Rusden and Samson - [2007] FMCAfam 1210

FEDERAL MAGISTRATES COURT OF AUSTRALIA

RUSDEN & SAMSON

[2007] FMCAfam 1210

FAMILY LAW – Child under 12 months of age – interim arrangements for care – both parties allege other parent is antisocial and violent – both assert he or she has been child’s primary carer – nature of interim hearing – court unable to make findings of fact – independent children’s lawyer appointed – equal time arrangement inaugurated in short term.

Family Law Act 1975 (Cth), ss.60CC, 61DA

Goode & Goode (2006) FLC 93 286 at 80,903

Applicant:

MS RUSDEN

Respondent:

MR SAMSON

File number:

ADC 6401 of 2007

Judgment of:

Brown FM

Hearing date:

21 December 2007

Date of last submission:

21 December 2007

Delivered at:

Adelaide

Delivered on:

21 December 2007

REPRESENTATION

Counsel for the Applicant:

Ms J. Schirripa

Solicitors for the Applicant:

Legal Services Commission

Counsel for the Respondent:

Ms A. Horvat

Solicitors for the Respondent:

Heuzenroeder and Heuzenroeder

ORDERS

The child [X] born in February 2007 live with each of her parents as follows:
(a)With the mother from now until midday on 25 December 2007;
(b)With the father from midday on 25 December 2007 until 3:00pm on 29 December 2007;
Thereafter the child live with the mother from 3:00pm on 29 December 2007 until 3:00pm on 1 January 2008; and
With the father from 3:00pm on 1 January 2008 until 3:00pm on 4 January 2008
Thereafter alternately with each of her parents on a three day about schedule from 3:00pm until 3:00pm every third day with the child to be exchanged within the confines of the [omitted] Police Station.
Each party is to be personally responsible for the care of the said child whilst in his or her respective care.
Pursuant to section 91B of the Family Law Act 1975, Department for Families & Communities (Families SA) is invited to intervene in these proceedings.
Pursuant to Section 68L of the Family Law Act 1975 THAT an Independent Children’s Lawyer be appointed to represent the interests of the child [X] born in February 2007 and to facilitate such appointment the Parties’ respective solicitors do forward all relevant documents to Mr Graham Russell of the Legal Services Commission of South Australia within seven (7) days of today’s date and that the Independent Children’s Lawyer use his or her best endeavours to be in a position to make submissions to the Court on the adjourned date.
Immediately upon appointment by the said Legal Services Commission of South Australia or otherwise, the Independent Children’s Lawyer file a Notice of Address for Service.
Each party is restrained and an injunction issue restraining them from consuming alcohol or using drugs other than those for which they have a prescription whilst the child is in his or her respective care.
Each party be restrained and an injunction is hereby granted restraining them from abusing, denigrating or rebuking the other in the presence of the child or from permitting any other person to do so.
Further consideration of the matter is adjourned to 8 February 2008 at 9:30am.

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

FEDERAL MAGISTRATES
COURT OF AUSTRALIA AT
ADELAIDE

ADC 6401 of 2007

MS RUSDEN

Applicant

And

MR SAMSON

Respondent

REASONS FOR JUDGMENT

This afternoon, I have to deal with a very difficult matter concerning the arrangements for the care of a very young child. The child concerned is [X], who was born in February 2007, so [X] is around 10 months of age. She is a baby.
Cases involving young children are the hardest sorts of cases I have to deal with because obviously babies are vulnerable. They cannot speak up for themselves and they are dependent upon adults and parents to cater for their every need. So this sort of case concerns me very much indeed.
The parties to the proceedings are [X]'s parents: her mother,

Ms Rusden; and her father, Mr Samson. I will refer to Ms Rusden as the mother in these reasons for judgment, and to Mr Samson as the father.
The mother brings this application. She brings it urgently. She filed it yesterday and it was made returnable yesterday. At that stage,

Mr Samson, the father, had not as yet had an opportunity to respond.
Yesterday he was with his solicitors in [T] and the mother was here with her solicitor in the court in Adelaide. Both parties made very serious allegations about the other. The father wanted time to file some answering documents.
I asked them, with the aid of their lawyers, to perhaps concentrate on what was best for [X] and to see if something rational and planned could occur for the care of this little child. That could not happen and the matter was put over for today and I have to make a decision.
The case comes before me against a background of extreme emotion and urgency. Neither party has had a chance to put his or her case in any great detail and perhaps call evidence from other people, which may be important in throwing a light on things at a later stage. Frequently courts have to make decisions, regarding children, against backgrounds of such urgency. It is not the best way to make decisions about children.
Necessarily the hearing today is a brief one, although it is obviously very important. The only evidence I have before me is in affidavits, which each of the parties have prepared. I have not seen either of them in the witness box. I have not heard anything from either of them in their own words.
I have not seen either of them, perhaps more importantly, being asked questions about what they have done in the past and so giving me an opportunity to assess their respective credibilities.
There is also a lot of other evidence that is not to hand. Both parties say that the other has psychiatric issues. I have not got any material from any doctors who have examined either of the parties.
More importantly, I have not got any assessment of what [X]'s needs are from a developmental point of view from a psychologist or some other expert, who has examined her and is so able to make some assessment of how she is travelling emotionally and developmentally.

I just do not have that.
But regardless of these omissions, I have to make a decision and I have to regulate arrangements for [X]'s care because up to this stage, to be perfectly frank, I am pretty appalled and disturbed about what has happened over the last few days. It seems that things have been very unstable for her.
Not to put too fine a point on it, both parties say the other parent is not to be trusted with a child of [X]'s age; does not understand what it is to be a parent; and will expose the child to very grave risk. The mother says that the father is a violent and abusive and alcoholic person who was dangerous to live with.
On the other hand, the father says that the mother was psychiatrically unstable when the parties met; was unstable during the parties' relationship; that she herself has very significant difficulties with alcohol, and has on occasions attacked him violently, including at times with a knife, and put his life in danger. If he has ever done anything to the mother, he says it has only been in response to provocation and in defence of himself. I do not know who is telling the truth.
I cannot say, from reading an affidavit, that one is affidavit is likely to be more reliable than the other. I suspect that the truth may lie somewhere in between and that both have, on occasions, done and said things that perhaps they should not have done.
Both says the other drinks to excess. The father says that he has an occasional beer after work, but his alcohol intake is a moderate and not a dangerous one. The mother denies any suggestion that she has a problem with alcohol. It is something else that I cannot resolve today.
The other significant issue between the parties concerns drug use. It is the mother's position that, during the parties' relationship, she became increasingly concerned about the father's psychological or psychiatric condition. She urged him to seek psychiatric assistance and Mr Samson was referred to a psychiatrist who ultimately prescribed him medication.
Mr Samson says that his medication was for attention deficit disorder and he was grateful to take the medication because it assisted him with concentration, which had been a problem for him in the past. He says there is nothing exceptional about his use of the prescribed medication.
The mother has a different view. She says there were issues to do with attention deficit disorder, but primarily the father was willing to see the psychiatrist to assist him with anger management. The main area of dispute between the parties concerns what use was put to the dexamphetamines, which were prescribed for the father.
It is the father's position that the mother stole his medication and used it for herself, something that the mother vigorously refutes.
The mother has two other children from an earlier relationship. It is the mother's position that one of her children left the parties' former home at [K] because he could no longer tolerate the father's violent and abusive behaviour.
It is the father's position that, to the contrary, the child was removed from that environment because of the difficulties the mother was having in caring for him.
There is dispute about another child who, it is agreed, is in Cairns. From the mother's point of view the child is just on a contact visit, with his father, in Cairns. From the father's point of view, again, it is because there are problems with the mother's parenting ability.
The parties have only recently separated. They separated on 13 December this year. They separated in extreme circumstances. From the father's point of view the mother was drinking to excess and was unstable. From the mother's point of view the father effectively kidnapped [X] and took her away from her.
The parties jointly own the property, in which they formerly lived at [K]. The father is living in that property at the moment and it is not possible for the mother to move back into it because of the bad blood between the parties.
The child concerned, [X], was with Mr Samson in his care from the date of the parties' separation until yesterday when I made an order that she should spend overnight with her mother.
I reached that view because I was concerned that Ms Rusden had not seen [X] for five or six days and I thought that the two should spend some time together. I was also concerned that no arrangements had been made, over that period, for mother and child to see one another.
From the father's point of view, he says that he was reacting to the emergency of the situation and felt that if he did not, in effect, conceal the child, the mother would take things into her own hands and there would be a violent altercation between the two.
The father has applied for a domestic violence order against the mother. That was granted, but in the absence of the mother. So whoever granted the order did not hear the other side of the case.
Mr Samson, as I understand it, is a [occupation omitted]. He works from early in the morning until about lunchtime on six days per week. This leads me to what is perhaps one of the more significant areas of dispute between the parties.
It is a common area of dispute in cases involving very young children. The dispute concerns who of a child's parents has been what is described as the primary carer. It is a psychological term and obviously relates to the care given to a child and the importance of that care for the child concerned.
It is very often the case that young children, particularly the very young, are parented in a way that one parent provides the vast majority of their care. That is particularly the case when a child is being breastfed.
The term relates to fundamental concepts of biology that very young children need to have a major attachment, very often to a mother, and they are highly dependent on that attachment, both physically and emotionally and to disturb that attachment may have serious consequences for the child concerned. The other parent (again, very often a father) although important, has an additional or secondary role to this primary and fundamental attachment.
We live in perhaps more complicated times and now it is commonly the case that both a child's parents are in the paid workforce and that from an early age others are involved with caring for quite young children. But the concept of primary care is a significant one in developmental terms for children. It is also often a matter of some controversy for psychologists.
At this stage, both parties assert they have been [X]’s primary carer, up to this stage of her developments. It is very difficult for me to resolve this complicated issue without having had some expert input, which I do not have at this stage.
It is the father's position that essentially he was involved in [X]'s care from a very early stage; that although he worked and got up early, he would tend to [X] when he got up, change her nappy and feed her before he went out to work, and that when he returned around midday he would do the same again, until [X] went to bed. The mother does not accept that. [X], it seems, was breastfed, but she was weaned at around three months.
Again, I am not in a position to ascertain the truth or otherwise of that. The mother says that it must follow clearly that if Mr Samson was involved in the paid workforce, on a full-time basis, six days per week, that it must follow that she must have done more of the caring for [X] and she must be regarded as her primary carer. Particularly given that she was breastfed.
Accordingly, it is her position that the court must be very critical of

Mr Samson for what happened on 13 December. It must be found that he has shown himself to be a poor parent by taking this very young child away from her primary carer.
These are difficult issues for me to resolve, but that is the topography of the dispute. Both parents at this stage assert that he or she has provided more of the nuts and bolts parenting of this little child and that the other has effectively been incompetent, as a result of personality problems and alcohol and drug issues.
I have to consider a number of things in this case before I make any parenting order under the applicable family law legislation. I have to apply the legislation to this very difficult case. I am required to consider whether the parties ought to have equal shared parental responsibility for their child. That is the first thing I must do.
That is what is called at law a presumption. It is to be presumed that the parties should have equal shared parental responsibility for [X]. However, this presumption is rebutted by issues of family violence and neglect; or whether I think it would not be in the best interests of the child concerned for the parties to have equal shared parental responsibility for their child; or whether, at this interim stage, I think it is simply not appropriate.
I have come to the conclusion that it is not appropriate at this stage, where there are so many disputes about so many very serious matters, particularly about violence in this case, for it to be applied. Nonetheless, I still have to fashion some orders in respect of [X]'s care.
Whatever orders I make, I have to be satisfied that they are in [X]'s best interests. In determining what is likely to be in [X]'s best interests, I have to look to a long list of matters in the Family Law Act at section 60CC. There are two categories of matter I have to consider. Primary considerations, and there are two of those; and a longer list of what are called additional considerations.
The primary considerations, which I have to consider, are that the child has an entitlement, and it is likely to be in her best interests, to have a meaningful relationship with both her parents.
Secondly, I have to consider what outcome is most calculated to protect her from being exposed to family violence, neglect and abuse. In this case there is evidence of family violence. Both parties say the other has been violent. Seriously violent.
There is also evidence about abuse and neglect. Both parties say the other is an abusive and neglectful parent. At this stage, as I say, it is impossible for me to make findings of fact about who of the parties has been the abusive and neglectful or violent parent. I simply at this stage cannot make a definitive finding in that regard. The concerns are raised. Question marks have been raised about both parties' care of the child concerned, and the situation is volatile and explosive.
The additional considerations are more numerous. They deal with matters such as the nature of the relationship the child has with each of his or her parents. As I have outlined, there is considerable controversy about that.
I have to make some sort of assessment of the insights each party has to the parenting capacity of the other and how each of them will tend to this child's emotional needs. I have grave concerns about that area, but again it is very difficult for me to make an assessment.
I have to look at the child's age, and that is a matter that concerns me very greatly. If [X] was older I would not be so worried. I would still be worried but I would not be so worried because obviously at [X]’s age, she is a child who is highly vulnerable.
She is dependent upon others to meet her every need. The Full Court in a case called Goode & Goode said I am to endeavour to make findings of fact about as many of the primary and additional considerations as I can. At this stage it is practically impossible for me to make findings about any of the applicable section 60CC factors, other than that to some degree or other, both the mother and the father have been involved in providing something of the care for this child.
I cannot divide it up mathematically and say the mother has been doing 95 or 96 per cent and the father has been doing 4 per cent; or fifty-fifty, or anything like that because I simply do not know.
I think, at this stage, what I am required to do, in very difficult circumstances, is make some sort of plan to work out some sort of way that the case can be managed in the short term so that I can be satisfied that both parties are able to maintain some degree of relationship with their daughter, whom - and I say this - whom despite the criticisms you each have of one another, I have absolutely no doubt that you each love your daughter. I know that. I am not, obviously, immune to the distress and anguish that both of you have exhibited in court, so I think I have to make some sort of regime whereby she is able to spend some time with each of you.
The outcome is not going to be ideal because the circumstances are very far from ideal and I am worried. I am worried that the dispute between the two of you has the capacity to do very great harm to your child. I know you do not want to harm her.
I am troubled about these developmental issues. For a little baby to be carried from pillar to post is not good for her stability, and it may have very grave consequences for her wellbeing now and in the future.
But at the end of the day I do not think it would be appropriate for me to arbitrarily say the child will spend more time with her mother or more time with her father, in circumstances, where you both point very serious fingers at the other and make very serious allegations of poor parenting and antisocial behaviour. I simply cannot resolve these issues at this stage.
Although I have very grave concerns that it may not be the developmentally appropriate thing for your daughter, in the short term and I think it may be an unsatisfactory arrangement, which will be difficult to be put into place because each of you have limited means and now Ms Rusden is living in the northern suburbs of Adelaide and Mr Samson is living in [K], the view I have come to is that there should be a rotating share arrangement for [X], in the short term, based on a three-day-about regime, which I acknowledge has the potential to be unsatisfactory.

I must say, and I am not being critical of Ms Horvat, but I find the expression "sharing the risk" to be an unfortunate one because as I say, I know that you both want to spend time with your child and you both love her.
I am not in the position to make findings of fact and ascertain the truth about all the serious things you have said about one another. As a result, I am going to invite the authorities to intervene in this case, that is the Department of Families. Whether they will or not, I do not know, but because serious allegations of abuse and neglect have been raised I am duty-bound to do so.
I am also going to order that an independent children's lawyer be appointed for your daughter, so he or she can make independent investigations in respect of the matters each of you have raised. I am going to adjourn the matter until early February.
Although I have concerns about such an outcome, I have come to the view that that is, in these difficult circumstances, likely to be the best one for [X], until I can be provided with more information about [X] and her parenting circumstances.

I certify that the preceding sixty (60) paragraphs are a true copy of the reasons for judgment of Brown FM

Associate: P Smith

Date: 21 December 2007