Millson and Halbert
[2019] FamCA 429
•5 July 2019
FAMILY COURT OF AUSTRALIA
| MILLSON & HALBERT | [2019] FamCA 429 |
| FAMILY LAW – CHILDREN – final hearing part-heard – where the mother went to hospital on the last day of the hearing while under cross-examination– matter could not proceed – where mother withheld children shortly before trial – where the father makes an interim application to reverse the care arrangements of the children before trial completed – where there are allegations of family violence – matter adjourned part-heard. |
| Family Law Act 1975 (Cth) ss 60CC, 61DA. |
| Banks & Banks [2015] FamCAFC 36 |
| APPLICANT: | Mr Millson |
| RESPONDENT: | Ms Halbert |
| INDEPENDENT CHILDREN’S LAWYER: | Mr Ladopoulos |
| FILE NUMBER: | SYC | 6260 | of | 2007 |
| DATE DELIVERED: | 5 July 2019 |
| PLACE DELIVERED: | Sydney |
| PLACE HEARD: | Sydney |
| JUDGMENT OF: | Harper J |
| HEARING DATE: | 3 July 2019 |
REPRESENTATION
| COUNSEL FOR THE APPLICANT: | Mr Blackah |
| SOLICITOR FOR THE APPLICANT: | G & D Lawyers |
| COUNSEL FOR THE RESPONDENT: | Mr Gould |
| SOLICITOR FOR THE RESPONDENT: | The Law Society of NSW |
| COUNSEL FOR THE INDEPENDENT CHILDREN’S LAWYER: | Mr Ladopoulus |
| SOLICITOR FOR THE INDEPENDENT CHILDREN’S LAWYER: | Legal Aid NSW Sydney Central Family Law |
Orders
All extant applications be adjourned to 8 & 9 August 2019 at 10:00am for hearing part-heard.
BY CONSENT, that within forty-eight (48) hours of the making of this order the Respondent Mother shall undertake hair strand testing under supervision and chain of custody procedures of “The Drug Detection Agency” for the purpose of detecting the ingestion of illicit substances in accordance with the following procedure:
(a) The Respondent Mother shall arrange for a hair testing kit from Drug Detection Agency to be sent to a general practitioner located in Sydney nominated by the Respondent Mother, and shall advise the Applicant Father’s legal representatives and the ICL in writing of her compliance with this Order;
(b) The Respondent Mother is to attend upon the general practitioner located in Sydney as nominated by her within twenty-four (24) hours of the written notification referred to in Order 2(a) above, to submit to the collection a hair strand, including her hair bulb, of not less than three centimetres (3cm) and the Respondent Mother shall advise the Applicant Father’s legal representatives and the ICL in wiring within three (3) hours of having provided the hair follicle sample that she done so.
(c) That forthwith and pending the date the Respondent Mother provides the hair strand pursuant to order 2(b), the Respondent Mother shall be restrained from cutting her hair, dyeing her hair or in any way tampering with her hair.
(d) The Respondent Mother authorises the Drug Detection Agency to send their report to the Applicant Father’s legal representatives and the ICL within three (3) days of such report being completed.
(e) The Respondent Mother shall be responsible for payment of all fees associated with the conduct of her tests through the Drug Detection Agency and the Respondent Mother shall per her own invoice from the Drug Detection Agency immediately upon receipt.
(f) That leave be granted to the Applicant Father’s legal representatives and to the ICL to provide a copy of these orders to the general practitioner nominated by the Respondent Mother and to the Drug Detection Agency.
The interim application of Applicant Father made orally on 3 July 2019 be otherwise dismissed.
Note: The form of the order is subject to the entry of the order in the Court’s records.
IT IS NOTED that publication of this judgment by this Court under the pseudonym Millson & Halbert has been approved by the Chief Justice pursuant to s 121(9)(g) of the Family Law Act 1975 (Cth).
Note: This copy of the Court’s Reasons for Judgment may be subject to review to remedy minor typographical or grammatical errors (r 17.02A(b) of the Family Law Rules 2004 (Cth)), or to record a variation to the order pursuant to r 17.02 Family Law Rules 2004 (Cth).
| FAMILY COURT OF AUSTRALIA AT SYDNEY |
FILE NUMBER: SYC6260/2007
| Mr Millson |
Applicant
And
| Ms Halbert |
Respondent
And
| The Independent Children’s Lawyer |
REASONS FOR JUDGMENT
These are parenting proceedings between the applicant father Mr Millson born in 1966 (“the Father”) and the respondent mother Ms Halbert born in 1971 (“the Mother”). They concern two children Y born in 2006 and X born in 2011 (“the children”). There is an Independent Children’s Lawyer appointed.
The parties seek widely divergent final orders. Both parties contend that the children are at unacceptable risk in the care of the other parent. Both parties seek only supervised contact between the children and the other parent.
There are existing orders in place made by Senior Registrar Campbell on 28 September 2018. In summary they provided for the children to live with the mother and spend time with the father each alternate week from after school Friday, or 3 pm if not a school day, until Monday at the commencement of school, or 9 am if not a school day, then after school or 3 pm if not a school day, each Wednesday to Thursday the start of school or 9 am if not a school day (“the existing orders”).
The matter has a long history. It is unnecessary to set that history out in great detail for the purposes of these reasons. But it is necessary to record that the proceedings were listed for final hearing on 1 July 2019 with an estimate of three days. The mother made two applications to adjourn the final hearing on 11 June 2019 and 20 June 2019. The basis of her adjournment applications was an inability to find legal representation. On both occasions I refused an adjournment and made orders for the matter to proceed on 1 July 2019.
It is also necessary to record that it is not in dispute that between the compliance check on 20 June 2019 and the final hearing on 1 July 2019, the mother withheld the children from spending time with the father, contravening the existing orders. I will elaborate on this later in these reasons.
On 1 July 2019, all parties were represented by a solicitor and counsel. I note that Counsel for the mother had only very recently been engaged and had not been afforded the opportunity to confer with his client.
The father was cross-examined on the first day of the trial. The mother was also cross-examined on 1 July 2019 but her cross-examination was incomplete when the Court adjourned. Cross-examination of the mother continued to 2 July 2019 and was incomplete when the Court adjourned on that day.
On the morning of 3 July 2019, whilst the mother was still under cross-examination, the Court was informed that she had been taken to hospital. The proceedings were unable to resume in her absence and the matter was stood down until 11:30 AM and then 2:15 PM to enable Counsel to obtain further information in relation to the mother’s condition.
At 2:15 PM, Counsel for the mother tendered a Discharge Summary from D Hospital which became Exhibit …1. The Discharge Summary demonstrated that the mother had been taken to hospital because of rectal bleeding. Medical examinations demonstrated she was suffering from a haemorrhoid. The mother discharged herself from hospital at about 1.00 PM. The Discharge Summary indicates this was contrary to medical advice. It also records that the mother “advised that she did not wish to stay in hospital due to current court proceedings which she need (sic) to attend”.
However, the mother did not at any point return to the precincts of the Court or the Courtroom on 3 July 2019. I was told from the Bar Table that the mother attended at the H School in order to collect X from school.
Her Counsel was not given any explanation or instruction by the mother as to why she was unable to return to the courtroom, despite deeming herself able to be discharged from hospital.
By 2.30 PM on 3 July 2019 it was clear the proceedings could not be completed in the allocated time and would have to be adjourned part-heard to a later date after 3 July 2019. I informed the parties that 8 and 9 August 2019 were the dates which I proposed to allocate for the resumption and completion of the final hearing.
It was in those circumstances that the father made an oral application for interim orders. His counsel provided a minute of proposed orders in the following terms:
1) That the children live with the Applicant Father.
2) That the children spend time and communicate with the Respondent Mother as agreed and failing agreement, then the children shall spend supervised time with the Respondent Mother from 10am to 2pm on alternate Sunday commencing on 3 October 2019 with such time to be supervised by a professional service appointed by the Applicant Father and paid by the Applicant Father.
3) That within forty-eight (48) hours of the making of this order the Respondent Mother shall undertake hair strand testing under supervision and chain of custody procedures of “The Drug Detection Agency” for the purpose of detecting the ingestion of illicit substances in accordance with the following procedure:
a)The Respondent Mother shall arrange for a hair testing kit from Drug Detection Agency to be sent to a general practitioner located in Sydney nominated by the Respondent Mother, and shall advise the Applicant Father’s legal representatives and the ICL in writing of her compliance with this Order;
b)The Respondent Mother is to attend upon the general practitioner located in Sydney as nominated by her within twenty-four (24) hours of the written notification referred to in Order 2(a) above, to submit to the collection a hair strand, including her hair bulb, of not less than three centimetres (3cm) and the Respondent Mother shall advise the Applicant Father’s legal representatives and the ICL in wiring within three (3) hours of having provided the hair follicle sample that she done so.
c)That forthwith and pending the date the Respondent Mother provides the hair strand pursuant to order 2(b), the Respondent Mother shall be restrained from cutting her hair, dyeing her hair or in any way tampering with her hair.
d)The Respondent Mother authorises the Drug Detection Agency to send their report to the Applicant Father’s legal representatives and the ICL within three (3) days of such report being completed.
e)The Respondent Mother shall be responsible for payment of all fees associated with the conduct of her tests through the Drug Detection Agency and the Respondent Mother shall per her own invoice from the Drug Detection Agency immediately upon receipt.
f)That leave be granted to the Applicant Father’s legal representatives and to the ICL to provide a copy of these orders to the general practitioner nominated by the Respondent Mother and to the Drug Detection Agency.
In summary, the father seeks interim orders that the children live with him and spend supervised time with the mother. This would be a fundamental reversal of the current care arrangements for the children.
The father also seeks an order for hair follicle testing by the mother. Counsel for the mother indicated that there was opposition to the proposed reversal of the children’s current care arrangement, but that the mother consented to the orders relating to hair follicle testing. Therefore, that order can be made by consent.
The Independent children’s lawyer supported the father’s application and the orders sought.
In support of his application, in addition to the evidence already taken in the proceedings, the father tendered several documents and sought leave for Ms B, who had prepared a family report as single expert in the proceedings on 22 June 2018, to give some oral evidence.
The mother’s Counsel resisted the calling of evidence from Ms B on the basis that he was unaware what evidence was sought to be led from her and that he was not in a position to take instructions in relation to it.
However Ms B had already been arranged to be available to give evidence on 3 July 2019. At the time when the father made his oral application, the inability of the mother’s Counsel to obtain instructions was a circumstance brought about by the conduct of the mother in failing to return to Court after voluntarily discharging herself from hospital. The conduct of the mother caused the proceedings to be adjourned. The adjournment of itself raised the question of need for interim orders, particularly in circumstances where the mother had recently failed to comply with the existing orders.
I formed the view that it was appropriate to entertain the father’s application and give leave for evidence to be adduced orally from Ms B, in order to be assisted by some current expert evidence for the purposes of the father’s interim application.
The father’s interim application was made in the course of a part-heard final hearing. As for all interim parenting decisions, the statutory pathway in Part VII of the Act must be followed. Central aspects of the pathway are a determination as to whether the presumption of equal shared parental responsibility should apply and an assessment of the best interests of the children, which is the paramount consideration.
I am satisfied, pursuant to s 61DA(3) of the Family Law Act 1975 (Cth) (“the Act”), for the purpose of making interim orders on this application it is not appropriate in the circumstances for the presumption to apply. No party sought such an interim order. I make no order allocating parental responsibility on an interim basis. Resolution of this question should await final hearing.
The best interests of the children are to be determined on an interim basis by reference to the considerations in s 60CC of the Act. However as pointed out in the Full Court decision in Banks & Banks [2015] FamCAFC 36 at [47]-[50], while it is necessary to consider both the primary and additional considerations, it is not necessary to discuss each of them where it is obvious on the facts, and issues joined, that there are only one or two decisive factors.
The evidence and submissions focused on the question of unacceptable risk, principally in the mother’s care, but also to a lesser extent the father’s care, and whether the mother’s parenting capacity was so compromised that an immediate reversal of care arrangements on an interim basis was justified. There was also, understandably, close attention paid to the possible consequences for the children of the father’s proposed interim orders.
The evidence of Ms B formed an important part of the father’s application. She seemed initially supportive of the father’s application.
In her report at paragraph 167 Ms B expressed the following view:
“if [Ms Halbert] remains unable or unwilling to be supportive of the girls relationship with their father (as demonstrated by her attitude, views and/or behaviours) and this doesn’t change over time, then the Court should consider a reversal of the current parenting arrangements. If this occurs, [Ms Halbert] should initially have only limited contact with the children while they establish themselves in their father’s care and thereafter alternate weekends.”
When questioned by Counsel for the Independent Children’s Lawyer she confirmed that she had read the Affidavit material filed on behalf of the parties. She said that she was very concerned about the mother’s parenting capacity. In particular she pointed to the mother’s unilateral conduct in suspending time with the father and her facilitation of the children attending a number of external agencies to recount an alleged event that occurred between the father and the children. Ms B referred to the mother’s Affidavit. In that Affidavit the mother indicated the following series of events had occurred:
a)Between 6 and 12 June 2019 the children had both told the mother the father had become “really angry” and aggressive at them, and they began “begging” her not to take them back to the father, because he had repeatedly hit Y with a stick for failing to put on her new winter pyjamas;
b)That on 13 June 2019, the mother reported the incident to FACS;
c)She then took the children to a family GP, Dr C, so that they could tell him what happened;
d)The mother gave evidence that Dr C, advised her not to let Y spend time with her father, on the basis of alleged smacking by the father with a wooden stick. The mother therefore withheld the children on the basis that the father was an unacceptable risk to the children. Dr C prepared a letter on 13 June 2019 regarding Y which began “Apparently last week her father hit her on her buttocks repeatedly with a wooden stick…I advised [the mother] not to let her go “to the father’s house]” (Exhibit ICL 1, p. 206)
e)After seeing Dr C, the mother took the children to Suburb F Police Station where the mother reported the incident;
f)On a number of occasions after reporting the incident to the Police, the mother followed up with the Constable of Suburb F Police station and eventually on Tuesday 18 June 2019, the mother took the children to Suburb F Police Station so that they could give an official statement.
Ms B described this evidence as falling within a pattern of behaviour which she had identified already in her report of June 2018. She was concerned that repeatedly bringing the children into contact with investigating bodies might cause considerable emotional harm to the children. She was clear in her evidence that she viewed the mother as susceptible to uncontained and highly dysregulated emotional responses. She acknowledged that any reversal of the care arrangements would be extremely unsettling for the children initially, but said they would settle over time.
Ms B also agreed a reversal of care would have a devastating impact upon the mother and her parenting capacity. She expressed the view that if the children began to live with the father, the mother would need a period of some months to adjust, and during that time she should engage in psychiatric therapeutic intervention to help her come to terms with the situation. Ms B suggested that a period of up to 2 months of no contact would be necessary followed by a further period of months during which the mother had supervised time with the children.
During questioning by Counsel for the father, Ms B expressed the view that the mother needed therapy aimed at managing her relationships in a less emotionally dysregulated manner. In particular, Ms B pointed out that the mother had to learn to separate the best interests of the children from her own interests.
Under questioning by Counsel for the mother, Ms B agreed that the father’s interim proposal would constitute a very radical change for Y, who is now 13 years old, and about to enter teenage years. Ms B however pointed out that Y had been in a highly distressed state when she was interviewed by her for the June 2018 report.
Ms B conceded that she had not seen either of the children for over a year. It was put to her that it would be most unusual to recommend a change of residence without having further interviewed the children. As I understood her answers Ms B did not fully agree with this proposition. It was put to Ms B that she dismissed the mother’s allegations of violence alleged to be perpetrated by the father and recorded in the letter of Dr C. Ms B said she gave those allegations little weight on the basis of the mother’s previous patterns of behaviour. Counsel for the mother suggested that it was entirely responsible for the mother to respond as she did to Dr C’s advice, but Ms B disagreed. Ms B did agree that the mother has been the primary carer and also accepted that she was somewhat altering her view expressed in her June 2018 report about residence on a crisis basis. However Ms B pointed out that in her mind the change of residence was not a radical departure because she had already adverted to the possibility at paragraph 167 of her report.
When asked by the Court whether any possible emotional harm to the children could be made worse by an adjourned period of four to six weeks, Ms B expressed the view that the damage had already been done, and an additional period of four to six weeks during which the current arrangements remained in place would be unlikely to make the situation any worse.
Ms B also pointed out that a reversal of care arrangements may have a particularly severe impact upon Y who may feel it was her fault.
The father submitted that the evidence showed the mother was an unacceptable risk to children because she has over a period of time become so enmeshed with the children that a refusal to make orders changing care arrangements on an interim basis would entrench the message that the children should be fearful of their father. He submitted that having observed the mother in the witness box it was clear that from her demeanour that she had difficulty with normal functioning. She had admitted in cross-examination on 2 July 2019 that she had stopped taking medication for ADHD. She had also conceded in cross-examination that she was in to be before the Suburb G Local Court on … July 2019 as defendant in criminal charges of assault occasioning grievous bodily harm against a former partner, Mr J.
The father pointed out that the evidence disclosed he was assiduous in discharging his parental obligations, and that the Court could be satisfied that if the children were placed in his care he would make appropriate arrangements to look after them including adjusting his work schedule.
As noted earlier, it was undisputed that on 19 June 2019, when the father was supposed to have the children, the mother withheld them. Ms B had based her opinion in paragraph 167 of her June 2018 report partly upon instances of similar unilateral withholding by the mother in the past.
The father also submitted that the Court could have no confidence that the mother would permit contact between the children and their father even in the short period between 3 July 2019 and the resumption of the hearing on 8 August 2019.
The Independent Children’s Lawyer supported the father’s position. Counsel for the Independent Children’s Lawyer pointed out that between February and June 2019, Y’s school attendance remained problematic. School records showed Y had missed eighteen whole days and seven part days during that period. He submitted that if the pattern of behaviours by the mother continued, the risk of significant adverse consequences for the children was heightened. He submitted that the mother presented as a desperate person trying at all costs to avoid a change of care arrangements.
Counsel for the mother emphasised that the mother was the primary carer. He submitted the evidence showed the children receive love and care from both parents. He submitted that the evidence did not show that the children had been alienated from their father. In making that submission he relied upon the observations of Ms B in her report and the ongoing contact with the father showed that they had a warm relationship with him. He pointed out that the Court should proceed cautiously and it was dangerous to make any findings justifying reversal of care on an interim basis, particularly during a part-heard trial, and when the adverse effect on the mother’s parenting capacity was obvious. This, he argued, was a very significant factor to be taken into account.
The resolution of the father’s interim application presents great difficulty. I accept up to a point the submission of Counsel for the mother concerning the need to proceed cautiously. However it is also true, as Counsel for the Independent Children’s Lawyer submitted, that unlike interim hearings which take place well prior to final hearing, I am not limited to Affidavits and submissions presented at a truncated form of interim hearing. I do have the benefit of a part-heard final hearing during which I have heard the oral evidence of the father and considerable oral evidence from the mother, although her oral evidence remains incomplete.
I am satisfied that having observed the mother in the witness box and having considered the evidence, including her conduct on 3 July 2019, that the mother presents as a person in a fragile emotional state. Ms B’s view of her dysregulated emotional responses was supported by the mother’s presentation in the witness box. It was necessary to adjourn several times during her cross-examination to allow her to compose herself. Nonetheless, while there is reason to think her parenting capacity is generally compromised, I am not prepared to make any specific findings in this regard at this point in the trial.
I am satisfied on the present state of the evidence that the mother’s allegations concerning violence by the father fall closer to improbable than probable. However, again I am not prepared to make a finding on this question until the final hearing has been completed, and I have received all the evidence as well as final submissions from the parties.
Whilst I accept there is force in the submissions of the father and the Independent Children’s Lawyer, taking account of the fact that the mother has always been the primary carer, that the proposal of the father, if ordered, would bring about a revolution in the lives of the children, and that the final hearing can be resumed in approximately one month’s time, I am not satisfied that interim orders for change of care arrangements should be made.
The expert evidence of Ms B, while generally supportive of placing the children primarily in the care of the father, also made clear that leaving the existing orders unchanged for a further period of time measured in weeks, was unlikely to alter materially the condition of the children, if they remained in the primary care of the mother until a final hearing was completed and judgement was delivered.
Ms B’s evidence also made clear that if a change of care arrangements was ordered, a period of months would be required to enable both the children and the mother to settle into the arrangement, with the help of psychological support. There is no scope for such a period to transpire, or for such arrangements to be put in place, before the proposed completion of the final hearing on 8 and 9 August 2019. Furthermore, obviously one possible outcome after final hearing may be that any interim change to the current arrangements, as sought by the father, may ultimately be reversed. Although Ms B suggested such a reversal is something the children may adjust to, I am unable to find at an interim stage that the difficulty of restoring the equilibrium of the children would not be increased, or that there may not be other adverse consequences for the children.
On balance, I have therefore formed the view that the orders as sought by the father should not be made on an interim basis. This does not indicate in anyway what orders are likely to be made on a final basis. The form of those orders will await completion of the evidence and submissions from the parties.
Having said that, I also take account of the fact that the mother has unilaterally withheld the children in contravention of existing orders since they were made on 28 September 2018. I accept there is a risk the mother may contravene the existing orders before the proceedings are completed. It cannot be reinforced too strongly to the mother that she must comply with existing Court orders and that unilateral actions in withholding the children between now and the adjourned date would be a factor to be taken into account in formulating final orders.
However, I am not satisfied that subjecting the children to a radical interim change in their lives, with the attendant severe distress both to them and the mother, without the benefit of properly considered factual findings after a completed trial, would be in their best interests. This is especially so when the expert evidence suggests leaving the existing orders in place for another month or so is unlikely to make matters worse, even if the father’s contentions are correct, and the final hearing can be completed on 8 and 9 August 2019.
Accordingly, the only orders I will make is an order for hair follicle testing, which can be made by consent, and an order adjourning the final hearing proceedings.
I certify that the preceding fifty (50) paragraphs are a true copy of the reasons for judgment of the Honourable Justice Harper delivered on 5 July 2019.
Associate:
Date: 5 July 2019