once he had received advice.  It is clear from what I was told from the bar table that he received advice on 28 August 2008; however, the mother was not accorded any time or communication with S.  The father stated in court, which was relayed to me by his representative, that he was waiting until he received advice specifically on whether it was alright to allow the mother to talk on the telephone to S.

4. I accept that the father was genuine in his position that he did not know what to do without being told or advised.  That is a position which reflects poorly on his parenting capacity and his ability to permit S to have a relationship with the mother.  I do not accept that after 24 days the father could not have made a decision as a father, rather than as a litigant, as to whether or not a little girl should be able to speak to the mother.

5. I am concerned about the father’s levels of functioning and, in particular, his ability to minimise the effect of the trauma on S.  I am concerned that as long as S remains primarily in his care there is an opportunity for him to consciously or unconsciously impart to S anxieties in relation to the mother, which are really his own anxieties and not those of S.  I also suspect that the father, in crafting his affidavit in support of his response, may have exaggerated the bad aspects of the mother’s behaviour and minimised his own implication in the household which was clearly dysfunctional.

6. The immediate consequence of the dynamics that I have described is that I have little confidence in the ability or willingness of the father, and those who support him, to foster a close and continuing relationship between S and the mother.  It is for that reason that I have put in place an extensive regime of time to be spent with the mother in as normal circumstances as I could order them, without having had the benefit of the independent evidence that will be produced and available later this month.

Section 60CC(3)(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;

ii) or any other child, or other person (including any grandparent or other relative of the child), with whom he or she has been living.

1. I take into account the likely effect of any changes in the child’s circumstances, including the effect of separation from either of her parents or any other child or person, including grandparents or other relatives with whom she has been living. 

2. As I have mentioned, it is inappropriate that S has been completely cut off from any communication or time with the mother.  The orders that I make will address that to the greatest degree that it is safe to do so at this stage, without the benefit of independent evidence.

3. I have regard to the fact that for as long as S is not living with the mother, she is also not living with her brother, M. 

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

1. I have regard to the practical difficulty and expense of S spending time and communicating with a parent. 

2. This consideration is directed, in my view, to distances between parents which are further in a geographical sense than the 15 or 20 minute drive between the parties’ current residences.  However, this matter presents other practical difficulties.  The father’s case was that there should be supervised time.  However, the father had not bothered to make an application, nor even make an inquiry in relation to a contact centre and its availability. It was very late in the day and at the last possible point of the proceedings before the father could formulate a proposal whereby S could see her mother regularly. 

3. The father does not have a car or a driver’s licence.  He has been unlicensed for the past five years and he has not driven in this time.  He referred repeatedly to some need to write a “please explain” letter to recover his licence.  He previously had a Western Australian licence, but it seems to have been taken away from him as a result of a diagnosis of mental illness.  The father uses a mobile telephone, but it is not charged and so he cannot make calls on it to anyone else. 

4. The mother does have a car.  She is willing to drive, but only wanted to drive halfway between their respective residences. 

5. In brief, this is not a matter which presents insurmountable difficulties to the working of time spent orders to S’s benefit.  But it is a matter where the parties’ ability to function cooperatively may well generate some difficulties in any spend time regime.  These difficulties will have to be dealt with when they are encountered.

Section 60CC(3)(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

1. I take into account the capacity of each of the parents and of any other person, including grandparents or other relatives, to provide for the needs, including emotional and intellectual needs, of S. 

2. The parties, in my necessarily limited assessment, are in different ways challenged by life.  The father presents as someone for whom there are many reasons why he is unable to do things.  He cannot call because his phone is not charged.  He cannot drive because he has no licence.  He cannot permit his daughter to speak to her mother because he has not received or sought advice about whether that would be a good idea.  My impression of the father is that he is somewhat paralysed in his ability to function effectively for the benefit of S.  He has her in his care at the moment and it seems he wants to maintain her with as little change as possible.  Clearly that is not going to be feasible.

3. There will be an opportunity for the parties to have produced on subpoena records from the father’s treating doctor and from his psychiatrist, and any other relevant authorities; this is likewise for the mother.

4. The mother’s evidence, contained in paragraph 8 of her affidavit sworn 19 August 2009, is that the father is ‘a very good parent and takes good care of [S].’  However, she holds grave concerns in relation to the circumstances surrounding the child’s removal from the mother’s home.

5. The mother has raised four children, of whom S is the youngest by some eight years.  The father alleges that the mother’s older children have previously been removed from her care by protective services in the appropriate jurisdictions.  The mother says that is an overstatement and that they were put into respite care for only a brief time.  The mother refers to having been in a violent relationship with the father of her older children.  The father concedes that it was a relationship of high domestic violence. 

6. There is a slight indication to me that the mother has obtained some insight into aspects of her parenting capacity since 15 August 2009.  The mother continues to see a psychologist.  The mother should advise the independent children’s lawyer of the name and address of that psychologist. 

7. The father makes allegations about the state of the mother’s house and her ability to keep it clean.  He seems to minimise the fact that he was in that house until 15 August 2009. The mother, on her part, says that the paternal grandmother is obsessive about cleanliness and would complain about anything. 

8. The mother was critical of the care arrangements for S with the father.  An early and forceful submission was directed to the crowded and inappropriate sleeping arrangements whereby S is sleeping on a couch in the lounge room and the father is sleeping next to the couch on an airbed.  Taken in isolation those arrangements are not appropriate for the long term.  However, in the short term I am not convinced that cramped, even slightly haphazard sleeping arrangements are going to work to S’s detriment if she is in a loving, happy and peaceful environment. 

9. The paternal grandmother gave evidence of periods during which the mother’s older children had lived with her and, similarly, slept on an air mattress in the lounge room.  Her evidence, in this respect, was not challenged in cross-examination.  I therefore place little weight on the mother’s criticism of the current sleeping arrangements.  I do not want S to be sleeping on the couch indefinitely, but I do not think it will harm her to do so in the short term.

1. A further criticism of the living arrangements in the home of the paternal grandmother made by the mother was that there is an elderly, infirm, if not dying, man (V) sharing the residence.  V is confined to a wheelchair.  I did not obtain the impression, and nor was the impression elicited in cross-examination of the paternal grandmother by the solicitor for the mother, that V is particularly mobile or has easy access to the paternal grandmother’s part of the house.  It may be unsettling for S to see someone in a wheelchair, but that is an aspect of growing up and an aspect of our society which I do not see it is appropriate to shield her from, and is not a protective concern in my view.

2. The father is concerned about the status of the mother’s Hepatitis C condition.  He refers in his affidavit evidence to the mother and S bathing together and when the mother has had ‘open sores.’  Clearly, this was a period during which the father was a member of the household.  It was discussed at the hearing that the father and paternal grandfather intend to take S to a medical practitioner this week and, if necessary, for pathology testing including the taking of blood samples to ascertain the current state of her health. 

3. I make an order that mother be required to attend upon her treating medical professionals and in due course obtain a report, which should be forthcoming prior to 21 September 2009.

4. The father also complains at length about the incidence of head lice in the mother’s household and says that the mother is prepared to treat herself, but is unable to treat M in any way as he is not co-operative.  Head lice, in my view, is not a major concern in this case, although it is something that should be avoided if possible.  There was no issue about the mother and M attending someone for an assessment and inspection to see whether they have head lice, and doing so in the short term.  I make an order to that effect.  That order is also directed at providing some indication of the extent to which M will co-operate with the mother. 

Section 60CC(3)(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

Section 60CC(3)(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.

1. I have regard to the maturity, gender, lifestyle and background, including culture and traditions of S and both of the parents.  This is a minor consideration at this point in the urgent proceedings.

2. The father has semaphored the fact that the mother may be of Indigenous descent.  It is not a matter that the mother has given evidence about.  The father deposes at paragraph 72 of his affidavit, sworn on 2 September 2009 that:

   The applicant told me she is of Aboriginal and possibly Maori descent, but to my knowledge is not particularly active in cultural activities or the community.  I propose that the applicant engage with [S] in activities during the time that [S] is with her, if she chooses to do so.  I am happy to encourage [S] to participate in school-based activities and the like as she grows older and may take an interest herself.

3. These are matters for a final hearing. 

Section 60CC(3)(i) the attitude to the child, and to the responsibilities of parenthood, demonstrated by each of the child’s parents

1. I take into account the attitude to S and the responsibilities of parenthood demonstrated by each of her parents. 

2. It is clear that each of the parents love S.  I accept that each of them would consider that they act as responsibly towards S and her parenting as they can, but as I have already mentioned, I regard both of them as being somewhat challenged in their day to day functioning. 

3. The orders which I make are clearly not sustainable in the long term.  However, in the short term they attempt to redress an imbalance which has occurred due to the father not permitting S to see or even communicate with her mother for the last three and a half weeks.  If the evidence indicates that it is appropriate, I would not be surprised if the parties agreed to a shared care arrangement.  I am far from satisfied that shared care will provide a stable existence for S.  It may meet the needs of the parents, but I doubt that it will meet the child’s needs.

4. Whilst the orders that I make today are not sustainable in the long term, I was concerned to structure a parenting regime for the next two or three weeks which gets for S the best that each parent has to offer.

Section 60CC(3)(j) any family violence involving the child or a member of the child’s family

1. I have regard, pursuant to s 60CC(3)(j) and to the primary considerations, to any family violence involving S and any member of her family. 

2. I have already dealt with the deplorable level of family violence surrounding the incidents on 15 August 2009. 

3. The father also complains of behaviour by M, which if true, is highly inappropriate and abusive of S.  The concerns are deposed to by him in paragraphs 35 to 45 of his affidavit, in which he gives instances of M bullying and acting aggressively towards S, for example, swearing and yelling at her and breaking her toys, and behaving violently in the home towards the father, the mother and S. The father’s evidence is that the police have been called to the home as a consequence of M’s behaviour, and that he has been suspended from school on numerous occasions for ‘intimidating the other children, foul language and not following rules.’

4. It is likely that M will need to be involved in any assessment by a social scientist or a psychologist at the family report level.  In the meantime the independent children’s lawyer should seek from the mother an authority to make inquiries of the various agencies with which M is involved, which may also include his school.

5. The father also makes allegations about various intrusions into the home by strangers or aggressors.  Paragraphs 46 to 50 of his affidavit refer to an invasion of the family home early in 2009, and a violent incident involving K several months later. 

6. I note that the matters deposed to by the father would necessarily have occurred whilst he was a member of the household.  It seems that the police may well have been called on some of these instances and a subpoena to Tasmania Police will shed further light on events.

Parental Responsibility

1. This is obviously a matter which involves domestic violence, a high degree of dysfunction and conflict between the parents.  The matter will be the subject of an interim determination when there is more evidence to hand and S’s interests are appropriately represented by an independent children’s lawyer. 

2. In the meantime I am not urged to, nor will I, alter the statutory position for parental responsibility.  Over the next two to three weeks, it does not seem to me that there is any need to attribute parental responsibility to one parent rather than the other.  I therefore make no orders in that regard. 

Conclusion

1. As I have said earlier, the parenting regime which I impose for the next two or three weeks is not sustainable in the long term.  However, I trust that pending the receipt by the court of an independent children’s lawyer and the practitioners for the parties of independent evidence, it is my view that the orders which I make are in S’s best interests.

2. The matter will come before me for a telephone mention on 24 September 2009.  At that stage the court would be very much assisted by submissions from the independent children’s lawyer as to what further assessments or documents are necessary before there can be an interim determination of parenting matters. 

I certify that the preceding ninety-four (94) paragraphs are a true copy of the reasons for judgment of the Honourable Justice Bennett

Associate: 

Date:  16 September 2009