Paynes and Friswell

[2016] FCCA 819

FEDERAL CIRCUIT COURT OF AUSTRALIA

PAYNES & FRISWELL [2016] FCCA 819

Catchwords:
FAMILY LAW – Interim Parenting Orders – risk assessment exercise – where least risk for child is to reverse long-standing care arrangement by mother – where mother is in a violent, dysfunctional relationship and suffers mental health issues.

Legislation:

Family Law Act 1975 (Cth), ss.60B, 60CA, 60CC, 61DA, 65DAA

Goode & Goode [2006] FamCA 1346
MRR v GR [2010] HCA 4

Applicant: MR PAYNES

Respondent: MS FRISWELL

File Number: WOC 1191 of 2015

Judgment of: Judge Altobelli

Hearing date: 10 March 2016

Date of Last Submission: 10 March 2016

Delivered at: Wollongong

Delivered on: 15 April 2016

REPRESENTATION

Solicitor for the Applicant: Rossi Simicic Lawyers

Counsel for the Applicant: Ms Doosey

Solicitor for the Respondent: Sward Law

Counsel for the Respondent: Ms Gillies

Solicitor for the Independent Children’s Lawyer: Mr Williamson

ORDERS

1. That Parenting Orders made 8 December 2015 be discharged.

2. That the Child namely X born (omitted) 2006 live with the Father.

3. That the Child spend time with the Mother with such time to be supervised by either Catholic Care Children’s Contact Service, (omitted) (or such other professional children’s contact service as may be agreed between the parties).

4. Each parent shall do all things necessary to complete an intake for supervised contact with CatholicCare Children’s Contact Service, (omitted) (or such other professional children’s contact service as may be agreed between the parties) within seven (7) days from the date of these Orders.

5. The matter be adjourned to 2 August 2016 at 2:00pm for Mention.

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

FEDERAL CIRCUIT COURT
OF AUSTRALIA
AT WOLLONGONG

WOC 1191 of 2015

MR PAYNES

Applicant

And

MS FRISWELL

Respondent

REASONS FOR JUDGMENT

1. These reasons for judgment explain the Interim Orders that the Court has made in relation to a child, X, born (omitted) 2006.  X is currently 9 years old and lives with her mother, who is the Respondent in these proceedings.  Her father is the Applicant.  This is a difficult case.  It is fundamentally a risk assessment exercise in relation to X.  The Court has made orders which reverse the longstanding arrangement which has existed to date in which X has lived with her mother and spent time with her father.  The Court has decided for the time being that the risk of leaving X in her mother’s care is an unacceptable one and that it is in her best interest to live with her father pending a more comprehensive assessment of the circumstances of X, her mother and her father.  The parents need to understand, however, that this is an Interim Order, not a final one.

Background

1. The Father, who is 41 years old, is the Applicant.  The Mother, who is 29 years old, is the Respondent.  They commenced living together in 2005, separated in 2009, albeit on a tenuous basis, and then finally ended their relationship in 2011.

2. The Father commenced the present proceedings on 3 December 2015.  At that stage, the focus of his case was on spending time with X.  When the matter first came before the Court on 8 December 2015, the parents entered into Consent Orders which provided for X to live with her father each alternate weekend from after school Friday until the commencement of school Monday, and on each Wednesday from after school until the commencement of school on Friday, as well as for half the school holidays and on special occasions.  The parents agreed that X would live with her mother at all other times.

3. One of the Orders the parents agreed to was that the Mother not leave X alone with the Mother’s husband, Mr A. Indeed, the Order provided that she not bring X into contact with him, an aspect which was already covered by an existing Apprehended Violence Order between the Mother and her Husband.  The Father had raised, in the Affidavit that he filed in support of his Application, concerns about the Mother’s violent relationship with her husband.

4. The Mother’s Response was filed 23 December 2015.  She proposed Equal Shared Parental Responsibility and that X live with her but spend time with the Father, broadly along the lines of the Interim Order that has been described above.  Her Response was supported by her Affidavit of 22 December 2015.  This Affidavit becomes significant, as will be discussed below.

5. The parents attended a Child Dispute Conference on 5 February 2016 and the memorandum was in evidence.  It records, in clear terms, the Father’s concerns about the Mother’s violent relationship with her husband, Mr A.  The Child Dispute Conference Memorandum also records the Father’s serious concerns about this, given access to documents produced on subpoena which he had inspected since commencing the proceedings but before the child dispute conference.  This material also becomes relevant and will be discussed below.

6. A fair characterisation of the Mother’s response to the Father’s allegations, as recorded in the Child Dispute Conference Memorandum, is that she minimised the nature and extent of the violence in her relationship with Mr A.  Of course, this assessment is inevitably informed by all the later evidence that was before the Court.  Nonetheless, the Mother also made admissions about the mental health issues she was confronting, perhaps again minimising the nature and extent of the same.

7. An Independent Children’s Lawyer was appointed as a result of the Child Dispute Conference Memorandum.

8. The present Interim Application came before the Court on 10 March 2016 as a result of the Father’s Application in a Case filed 22 February 2016.  He sought Interim Orders that the current orders be discharged, that X live with him, and spend supervised time with her mother.  In addition, he proposed that she be restrained from allowing X to come into contact with her husband, Mr A.

9. The Mother’s Response to an Application in a Case was filed 8 March 2016.  She simply sought that the Father’s Application be dismissed on the basis that the Consent Orders of 8 December 2015 continue.

The Evidence

1. The Father’s Application in a Case was supported by his Affidavits filed 4 March 2016, 22 February 2016 and 3 December 2015.  The Father also relied on an Affidavit of Ms Paynes, his partner, filed 4 March 2016.  The evidence in the Mother’s case focused on her Affidavits sworn 22 December 2015 and 8 March 2016.

2. Moreover – and this explains the delay in delivering these reasons for judgment – a significant and voluminous quantity of documents were tendered in evidence, including documents produced by the (omitted) Local Health District, the (omitted) Hospital, the Department of Family and Community Services, New South Wales Police, (omitted) Medical Service, Ms R, a psychologist, CatholicCare, the Catholic Education Office, (omitted) Primary School, (omitted) Medical Centre, and the New South Wales Ambulance Service.

3. It is important for the Court to record in these reasons its appreciation for the very thoughtful and comprehensive case outlines provided on behalf of the Applicant Father and Respondent Mother, and the very thorough aide-mémoire prepared by the Independent Children’s Lawyer.  It would simply not be possible for this Court to undertake the very difficult exercise it must undertake in this matter and to deliver reasons for judgment in a timely fashion, having regard to the very significant volume of the evidence, but for the careful and considered approach adopted by both the solicitors and Counsel for the parties and the Independent Children’s Lawyer with a view to assisting the Court in its difficult task.  The Father’s Counsel’s case outline, including the summary of documents produced on subpoena and tendered in evidence, is reproduced in the first schedule to these reasons.

4. The Mother’s Counsel’s case outline, including the detailed chronology and summary submissions about the relevant s.60CC considerations, is reproduced in the second schedule to these reasons.

5. The Independent Children’s Lawyer’s aide-mémoire entitled “Areas of Concern for the Child in the Care of the Mother”, together with file notes, is reproduced in the third schedule to these reasons. 

6. As it turns out, the Court’s own inspection and review of the documents produced on subpoena is entirely consistent with the summary and notes that had been prepared on behalf of the Father and Independent Children’s Lawyer.

The Applicable Law

1. 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 Part VII and the way to proceed in interim hearings.

   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.

1. In determining parenting matters under Part VII of the Family Law Act 1975 (hereafter referred to as ‘the Act’) the Court must regard the best interests of the child as the paramount consideration: s.60CA.

2. The objects and principles of Part VII are set out at s.60B:

   60B  Objects of Part and principles underlying it

   (1)    The objects of this Part are to ensure that the best interests of children are met by:

   (a)    ensuring that children have the benefit of both of their parents having a meaningful involvement in their lives, to the maximum extent consistent with the best interests of the child; and

   (b)    protecting children from physical or psychological harm from being subjected to, or exposed to, abuse, neglect or family violence; and

   (c)    ensuring that children receive adequate and proper parenting to help them achieve their full potential; and

   (d)    ensuring that parents fulfil their duties, and meet their responsibilities, concerning the care, welfare and development of their children.

   (2)    The principles underlying these objects are that (except when it is or would be contrary to a child’s best interests):

   (a)    children have the right to know and be cared for by both their parents, regardless of whether their parents are married, separated, have never married or have never lived together; and

   (b)    children have a right to spend time on a regular basis with, and communicate on a regular basis with, both their parents and other people significant to their care, welfare and development (such as grandparents and other relatives); and

   (c)    parents jointly share duties and responsibilities concerning the care, welfare and development of their children; and

   (d)    parents should agree about the future parenting of their children; and

   (e)    children have a right to enjoy their culture (including the right to enjoy that culture with other people who share that culture).

   (3)    For the purposes of subparagraph (2)(e), an Aboriginal child’s or Torres Strait Islander child’s right to enjoy his or her Aboriginal or Torres Strait Islander culture includes the right:

   (a)    to maintain a connection with that culture; and

   (b)    to have the support, opportunity and encouragement necessary:

   (i) to explore the full extent of that culture, consistent with the child’s age and developmental level and the child’s views; and

   (ii)    to develop a positive appreciation of that culture.

3. At the very core of Part VII of the Act is the creation of a presumption of equal shared parental responsibility in s.61DA. Section 61DA provides:

   61DA  Presumption of equal shared parental responsibility when making parenting orders

   (1)    When making a parenting order in relation to a child, 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 for the child.

   (2)    The presumption does not apply if there are reasonable grounds to believe that a parent of the child (or a person who lives with a parent of the child) has engaged in:

   (a)    abuse of the child or another child who, at the time, was a member of the parent’s family (or that other person’s family); or

   (b)    family violence.

   (3)    When the court is making an interim order, the presumption applies unless the court considers that it would not be appropriate in the circumstances for the presumption to be applied when making that order.

   (4)    The presumption may be rebutted by evidence that satisfies the court that it would not be in the best interests of the child for the child’s parents to have equal shared parental responsibility for the child.

4. If the presumption applies, the Court is required to consider certain things:

   65DAA Court to consider child spending equal time or substantial and significant time with each parent in certain circumstances

   Equal time

   (1)    If a parenting order provides (or is to provide) that a child’s parents are to have equal shared parental responsibility for the child, the court must:

   (a)    consider whether the child spending equal time with each of the parents would be in the best interests of the child; and

   (b)    consider whether the child spending equal time with each of the parents is reasonably practicable; and

   (c)    if it is, consider making an order to provide (or including a provision in the order) for the child to spend equal time with each of the parents.

   Substantial and significant time

   (2)    If:

   (a)    a parenting order provides (or is to provide) that a child’s parents are to have equal shared parental responsibility for the child; and

   (b)    the court does not make an order (or include a provision in the order) for the child to spend equal time with each of the parents; and

   the court must:

   (c)    consider whether the child spending substantial and significant time with each of the parents would be in the best interests of the child; and

   (d)    consider whether the child spending substantial and significant time with each of the parents is reasonably practicable; and

   (e)    if it is, consider making an order to provide (or including a provision in the order) for the child to spend substantial and significant time with each of the parents.

   (3) will be taken to spend substantial and significant time with a parent only if:

   (a)    the time the child spends with the parent includes both:

   (i) days that fall on weekends and holidays; and

   (ii)    days that do not fall on weekends or holidays; and

   (b)    the time the child spends with the parent allows the parent to be involved in:

   (i) the child’s daily routine; and

   (ii)    occasions and events that are of particular significance to the child; and

   (c)    the time the child spends with the parent allows the child to be involved in occasions and events that are of special significance to the parent.

   (4)    Subsection (3) does not limit the other matters to which a court can have regard in determining whether the time a child spends with a parent would be substantial and significant.

   Reasonable practicality

   (5)    In determining for the purposes of subsections (1) and (2) whether it is reasonably practicable for a child to spend equal time, or substantial and significant time, with each of the child’s parents, the court must have regard to:

   (a)    how far apart the parents live from each other; and

   (b)    the parents’ current and future capacity to implement an arrangement for the child spending equal time, or substantial and significant time, with each of the parents; and

   (c)    the parents’ current and future capacity to communicate with each other and resolve difficulties that might arise in implementing an arrangement of that kind; and

   (d)    the impact that an arrangement of that kind would have on the child; and

   (e)    such other matters as the court considers relevant.

5. Because s.65DAA refers to the best interests of the child the Court must then go back to consider s.60CC which specifies how the Court must determine what is in a child’s best interests.

Determining child's best interests

(1)Subject to subsection (5), in determining what is in the child's best interests, the court must consider the matters set out in subsections (2) and (3).

Primary considerations

(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.

Note:         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).

Additional considerations

(3)  Additional considerations are:

(a)  any views expressed by the child and any factors (such as the child's maturity or level of understanding) that the court thinks are relevant to the weight it should give to the child's views;

(b)  the nature of the relationship of the child with:

(i)  each of the child's parents; and

(ii)  other persons (including any grandparent or other relative of the child);

(c)  the extent to which each of the child's parents has taken, or failed to take, the opportunity:

(i)  to participate in making decisions about major long-term issues in relation to the child; and

(ii)  to spend time with the child; and

(iii)  to communicate with the child;

(ca)  the extent to which each of the child's parents has fulfilled, or failed to fulfil, the parent's obligations to maintain the child;

(d)  the likely effect of any changes in the child's circumstances, including the likely effect on the child of any separation from:

(i)  either of his or her parents; or

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

(e)  the practical difficulty and expense of a child spending time with and communicating with a parent and whether that difficulty or expense will substantially affect the child's right to maintain personal relations and direct contact with both parents on a regular basis;

(f)  the capacity of:

(i)  each of the child's parents; and

(ii)  any other person (including any grandparent or other relative of the child);

to provide for the needs of the child, including emotional and intellectual needs;

(g)  the maturity, sex, lifestyle and background (including lifestyle, culture and traditions) of the child and of either of the child's parents, and any other characteristics of the child that the court thinks are relevant;

(h)  if the child is an Aboriginal child or a Torres Strait Islander child:

(i)  the child's right to enjoy his or her Aboriginal or Torres Strait Islander culture (including the right to enjoy that culture with other people who share that culture); and

(ii)  the likely impact any proposed parenting order under this Part will have on that right;

(i)  the attitude to the child, and to the responsibilities of parenthood, demonstrated by each of the child's parents;

(j)  any family violence involving the child or a member of the child's family;

(k)  if a family violence order applies, or has applied, to the child or a member of the child's family--any relevant inferences that can be drawn from the order, taking into account the following:

(i)  the nature of the order;

(ii)  the circumstances in which the order was made;

(iii)  any evidence admitted in proceedings for the order;

(iv)  any findings made by the court in, or in proceedings for, the order;

(v)  any other relevant matter;

(l)  whether it would be preferable to make the order that would be least likely to lead to the institution of further proceedings in relation to the child;

(m)  any other fact or circumstance that the court thinks is relevant.

1. In MRR v GR [2010] HCA 4, the High Court said

   8.  Sub-section (1) of s 65DAA is headed "Equal time" and provides:

   "If a parenting order provides (or is to provide) that a child's parents are to have equal shared parental responsibility for the child, the court must:

   (a)    consider whether the child spending equal time with each of the parents would be in the best interests of the child; and

   (b)    consider whether the child spending equal time with each of the parents is reasonably practicable; and

   (c)     if it is, consider making an order to provide (or including a provision in the order) for the child to spend equal time with each of the parents."  (emphasis added)

   Sub-section (2) makes provision for where a parenting order provides that a child's parents are to have equal shared parental responsibility for the child (par (a)) but the Court does not make an order for the child to spend equal time with each of the parents (par (b)).  In such a circumstance the Court is obliged to:

   "(c)   consider whether the child spending substantial and significant time with each of the parents would be in the best interests of the child; and

   (d)    consider whether the child spending substantial and significant time with each of the parents is reasonably practicable; and

   (e)     if it is, consider making an order to provide (or including a provision in the order) for the child to spend substantial and significant time with each of the parents."

   Sub-section (3) explains what is meant by the phrase "substantial and significant time".

   9.  Each of sub-ss (1)(b) and (2)(d) of s 65DAA require the Court to consider whether it is reasonably practicable for the child to spend equal time or substantial and significant time with each of the parents.  It is clearly intended that the Court determine that question.  Sub-section (5) provides in that respect that the Court "must have regard" to certain matters, such as how far apart the parents live from each other and their capacity to implement the arrangement in question, and "such other matters as the court considers relevant", "[i]n determining for the purposes of subsections (1) and (2) whether it is reasonably practicable for a child to spend equal time, or substantial and significant time, with each of the child's parents".

2. A little later in the judgment the High Court said:

   13. Section 65DAA(1) is expressed in imperative terms. It obliges the Court to consider both the question whether it is in the best interests of the child to spend equal time with each of the parents (par (a)) and the question whether it is reasonably practicable that the child spend equal time with each of them (par (b)).  It is only where both questions are answered in the affirmative that consideration may be given, under par (c), to the making of an order.

The Arguments Briefly Summarised

1. The Father’s case was that, in essence, the concerns about risks of harm to X in the Mother’s care were both serious and profound, particularly when understood in the context of what was asserted to be the Mother’s active non-disclosure, and indeed concealment, of the relevant facts about the nature and extent of her violent relationship with her husband and the consequent impacts on her mental and physical health, as well as the consequential risks to X.  Of particular concern was the Mother’s systematic minimisation of these matters in her affidavit sworn 22 December 2015 in support of her substantive response.

2. On behalf of the Father, therefore, it was asserted that any objective view of the evidence would give rise to serious concerns about the Mother’s mental health, about her failure to protect X from the consequences of a clearly violent, dysfunctional relationship with the Mother’s husband, and a complete lack of insight into X’s needs.

3. On behalf of the Mother, her Counsel acknowledged the non-disclosure inherent in the Mother’s affidavit of 22 December 2015, but sought to explain this in the context of the Mother’s violent relationship with her partner, her previous experience of sexual abuse, and the consequential mental health pressures that this placed on the Mother.  Her case emphasised that whatever concerns might have existed in the past about the Mother protecting X from the consequences of a violent relationship, she was now free of this relationship and her mental health was recovering.

4. The Mother’s case emphasised that X’s primary attachment was to her and that living with X’s father on a full-time basis would be a considerable change for X and one that she might not cope with.  The Mother’s Counsel explained the Mother’s life has been on an emotional rollercoaster in the past but that now, she was stable and she was well-engaged in the services available to assist her.

5. The Independent Children’s Lawyer’s submission focused on the concerns that the Court would have about the Mother’s reliability, not just as a witness but as a parent to X who has both the capacity and the insight to understand her needs and adequately protect her.  The history, nature and extent of the Mother’s relationship with Mr A raised serious concerns about the Mother’s parenting capacity.  A further concern was the number of absences that X had experienced from school in 2015, that is 29 full days and 17 partial absences - of which 32 were unjustified.  The Court would be concerned, asserted the Independent Children’s Lawyer, about the evidence of the Mother and X’s disappearance between 2 and 6 November 2015, when both were listed as missing persons.  The Court would be concerned about the Mother’s lack of willingness to participate in the Apprehended Violence Order proceedings against her husband and the relatively recent representations by the Mother that she now understood, for the first time, the inappropriateness of her relationship with Mr A.  Overlaid with this was the disconcerting evidence about the Mother’s mental health, and her very selective disclosure to the Court about these issues. 

6. The Independent Children’s Lawyer acknowledged that, in supporting the Father’s proposal that X live with the Father and spend supervised time with the Mother, this was a very significant change in X’s life.  However, the Independent Children’s Lawyer submitted, having regard to the risk issues, the uncertainty about the Mother’s mental health and, indeed, whether the mother had in actuality disengaged from the violent relationship with her husband, the Father’s proposal was, for the time being, the one that most closely met X’s best interests. 

Discussion

1. The objective evidence in this case is truly disconcerting, both in a quantitative and qualitative sense.  The Court can do no better, in these reasons, than simply to refer to the synopsis of the evidence contained in the notes found as part of the first and third schedule to these reasons for judgment.  The Mother presents as having a profoundly insecure mental health.  She clearly has had a difficult past.  Her relationship with Mr A was dysfunctional on many levels, including the violent nature of it.  The Mother has contemplated self-harm.  There are clearly other stressors in her life, other than the violent relationship with her husband, and the present proceedings.  X is clearly conscious about the dysfunctional relationship between her mother, and her husband.  The CatholicCare records record that on 9 November 2015 X expressed feeling nervous, anxious, scared, worried about going back to class and the playground, feelings that she linked to experiences at home.  Even the Mother’s own psychologist described the Mother, on 14 December 2015, as being “in the middle of a mental health crisis with anxiety and stress through the roof”.  The records of the violence perpetrated by her husband against the Mother indicates that it included physical violence, but suggest it was also of the coercive and controlling type.  The Mother’s failure to protect both herself, and X, from the violent relationship was manifested in her lack of cooperation in prosecuting an Apprehended Violence Order against her husband.  As at 14 November 2015 the New South Wales Police records suggest that the Mother had no intention of living anywhere but with her husband, who was clearly the perpetrator of violence against her. 

2. The above is merely a summary, indeed an inadequate summary, of the evidence before the Court. 

3. Even on an interim basis the Court is entitled to find that the evidence before it overwhelmingly indicates there is a risk of harm to X if she continues to be in her mother’s care.  Even if one were to compartmentalise the family violence, from the mental health issues, on either compartment the conclusion would be the same, that is, there is an unacceptable risk of harm if X continues to live in her mother’s care.  In these circumstances, whilst the Court clearly recognises the disruption to X’s life that is caused by removing her from her acknowledged primary carer, the risk issue prevails.  X should forthwith go into her father’s care.

4. In circumstances where there is such fluidity, and uncertainty, about the Mother’s circumstances, including her mental health and consequential parenting capacity, the only possible option, emphasising again at this stage, is that she spend supervised time with her mother.  The Father proposed that it either be at CatholicCare, or another agreed supervision service.  The Court takes judicial notice of the delays that currently exist in accessing the CatholicCare service, and thus encourages the parents, and the Independent Children’s Lawyer, to explore other options. 

5. Pending further Order, the Orders will be in terms of those sought by the Father in his Application in a Case, and supported by the Independent Children’s Lawyer.  The Orders are to be implemented forthwith, meaning in effect from after school on the day on which these reasons for judgment are delivered. 

6. The Court will bring the matter back in about 6 weeks so that there may be further consideration about the nature of the expert evidence that is clearly needed in this case.

I certify that the preceding thirty-six (36) paragraphs are a true copy of the reasons for judgment of Judge Altobelli

Date: 15 April 2016

Schedule 1

Case Outline Document of the Applicant Father

File number: WOC 1191 of 2015

 

IN THE FEDERAL CIRCUIT COURT OF AUSTRALIA 

REGISTRY: WOLLONGONG

MR PAYNES

Applicant

MS FRISWELL

Respondent

INDEPENDENT CHILDREN’S LAWYER

CASE OUTLINE OF THE APPLICANT FATHER

A.  PROCEEDINGS

This Parenting matter is listed before the Honourable Judge Altobelli on 10 March 2016 at 9:30am.

B.  CHILDREN

• X born (omitted) 2006 currently aged nine years.

C.  COUNSEL BRIEFED

• Cate Doosey (Wollongong Chambers)

D. PRECISE MINUTE OF ORDER SOUGHT (AS PER APPL IN CASE F22.2.16)

1. That Parenting Orders made 8 December 2015 be discharged.

1. That the Child namely X born (omitted) 2006 live with the Father.

1. That the Child spend time with the Mother with such time to be supervised by either Catholic Care Children’s Contact Service, (omitted) (or such other professional children’s contact service as may be agreed between the parties).

1. Each parent shall do all things necessary to complete an intake for supervised contact with CatholicCare Children’s Contact Service, (omitted) (or such other professional children’s contact service as may be agreed between the parties) within seven (7) days from the date of these Orders.

E.  LIST OF DOCUMENTS TO BE READ IN THE FATHER’S CASE

1. Affidavit of Mr Paynes filed 3 December 2015;

2. Application in a Case filed 22 February 2016;

3. Affidavit of Mr Paynes filed 22 February 2016;

4. Affidavit of Mr Paynes eFiled 4 March 2016;

5. Affidavit of Ms C eFiled 4 March 2016;

6. Child Dispute Conference Memorandum dated 5 February 2016;

7. Notice of Risk filed 3 December 2015.

F.   CHRONOLOGY

DATE	EVENT
(omitted) 1971		Father born, currently aged 41 years
(omitted) 1987		Mother born, currently aged 29 years
2005		Parties commence cohabitation
(omitted) 2006		Child X born, currently aged nine years
2009		Parties separate, remain in ‘on again off again’ relationship until 2011

G.  SUBMISSIONS ON BEHALF OF THE APPLICANT FATHER

It is the father’s contention that the child continuing to live with the mother maintains a situation wherein the child is exposed to unacceptable risk of harm to her emotional, physical and psychological well–being.  The father is concerned that the mother is in an extremely dysfunctional relationship and that the mental health of herself and her husband is such that there is a tangible risk that they will continue to act in ways incompatible with providing the child with the safety and security she needs.

There has been at least one instance of serious violence to the mother by her husband.  Despite that the mother continued to place the child in the care and company of that husband.  There have been times that the child has been in the exclusive care of the husband, most worryingly when the mother was in custody, arrested for breaching her bail undertaking to appear at Court as a witness against her husband.  The mother’s conduct throughout the entire episode reveals a contempt for Court proceedings and protective orders.

There has, on the mother’s original account, both contemporaneously to the police, and in her original affidavit to this Court, been serious physical violence by her husband to her, resulting in injuries.  Since making those disclosures the mother has dedicated herself to retracting, minimising and ultimately shouldering responsibility for, the violence.  Her focus has been on her husband and to a lesser extent herself.  She has not demonstrated a scintilla of insight into the ramifications for a young girl of growing up in an environment of domestic violence.  Her ambition, and focus remains to have her husband resume living with her and the child, with no proposed corrective or remedial response.  Rather, she seeks to assure the Court, and betrays her own belief, that the violence was provoked, uncharacteristic and of no great moment. 

The mother has conducted herself in these, (and other) proceedings in ways that are incompatible with her having any appreciation of the risk that she exposes herself and the child to.  Further, the mother has treated the Courts as mere obstacles to her continuing to pursue choices and wishes that are not child focused but rather have as their objective preservation and maintenance of her current relationship, regardless of the cost.

Consistent with this attitude to the proceedings the mother has withheld crucial information from the Courts, misrepresented situations and cynically tried to create the impression of finally “coming clean” to the Court, once independent subpoena material revealed the true position, when in reality she is attempting to cloak and mask that reality with half-truths, minimisations and obfuscations.

2. The Violent Incident
On 20 June 2015 the mother was assaulted by her husband.  In her most recent affidavit she tells the Court that the incident consisted only of “raised voices” and herself and her husband “losing their temper” and “throwing items at each other”, resulting in a wound to her that required 8 stitches.  She further claims that she “exaggerated” when she told the police that she was punched and kicked as she wanted to “cause trouble” for her husband as retaliation.  Obviously, if this were the true version the Court would be very concerned about the cavalier attitude to honesty displayed.  However, prior and contemporaneous versions cast a pall of doubt over this version.

2. Prior Inconsistent Statements to this Court
The mother’s recent claim, that she was motivated by spite and revenge to exaggerate her husband’s violence is irreconcilable with her first affidavit.  In that evidence she speaks of being “pushed” and “pressured” at a time she was “very vulnerable” (15) into giving a statement, both by her mother who was worried about the child, and the police who were concerned for both their safety (MA1 12-15). 

3. Lack of candour to the Court
The mother’s reluctance to give a statement hardened into a determination to not give evidence against her husband.  The mother twice failed to attend court to give evidence in relation to her husband’s violence.  Both times she defied a subpoena to attend and the second time she broke an undertaking given to the Court in order to secure bail for herself following her second non-appearance.  In her recent affidavit the mother explains this as her lacking the strength to attend and being especially vulnerable (para 25).  This recent explanation is irreconcilable with her proffered explanation in her original affidavit.  That explanation is simply that she was determined to thwart the Court’s processes by not attending and chose repeatedly to not attend. “I made the decision to refuse to attend court and went to a friend’s house for the day” (20MA1).  Taken into custody on a warrant the mother then is comfortable that the child spends the night with the husband; a man who on her version, reacts to stressful or upsetting occurrences with violence.  In order to secure bail the mother undertakes to the Court that she will attend the proceedings, an undertaking she apparently had no intention of honouring  ”On Sunday 1 November 2015 I decided not to attend court again and I went to stay with a family member in Sydney. (21MA1)  The cavalier attitude the mother displayed to her obligations and undertakings to the Court were mirrored in her disregard for the child, who she pulled from a week’s school, and the father who was enormously distressed and fearful for the well-being of his daughter who disappeared with her mother with no thought of reassuring him she was safe and well.  The blithe attitude toward pulling the child into a melodramatic, unsettling unseemly venture is concerning, “I was so distressed I decided to just get away and try and relax.  I decided to take X and I to (omitted) for some time out.  I did not take my phone with me as I had left it at work on Sunday” (21MA1). 

The true position is likely that the mother is seeking to explain the inexplicable, i.e. she is trying to explain fleeing giving evidence in a way that conceals her true reason, that being to ensure her husband was not held accountable for his assault on her.
Similarly, the mother also speaks of regretting ever having disclosed the assault to the police and having done so only because of her mother and police pressure to act to protect herself and the child (paras 12-15 MA1). 
Finally, the mother, seemingly without any appreciation of the gravity or inappropriateness of her conduct, casually reveals in her first affidavit to this Court, that she attempted to influence her mother to also not attend Court and give evidence against her husband (20MA1).  The profound lack of candour and respect that she displays to Court processes is jarring and concerning.

It is notable that whilst this first affidavit strives to explain, minimise and move past the violent actions of her husband there is no reference to the claim recently made that the violence was mutual and not in the form of physical blows.  That version, referred to in the latest affidavit, seems a recent invention.  So originally, the Court has the mother saying “Mr A had a break down and assaulted me……completely out of character……….never done anything like this before” (9MA1).  Notwithstanding a compulsion to “understand why he acted the way he did”(18MA1), and provision of a litany of rationalisations as to why he did, at no point in her first affidavit does the mother put forward the new explanation, that is that he threw things at her because she did so to him and that her other claims were, as she now asks the Court to believe, exaggerations, not the acts of a man having a “breakdown” as she first claimed.  It is not until her latest affidavit, of 8 March 2016 that the mother first makes that claim.  It is noteworthy that by the time she makes that claim she has completely run into the ground her first position of securing her husband’s acquittal by refusing to attend Court.  Placed in a situation where she is unable to avoid giving evidence, she then recants her original claim and gives a potentially inculpatory version. 

In light of this extraordinary and unfortunate history of disregard for the telling of the truth in Court proceedings, there is little basis for accepting that this is then a mother who is finally prepared to tell the truth about the interactions in her household.

4.  Presence of Mental health Issues in Mother’s Household

In detailing the events of June 2015 in her first affidavit the mother discloses her preoccupation with the emotional state of her husband and her determination to preserve the marriage, thus leaving her supportive family to reunite with him and travel to Sydney together for a weekend away, clearly leaving behind a devastated and disbelieving maternal grandmother (18).  That preoccupation continues in her latest affidavit.  However, by the time of deposing that document the mother has become aware of the exposure of extremely concerning conduct on her part, as well as her husbands.  Thus in attempting to address the issues that naturally arise from documented instances of self harm, suicidal ideation and involuntary hospitalisation revealed through subpoena the mother begins to speak of not only her husband having “breakdowns” (as she did in her first affidavit), but now also, herself.  Thus the previously concealed 7 December 2015 conduct and hospitalisation was an “emotional breakdown” (11MA2).  So too, the events of 23 December were an “emotional melt down” (16MA2).

The events and issue that the mother finally acknowledges are of a nature where the Court, and parties, would have compassion for her.  However, that is not the primary focus or concern here.  The ultimate disclosure of these profound issues and difficulties, and the inappropriate and highly concerning conduct they apparently drive the mother, and her husband, to raises the serious concern that she is unable, because of psychological or other issues, to parent in an appropriately child focused manner.  In particular, the unfortunate reality, that the mother lacks insight into the need and indeed sufficient motivation to place her daughter’s psychological, emotional and physical well- being above all other considerations has led to a situation where the child has been living in a household characterised by violence, frightening outbursts, highly destructive behaviour and self- harming reactiveness.  This is a situation that is not safe for the child.  Unfortunately, the mother’s refusal to accept or acknowledge that provides no basis for the Court to be satisfied that she will act to provide appropriate and necessary protective measures in the future.  There is a real risk that the behaviour disclosed in the subpoenaed material, being largely unaddressed and therefore unresolved, will continue to characterise the mother’s household.  In that unfortunate circumstance, the child cannot remain living there.

The unfortunate history of the mother in these, and indeed other, proceedings, of a complete lack of candour and manifest untruths is such that the Court is not able to accept her as a witness of truth.  Moreover the Court would be unable to dispel concerns that she does not have the well-being of the child as her paramount concern, or even focus, in providing evidence to the Court. 

The subpoenaed material supports the high level of concern the father has in relation to the possibility that the child will continue to be exposed to domestic violence or uncontrolled, distressing interactions between the mother and her husband, or the mother and others.  The mother’s recent claims of candour and successful treatment and remedial steps are hard to accept against the background of her persistent concealment and minimisation of the true situation.  The concern that the mother is simply trying to gloss over serious issues, that she initially sought to conceal from the Court, is hard to dispel in all the circumstances of this case.  At the very least, the profundity of the difficulties that the mother finally acknowledges are incompatible with her assurances that the child has been completely shielded from their consequences.  Similarly the bare assertion that sufficient “steps to rectify the emotional and mental welfare so that I can continue to make good decisions for myself and X” have been taken currently seems platitudinous and unconvincing in light of the serious concerns the mother’s recent conduct raises.

C.  Doosey
Wollongong Chambers
8.3.16

Schedule 2

Case Outline Document of the Respondent Mother

IN THE FEDERAL CIRCUIT COURT OF AUSTRALIA

REGISTRY:  WOLLONGONG

File number:  WOC 1191 OF 2015

MR PAYNES

Applicant Father

MS FRISWELL

Respondent Mother

CASE OUTLINE OF THE RESPONDENT MOTHER

INTERIM HEARING

PROCEEDINGS

Interim Parenting Proceedings.

CHILDREN

1.X – D.O.B (omitted) 2006

INTERIM APPLICATIONS

The Mother seeks that the child live with her and spend times with the Father each alternate weekend from after school Friday until Sunday at 8.00pm and from after school Thursday until before school Friday each week.

In the alternate, the Father seeks that the child live with him in a 4 week cycle for weeks 1, 2 and 3 from the conclusion of school Friday to the commencement of school the following Monday and from the conclusion of school each Thursday to the commencement of school Friday. Further, the Father seeks that the Mother not permit the child to come into contact with Mr A.

Both parties are in agreement that the Mother and Father are to have equal shared parental responsibility.

LIST OF DOCUMENTS TO BE READ

• Initiating Application filed by Ms Friswell on 23 December 2015

• Affidavit of Ms Friswell sworn/affirmed on 22 December 2015

• Response to Application in a Case filed 8 March 2016

• Affidavit of Ms Friswell sworn 8 March 2016

• Child Dispute Conference Memorandum to Court by Ms S dated 5 February 2016

BRIEF CHRONOLOGY

DATE	EVENT	EVIDENCE
(omitted)1974	Father born
(omitted) 1987	Mother Born	TF 22.12.15 para 2
2005	Parties commence relationship	DP 02.12.15 para 5
(omitted) 2006	X (‘the child’) born	TF 22.12.15 para 4
Mid 2009	Parties separate, no longer live together and continue to see each other on and off	TF 22.12.15 para 5; DP 02.12.15 para 5
15 Sep 2010	Mother alleges she was sexually assaulted	TF 08.03.16 para 8
2011	Parties separate on final basis	DP 02.12.15 para 5
March 2012	The Mother commences relationship with Mr A (‘Mr A’)	TF 22.12.15 para 7
20 Sep 2013	Mother and Mr A are married in (country omitted), the child attended the wedding and the three of them holidayed in (country omitted) for 6 weeks with the Father’s consent	TF 22.12.15 para 8
20 Jun 2015	Mother and Maternal Grandfather assaulted by Mr A. Child is not present, spends the day with Maternal Grandmother. Child stays with Maternal Uncle and his wife for the night. Mother spends the night at (omitted)	TF 22.12.15 para 9-12
21 Jun 2015	Mother stays at her Great Aunts’ house in (omitted). Maternal Grandmother brings the child to the Mother at the (omitted) residence.	TF 22.12.15 para 13 TF 22.12.15 para 14
22 Jun 2015	Mother attends (omitted) Police Station to make a statement against Mr A. The child stays in the care of the Great Aunt.	TF 22.12.15 para 15
25 Jun 2015	AVO placed on Mr A for protection of Mother and Child	Terms of Interim Order
25 Jun 2015	The Mother agrees to allow the child to spend the school holidays with the Father and his family.	TF 22.12.15 para 17
26 Jun 2015	The Mother visits Mr A, they decide to spend a weekend in Sydney together to work on their marriage. The Mother informed her Great Aunt and Mother of where she was and who she was with.	TF 22.12.15 para 18
Aug 2015	Mother attends Ms J’s house about intimate photos being shown of her.	TF 08.03.16 para 8
Aug 2015	The Mother was subpoenaed to attend court to give evidence against Mr A.	TF 22.12.15 para 20
Aug 2015	The Mother decided to refuse to attend Court and spent the day at a friend’s house. A warrant for her arrest was made.	TF 22.12.15 para 20
Aug 2015	At approximately 6.30pm the Police attended the Mother’s home at (omitted) and arrested her, she spent a night in the cells at (omitted) Police Station and was released on bail in the morning. The Police left the child in the care of Mr A.	TF 22.12.15 para 20
1 Nov 2015	Mother decides not to attend court again to give evidence against Mr A. She stays with a family member in Sydney.
2 Nov 2015	Mother is to attend court by subpoena to give evidence against Mr A. Mother takes the child to (omitted) for some time out, she did not take her phone with her as she had left it at work on the Sunday.	TF 22.12.15 para 21
3 Nov 2015	Mother advised by a family member that the Maternal Grandmother had made comments in Court on 2 November 2015 regarding removing the child from the Mother’s care, and that the Father and the Maternal Grandmother were working together to achieve this.	TF 22.12.15 para 22
5 Nov 2015	The Mother became aware while watching the Today Show that her and the child were listed as missing persons. The Mother returned to (omitted) that day and informed Crime Stoppers that she was not missing and that she would attend (omitted) Police Station with the child on the morning of 6 November 2015.	TF 22.12.15 para 23
5 Nov 2015	Mother asked about intimate photos again by acquaintances. Mother contacts Ms J and is told to “fuck off. Leave me alone” Mother does not make any further contact.	TF 08.03.16 para 9
6 Nov 2015	Mr A drives the Mother and the child to (omitted) Police Station at approximately 7.30am. The Mother was arrested for failure to appear and the Police advised Mr A to take the child home with him. The Mother asked Mr A to assist the child to call the Father but not to arrange time to be spent to prevent physical contact because of the threats of not returning her made by the Father. The child spoke to the Father. Mr A explained to the Father the Mother’s wishes. The Father proceeded to text message Mr A about taking the child.	TF 22.12.15 para 23-24
9 Nov 2015	The Mother attends a meeting at the child’s school to arrange that the child was not to be collected by anyone else other than the Mother. Mr G agreed and said he would call the Mother should anyone attempt to collect the child.	TF 22.12.15 para 25
12 Nov 2015	The child tells Mr A that the Father went to her school on Monday to see her, he wrote her a note saying he would pick her up early Thursday and take her away on a holiday. After learning of this, the Mother phoned the Father and informed him that until a parenting plan or court orders are signed he was not to spend time with the child for fear of the child not being returned.	TF 22.12.15 para 26
13 Nov 2015	The Paternal Grandmother collects the child from school early without the consent of the Mother on the Mother’s regular weekend with the child, the Mother was not informed by the school. The Mother tried to call the Father, there was no answer. Mother calls Paternal Grandmother and she confirms the child is at her house. Mother attends Paternal Grandmother’s house and takes the child back. The Mother attends (omitted) Police and spoke with Senior Constable B regarding the incident.	TF 22.12.15 para 27 TF 22.12.15 para 28
15 Nov 2015	Mr A arrested for breach of AVO; On 13 November 2015 Mr A dropped the child off to school.
16 Nov 2015	Mr A’s bail conditions are amended for him to reside at (omitted),..	TF 22.12.15 para ‘as to paragraph 85 and 86’
16 Nov 2015	The Father collected the child from school early without the consent of or informing the Mother. The school did not notify the Mother. The Mother tried to locate the child but to no avail. She then attended (omitted) Police to report the incident and was informed by Constable R that because the child was with the Father all he could do was a welfare check. The Police failed to notify the Mother as to whether they carried out the welfare check or not.	TF 22.12.15 para 29 TF 22.12.15 para 30
20 Nov 2015	The Mother recommences the Father’s time with the child, the Father has the child for the weekend.	DP02.12.15 para 97
7 Dec 2015	Mother served with Private Application for AVO for protection of Ms J.	TF 08.03.16 para 7
7 Dec 2015	Mother taken to (omitted) Hospital after punching a window.	TF 08.03.16 para 33
8 Dec 2015	Interim Parenting Agreement signed by both parties
23 Dec 2015	Mother voluntarily admits herself to (omitted) Hospital regarding her mental health and stays overnight	TF 08.03.16 para 16
5 Feb 2016	Child Dispute Conference
11 Feb 2016	Mother makes formal report to Police about sexual assault in 2010.	TF 08.03.16 para 12
29 Feb 2016	Mother attends Local Court as a witness for the prosecution	TF 08.03.16 para 25

SUMMARY OF ARGUMENT

S60CC

Primary considerations

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

1. The Mother since separation has encouraged the Father to have a close and personal relationship with the child, the Mother believes that it is important for the child to have close and loving relationships with each of her parents (TF 22.12.15 para 5).

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

2. The Mother was assaulted by Mr A on 20 June 2015. It is acknowledged by the Mother that this singular incident was upsetting and had the child been present it would have had more significant effects on the child. However, the child was not present for the entire day on which the assault took place as she was spending the day with the Maternal Grandmother (TF 22.12.15 para 11). Further, the Mother ensured that the child did not see her upset state following the incident and arranged for the Maternal Uncle and his wife to care for the child overnight (TF 22.12.15 para 12).
3. The Mother asserts that Mr A has not before or since assaulted the Mother.  The Mother believes that the break down suffered by Mr A was as a result of numerous upsets and stressors in his life such as; the limited time spent with his daughter, Y, and issues surrounding Y having contact with the Mother and the child, caring for his terminally ill Mother who has metastatic ovarian cancer, caring for his Father whilst he had lung cancer and the death of his Father in 2014 and the embezzlement of approximately $1,800,000.00 by his business partner (TF 22.12.15 para 40-43). The Mother acknowledges that while these hardships suffered by Mr A do not excuse his actions on 20 June 2015 they provide the background and context surrounding the incident (para 44).
4. As a result of the aforementioned assault an AVO was placed on Mr A for the protection of the Mother and the child (TF 22.12.15 para 10).
5. The Mother has demonstrated protective capacity for the child by ensuring that the child was not exposed to the violence or the Mother’s state on the day or night of the assault and that the child was not present for any dealings with the Police.
6. It is noted that after the assault the parties by agreement continued the Father’s regular visits without issues and that the Father did not raise any concerns with the Mother regarding the child’s safety or concerns about Mr A (TF 22.12.15 para 19).
7. The Mother recalls that in or around 2010, when the parties were living apart but continuing to see each other, they attended a fund raising event at which the Father had consumed a lot of alcohol. On returning to the Mother’s residence the Father became aggressive towards the Mother and she told him to go to bed, he then put his hands around her throat and tried to strangle her, at which point, in self-defence, she punched him in the face and told him to leave her home (TF 22.12.15 para 34).
8. Further, when the Mother was in a relationship with the Father, when he had been drinking, which was frequently, on many occasions he would become verbally abusive towards the Mother. When this occurred the Mother would collect the child from her bed and bring her into the bedroom and lock the door so that the Father could not get in. The Mother notes that the child would sleep through most of the aforementioned incidents, however, there were times that should start crying as a result of the Father’s actions (TF 22.12.15 para 35).
9. The Mother asserts that it was as a result of the Father’s increasingly violent behaviour towards her that she ended their relationship, particularly so that the child was not in such an environment (TF 22.12.15 para 36).

Additional considerations are:

(a)  any views expressed by the child and any factors (such as the child's maturity or level of understanding) that the court thinks are relevant to the weight it should give to the child's views;

10. On 13 November 2015 when the Mother attends the Paternal Grandmother’s house to collect the child as the Paternal Grandmother, without consent or informing the Mother, collected the child early from school, the child said that she wished to go with the Mother (TF 22.12.15 para 28).

(b)  the nature of the relationship of the child with: (i)  each of the child's parents; and (ii)  other persons (including any grandparent or other relative of the child);

11. The child and the Father have a loving and close relationship.
12. The Mother notes that the child enjoys a loving relationship with the Paternal Grandparents (TF 22.12.15 para ‘as to paragraph 13’). The Paternal Grandmother would often pick the child up from school on Thursdays (‘as to paragraph 16’)

11. The child is particularly close to the Mother. The Mother has been the primary carer of the child for the entirety of the child’s life. As an only child, the Mother and the child have a particularly affectionate and bonded relationship.
12. The child shares a close relationship with Mr A. The Mother has observed that since Mr A has been required to reside at (omitted), the child has been missing him so much that she will not go to bed at night without his bike vest so that she can feel close to him (TF 22.12.15 para 45).

(c)  the extent to which each of the child's parents has taken, or failed to take, the opportunity: (i)  to participate in making decisions about major long-term issues in relation to the child; and (ii)  to spend time with the child; and (iii)  to communicate with the child;

15. The Mother asserts that up until recent times she has had an amicable relationship with the Father in which they are able to cordially discuss issues relating to the child and time arrangements (TF 22.12.15 para 6).
16. When the Mother is unable to care for the child due to work commitments she asks the Father whether he would like to look after the child before calling any other family member as she believes it is best that he be afforded the chance to spend extra time with the child (TF 22.12.15 para ‘as to paragraph 11’).
17. When the child was younger, the Mother asserts the she sometimes resisted going with the Father on weekends as it was ‘boring’, the Mother did not believe that the child knew what was in her best interest or was at an age to make such decisions so the Mother insisted the child spend time with the Father (TF 22.12.15 ‘as to paragraph 13’). The Mother has encouraged and promoted the relationship between the Father and the child, noting that once the child expressed herself to the Father about what she wanted to do their relationship and the child’s willingness to be with the Father has increasingly improved.
18. The Mother is aware that as a result of her taking a holiday to (omitted) from 2 to 5 November 2015, that the Father missed his contact with the child as scheduled for the 5 November 2015. The Mother, due to increasing stressors in her life at that time such as suffering 3 miscarriages whilst on IVF as well as the issues as outlined above in paragraph 3, needed a break (TF 22.12.15 ‘as to paragraphs 54-57’).
19. Upon the Mother’s return to (omitted) she did not make the child available to spend time with the Father from 6 November 2015 to 20 November 2015 as a result of her concerns that the Father would not return the child to her, particularly as no parenting plan was in place.
20.  The Father and the paternal family have taken the child from school without the consent of or informing the Mother. On 13 November 2015 the Paternal Grandmother took the child and on 16 November 2015 the Father took the child. Failing to communicate this to the Mother caused a great deal of distress as she was unaware of the whereabouts of the child.

(d)  the likely effect of any changes in the child’s circumstances, including the likely effect on the child of any separation from: (i)  either of his or her parents; or (ii)  any other child, or other person (including any grandparent or other relative of the child), with whom he or she has been living;

21. As of mid-2009, since the parties lived separately and continuing into and since final separation, the Mother has been the primary carer of the child (TF 22.12.15 para 5). It is expected that should the care arrangements change the child will have difficulty being away from the Mother.
22. The Mother’s orders do not propose a significant change in the time that the child is to spend with the Father.

(f)  the capacity of: (i)  each of the child's parents; and (ii)  any other person (including any grandparent or other relative of the child);to provide for the needs of the child, including emotional and intellectual needs;

23. Whilst the Mother has been experiencing emotional difficulties in the past year she was acted protectively and has also ensured that the child continues to progress well at school. The Mother has sought appropriate treatment from her general practitioner and the hospital.

24.The Mother asserts that the completion of the child’s homework whilst in the care of the Father has been a point of contention between the parties (TF 22.12.15 ‘as to paragraph 15’). The Mother observed that when the child spends time with the Father the homework she had has not been completed. When the Mother has discussed this with the Father his response is “I only get her once a week. I don’t want to be taking up my time with that” (‘as to paragraph 15’). As a result the Mother has the child do her homework a day in advance on the day she spends with the Father so that the child does not fall behind or get in trouble at school.

25.The Mother ensures that the child has a well-rounded education by arranging a private tutor to attend the home on Mondays, gymnastics on Tuesdays and (language omitted) school on Wednesdays (TF 22.12.15 ‘as to paragraph 15’).

(g)  the maturity, sex, lifestyle and background (including lifestyle, culture and traditions) of the child and of either of the child's parents, and any other characteristics of the child that the court thinks are relevant;

26. The Mother has concerns about the child being in the Father’s care for a time as sought by the Father, as the Father can become violent when drinking, such as strangling the Mother as outlined above in paragraphs 10 and 11. Moreover, the Mother recalls that when she was in a relationship with the Father he would consume between 8 to 12 cans of beer a night.
27. The child has told the Mother that when spending time with the Father they choose his new girlfriends from the internet. The Mother believes that the Father has had between 5 to 10 women in his life that have been introduced to the child as the Father’s girlfriend (TF 22.12.15 para 38).
28. Further, the child has told the Mother that the only one of the Father’s girlfriends she liked was a woman known as (omitted) the child said words to the effect of “but she had to go back to (country omitted) and dad sends her money but dad said she was cheating on him so she isn’t coming back” (TF 22.12.15 para 38). These conversations between the child and the Father are highly inappropriate.
29. The Father has a demonstrated history of inappropriate relationships with women, whilst together, the Mother was aware that the Father was frequently attending brothels and massage parlours, as such she contracted chlamydia, the transactions were evident on his credit card statements (TF 22.12.15 para 37).

(i)  the attitude to the child, and to the responsibilities of parenthood, demonstrated by each of the child's parents;

30. The Mother acknowledges that there have been occasions where Mr A and herself have been having an argument and the child has come to them and said “I’m scared because you are bring loud” (TF 22.12.15 para ‘as to paragraph 29’). The Mother has taken the concerns of the child seriously and reacts immediately to these statements by the child and stops the discussion and continues it when the child is not at home.

(j)  any family violence involving the child or a member of the child's family;

31. As outlined above in paragraphs 2 to 9.

Date: 10 March 2016

Ms M

Barrister-at-Law

Hargrave Chambers

Schedule 3

Aide-Memoire and File Notes

1. Mother appears to be the victim of family violence from her husband Mr A (CDC Memo). Subpoenaed material indicates past violence by Mr A including assaults and criminal behaviour;

2. The mother says that the charges against her husband Mr A were as a result of her lying to the Police about what occurred (CDC Memo);

3. The mother advised the Family Consultant that she is experiencing depression and anxiety and is currently medicated and receiving counselling each fortnight. She had suicidal thoughts in December 2015 (CDC Memo);

4. The father has concerns about the mother's possible use of illicit drugs and would like her to undergo drug testing (CDC Memo);

5. The father believes that the child X missed 39 days of school in 2015 and that the school has raised concerns about X's home environment with her mother (CDC Memo);

6. Mr A (Mr A) admitted to the father on 21/06/2015 that he had hurt the mother Ms Friswell and had punched her father Ms L (Par 22 Affidavit sworn 2/12/2015). The mother complained that Mr A had dragged her across the yard by her hair and throwing her into things (Par 23). The mother said that Mr A tried to kill himself in (country omitted) (Par 25);

7. The mother appears to have gone missing with X from about 2/11/2015 to 6/11/2015 when she presented herself to the Police with X. The Police posted a missing person’s report about Ms Friswell and X on the television on 5/11 and subsequently on the Police Facebook but without the knowledge of the father (Pars 43-57 of father's Affidavit);

8. The mother was arrested on 6/11/2015 as she had missed attending Court to give evidence in the AVO against Mr A (Par 58). She was initially refused bail. The child X was released into Mr A’s care even though there was an AVO protecting her against him (Par 60);

9. On 9/11/15 the mother requested a Police welfare check on X whilst in the care of the father (Par 73);

10.12/11/15 the mother sent a text message advising that the school had been notified that the father and his family were not able to collect X from school (Par 76-77). When the father attended the school the mother and Mr A were there to stop him from collecting X;

11.Saturday 14/11/2015 the father telephoned DOCS to report his concerns about X (Par 84);

12.Charges against Mr A were to be heard in January 2016 at Port Kembla Local Court (Par 108);

13.Police subpoenaed material indicates that the mother was admitted to hospital on 7/12/2015 because of her behaviour. It appears that she was probably admitted to (omitted) Hospital as there are no notes from (omitted) Hospital (Par 14-15 sworn 18/02/2016);

14.(omitted) Hospital notes 24/12/2015 indicate the mother attended the hospital following an overdose of an unknown quantity of Diazepam (Par 22).

15.Police Subpoenaed material indicates the mother was served with a Personal Apprehended Violence Order on 7/12/2015 (Par 23).

FILE NOTE

MATTER:	160086	9 March 2016
RE:	PAYNES AND FRISWELL (P)WOC1191/2015 INDEPENDENT CHILDREN'S LAWYER FOR X
SUBJECT:

Mother's Affidavit sworn 8/03/2016

Par 3- Mother says X was not present at the home when the DV incident occurred. X would have seen the injuries to the mother and perhaps the blood on her at a later time.

Par 7 – Mother admits being hysterical on 7/12/2015 when she was taken to casualty at (omitted) Hospital for a period of 4 hours

Par 11 – on 7/12/2015 she admits she lost focus and had an emotional breakdown after being served with a private AVO

Par 13 – Mother says she was under significant stress from Dec 2014 with issues of her father-in-law passing away, a miscarriage, a dramatic downturn in health of her mother-in-law and going almost bankrupt in the business

Par 15 – On 7/12/2015 the mother punched a window in the bathroom out of frustration and was taken to (omitted) Hospital by ambulance.

Par 16 – She had an emotional meltdown on 23/12/2015 and admitted herself voluntarily to (omitted) Hospital.

Par 20 – She is currently seeing Dr V for depression and anxiety and attending a psychologist Ms R each fortnight

Par 23 – She is aware that Mr A has a criminal history and that it was alleged that he took drugs. She has never seen him take drugs

Par 24- She acknowledges arguing with Mr A and they have raised their voices at each other. She tried to make sure it was not in the presence of X.

Par 25 – She acknowledges being on an emotional rollercoaster being agitated and upset. At the Hearing for the AVO she gave evidence about getting into a screaming match with Mr A when they both lost their temper throwing things at each other in the presence of three friends. She received an injury to her back which required 8 stitches

Par 27, 29 and 32 – She says that Mr A has not been in contact with X. This does not accord with the school records which indicate Mr A had been delivering X to school.

Par 34 - Mother acknowledges that she had suicidal thoughts but now does not.
Par 35 – On 24/12 she took herself to (omitted) hospital as she had taken Diazepam and continued taking them thereby overdosing

Par 37 – She acknowledges attending hospital with suicidal thoughts.

Par 38 – She says X has had no contact with Mr A. Again, this does not accord with school records.

Par 47 – She says that X is progressing well at school. She offers no explanation why X has missed so many days at school in 2015.

FILE NOTE

MATTER:	160086	9 March 2016
RE:	PAYNES AND FRISWELL (P)WOC1191/2015 INDEPENDENT CHILDREN'S LAWYER FOR X
SUBJECT:

Subpoena Notes

(omitted) Primary School

Records indicated 2015 total partial absences 17 and total whole absences 39.

There appears to be 32 full days with unjustified or sick days.

Typed written records and meetings and other attendances

9/11/2015 - X indicated that she was very scared at home because her mum gets angry really quickly and that she is scared because her mum and Mr A fight all the time

13/11/2015 – Mr A was in the playground with Ms Friswell who began to get very agitated and angry

17/11/2015 – X arrived at school with Mr Paynes and was in good spirits and seemed happy

25-27/11/2015 – X not at school. Mother Ms Friswell was aggressive on the phone using an angry tone

(omitted) Medical and Dental Centre

31/08/2015 – Mother attended crying a lot wanting to get counselling. She had been subject to DV. He hit her in June with deep laceration on her back. Contacted the Dr for depression/DV. Mental healthcare assessment created.

Police

Set out criminal history for Mr A and details particularly of incident on 20/06/2015

(omitted) Medical Services

Mother attended 6/01/2016

Still requesting something for being restless and agitated. Seemed to be picking on her skin and scalp. Side effects of medication discussed. Reason for contact with Dr. anxiety/depression. Test done and result was severe depression. Notes dated 18/01/2016 of a meltdown and also took all her tablets with friend taking her to hospital. Mental health treatment plan produced.

(omitted) Hospital

Treatment of Ms Friswell 24/12/2015 for overdose of unknown quantity of Diazepam. No support from her partner Mr A as he is on an AVO. She declined voluntary admission to the hospital.

20/06/2015 Ms Friswell attended with complaint of alleged assault, kicked on her face, 8cm laceration in her left lower back requiring 8 stitches.

MOTHER'S AFFIDAVIT SWORN 22.12.2015

1. Does not annex copy of Apprehended Violence Application or charges against Mr A to her Affidavit;

2. Does not advise the outcome of Hearing against Mr A ( though it was to be in January,2016);

3. Does not refer to depression and anxiety which is currently medicated and which she raised with the Family Consultant in the CDC;

4. Does not mention X missing 39 days of school in 2015;

5. Does not advise the outcome of her being arrested on two occasions for failing to attend Court;

6. Does not mention her request to have a Police welfare check carried out on the father;

7. She makes no mention of being admitted to (omitted) hospital or (omitted) hospital as referred to in the father's Affidavit;

8. She does not mention attending (omitted) hospital for an overdose as alleged by the father (later on 24/12/2015);

9. Does not mention an Apprehended Personal Violence Order the husband alleges was served on her on 7/12/2015.