MILLIGAN & THURGOOD

[2016] FCCA 2806

FEDERAL CIRCUIT COURT OF AUSTRALIA

MILLIGAN & THURGOOD [2016] FCCA 2806

Catchwords:
FAMILY LAW – Interim Parenting – 2 young children – best interests – risk of harm – mother diagnosed with mental health issues – children separated for approximately two months – children to live with father – children to spend time with mother.

Legislation:

Family Law Act 1975, ss.4AB, 13C, 60B, 60CA, 60CC, 61DA, 65DAA, 68B

Cases cited:

Goode v Goode (2007) 36FamLR 422

Keats & Keats [2016] FamCAFC 156
Mazorski & Albright [2007] FamCA 520
Salah & Salah [2016] FamCAFC 100

Slater & Light [2011] FamCAFC 1

SS v AH [2010] FamCAFC 13

Applicant: MR MILLIGAN

Respondent: MS THURGOOD

File Number: PAC 4333 of 2016

Judgment of: Judge Obradovic

Hearing date: 24 October 2016

Date of Last Submission: 24 October 2016

Delivered at: Parramatta

Delivered on: 3 November 2016

REPRESENTATION

Counsel for the Applicant: Mr Schroder

Solicitors for the Applicant: Jacqueline Kyle Family Law

Appearing for the Respondent: Ms Orr

Solicitors for the Respondent: Cheryl Orr Family Law

PENDING FURTHER ORDER THE COURT ORDERS:

1. That the parents have equal shared parental responsibility for the children:

   (a)X born on (omitted) 2011; and

   (b)Y born on (omitted) 2012.

2. That the children live with the father.

3. That the children spend time with the mother as follows:

   (a)During the school term, commencing on the first Friday after the making of these orders and each alternate week thereafter from after pre/school or 3.15pm on Friday until 5pm on Sunday;

   (b)During the school term, commencing on the second Tuesday after the making of these orders and each alternate week thereafter from after pre/school or 3.15pm on Tuesday until before pre/school  9am on Thursday;

   (c)For the first half of the school holidays from the conclusion of school on Friday to the middle Saturday of the holidays at 4.30pm in even numbered years; and

   (d)For the second half of the school holiday period, from the middle Saturday of the holidays at 4.30pm until 4.30pm on the day prior to commencement of school, in odd numbered years.

4. For the purpose of order 3, if changeover does not occur at pre/school, the mother shall collect the children from the father’s residence at the commencement of the children’s time with her and the father shall collect the children from the mother’s residence at the conclusion of the children’s time with the mother.

5. That the mother shall continue to attend upon her treating mental health practitioners and shall follow all recommendations of such practitioners with regards to the treatment for her mental health issues.

6. The mother shall provide the father with her residential address, mobile telephone number and email, and the name of any other person who resides at the same address as the mother.  

7. The mother is restrained by injunction from consuming any alcohol while the children are spending time with her or for 12 hours prior to the children spending time with her.

8. Each of the parents is restrained from denigrating any member of the other’s household in the presence or hearing of the children or either of them or permitting or allowing any member of the parent’s household to do so.

9. The mother and father are at liberty to contact the children on days the children are otherwise not in their care between 4 - 5pm. For the purpose of telephone communication, the parties will keep each other informed of their landline telephone number and mobile telephone number.

10. The parents are entitled to attend all events involving the children including sporting fixtures, extra-curricular activities that allow for parental attendance, school functions and events including concerts, assemblies, sport days, parent teacher interviews, canteen duties and social functions.

11. Each parent will keep the other informed of the following at times the children are in their care;

    (a)Any social, school or religious function which the children may attend;

    (b)Any medical illnesses suffered by the children while in their care;

    (c)Any medication that has been prescribed for the children; and

    (d)In the event of medical emergency, including but not limited to serious illness, accident or hospitalisation, the party with the care of the children will immediately contact the other party.

12. Each parent do all acts and things as may be required by the children’s school to authorise such school to provide to both parents, information or documents provided by the school relevant to the children, including correspondence, school reports, school photos, newsletters, notices and the like.

13. The matter is listed for further directions at 11.30am on 13 February 2017.

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

FEDERAL CIRCUIT COURT
OF AUSTRALIA
AT PARRAMATTA

PAC 4333 of 2016

MR MILLIGAN

Applicant

And

MS THURGOOD

Respondent

REASONS FOR JUDGMENT

Introduction

1. These are Reasons for Judgement in respect of an interim parenting application regarding the two children of the parties:

   a)X born on (omitted) 2011; and

   b)Y born on (omitted) 2012.

2. After the parents separated on 27 July 2015, the children have been living with each of their parents – but on what basis exactly is not agreed between the parties.

3. The father relied upon the following documents:

   a)Initiating Application filed 13 September 2016;

   b)Notice of Risk filed 13 September 2016; and

   c)Affidavit of Mr Milligan sworn 9 September 2016 and filed 13 September 2016.

4. The mother relied upon the following documents:

   a)Response filed 24 October 2016;

   b)Notice of Risk filed 24 October 2016 ; and

   c)Affidavit of Ms Thurgood affirmed and filed 24 October 2016.

5. The following documents were tendered in the proceedings:

   a)Exhibit 1 - Letter from (omitted) Pre School dated 23 October 2016;

   b)Exhibit 2 – Email dated 19 September 2016 confirming service of Application;

   c)Exhibit 3 – Tabbed COPS entries from Sleeve 2 of Subpoena material produced by New South Wales Police; and

   d)Exhibit 4 – Childcare Statement of Account for the period 1 May 2014 to 10 October 2016 at (omitted) Kids.

The Law

1. The central enquiry is for the Court to determine the outcome that will be best for the children the subject of these proceedings.

2. Parenting proceedings are governed by the provisions of Part VII of the Family Law Act 1975. Section 60CA provides that in deciding whether to make a particular parenting order, the Court is to regard the best interests of the child as the paramount consideration.

3. Section 60B of the Act outlines the objects and principles underlying Part VII of the Act.

4. In determining what is in a child’s best interests, the Court must consider the matters set out in s.60CC. Section 60CC outlines the primary and additional considerations that the Court is to take into account in determining what is in the best interests of the child.

5. The Act does not mandate the discussion of considerations under s.60CC in any particular order, and it is well recognised that additional considerations may outweigh primary considerations.[1]

   [1] see for example Slater & Light [2011] FamCAFC 1at [45]

6. In applying the primary considerations the Court must give greater weight to the need to protect the child from physical or psychological harm, from being subjected to, or exposed to, abuse, neglect or family violence than to the benefit to the child of having a meaningful relationship with both of the parents.

7. It has been held that a meaningful relationship “is one which is important, significant and valuable to the child.”[2] The focus is not on the relationship as such, but on the benefit the relationship might have for the child.[3]

   [2] Mazorski & Albright[2007] FamCA 520 at [26], cited with approval by the Full Court in

   [3] Ibid at [122]

8. In addition, in considering what order to make, the Court must, to the extent that it is possible to do so consistently with the child’s best interest being the paramount consideration, ensure that the order does not expose a person to an unacceptable risk of family violence:[4] The Court may include[5] in the order any safeguards that it considers necessary for the safety of those affected by the order.

   [4] S.60CG(1)(b); see the brief discussion of s60CG in Salah & Salah [2016] FamCAFC 100 at [35]

   [5] See s60CG(2), such safeguards are for the purposes of sub-paragraph (1)(b)

9. Section 61DA of the Act provides that when making a parenting order, 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. The presumption does not apply where there are reasonable grounds to believe a parent has engaged in abuse of the child or family violence and the presumption may be rebutted if the Court is satisfied that an order for equal shared parental responsibility would not be in the child’s best interests. In interim proceedings, the presumption applies unless the Court considers that it would not be appropriate in the circumstances for the presumption to be applied when making an interim order.[6]

   [6] s61DA(3)

10. In the event that the Court orders the parents to have equal shared parental responsibility, the Court must apply the provisions of section 65DAA which provides for a consideration of the child spending equal time with the parents. If the Court finds that it is not in the child’s best interests and reasonably practicable, then the Court must consider the child spending substantial and significant time with the parents. Section 65DAA is expressed in imperative terms.[7]

    [7] MRR v GR [2010] HCA 4 at [15]

11. The Full Court in Goode v Goode[8] mandated that this legislative approach must be followed in all parenting cases, and in particular set out the procedural steps to be followed on an interim application, noting that in interim proceedings there may be little uncontested evidence to enable more than a limited consideration of these matters to take place.

    [8] (2007) 36 Fam LR 422, (2006) FLC 93-286

12. As stated by the Full Court in Keats & Keats:[9]

    …the principles that emerge from cases such as SS v AH [2010] FamCAFC 13, [are] namely, that apart from relying upon the uncontroversial or agreed facts, a judge may have little alternative than 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.

    [9] [2016] FamCAFC 156 at [9]

Competing proposals

1. The father seeks orders as follows[10]:

   a)That the children live with the father[11];

   b)That the children spend time with the mother each alternate weekend from 3pm on Friday to 5pm on Sunday[12], subject to the mother being compliant with her medication, having stable accommodation and providing the father with her address and contact details; and

   c)That the mother be restrained from consuming alcohol for 48 hours before spending time with the children and while spending time with the children.

   [10] The orders sought by the father at Interim Hearing were different to what was contained in the Initiating Application and were less onerous on the mother

   [11] In his Initiating Application the father sought orders for sole parental responsibility, but ultimately submitted that no order for parental responsibility should be made at this stage of the proceedings

   [12] The father, through his counsel, conceded that an order for the children to spend time with the mother during the ‘off week’ would be an order that is reasonably practical

2. The mother seeks orders as follows:

   a)That the mother and father shall have equal shared parental responsibility of the children, namely X born (omitted) 2011, and Y born (omitted) 2012 (“the children”).

   b)The children shall live with their mother;

   c)That X shall be enrolled in and attend (omitted) Primary School,(omitted).

   d)That X shall be enrolled in and commence attendance at (omitted) Primary School, (omitted) in 2017.

   e)The children shall spend time with their father during each school term as follows:

   i)For 3 weekends per month from 4.30pm on Friday until 4.30pm on Sunday;

   ii)For the purposes of changeover, the father is to collect the children from the maternal grandmother’s home at 4.30pm on Friday afternoon, and the mother shall collect the children from the father’s residence at 4.30pm on Sunday.

   f)The children shall spend half of each NSW gazetted school holiday period in accordance with the children’s school calendar with their father as agreed between the parties and failing agreement as follows:

   i)For the first half of the school holidays from the conclusion of school on Friday to the middle Saturday of the holidays at 4.30pm in even numbered years.

   ii)For the second half of the school holiday period, from the middle Saturday of the holidays at 4.30pm until 4.30pm on the day prior to commencement of school, in odd numbered years.

   iii)For the purpose of changeover, which does not occur at school the parties shall collect and deliver from either parents residence at the commencement and conclusion of time.

   g)The children shall spend days of special significance with the father by agreement between the parties, and failing agreement as follows:

   i)During Easter from 9am Good Friday until 6pm Easter Saturday in even numbered years and from 6pm Easter Saturday until 6pm Easter Monday in odd numbered years;

   ii)During the Christmas period from 11am Christmas Eve until 11am Christmas Day in even numbered years commencing in 2016; and from Christmas Day at 11am until 11am Boxing Day in odd numbered years commencing in 2017.

   iii)Should the children otherwise not be in their father’s care, from 10am to 6pm on Father’s Day.

   h)The children shall spend days of special significance with their mother by agreement between the parties, and failing agreement as follows:

   i)During Easter from 9am Good Friday until 6pm Easter Saturday in odd numbered years and from 6pm Easter Saturday until 6pm Easter Monday in even numbered years;

   ii)During the Christmas period from 11am Christmas Eve until 11am Christmas Day in the odd numbered commencing in the year 2017; and from Christmas Day at 11am until 11am Boxing Day in even numbered years commencing 2016;

   iii)Should the children otherwise not be in their mother’s care, from 10am to 6pm on Mother’s Day.

   i)The mother and father are at liberty to contact the children on days the children are otherwise not in their care between 4 - 5pm. For the purpose of telephone communication, the parties will keep each other informed of their landline telephone number and mobile telephone number.

   j)The parents are entitled to attend all events involving the children including sporting fixtures, extra-curricular activities that allow for parental attendance, school functions and events including concerts, assemblies, sport days, parent teacher interviews, canteen duties and social functions.

   k)Each parent will keep the other informed of the following at times the children are in their care;

   i)Any social, school or religious function which the children may attend;

   ii)Any medical illnesses suffered by the children while in their care;

   iii)Any medication that has been prescribed for the children; and

   iv)In the event of medical emergency, including but not limited to serious illness, accident or hospitalisation, the party with the care of the children will immediately contact the other party.

   l)Each party do all acts and things as may be required by the children’s school to authorise such school to provide to both parties, information or documents provided by the school relevant to the children, including correspondence, school reports, school photos, newsletters, notices and the like.

   m)Each party not do any act or thing or cause any other person to do any act or thing, (and use his or her best endeavours not to permit any other person to do any act or thing) that has as its intention or effect, the denigration of either parent in the presence or hearing of the child.

Issues in Dispute

1. The issues in dispute are the living arrangements for X and Y which are in their best interest and whether the children are at risk in their mother’s care such that there needs to be safeguards put in place in respect of any time they are to spend with their mother.

2. The matter came on for interim hearing on the first return date in the duty list. At that stage, the two children had been separated for a period of almost two months. It is not entirely clear how that occurred because like many of the interim matters which come before this Court there is significant dispute about many facts. What, to my mind, sets this matter slightly apart from most is that there is no agreement about almost all of the important issues, for example:

   a)The date of cohabitation;

   b)The date of separation;

   c)The arrangements for the children since separation; and

   d)How long exactly the children have been living apart and the circumstances that gave rise to this occurring.

3. The father says that the parents commenced living together in mid- 2010 and that they separated in August 2014[13]. He says that the mother telephoned him while he was working away, telling him that she was leaving, and that she had dropped the children off at the paternal grandmother’s home. Since that day, the children, according to the father have been living with him.

   [13] In his affidavit at paragraph 19 the father refers to a conversation with the mother in August 2016 which appears to be the conversation at separation. It is the only time that the father puts separation as at August 2016. The rest of his evidence talks of separation having occurred in 2014.

4. The father says further, that since separation the children spent time with the mother “roughly every second weekend”. The father says that the mother would often ring or text him to collect the children early on the weekends that they were spending time with her “because she had something on.”

5. The father also says that from about May 2016 Y had been spending two to four nights per week with the mother. The father says that this had a negative effect on Y, that she was swearing, not sharing with her sister and was defiant for the first few days of her return. The father says that Y was clingy and when after returning from spending this extra time with her mother her clothes were dirty and uncared for.

6. The father’s Affidavit is confusing in relation to what occurred to bring things to a head. The father does not give any evidence in his Affidavit about how Y came to be in the mother’s care. The father says that on or about 30 August 2016, the mother rang him and said “I’m going to pick X up this Friday and if she wants I’m going to put her into (omitted)’s (a (omitted) school in (omitted)) and she will live with me.” The father responded with “no she won’t” and the mother then said “she will and you can’t stop me. I’ll be picking her up Friday from school.”

7. The father then goes on to say that he is fearful that the mother will take X and not return her, that she would snatch her if he tells the mother that she cannot enrol her in school in (omitted) . The father says that he is concerned about the mother’s mental health and any actions that she may take if she feels threatened or is affected by alcohol. The father then goes on to say the following:

   Y is currently with Ms Thurgood. I am due to get her back on Sunday 11th September 2016. I will not be serving these documents until after that time as I would worry about Y’s welfare.

1. During the hearing a letter dated 23 October 2016 from (omitted) preschool was tendered which indicated that Y ceased attending that preschool on 7 September 2016 being the day she was picked up by the mother and that at no time had the mother informed the preschool that Y would not be returning. It appears on the father’s evidence that Y has been in the mother’s care since 7 September 2016, and this is what was submitted during the hearing.

2. The mother on the other hand, says that the parties separated on 27 July 2015. She says that since separation until May 2016 the parents had shared in the care of the children such that the children were with the mother from 4pm on Wednesday to Sunday afternoons each week.[14] The mother asserts that this arrangement broke down in May 2016 after she made an application for child support, however she then goes on to say that between May 2016 and 28 August 2016 the arrangements for the children remained largely the same. It is therefore unclear what it is that the mother says “broke down”.

   [14] The mother's affidavit at paragraph 12 omits the word “Wednesday” however it was submitted on behalf of the mother and the court accepts that this was a typographical error in the affidavit and that the word Wednesday should have been included in that paragraph

3. The mother says that on 28 August 2016 the father came to her house to collect the children. This was a Sunday. She says that Y was crying wanting to stay with the mother and that the father then left Y in the mother’s care and took X back home. The mother says that it is from this day that she has had limited time with X, that X and Y have had limited time together, and that Y has had limited time with her father.

4. What the mother does not say is why at some stage in the next few days after 28 August 2016, Y did not resume living with her father in accordance with the previous arrangement as asserted in the mother’s case. The mother says that the reason she has been reluctant to allow Y to go to her father’s residence since 28 August 2016 is because the father has said to her “my solicitor told me not to let you have X and if Y comes to my house the solicitor told me to keep her”. There is no evidence as to when this alleged conversation occurred, and if such words were spoken by the father the Court infers from them that the father did not agree to Y remaining with the mother and that the mother was aware of this.

Uncontested relevant facts

1. The father was born on (omitted) 1977.

2. The mother was born on (omitted) 1990.

3. The parties commenced living together in around mid-late 2010, and are now separated[15].

   [15] The date of separation is not agreed

4. There are two children of the relationship:

   a)X born on (omitted) 2011; and

   b)Y born on (omitted) 2012

5. Following separation the children lived and spent time with each of the parents in accordance with an ad hoc agreement.[16]

   [16] What that was is not agreed

6. Since about late August 2016 or early September 2016 Y has been in the mother’s care and X has been in the father’s care. The two girls have only seen each other a few times of recent, as arranged through the two grandmothers.  

Section 60CC Factors

Views of the child

1. Except through what is asserted in the Affidavits, the views of the children have not been independently reported.

2. Both Y and X are very young, 4 and 5 years old respectively.

3. The mother reports having heard X crying on a number of occasions since 28 August 2016 on the telephone whilst saying “want to see mummy”. Y has said to the mother “I want to see X and daddy.”

Nature of the children’s relationships with their parents and significant others

1. There is very little evidence of the children’s relationships with their parents and significant others.

2. The mother says that the children have a close and loving relationship with both the mother and the father.

3. The father does not give any evidence about the children’s relationships.

4. Both parents have large extended families that live close by to the parents’ respective residences. It appears that each of the mother and the father receive support from their extended families in relation to the care of the children.

5. What is clear from both parents’ cases is that the children have lived together their whole lives, and that they have now been separated for a period of approximately two months.  It is clear that the children are missing each other, and that their continued separation is not in their best interest.

Parent’s involvement with decision making, spending time and communicating with the children and Maintenance of the children

1. X attends (omitted) School. She commenced school this year and the mother attended her first day at school. The father says that he enrolled X at the Public School with the mother’s consent. The mother says that she was informed about the school but that she did not consent rather that she had no other choice. Both parents say that X is doing well at her current school. The mother wants to change X’s school.

2. Between May 2015 and September 2016 Y was attending (omitted) preschool. Since she has been living with the mother as of approximately two months ago the mother has changed her enrolment and she now attends (omitted) Kids, where both children were previously enrolled. The mother did not obtain the father’s consent nor inform him about changing Y’s preschool.

3. Y is due to commence primary school in 2018.

4. In May 2016 the mother applied to the Child Support Agency for an assessment. Only part of the assessment is annexed to the mother’s Affidavit, and from that limited information it is apparent that the assessment was based on the mother having 51 care percentage for both of the children. The Court infers that this is based on the information that the mother provided to the Child Support Agency. The mother says that the father contacted her and said “there is no way paying you that money.” The mother’s Affidavit was filed on 24 October 2016, the day of the urgent interim hearing.

5. The father’s Affidavit which was filed when he commenced proceedings does not address what child support, if any, the father pays as assessed by the Child Support Agency. The father does say that while both of the children were attending preschool, prior to X commencing primary school in 2016, he paid all of the fees. The father’s evidence is silent in relation to the preschool fees for 2016.

6. The father says that the mother was receiving government benefits for the children by claiming that they were living with her and that he told her that she needed to ring child support to tell them that this was not true. The mother apparently said to the father that she wanted the kids full-time after she had spoken to Centrelink and the Child Support Agency.

7. The father says that he financially supports the children.

8. Much of the evidence in relation to these issues is in dispute. The Court makes no findings of fact at this interim stage about those matters which are in dispute. In any event, these matters are not of significant importance at this stage of the proceedings.

Likely effect of change and practical difficulty of spending time

1. The parents live 35 km apart.

2. The mother lives in rental accommodation, which she says, and the Court accepts, has all of the usual amenities. She has resided at her current address since February 2016. She lives there with her current partner Mr T.

3. The father lives in the former matrimonial home which he purchased in 2012 and which he says, is the only home the children can remember. According to the mother, the father has re-partnered and lives with his new partner who has two small children. The father’s evidence is silent on this issue.

4. After separation the parties were able to manage to take the children to preschool and school, their extracurricular activities and to spend time with their extended families.

5. There is no practical difficulty with the children spending time with either of their parents.

Capacity to provide for children’s needs and the attitude to the children, and to the responsibilities of parenthood, demonstrated by each of the children's parents

1. On the face of it both parents are able to meet the children’s basic physical needs.

2. What is of significant concern to the Court is that the children have been apart not only from each other but from the other parent for approximately two months.

3. While it is very difficult to piece together what occurred in August 2016, on the mother’s case if the Court was to accept her evidence, she is the one who had decided not to keep to the previous ad hoc parenting arrangement which had been in place.

4. The mother concedes that she has been “reluctant” to return Y to the father. Such actions in circumstances where the mother does not raise any concerns about the father’s parenting capacity or any risk of harm to the children in the father’s household shows not only a significant lack of insight and a lack of focus on the children’s needs, but also that the mother has put her own needs ahead of those of the children.

The maturity, sex, lifestyle and background (including lifestyle, culture and traditions) of the children and of either of the child's parents; if the children are an Aboriginal

1. The father identifies as Aboriginal.

2. The father’s evidence is that the mother would sometimes make comments to him, such as ‘you black cunt’, which he found offensive because he identified as Aboriginal.

3. There is no evidence about the involvement of the father or the children in the Aboriginal culture or traditions.

4. The father is employed as a (occupation omitted) and is in full time employment. He works a nine day fortnight and his working hours are 7am to 4pm. He does not work away overnight.

Family Violence

1. Family violence is defined in s4AB of the Act. The definition states:

   For the purposes of this Act, family violence means violent, threatening or other behaviour by a person that coerces or controls a member of the person’s family (the family member), or causes the family member to be fearful.

2. There are two elements to the definition. The first is the behaviour alleged and the second is the issue of causation, both of which must be proven to satisfy the definition.

3. Of assistance are the various examples provided in s4AB(2) of behaviour that may constitute family violence and the various examples provided in s4AB(3) of situations that may constitute a child being exposed to family violence.

4. Each of the parents, according to the father, has a criminal record.

5. The father makes a number of allegations of family violence against the mother. The father alleges that during the relationship of family violence included the following:

   a)The mother punching the father in the face with a closed fist;

   b)The mother attempting to punch the father in the face with a closed fist;

   c)The mother holding a sharp kitchen knife in her hand and saying “I will fucking stab you if you don’t let me near the kids”;

   d)The mother punching holes in the walls of the house; and

   e)The mother screaming at the father “you fucking dog, you black cunt.”

6. The COPS entries[17] described the mother as being heavily intoxicated on 23 May 2015, and also described the mother being involved in some aggressive behaviour in July 2014.

   [17] Exhibit 3

7. In March 2014 the two children were seen by an off duty Police Officer outside of the former matrimonial home one standing in the middle of the road naked and the other one sitting in the middle of the road clothed. The children were spoken to by the police and it was revealed that the mother was asleep. When the police knocked on the door and yelled out calling to the mother numerous times there was no response, the mother ultimately came to the door she appeared to have been asleep and spoke in a very sluggish manner. The police entry records that the police had observed numerous occasions where the mother was under the influence of intoxicating liquor in the rear yard of her residence and that she is constantly screaming at the children throughout the day and night. Apparently the police had approached the mother on occasions to discuss the supervision of the children. It was noted that the mother can be aggressive, argumentative and defensive towards police when she is being questioned on any matter.

8. The police records further note that in October 2013 the police were contacted about the mother and the father arguing in the street and that the mother was intoxicated and had run off.

9. While these are historical matters and must be considered in light of the arrangement which had been in place since separation,[18] they are of relevance in that they are independent corroborative evidence of the mother’s past behaviour and actions.

   [18] Whatever that arrangement was, but it involved the children spending at least almost every alternate weekend with the mother, and since May 2016 Y spending two to four nights with the mother

10. The mother says that the parties for the most part, experienced a volatile relationship marked by constant arguing and name-calling.

Institution of further proceedings and other relevant matters

1. These are only interim orders, and it is likely that if the matter proceeds to final hearing, there may be a time period of at least some twelve months before the matter is decided on a final basis, much depending on whether a Family Report is to be ordered.

2. The length of time that the matter will take to reach readiness for a final hearing is also something which the Court has considered in making these interim orders, particularly in trying to balance the children having a meaningful relationship with both of their parents and the need to protect them from harm.

Primary Considerations

1. There can be no doubt that the children would benefit from having a meaningful relationship with both of their parents. Whether this is possible or probable is another matter.

2. The protection of the children from harm is the more important matter, and in the circumstances of this case, a matter which is a real and live consideration.

3. The father says that the mother has been diagnosed as suffering from bipolar disorder and that during the parties’ relationship she self- medicated by consuming alcohol.  The father also asserts that while the parties were together, and he was working away, when she returned home the Police Officer at the (omitted) Police Station.[19] would say to him:

   there were constant parties at your house while you were away. I could hear Ms Thurgood screaming and yelling at the kids. There were friends around drinking in the backyard late at night.

   When he confronted the mother about what the Police had told him the mother denied it.

   [19] The Police Station is next door to the father’s residence

4. The father further said that during the parties’ relationship the mother was often affected by alcohol and was also non-compliant with her medication. The father says that around every three months the mother would try to take the children away during the night while she was affected by alcohol. Each time the father stopped her from doing so. On at least one occasion the mother went and got a sharp kitchen knife and said to the father “I will fucking stab you if you don’t let me near the kids”. Occasionally, the father says, the mother would grab her car keys and try to travel by while intoxicated. When this happened the father followed the mother and took the car keys away. The father also asserts that when the mother was affected by alcohol she would assault him for example punching him in the face with a closed fist.

5. The father has concerns about the mother’s mental health. He says that the mother would text him up to 30 times per day every day and that she rings him at least twice a day. The father says of the telephone calls tend to consist of the mother screaming and swearing at him.

6. Annexed to the mother’s Affidavit is an undated report from the mother’s treating Psychiatrist, Dr S. The report is not challenged. Dr S says:

   a)He has seen the mother twice in 2016 and once in 2015;

   b)The first referral occurred after a suicidal threat when the mother was brought to the attention of Dr I in August 2015;

   c)In August 2015 Dr I had recommended hospitalisation but the mother had declined;

   d)On 25 August 2016 the mother was euthymic, had a lot of mood swings and difficulties managing her control and calm during arguments with the father and she had also shown out of control behaviour on a few occasions;

   e)In the past, under the influence of substances, the mother describes having symptoms of seeing things and hearing things;

   f)On assessment the mother showed features of anxiety and to manage her anxiety she had a few obsessional symptoms like counting, arranging and cleaning things;

   g)While the symptom intensity was low, the distress generated for the mother as a result of relationship conflicts and her inability to handle it due to her anxiety led to a few behavioural outbursts;

   h)The mother was started on Luvox to control her obsessional thoughts and anxiety and counselling was also recommended; and

   i)There was a reduced alcohol intake since Dr S saw the mother in 2015 and the mother reported on the review that she had been alcohol free for over a year.

7. In addition to seeing Dr S the mother has also been regularly attending a psychologist located in (omitted). No report from the treating Psychologist has been provided by the mother, the mother says and the Court accepts, due to time constraints.

8. It was submitted on behalf of the father that the mother in her evidence has not been truthful in respect of her diagnosis of mental health. The mother says in her Affidavit “I am diagnosed with obsessive compulsive disorder and anxiety disorder”. She then annexes the report of Dr S. Given this evidence, both in the body of the mother’s Affidavit and also as an annexure to the mother’s Affidavit, the Court does not accept the submission made on behalf the father.

9. Many of the facts alleged by each of the parents are disputed. Even if the Court is unable to make findings of fact about many of the issues, the Court is still obliged to take into consideration the various allegations which have been made. In doing so the Court must weigh up any risk of harm to the children, all the while considering what might be in the children’s best interest. It is the existence and magnitude of the risk of harm that is a fundamental matter to be taken into account in deciding what orders are to be made in respect of where children are to live, and what time, if any, they are to spend with the other parent.[20]

   [20] M & M (1988) 166 CLR 69 at 77

10. The Court is however able to make the following findings of fact:

    a)The mother has been diagnosed with Cluster B personality traits; obsessive-compulsive disorder and anxiety disorder; and

    b)The mother has had difficulties managing her behaviour.

11. The Court is mindful of the mother’s difficulties and mental health diagnosis when considering the mother’s actions in retaining Y and the Court’s earlier findings in respect of the mother’s attitudes to the children and responsibilities of parenthood.

12. In making the orders which the Court will make, the Court has put in appropriate safeguards to ensure that the children are not exposed to an unacceptable risk of family violence.

Parental Responsibility

1. Section 61C of the Act provides that each of the parents of a child who is not 18 years has parental responsibility for the child. This section states the legal position that prevails in relation to parental responsibility to the extent to which it is not displaced by a parenting order.[21] Section 61DA provides for a presumption of equal shared parental responsibility that the Court does apply when making a parenting order.

   [21] See note 1 s61C

2. Ultimately, the father did not press for an order for sole parental responsibility.

1. As noted earlier, in interim proceedings, the presumption applies unless the Court considers that it would not be appropriate in the circumstances for the presumption to be applied when making an interim order.[22]

   [22] s61DA(3)

2. The matter has come on for hearing very quickly after the proceedings were commenced.

3. At this stage of the proceedings the Court is not minded to make an order for sole parental responsibility, despite the difficulties in the parties’ relationship which have been identified. The Court hopes that with appropriate intervention this will improve.

4. The Court does not find that it would not be appropriate for the presumptions to apply.

5. It is noted for the benefit of the parties that in making a final parenting order in relation to a child, the Court must disregard the allocation of parental responsibility made in the interim order.[23]  

[23] s61DB

Conclusion

1. In all of the circumstances and for all of the reasons set out above, it is in the children’s best for orders to be made as set out at the forefront of these Reasons.

I certify that the preceding ninety-seven (97) paragraphs are a true copy of the reasons for judgment of Judge Obradovic

Date: 3 November 2016