Raymont & Barrille

[2021] FCCA 1325

FEDERAL CIRCUIT COURT OF AUSTRALIA

Raymont & Barrille [2021] FCCA 1325

File number(s):	PAC 361 of 2021
Judgment of:	JUDGE OBRADOVIC
Date of judgment:	25 June 2021
Catchwords:	FAMILY LAW – Parenting – interim orders – assessment of risk – best interests of child – orders made for the child to spend supervised time with the father.
Legislation:	Family Law Act 1975 (Cth) ss 69ZL
Cases cited:	Goode v Goode [2006] FamCA 1346 Keats & Keats [2016] FamCAFC 156 Re K [1994] FamCA 21
Number of paragraphs:	28
Date of hearing:	22 April 2021 and 9 June 2021
Place:	Parramatta
Counsel for the Applicant:	Ms Haughton
Solicitors for the Applicant:	Ca Williams Legal Pty Ltd
Appearing for the Respondent:	In person

ORDERS

PAC 361 of 2021

BETWEEN:

MR RAYMONT

Applicant

AND:

MS BARRILLE

Respondent

ORDER MADE BY:	JUDGE OBRADOVIC
DATE OF ORDER:	25 JUNE 2021

PENDING FURTHER ORDER, THE COURT ORDERS THAT:

1.The child X born in 2018 shall live with the mother.

2.The child shall spend time with the father supervised by Suburb B Contact Centre or other appropriately qualified contact centre as follows:

a.   each alternate Sunday from 9am to 12pm; and

b.   if the contact centre is not able to supervise the father’s time with the child in accordance with (a) above, then the child shall spend time with the father for at least 2 hours each fortnight at times suitable to the parties and the contact centre.

3.Each party shall do all acts and things necessary to:

a.   Attend any appointments for assessment for suitability for supervision of the time the child spends with the father;

b.   Participate fully in the assessment;

c.   Comply with any appointments made by the contact centre for supervised time;

d.   Comply with all reasonable policies and rules of the contact centre; and

e.   Comply with all reasonable requests or directions of the staff of the contact centre.

4.The father shall pay the costs of the supervision at Suburb B Contact Centre or other agreed contact centre.

5.The father shall undertake (by provision of urine screen in accordance with the Australian/NZ Standard 4308:2008 or any subsequent approved standard) urinalysis for drug screening within 24 hours of a request to do so from the Independent Children’s Lawyer (as appointed), provided always that such request shall not occur more frequently than once per calendar month. The father shall provide copies of the results of the tests to the other party and the Independent Children’s Lawyer within 24 hours of receipt of same.

6.Pursuant to s.68L of the Family Law Act1975 an Independent Children’s Lawyer is appointed for X, born in 2018 and request the Legal Aid Commission of NSW to provide such representation.

7.The parties are to provide to the Independent Children’s Lawyer, within 48 hours of receiving notice of their appointment, all documents thus far filed by them in these proceedings together with all existing orders and copies of any relevant reports.

8.The parties are to provide to the Independent Children’s Lawyer immediately upon notification of their appointment, a copy of any subpoena issued in the proceedings.

9.The matter is listed for directions at 11:30am on 25 October 2021.

Section 121 of the Family Law Act 1975 (Cth) makes it an offence, except in very limited circumstances, to publish proceedings that identify persons, associated persons, or witnesses involved in family law proceedings.

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

REASONS FOR JUDGMENT

JUDGE OBRADOVIC:

1. These are short form reasons pursuant to s.69ZL Family Law Act 1975 (Cth).

2. The proceedings concern 3 year old X, who is the child of the applicant father and the respondent mother. The issue for determination is what time X ought to be spending with his father, and if that time should be supervised.

3. X was born in 2018. His parents separated in October 2020, and apart from two short occasions in October 2020, the child has not spent any time with the father since separation to date.

4. The mother says that the father, due to his criminal history, drug use and mental health poses a significant and unacceptable risk to X, such that the question of time between the child and the father should be determined after the father has been assessed by a psychiatrist in respect of his mental health.

5. The father presses the Court for orders that he spend time with the child progressing from daytime only on Sundays to alternate weekends. The father says he is not a risk to the child, but that in the alternative, if the Court deems that there is an unacceptable risk to the child in spending unsupervised time with the father, then he presses the Court for an order for supervised time.  

6. On 22 April 2021, the Court noted the parties’ agreement to place their names on the waitlist at a contact centre in Suburb B, something which the mother has attended to but the father has not. He says he did not know which contact centre the mother proposed. In any event, the father says that because the wait list is close to 12 months at the contact centre in Suburb B that he will pay for private supervision of his time with the child.

7. The father has produced to the Court a report from a psychologist, Mr C, dated 19 April 2021, which provides an opinion that the father’s symptoms are consistent with:

   ·Chronic Complex Posttraumatic Stress Disorder; and

   ·Borderline Personality Disorder.

8. Mr C further opines:

   The significance of having the dual diagnosis of Borderline Personality Disorder and Complex Posttraumatic Stress disorder is that the dual diagnosis overlaps many of the symptoms and thus strengthen presenting symptoms and polarise the person’s view and understanding of them. This can be seen in their short, quick vacillation of moods, lack of impulse control, catastrophisation of minor events, Obsessive-Compulsive Disorder, fear of being abandoned and several other features that daily negatively impact their lives.

9. The recommendation of Mr C is that the father “requires ongoing psychological counselling to assist him to resolve the severity of his symptoms… with a solid structure of support around him his prognosis becomes encouraging.” The father’s evidence is that he has been provided with a mental health plan, and that he has been referred to Mr C. As at January 2021, he had not yet seen Mr C. There is no evidence from the father (despite two further affidavits being filed since January 2021, namely on 25 May 2021 and 9 June 2021) that he is presently engaged with psychological counselling as recommended by the psychologist, (although he did say from the Bar Table that he was continuing to see Mr C every 6 weeks).

10. The father has a criminal history including drug related offences for possession and supply. The father served a 6 month sentence in 2016. Most recently, in late 2020 he was charged with and plead guilty to affray, resulting in a conviction, a fine and no bond.

11. In respect of the father’s past violent behaviours (as described in his criminal history) as well as the allegations of violence and volatile behaviour the mother makes against him during the time they were together, the mother deposes to instances of the father yelling, throwing things, breaking furniture, punching holes in walls and instances of being grabbed by the neck by the father.

12. For example, the mother says that on 27 September 2018, the father grabbed her by the neck with both his hands and choked her to the point where she could not breathe. The mother says that he let go after about 5 seconds, and then punched a hole in the wall. The father says, in respect of this incident, that he did not choke the mother or restrict her breathing, but that he did put his hands on her purely to subdue her as she was being physical with him.

13. In relation to the father’s drug use, the father admits to having used illicit substances in the past (including marijuana, cocaine and methamphetamines), and that the last time he used cocaine was in November 2020. He has provided a hair analysis drug test result, in respect of a sample collected on 1 April 2021, which has negative results for all of the drugs screened for.

14. The father says that the parties, while together, used to partake in recreational drug taking. The father also says that the mother’s extended family are involved in the supply of drugs. The father also says that the maternal grandmother, who assists the mother to look after X from time to time, has health issues which place X at risk if he is left in her sole care. Despite these concerns, both parties agree, that at least on an interim basis, X should live with the mother.

    COURT’S DETERMINATION

15. The principles in respect of interim hearings are well known, including that the legislative pathway must at all times be followed (Goode v Goode [2006] FamCA 1346). Interim hearings are curtailed by the absence of cross-examination and testing of evidence in general, and the Court is often in a position where it is unable to make findings of fact.

16. Even in such constrained circumstances, the Court is still required to determine the applications before it.

17. In terms of a risk assessment, the Court is to determine that issue by weighing the probabilities of competing claims and the likely impact on the child in the event that a controversial assertion is acted upon or rejected (Keats & Keats [2016] FamCAFC 156).

18. X is clearly a young and vulnerable child. He has not spent any time with his father for a number of months. The father has limited parenting experience.

19. While the Court accepts that the father loves X very much, and wants to be a good father to him, the evidence is such that his current state of mental health is volatile. Coupled with his past drug use and criminal behaviour, the Court is not convinced that the father has done enough to ensure that he will not act in a way which will put X at risk, even inadvertently.

20. The father’s application is that his time be initially supervised, until he has provided 3 clear months of drug testing. As noted earlier, the father has provided a clear hair follicle drug test in April 2021, but there is no evidence of any further drug tests being undertaken. Given the father’s admissions, it is appropriate that there be an ongoing regime of drug testing to ensure X’s safety.

21. There are some very strong recommendations by the psychologist in respect of the father requiring counselling and a strong support system, and no evidence that the father has engaged in that process or that he has those supports.

22. It may be that the father is on the path to recovery from years of anti-social behaviour, drug use and mental health issues, but to place a young child in his care at present, and not have that time adequately supervised, is fraught with too many risks.

23. The father submitted that he would pay for a private supervisions service so that he could spend time with X. There is no evidence before the Court that a private supervisions service, having full disclosure of the father’s mental health issues and criminal history, would be able to put in place appropriate safety guards and/or what those safety guards might be.

24. The Court is well aware of at least some of the safety guards in place at supervisions centres and in the Court’s view this would go some way to protecting X from the behaviours (including potential behaviours) which are described in Mr C’s report. A contact centre would also not permit for time to occur if a parent appeared to be drug affected, and given the layouts of supervision centres, it is possible for physical separation to occur much more readily than in an open and/or public space where there might only be private supervision.

25. For all of those reasons, it is in X’s best interest that he spend time with the father but that such time be supervised at a contact centre.

26. The father is also presently self-represented. As noted in these reasons, there are some complex issues involving anti-social behaviour, and psychiatric or psychological illness, and as such, it is appropriate that an Independent Children’s Lawyer be appointed (Re K [1994] FamCA 21).

27. Lastly, the mother seeks an order for sole parental responsibility. There is no evidence that the parties have to date had any issues in respect of making long-term decisions concerning X. There is however, a risk identified in the father’s case – which was the subject of an application but no longer pressed – that the mother may move with X to Queensland. An order for the mother to have sole parental responsibility on an interim basis is therefore not appropriate in all of the circumstance and will not be made.

28. For all of those reasons, orders as set out at the forefront of these Reasons for Judgment are made.

29          I certify that the preceding twenty-eight (28) numbered paragraphs are a true copy of the Reasons for Judgment of Judge Obradovic.

Associate:

Dated: 25 June 2021