Ridley and Radford

[2016] FCCA 3383

FEDERAL CIRCUIT COURT OF AUSTRALIA

RIDLEY & RADFORD [2016] FCCA 3383

Catchwords:
FAMILY LAW – Children – Interim parenting – allegations of family violence – mother relocated child’s residence after advice from Child Welfare Authority to not allow the child to spend time with the father – Application for recovery order dismissed – Sole parental responsibility order made – interim no time order made.

Legislation:

Family Law Act 1975, s.69ZW

Applicant: MR RIDLEY

Respondent: MS RADFORD

File Number: BRC 7433 of 2011

Judgment of: Judge Lapthorn

Hearing date: 16 December 2016

Date of Last Submission: 16 December 2016

Delivered at: Brisbane

Delivered on: 20 December 2016

REPRESENTATION

Solicitor for the Applicant: Aboriginal & Torres Strait Islander Legal Service (Qld) Ltd

Solicitor for the Respondent: In Person

Solicitor for the Independent Children’s Lawyer: Carter Farquar Mediation & Family Law

ORDERS

1. That the Orders dated 17 March 2014 (Amended 1 April 2014) be suspended.

2. That the child X born (omitted) 2010 (“the child”) live with the mother.

3. That the mother have sole parental responsibility for the child. 

4. That the father spend no time nor communicate with the child.

5. That the Application in a Case filed 26 September 2016 be dismissed.

6. That the interim orders sought in the Response filed 2 December 2016 be dismissed.

7. That pursuant to Rule 8.02 of the Federal Circuit CourtRules 2001, all outstanding applications be transferred to the Family Court of Australia at Brisbane to be listed on a date to be advised.

THE COURT NOTES:

A.That the Application Contravention filed 26 September 2016 is yet to be determined and has by of virtue of Order 7 herein been transferred to the Family Court of Australia in light of the factual dispute being similar to that to be determined in the substantive proceedings. 

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

FEDERAL CIRCUIT COURT
OF AUSTRALIA
AT BRISBANE

BRC 7433 of 2011

MR RIDLEY

Applicant

And

MS RADFORD

Respondent

REASONS FOR JUDGMENT

EX TEMPORE

1. I have before the court an application for interim parenting orders in relation to a six year old child, X, known as X.  X was born on (omitted) 2010.  The applicant in these proceedings is the child’s mother, Ms Radford; the respondent, X, the child’s father.  X is independently represented in these proceedings.  The father has another child, A, born on (omitted) this year from another relationship and she is not part of these proceedings. 

2. On 17 March 2014, I made orders that could be summarised as providing for equal shared parental responsibility between the applicant and the respondent; for the child to live primarily with the mother; and once X had commenced his prep year, he would spend time with the father from after school Wednesday to before school Thursday each week and after school Friday to before school Monday in each alternate week.  I am informed that notwithstanding some alleged breaches of those orders, until recently those orders were largely followed.  The mother unilaterally relocated the child’s residence to Far North Queensland on 21 September this year, and as a consequence of that move those orders have not been followed. 

3. The father filed an application contravention and an application in a case very promptly after the mother’s move; in fact, within five days.  In his application in a case, he sought orders for a recovery order of the child.  The mother filed an initiating application on 13 October seeking to vary the orders made in 2014. 

4. On 23 November this year, the matter came before me and I ordered that an Independent Children’s Lawyer be appointed.  I made an order pursuant to section 69ZW for information from the Department of Child Safety.  I made an airport watch order, which was by consent of the parties, as well as making filing directions for an interim hearing.

5. As a consequence of the mother seeking a variation of the orders of 2014, I have proceeded on the basis of treating the mother as the applicant in these proceedings.  The father filed a response to the mother’s application on 2 December.

6. The orders sought by the mother may be summarised as a sole parental responsibility order in her favour, that the child live with her, that there be no spending time with or communication orders with the father.  The father has sought that the mother’s application be dismissed.  He has pressed his recovery order application and has asked the court to return to the 2014 orders save that he have sole parental responsibility for the child, that both parties be restrained from moving the child more than 50 kilometres from the school in which he was enrolled prior to the mother’s unilateral relocation and a restraint on overseas travel.

7. The mother in support of her case relied on her initiating application filed on 13 October this year, her notice of risk filed that day and her affidavit filed that day, and I was assisted by an outline of case document at the hearing.

8. The father relied on his response filed on 2 December, his application in a case filed on 26 September 2016, the notice of risk filed on 26 September 2016, the affidavit by him filed on 26 September, a further affidavit filed on 25 October and again a further affidavit filed on 14 November this year.

9. I had adjourned his application contravention.  It is yet to be heard.

10. The father also tendered into evidence three exhibits.  Exhibit F1 was a bundle of correspondence between the father and the Department of Communities, Child Safety and Disability Services.  F2 was a document entitled Explanations and Answers to Fabricated Allegations.  I asked Mr Ridley to take an oath and swear that the contents of that document were true and correct, which he did.  Exhibit F3 was email correspondence between the father and the (omitted) State School where the child is currently enrolled. 

11. The Independent Children’s Lawyer tendered into evidence as ICL1 a bundle of documents from the Department of Communities, Child Safety and Disability Services that were produced pursuant to section 69ZW.  The documents were heavily redacted.  The documents were also voluminous. 

12. The parties were given some time to read these documents and make submissions, but I understand that they were not able to read all of the documents in their entirety.  The Independent Children’s Lawyer, the father and the solicitor for the mother, though, managed to direct me to many of the pages of those documents and as a consequence I reserved my decision so that I could read all that which I was taken to.

13. I have had regard to all of the documents that I have just indicated, as well as the exhibits. 

14. In determining my decision, although I have had regard to the voluminous material that I was referred to from the Department of Communities, Child Safety and Disability Services documents, I have placed particular regard to the events recorded therein in 2016 as many of the earlier notifications and recordings predated the 2014 orders that were made, although I note not all of them were.

15. The mother’s case is that she acted on the advice of the Department to ensure the child did not come into contact with the father.  The father alleges that the mother has conspired with officers of the Department to make false allegations to further her aim of moving to Far North Queensland and that the court would be concerned that the majority of notifications and concerns in the departmental file relate in fact to the mother’s care and not to him.

16. Much of that latter issue raised by the father, however, predates the 2014 orders, although not in their entirety.

17. On 30 August this year, at the request of the Department, the mother and child attended an interview.  At the conclusion of the interview, the mother was advised that the child should not have any contact with the father. 

18. On 31 August, a Child Safety officer and a police officer attended at the father’s home and, as he was not there, contacted him.  He told them to leave and refused to meet with them.  The Child Safety officer advised the father that he was not permitted any further unsupervised contact with the child due to concerns for X’s safety.  A notation of that effect was clearly a summary of what was said.  An officer of the Department does not have authority to say that a parent is not permitted unsupervised time with a child, but I interpreted the comments to say that in the event that the father was to spend unsupervised time with the child, the Department would take action available to it under the Care and Protection Act (Qld) 1999.

19. The Department then advised the child’s school that they held concerns for the child’s safety and that the father was not encouraged to engage in unsupervised time with X.  The school advised the Department later that day that the father attended the school to collect the child but the child was not there.  The notes do not say if the mother withdrew him early or if he did not attend at all that day.

20. On 13 September, the mother received a letter from the Department.  So far as is relevant to today’s decision, the letter reads:

    The (omitted) Child Safety Service Centre recently received information relating to your child, X.  The worries expressed were that on 9 May 2016 the reporter stated that they were worried that there was domestic violence in the home, including Mr Ridley pushing Mrs Ridley; Mr Ridley attempting to strangle Mrs Ridley;  and Mr Ridley yelling at Mrs Ridley in her face while she is holding a baby in front of Mr Ridley’s son, X.  

    This letter is to advise you that an assessment of these worries has been completed for your son, X, and the outcome is substantiated:  child not in need of protection.  This assessment is based on the information collected, with Mr Ridley being assessed and listed as the person responsible and yourself as the parent willing and able to provide protection. 

    This means that I believe X has suffered significant emotional harm due to X’s disclosures that X states he has witnessed his father hit his stepmother;  X states he has witnessed his father hit his stepmother with implements;  X states he has witnessed his father place his hands around his stepmother’s throat;  X states that he has been hit with the same implements, a big spoon, that his father hit his stepmother;  X states that his father hit him with the big spoon on his back, on his chest and on his bottom;  X states that he is scared of his father and has been so scared that he has hidden from him under furnishings;  X stated that he and his stepmother both understand when they need to hide from his father.

    I also believe that you are a parent that is willing and able to care for X and keep him safe.  As a result of this, the Department will have no further involvement with your family at this time.  My assessment of you being a parent who is currently willing and able to ensure the safety, belonging and wellbeing of X due to the following:  you have believed X’s disclosures and supported X to feel safe;  you have sought a subsequent domestic violence order including X to ensure his protection;  recognising that X cannot voice his concerns or be physically able to move himself to a safe location if there was any breaches of a domestic violence order, you have sought that the Family Law Court have the opportunity to hear, consider and assess this information.

21. That letter was signed by Ms L, Child Safety officer with the Department. 

22. The father vehemently denies the allegations of family violence in his home and alleges that he has been set up.  He said that the mother has worked for the Department and has arranged for these false allegations to be recorded so she can leave Brisbane.

23. The mother denies making the initial complaint or conspiring with officers of the Department.  In her affidavit, the mother set out a number of communications from the father, many of which are threatening in nature. 

24. On 7 September, the mother saw the father park his vehicle outside the child’s school.  The police attended and the mother and child were escorted to her vehicle. 

25. The mother applied for a domestic violence protection order as a consequence of receiving the many threatening messages.  A temporary order was made on 14 September prohibiting the father from having any contact with the mother and child subject to the usual exceptions.

26. The father has also applied for an order against the mother.

27. The father has made a formal complaint to the Department and is not happy with their response.  I have read the bundle of correspondence between he and officers of the Department.  There can be no doubt that departmental officers have formed the view that the father has no respect for women, whether within a domestic relationship or as professionals, such as Child Safety officers and police.  It is clear that that assessment has been informed by previous comments made by the father and recorded in the departmental file.

28. The significant factual issues surrounding violence in the father’s home and false allegations cannot, unfortunately, be determined at this interim stage.  Given the nature, though, of these allegations, I need to proceed cautiously.

29. In determining the competing applications, I must have X’s best interests as my paramount consideration.  In doing so, I must have regard to the provisions of section 60CC insofar as they are relevant.  The primary considerations are particularly important at this point in time. 

30. The two primary considerations set out in section 60CC(2) 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.

31. The father is rightly concerned that by the mother relocating to Far North Queensland, the child will not have the benefit of maintaining and developing his meaningful relationship with him.  The orders that were put in place in 2014 provided for time every week.  This has now not been happening since the end of August this year.  The father says that this is an example of alienation by the mother aimed at ensuring the child does not have a relationship with him.

32. The mother and the ICL, however, argued that the risk of harm issues are significant and the court needs to give those issues greater weight.  In fact, section 60CC(2A) provides:

    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) –

    which is, as I said earlier on, the need to protect the child from physical or psychological harm from being subjected to, or exposed to, abuse, neglect or family violence.

33. The difficulty is that this is an interim hearing and I am simply not able to determine the disputed questions of fact.  If the father is right and there has been false accusations made, then the emotional harm to this child by not spending regular time with the father will be significant.  Be that as it may, given this is an interim hearing, I need to proceed cautiously.

34. The departmental documents say that the child presented as fearful of the father.  I have insufficient evidence of the extent of this alleged fear and how best to manage it.  The court would benefit from a full family report and a testing of the allegations and the evidence.

35. Given I must place greater weight on the risk of harm issues and the inability to test the competing allegations, I will not make the recovery order sought by the father today.

36. And as for the mother’s relocation to Far North Queensland and the application to discharge the orders for the child to spend time with the father, I am satisfied that it is appropriate to suspend the orders until further order.  The mother had sought the orders to be discharged, but given there is such a disparity in the evidence and allegations, I am only prepared to suspend the orders.

37. I am conscious of the child’s relationship with the father and the risks of compromising that relationship if the time is suspended.  But until I have a better understanding of the level of the child’s alleged fear and how best to manage that, I do propose to proceed very cautiously.

38. It is not surprising the mother relocated to seek support from her family in light of the domestic violence protection order and the father’s attendance at the child’s school.  The nature of the messages sent by the father to the mother and the manner the father has written to the child’s current school causes me concern as to his level of civility whilst under pressure.  Any return to Brisbane in the interim may exacerbate an already volatile dynamic for the parties with the consequential negative flow-on for the child.

39. The mother has asked for an interim order for sole parental responsibility.  The presumption of equal shared parental responsibility should apply at an interim stage unless the court is satisfied that it is not appropriate to do so. 

40. A child’s enrolment at school is an important issue involving the exercise of parental responsibility.  The mother, of course, not only unilaterally moved a long distance away from the father, she unilaterally enrolled the child in another school.  The father is annoyed, to say the least, as to the mother’s actions.  The father raised issue with the child’s current school as to the mother’s enrolment of him there.  It does not benefit the child if his parents are in conflict over his schooling. 

41. Given the allegations of violence and the way in which the father has failed to engage with the Department and the nature of his correspondence with the child’s current school, I have no confidence the parents will be able to communicate effectively to make decisions for the child.  Accordingly, I am satisfied, at least in the interim, that a sole parental responsibility order should be made in the mother’s favour. 

42. For those reasons, I propose to suspend the orders made on 17 March 2014 and amended on 1 April 2014. 

ORDERS DELIVERED

I certify that the preceding forty-two (42) paragraphs are a true copy of the reasons for judgment of Judge Lapthorn

Date: 22 December 2016