Rayne & Easton

[2020] FCCA 3672

FEDERAL CIRCUIT COURT OF AUSTRALIA

Rayne & Easton [2020] FCCA 3672

File number(s):	ADC 3813 of 2017
Judgment of:	JUDGE BROWN
Date of judgment:	12 August 2020
Catchwords:	FAMILY LAW – application for interim parenting arrangements of two children aged 3 and 1 – dispute as to the parentage of one child’s father – youngest child was placed in care of the paternal aunt, an arrangement that was formalised by the Department for Child Protection due to concerns as to the mother’s mental wellbeing – eldest child placed in his father’s care in July 2020 on interim basis – mother seeking to have both children returned to her care – assessment of risk – lack of material before the Court – best interests of the children – where children are currently separated from each other – parties ordered to attend a roundtable
Legislation:	Family Law Act 1975 (Cth), s 60CC
Cases cited:	Marvel & Marvel (No 2) [2010] FamCAFC 101
Number of paragraphs:	32
Date of hearing:	12 August 2020
Place:	Adelaide
Solicitor for the Applicant:	KP Lawyers
Counsel for the Applicant:	Mr Roberts
Solicitor for the First Respondent:	Ms Pascale, for Pascale Legal Barristers & Solicitors
Solicitor for the Second Respondent:	CG Family Law
Counsel for the Second Respondent:	Ms Miller
Solicitor for the Third Respondent:	SE Lawyers
Counsel for the Third Respondent:	Mr Boehm
Solicitor for the Independent Children’s Lawyer	Silkwoods
Counsel for the Independent Children’s Lawyer:	Ms Olsson

ORDERS

ADC 3813 of 2017

BETWEEN:

MS RAYNE

Applicant

AND:

MR EASTON

First Respondent

MR LONDON

Second Respondent

MS OLIVERSON

Third Respondent

ORDER MADE BY:	JUDGE BROWN
DATE OF ORDER:	12 AUGUST 2020

DURING THE PERIOD OF THE ADJOURNMENT THE COURT ORDERS THAT:

1.The parties’ legal representatives attend a round-table conference on a date and time to be agreed between them to be chaired by the Independent Children’s Lawyer about the two children concerned and any ancillary issue concerning the management of the case particularly whether there should be an urgent Family Report ordered or a forensic psychiatric assessment of Ms Rayne and if so, what material should be retained in respect of the commissioning of such psychiatric report.

2.The father of X, Mr London, make inquiries as soon as possible as to the date on which the DNA parentage testing is to be released and thereafter he provide a copy of the report to Ms Oliverson, Ms Rayne and the Independent Children’s Lawyer.

3.The Independent Children’s Lawyer approach the Department of Child Protection and request the Department to provide a date on which the orders pursuant to section 69ZW will be actioned and indicate to the relevant officer that this court requests that this order be expedited due to the complexity of the matter and the fact that the Department precipitated the proceedings coming to this court.

4.Order 11 of the orders made on 3 July 2020 (ADC2658/2020) be varied so that all time spending shall be at Shop C.

5.Each party, other than Ms Oliverson, participate in one (1) random urine drug screen test within twenty-four (24) hours of a written request from the solicitor for the other party to submit to a urine test for the presence of illegal drugs and/or substances and for the purposes of such testing the provision of the urine sample is to be personally supervised and observed by a qualified medical practitioner or their authorised delegate in accordance with the chain of custody protocol specified in AS/NZ 4308:2008 with a copy of the results of such tests to be annexed to an affidavit filed with the court.

6.The orders of 3 July 2020 otherwise continue.

7.An injunction issue restraining the mother and any person assisting her from attending with Ms Oliverson and X from time to time from wearing any perfume or any perfumed substance.

8.Further consideration of the matter is adjourned to 26 August 2020 at 4:00pm for an interim hearing.

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 Rayne & Easton is approved pursuant to s.121(9)(g) of the Family Law Act 1975 (Cth).

REASONS FOR JUDGMENT
(Delivered ex tempore)

JUDGE BROWN:

INTRODUCTION

1. These reasons have been delivered orally immediately following the interim hearing concerned. These reasons have since been corrected of errors of expression and syntax in an attempt to make these orally delivered reasons amenable to being read.

2. These proceedings relate to two children, X who was born in 2020 and Y who was born in 2016.  The applicant in the proceedings is undoubtedly the mother of Y and X; her name is Ms Rayne. 

3. There is also no doubt that the father of the child, Y, is Mr Easton.  There is some controversy, as yet unresolved, regarding the parentage of X.

4. What is clear is that in 2020, the Department for Child Protection (‘the Department’) became involved in respect of X and a care plan was inaugurated.  At that stage, an issue of child protection was substantiated in respect of Ms Rayne’s mental health. 

5. Whatever other issues were raised at that stage is unclear to me.  It is essentially Ms Rayne’s case that she has been the victim of circumstances.  She concedes that she had postnatal depression, which of course was not her fault, following the birth of X.  It is her position that the Department became involved briefly – that she got the support she needed from her GP and now has a mental-health plan. 

6. It is the position of Mr Easton that there are more complicated issues at play and there is a need for more evidence.  There have been earlier proceedings between Ms Rayne and Mr Easton which were finalised with a consent order made on 10 May 2019, which saw Y live predominantly with his mother. 

7. That order was discharged on an interim basis on 3 July 2020, when I made an order that Y live with his father and spend time with his mother on two occasions each week, with additional FaceTime calls, each Tuesday and Friday. 

8. The time was to be supervised by either Y’s paternal grandmother or his paternal great‑grandmother in the absence of Mr Easton, and arrangements were made for handover.  Mr London also has concerns about the care of X and there is another party involved in the proceedings – she is Ms Oliverson, who is X’s paternal aunt, if Mr London is the child’s father. 

9. Given the complexity of this matter, at an earlier stage I asked the Department, who had precipitated this particular crisis in the family, to come to court and they did do so. 

10. As a consequence of orders that I have made, firstly, placing Y in Mr Easton’s care and placing X in the care of Ms Oliverson, the Department is satisfied that they are appropriate arrangements and therefore, in effect, their job is done, and it falls to me to determine what should be the long-term living arrangements for the two children concerned if the parties themselves cannot agree them.

11. Against that background, Mr Roberts comes to court and asks that both children be returned to the care of his client or, failing that, there be far more time between both X, Y, and their mother than what presently occurs, which is brief periods of daylight time subject to supervision. 

12. As I say, it is his client’s position that Mr Easton, Mr London and Ms Oliverson have exaggerated their concerns about her and are, in effect, ‘ganging up on her’, and the Department, which should be more proactive, has disappeared. 

13. It is the position of Mr Easton, Mr London and, indeed, Ms Oliverson that Ms Rayne has a lot of issues in her life, not only to do with her psychiatric health, but also to do with drug abuse.  The last time the matter was in court on 3 July, I joined Ms Oliverson as a party to the proceedings, I consolidated the two files, and, significantly, I made an order that the two children be independently represented. 

14. Their representative is Ms Olsson, who is a very experienced family lawyer with a great deal of experience in the child protection field, and given the brief history I have outlined, this is a case that is really about child protection.  

15. In addition, I directed the Department to provide any notifications that they had received of abuse, or neglect or exposure to family violence in respect of both children.  I asked that that be done as a matter of urgency.  That was on 3 July.  It is 12 August today.  So on my calculations, that is five and a half weeks.  So that request for urgency appears to have fallen on deaf ears. 

16. In addition, I ordered that there be a parentage test in respect of X.  For obvious reasons, it is fundamental, I think, that we know X’s parentage, because it may be fundamentally unfair and unsound for Ms Oliverson to form a very significant relationship with X, who is approximately 18 months of age, if she is not biologically related to him.  That is, for obvious reasons, a very complicated issue to unpack. 

17. In addition, it is usually not preferable that, other than in situations of extreme emergency, that a child be parented long term by someone who is not the child’s mother or father.  So there is a lot at stake. 

18. No doubt, from the mother’s point of view – she says, ‘there is no doubt about that I am X’s mother.  That is all the more reason that the child should be returned to my care.’

19. In addition, because of the allegations that Ms Rayne had issues to do with illicit substance abuse, there was an order that there be urine-drug testing during the period of the adjournment.  However, no one apparently requested any drug-screen testing. 

20. The parties were each asked to file updated affidavits in the period of the adjournment, which they all did.  I mean no disrespect, but lawyers are good at doing affidavits.  But the other practical aspects of the case and, in addition, more evidence about what brought about, in a medical sense, this crisis, which had got the Department involved, I do not have. 

21. Perhaps a subpoena could have been issued, I do not know.  There is a discharge summary, but it is a very brief document.  In those circumstances, I am asked by the solicitors for Mr Easton to have Ms Rayne psychiatrically assessed in a forensic sense by one of the forensic psychiatrists who practice in Adelaide, either Dr C or Dr D.  At this juncture, and I mean no disrespect to either psychiatrist, I am not really sure that will advance the matter to any great degree.

22. In addition, as I have already commented, I have got a fairly brief report from Ms Rayne’s General Practitioner, Dr B, who just says his patient is ‘much better’.  I am pleased about that, but it is not a statement that is placed in any particular context.  I find the case concerning and frustrating, and the case was adjourned until today, the order says, for directions.

    DISCUSSION

23. From Ms Rayne’s point of view, delay is frustrating and, no doubt, leads to her feeling a great sense of injustice.  From Mr Easton, Mr London and Ms Oliverson’s perspective, they are not greatly concerned about the delay because they submit that the continuation of the status quo is important. 

24. All of the parties concerned, and I have got no reason to disbelieve any of them, assert to me that they have the best interests of Y and X at heart and they want the best for them.  I would certainly hope that is the case. 

25. One thing I know for certain is that this crisis has nothing to do with anything Y or X have done.  They are innocent children, and my fundamental responsibility is to them – not to Ms Rayne, not to Mr Easton, not to Mr London, and not to Ms Oliverson.  I have got to ensure that those two children are safe and protected from harm.[1] At an interim stage of proceedings, a ‘conservative approach’ is preferred.[2]   

    [1] Family Law Act 1975 (Cth) s 60CC(2)(b).

    [2] Marvel & Marvel (No 2) [2010] FamCAFC 101 at [120] (Faulks DCJ, Boland & Stevenson JJ).

26. It is also the case that I do not have statutory responsibility in South Australia for child protection.  I do not have this authority – that lies with the Department, and as I say, to a certain extent they, having actioned this particular imbroglio of controversy, have walked away from it, and then after I asked them to provide me with their documents urgently, they have not done anything.

27. At this juncture, for the reasons I have outlined, I do not think it would be in either Y or X’s best interests for me to ignore the risks that arise in this case and return the children to Ms Rayne’s care.[3] 

    [3] Family Law Act 1975 (Cth) s 60CC(1).

28. Nor, regrettably, do I think that I can do much about the current time spending arrangements which, I suspect, are frustrating for her.  Ms Oliverson has also made complaints about the Shop E because she feels that it is a place where she has an allergic reaction. 

29. She asserts perhaps Ms Rayne or one of her relatives is using perfume or a scent and she has an allergic reaction to that, and she has asked to move it to the Shop C’s.  Whether that will be better or worse, I do not know. 

30. These are practical issues, and the parties need to start talking about them.  They also need to have a fall-back position, I suppose, in respect of what the paternity may or may not reveal. 

31. So, I do not know if there is a great deal I can do today other than in a procedural sense and perhaps, hopefully, focus everyone who is concerned in this case to start talking with one another about the issues at hand and their shared goal, I would hope, of what is best for these two children.

32. For all these reasons, the orders of the Court will be as set out at the commencement of these reasons for judgment.

I certify that the preceding thirty-two (32) numbered paragraphs are a true copy of the Reasons for Judgment of Judge Brown.

Associate:

Dated:       28 September 2021