Paige and Painton

[2013] FCCA 2029

FEDERAL CIRCUIT COURT OF AUSTRALIA

PAIGE & PAINTON [2013] FCCA 2029

Catchwords:
FAMILY LAW – Interim Parenting – serious allegations of family violence – both parents and children present with serious issues about a history of abuse, neglect, drug and alcohol abuse, mental health and exposure to violence – whether the father’s time should be no contact or communication – where the mother’s vulnerabilities include multiple past violent relationships – where final hearing is expedited – no contact or communication ordered.

Legislation:  

Family Law Act1975 (Cth) Part VII, s.60CC

Goode & Goode [2006] FamCA 1346

Applicant: MR PAIGE

Respondent: MS PAINTON

File Number: WOC 343 of 2013

Judgment of: Judge Altobelli

Hearing date: 13 November 2013

Date of Last Submission: 13 November 2013

Delivered at: Wollongong

Delivered on: 26 November 2013

REPRESENTATION

Solicitors for the Applicant: Williamson Isabella Lawyers & Public Notaries

Solicitors for the Respondent: John Dawson & Associates

Solicitors for the Independent Children’s Lawyer: Helen Volk Lawyers

ORDERS

1. All previous parenting Orders be suspended.

2. The children X born (omitted) 2006 and Y born (omitted) 2008 live with the Mother.

3. The children spend no time with, and have no communication with, the Father.

4. Without admission, the parties are restrained from abusing, insulting, belittling, rebuking or criticising each other to or in the presence of the children or any of them and from permitting any other person to do so and the parties are further restrained from discussing these proceedings in any way in the sight or hearing of the children or permitting any other person to do so.

5. The Director General of the Department of Family and Community Services is requested to intervene in these proceedings in relation to the children X born (omitted) 2006 and Y born (omitted) 2008.

6. The Court is to notify the Director General within 48 hours of this Order.

7. The Solicitor for the Mother and the Solicitor for the Father are to forward to the Solicitor for the Director General of the Department of Family and Community Services at its Head Office in (omitted), not later than 4.00 pm on 10 December 2013 copies of the documents filed by each of the parties to date.

8. Upon request from the nominee of the Director General the Registry Manager permit inspection of the Court file to enable consideration of the request to intervene in the proceedings.

9. The Independent Children’s Lawyer be granted leave to file a minute of order in Chambers regarding the appointment of an expert.

10. The matter be adjourned to 17 March 2014 at 10am for hearing (allocating three days).

11. The matter be adjourned to 23 December 2013 at 9.30am for mention.

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

FEDERAL CIRCUIT COURT OF AUSTRALIA

AT WOLLONGONG

WOC 343 of 2013

MR PAIGE

Applicant

And

MS PAINTON

Respondent

REASONS FOR JUDGMENT

1. In the matter of Paige and Painton, I provide the following oral reasons.  Would that it were a rare thing to see a case like this one in this registry of the Court, alas it is by no means rare.  It is yet another case involving allegations, and where there are good grounds to believe even in the context of interim proceedings that the allegations have substance, of family violence, mental health issues, drug and alcohol issues, neglect, and sexual and other forms of abuse of children.  It is a case where everyone is vulnerable:  the mother; the father; the two children, X, who is seven and Y, five.  Everyone is at risk of differing nature and of differing intensity. 

2. The Court is called upon to make a decision, even on an interim basis, that is in the best interests of these children.  But like so many cases in this Court, especially in this registry, the actual task is of risk minimisation and finding where the children are at the least risk of harm.  As the long history of this family’s involvement with New South Wales Police and the New South Wales Department of Community Services illustrates even the process of finding the least risk outcome is a difficult, illusive, and possibly illusory process. 

3. The matter came before the Court on 13 November 2013 for an interim hearing.  By way of background, on 10 September 2013 her Honour Judge Terry made orders that the children live with the mother and have no contact with the father.  On 21 August 2013, the parties attended upon a Family Consultant for the purposes of a Child Dispute Conference.  That memorandum was part of the material before the Court.  By way of summary, that memorandum records the very serious allegations that the mother made against the father about family violence to her and the children, the history of the children not having contact with their father for many months, and her report of the fear that the children felt about the father.

4. The father’s application was filed on 23 April 2013.  Its principal purpose was initially to stop the mother’s relocation outside of the (omitted), an issue that does not appear to be a significant one at this particular point in the proceedings, but also to uphold the orders that are in existence and that were entered into by consent between the parties on 15 November 2012 in the Local Court.  The precise orders sought by the father were contained in his minute of order, provided to me on 13 November 2013, which are reproduced in Schedule One of these reasons.  The father’s application is supported by his affidavit.  He confirms that he has had no contact with the children since 7 January 2013.  In his affidavit, amongst other things, he explains that he was involved in an assault with the mother’s de facto.  There is a police statement that is annexed to his affidavit which refers, amongst other things, to admissions he makes about having suffered bipolar in the past, being on a disability pension, and he himself refers to an AVO and various charges that seem to have arisen out of the assault. 

5. The father also filed a contravention application on 23 April 2013.  The complaint was that he was not spending time with the children pursuant to orders made in the Local Court on 15 November 2012 that provided, in short, for equal shared parental responsibility, for the children to live with the mother, and for the father to spend time with them each alternate weekend.  The mother’s response was filed on 14 June 2013.  She sought to suspend the Local Court orders, an order for sole parental responsibility, that the children live with her and spend time with their father at a supervised contact centre.  The order sought by the mother at the interim hearing on 13 November 2013 was for there to be no contact or communication.  The mother’s minute of interim orders sought are reproduced in Schedule Two to these reasons.

6. In her affidavit of 12 June 2013, she explains that the consent orders entered into were pursuant to a Legal Aid mediation. Notwithstanding those orders, she ceased all contact between the children and the father after his actions involving the assault on her partner.  She deposes to the children saying to her that they do not wish to spend time with the father.  She describes an incident in which he dragged them out of the car and various other incidents at changeover involving threats.  She also deposes to sexualised behaviours noted in the shower and the children having made certain disclosures about the father.  The JIRT team had become involved.

7. With that history in mind, and with that description of the affidavit material, the other evidence that was presented to the Court included a very significant quantity of documents produced on subpoena.  There are ICL exhibits 1 to 6 that include documents produced by Department of Community Services, Dr S, the father’s treating doctor, more documents produced by Community Services and New South Wales Police. 

8. The applicable law is, of course, Part VII of the Family Law Act.  The Full Court’s decision in Goode & Goode [2006] FamCA 1346 provides some guidance about the interpretation of that section and the way to proceed and I will incorporate into these reasons a number of paragraphs from the Full Court’s judgment.

   68. In our view some of the comments of the Full Court in paragraph 18 are still apposite. For example, the procedure for making interim parenting orders will continue to be an abridged process where the scope of the enquiry is “significantly curtailed”. Where the Court cannot make findings of fact it should not be drawn into issues of fact or matters relating to the merits of the substantive case where findings are not possible. The Court also looks to the less contentious matters, such as the agreed facts and issues not in dispute and would have regard to the care arrangements prior to separation, the current circumstances of the parties and their children, and the parties’ respective proposals for the future.

   …

   72. In our view, it can be fairly said there is a legislative intent evinced in favour of substantial involvement of both parents in their children’s lives, both as to parental responsibility and as to time spent with children, subject to the need to protect children from harm, from abuse and family violence and provided it is in their best interests and reasonably practicable. This means where there is a status quo or well settled environment, instead of simply preserving it, unless there are protective or other significant best interests concerns for the child, the Court must follow the structure of the Act and consider accepting, where applicable, equal or significant involvement by both parents in the care arrangements for the child.

   …

   82. In an interim case that would involve the following:

   (a) identifying the competing proposals of the parties;

   (b) identifying the issues in dispute in the interim hearing;

   (c) identifying any agreed or uncontested relevant facts;

   (d) considering the matters in s 60CC that are relevant and, if possible, making findings about them (in interim proceedings there may be little uncontested evidence to enable more than a limited consideration of these matters to take place);

   (e) deciding whether the presumption in s 61DA that equal shared parental responsibility is in the best interests of the child applies or does not apply because there are reasonable grounds to believe there has been abuse of the child or family violence or, in an interim matter, the Court does not consider it appropriate to apply the presumption;

   (f) if the presumption does apply, deciding whether it is rebutted because application of it would not be in the child’s best interests;

   (g) if the presumption applies and is not rebutted, considering making an order that the child spend equal time with the parents unless it is contrary to the child’s best interests as a result of consideration of one or more of the matters in s 60CC, or impracticable;

   (h) if equal time is found not to be in the child’s best interests, considering making an order that the child spend substantial and significant time as defined in s 65DAA(3) with the parents, unless contrary to the child’s best interests as a result of consideration of one or more of the matters in s 60CC, or impracticable;

   (i) if neither equal time nor substantial and significant time is considered to be in the best interests of the child, then making such orders in the discretion of the Court that are in the best interests of the child, as a result of consideration of one or more of the matters in s 60CC;

   (j) if the presumption is not applied or is rebutted, then making such order as is in the best interests of the child, as a result of consideration of one or more of the matters in s 60CC; and

   (k) even then the Court may need to consider equal time or substantial and significant time, especially if one of the parties has sought it or, even if neither has sought it, if the Court considers after affording procedural fairness to the parties it to be in the best interests of the child.

9. Let me summarise briefly the position adopted by each of the parties and the submissions that they have made.  The father’s proposal was in effect for supervised contact; the mother’s proposal for no contact.  The Independent Children’s Lawyer, in effect, was supporting the position of supervised contact whilst acknowledging that significant concerns existed in relation to both parents.  In short, the Independent Children’s Lawyer submitted that supervised contact provided minimal risk to the children in a context where their wellbeing could be closely observed, where they would be adequately protected, but where there would be the opportunity for them to spend at least minimal time with their father.  The Independent Children’s Lawyer submitted that it was, in her professional opinion, unlikely that this would be a no-contact case and that in short, on an interim basis, the least of the worst options would be supervised contact at a centre on the basis that no harm would be caused. 

10. On behalf of the father it was submitted that both parents had a very significant history, which indeed predated their respective relationship.  The consent orders were entered into 12 months ago and the only two incidents referred to in the evidence that have occurred since then, he submits, are minor in comparison to the previous issues and the history that both parents present, but particularly the mother in her affidavit, in those circumstances.  It was also submitted that it would be difficult to see why the orders should be changed.  The father, it was submitted, was acting quite appropriately in suggesting that the contact should be resumed, at least in the first instance at a supervised contact centre. 

11. On behalf of the mother it was submitted that there were a number of significant issues that had occurred since the consent orders in the Local Court that justified revisiting the appropriateness of those orders.  Firstly, the incident on 14 January 2013 at the mother’s home that led to the AVO against the father and which she says distressed the children.  Secondly, the disclosures of inappropriate conduct made by the child X.  And thirdly, the fact as a result of these proceedings the mother has become aware for the first time of the full extent of the father’s mental health issues and she submitted, for example, that the psychiatric assessment of the father of 26 April 2013 was disturbing in terms of its history and raised a significant risk of continuing deterioration. 

12. The objective, though untested, evidence leads to some strong impressions in this case and here, of course, I am referring to the documents that have been produced on subpoena.  For example, the documents establish that there is an extensive history of involvement and reports of the mother, the father, the children and the mother’s other children with both the police and the Department of Community Services.  The records contain admissions by the mother of serial violent relationships, including with the father, with the children exposed to chronic and high levels of family violence and with the mother often powerless to either extricate herself from these relationships or avoid entering into new but equally violent relationships. 

13. There are records of strong departmental concerns about the mother’s inability to protect the children from violence and about the parenting capacity of both the mother and the father.  The medical records of the father suggest a long history of mental health issues that might include issues of bipolar disease, major depression, post traumatic stress disorder as well as drug and alcohol abuse issues.  The records also note concerns by various authorities about the risk to the children of sexual or other abuse from the mother’s partners, including the father, as well as departmental concerns that the mother has, in the past, made false or exaggerated allegations but equally, it should be noted, there is more than ample material to create the impression that the father has made false denials.  With this background, the Court must decide whether X and Y should see their father at a supervised contact centre, as the father and the Independent Children’s Lawyer propose, or have no contact at all.

14. In the end result, this case is decided by section 60CC(2A). Section 60CC(2) and (2A) state:

    (2)The primary considerations are:

    (a)the benefit to the child of having a meaningful relationship with both of the child's parents; and

    (b)the need to protect the child from physical or psychological harm from being subjected to, or exposed to, abuse, neglect or family violence.

    Notes: Making these considerations the primary ones is consistent with the objects of this Part set out in paragraphs 60B(1)(a) and (b).

    (2A) In applying the considerations set out in subsection (2), the court is to give greater weight to the consideration set out in paragraph (2)(b).

15. That, of course, does not mean that the other considerations in section 60CC have not been adequately taken into account, as I think the reasons will demonstrate, but rather that, at the end of the day when it is all put in the balance, it is subsection (2A) that determines the outcome. In short, the need to protect the children from the risk of harm is greater than the need to provide a basis for a meaningful relationship between the father and the children to be sustained.

16. The Court acknowledges the impact of this decision on the father.  He has not seen the children for several months and he will not see them now for more months.  This will probably damage his relationship with them but the Court hopes not irreparably, with the benefit of an expert’s report and perhaps an expedited hearing, should the conclusion at a final hearing be different.  The Court acknowledges this is not a best interests outcome.  It is the least of the worst of possible outcomes.

17. The father, those who represent him and the Independent Children’s Lawyer are entitled to know why the Court would not allow even supervised contact at a supervised contact centre.  Firstly, rare as it is, I do not accept the Independent Children’s Lawyer submission that a final no contact order is an unlikely outcome.  Having reviewed the exhibits, I respectfully disagree.  Depending on how the evidence pans out at a final hearing, it is an outcome that is as likely as any other outcome, that these children would have no physical contact with their father.

18. Secondly, I do accept the mother’s submissions going to the issue of what has changed since the Local Court order was made a year ago that would cause this Court, at this juncture, to place minimal weight on those orders.  There was an incident at the mother’s home on 14 January 2013, which occurred in the presence of the children, perpetrated by the father, and which amply showcases many of the issues pertaining to the father’s inability to manage, let alone contain, his emotions.  Furthermore, there are the disclosures by the child, X, of the father’s conduct in the shower with her, and Y’s sexualised behaviour, that at minimum need further investigation in this Court.  Lastly, I accept that until the present proceedings were commenced, the mother could not have reasonably known the nature and extent of the father’s past and, perhaps, ongoing mental health issues. 

19. The third reason for making a no contact order is that I think the parties in this case have perhaps not given ample recognition to the legislation and its clear admonition to protect children, often, as perhaps in this case, from their parents, in priority to sustaining meaningful relationships.  There is nothing to suggest that the section should be read down in interim proceedings. 

20. Fourthly, the vulnerability of the mother is an important consideration pointing towards no contact rather than supervised contact.  There can be no doubt from the exhibited material that the mother is extremely vulnerable in a psychological and emotional sense.  This is a woman whose recorded life history is one of cyclical violent relationships from which she has struggled to extricate herself, not only to her own detriment, but to the psychological and sometimes physical detriment of her children, perhaps even including X and Y.

1. The Department, for example, has criticised her for her grave lack of insight despite significant departmental input of resources and support.  In the submissions made on the mother’s behalf, these past criticisms are acknowledged.  Her solicitor acknowledged that the mother has been criticised for not taking protective actions in relation to family violence in the past but, as she submitted, the mother makes a stand now.  Indeed, she has.  Her stand is no contact.  This means there is nothing to connect her to the father anymore except to the extent that she allows this herself.

2. She does not have to feel that, at least until the final hearing, he has a physical presence in the children’s and, therefore, her life.  She does not have to feel, if hypothetically she were to so feel, that he has some control over her by way of an order that, at the very least, keeps him present in her life and that of the children.  This means she is freer to concentrate on the business of parenting and dealing with her own and, indeed, consequently, the children’s vulnerabilities.

3. A section 91B notice will issue.  This family needs a level of assistance that only the State of New South Wales can provide.  At a final hearing, it may be that only the Director-General will be able to find a suitable carer for these children but, in any event, and perhaps more realistically, they can provide a framework for continued support and assistance for the parents.  The Court openly acknowledges that a risk in this case is that despite these orders, the mother will let the father back into her life.

4. Should the parties believe it is appropriate, the final hearing will be expedited, subject only to the availability of an expert’s report.  This case needs a Part 15 Expert’s Report from a forensic psychiatrist.  The issues, particularly as regards the father’s mental health and the mother’s protective capacity, are not, in this Court’s opinion, within the purview of the expertise of a Family Report.  I will grant to the Independent Children’s Lawyer leave to file a minute of order in chambers about the appointment of an expert.

5. I will ask for these reasons to be taken out as quickly as possible, if for no other reason than to provide to the Independent Children’s Lawyer some leverage, I would hope, in getting approval for a Part 15 Expert’s Report.

I certify that the preceding twenty-five (25) paragraphs are a true copy of the reasons for judgment of Judge Altobelli

Date: 29 November 2013 

Schedule One

Applicant Father’s proposed orders

1. That the Orders made in the Local Court of NSW at Wollongong on 15 November 2012 be suspended.

2. The parties have equal shared parental responsibility for the children, X (born (omitted) 2006) and Y (born (omitted) 2008).

3. That the children live with the mother.

4. That the children spend time with the father as follows, on a without admissions and without prejudice basis:

   a)For 8 visits at Catholic Care or any other commercial contact service on a supervised basis;

   b)Otherwise as agreed between the parties.

5. Each party have leave to relist the matter on 7 day’s notice.

6. That the children have telephone contact with the father each Tuesday and Thursday between 5.30pm and 6.00pm.

7. Each parent is to ensure that the other parent is kept informed as soon as is reasonably practicable of:

   a)Any medical problems or illnesses suffered by the child.

   b)Any medication that has been prescribed to the child that needs to be taken while the child is in the care of the other parent.

   c)Any specialist medical appointments with any medical doctor, psychologist, psychiatrist, counsellor regarding the child.

   d)Any sporting, social, school or religious functions which the child is to attend.

   e)The residential address of the parent.

   f)The telephone contact number for the other parent.

   g)Any other matter relevant to the welfare of the child.

8. The parties be restrained from making critical or derogatory remarks about each other or members of each other’s family in the presence of the child and the parties are to do all things reasonably necessary to ensure that no other person makes any critical or derogatory remarks about either parent or members of their family in the child’s presence.

NOTATION:

A.It is the father’s intention at the conclusion of the time provided for in 4a) above to seek the discharge of these Orders and the reinstatement of the Orders made in the Local Court of NSW at Wollongong on 15 November 2012. 

Schedule Two

Respondent Mother’s proposed orders

Pending further order of the Court:

1. That the Order of the Local Court Wollongong dated 15 November 2012 be suspended.

2. That the mother have sole parental responsibility for the children X born (omitted) 2006 and Y born (omitted) 2008 in relation to the care, welfare and development of a long term nature involving the children, but not be limited to issues about:

   a)The education of the children – both current and future;

   b)The religion of the children;

   c)The health of the children;

   d)Any change to the children’s living arrangements.

3. That the mother have sole parental responsibility for making decisions about the children’s day to day care, welfare and development during times that the children live with the mother.

4. That the children live with the mother.

5. That the children have no contact or communication with the father.

6. That the mother and father undertake chain of custody urine screen testing for illicit substances, with each party to undertake such test within 24 hours of receiving a request forwarded to their solicitor by the Independent Children’s Lawyer.