SHEEDY & CAIRNS

[2015] FamCA 953

FAMILY COURT OF AUSTRALIA

SHEEDY & CAIRNS [2015] FamCA 953

FAMILY LAW – CHILDREN – Interlocutory Application – Best Interests – Where the parties agreed that the child should remain living with the mother and an order is made accordingly – Where there are untested allegations in relation to the father and the cautious approach in such a situation is for there to be supervision of any time between the child and the father on an interim basis – Child to spend supervised time with the father on not less than one occasion per month – Where given the circumstances of this case, no order in relation to parental responsibility need be made on an interim basis – Where the mother is to seek assistance with re-introducing the child to the father

Goode & Goode (2006) FLC 93-286

APPLICANT: Ms Sheedy

RESPONDENT: Mr Cairns

INDEPENDENT CHILDREN’S LAWYER: Harper’s Legal

FILE NUMBER: NCC 552 of 2015

DATE DELIVERED: 14 October 2015

PLACE DELIVERED: Newcastle

PLACE HEARD: Newcastle

JUDGMENT OF: Cleary J

HEARING DATE: 13 October 2015

REPRESENTATION

COUNSEL FOR THE APPLICANT: Ms O’Rourke

SOLICITOR FOR THE APPLICANT: Legal Aid NSW

SOLICITOR FOR THE RESPONDENT: Tonkin Drysdale Partners

SOLICITOR FOR THE INDEPENDENT CHILDREN’S LAWYER: Harpers Legal

Orders

BY CONSENT AND PENDING FURTHER ORDER, IT IS ORDERED THAT

1. The child B, born … 2011, (“the child”) live with the mother.

PENDING FURTHER ORDER, IT IS ORDERED THAT

1. The Independent Children’s Lawyer shall nominate to the mother a psychologist/counsellor appropriately qualified to assist the mother in the process of reintroduction of the child to the subject father.

2. The mother shall obtain a referral from her general practitioner to the nominated psychologist/counsellor and shall attend upon that expert with the subject child, and C, if she chooses to include her, as directed by the expert.

3. The child spend time with the father supervised by an accredited supervision service and failing agreement otherwise by D Contact Centre commencing no later than three months after the date of these Orders, such time to be on not less than one occasion per month to continue pending further Order.

4. The parents shall, on at least one occasion, each undertake a supervised chain of custody drug urinalysis screen in accordance with the Australian Standard (AS/MZF4308:2001) for the detection of drugs, and in the case of the father also carbohydrate-deficient transferrin (CDT) within 24 hours of receiving a written request from the Independent Children’s Lawyer and a copy of the results is to be provided to the Independent Children’s Lawyer and to the other parent within 7 days of receipt of same.

5. The mother advise the father in writing of any intended change of residence for the child not less than 28 days prior to the move.

6. The matter be listed for directions and the preparation of a family report at

   
   9.30 am on Tuesday 9 February 2016

   .

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

FAMILY COURT OF AUSTRALIA AT NEWCASTLE

FILE NUMBER: NCC 552/2015

Ms Sheedy

Applicant

And

Mr Cairns

Respondent

And

Independent Children’s Lawyer

EX TEMPORE

REASONS FOR JUDGMENT

introduction

1. On 6 March 2015 the applicant father in the substantive proceedings filed an Initiating Application for parenting orders.  The orders sought on a final basis were for time and communication with the parties only child B (“the child”), now aged four years three months, and also in relation to specific issues around the provision of information by the mother to him. 

2. The application was given a listing date of 24 June 2015.  Orders were made on that date by a Registrar for a Children and Parents Issues Assessment (“CAPIA”) to be prepared.

3. On 13 July 2015 the respondent mother in the substantive proceedings, the applicant mother in these proceedings, filed a Response.  The mother proposed on a final basis short periods of supervised time for the child with the father, two hours, at her discretion.  In the interim, she proposed supervised time at a contact centre. 

4. It was submitted on behalf of the mother, and I accept, that there was no subpoena material at that time in the court, as there was for this hearing.

The CAPIA

1. On 20 July 2015 the parties attended for interview with a Family Consultant for the preparation of the CAPIA.

2. The subject child and the mother’s older child, C, aged 10, also attended.  Both children identified the mother’s current partner (“Mr E”) as their father. 

3. The report was an initial assessment. No material produced in response to subpoena was yet available to the Family Consultant. 

4. Subject to that limitation, I note that the Family Consultant considered that it would be in the best interests of the child for the mother to provide her with an age appropriate explanation of her background:[1]

   [The subject child] is now at an age where she will be able to understand the concept of relationships and it is suggested that it would be in her best interests for the mother to provide her with an age-appropriate explanation of her background.

   [1] CAPIA dated 20/07/2015, par 28

5. In my view, this is a discrete issue: that the child should be told the truth of her identity, namely that the applicant is her biological father. 

6. I share the stated view of the Family Consultant that the person best placed to provide that explanation to the child is the mother; the child has the surname of the father.

7. Her sister C, who has the mother’s surname, likely knows that Mr E is not her own father.  She was seven years old when the relationship began between the mother and Mr E.  She likely also has a clear memory of the applicant father, who lived with the mother until April 2012 when she was about six and a half years old. 

8. It must be obvious to the mother that C would have that knowledge and would discuss it with the subject child, either now or in the future.  Likewise, she must realise that other family members are likely to discuss with the child the fact that her biological father is the applicant father and not Mr E. 

9. That the children have a good enough relationship with Mr E to call him ‘Dad’ is a separate issue to the child knowing the truth of her identity.  

Short history of events

1. The father is aged 34 and the mother is aged 26. 

2. The mother gave birth to C when she was 16 years old.  C lived with the maternal grandmother by agreement in her early life, as did the mother, at least for a period of time.

3. In January 2008 the father says that the relationship between himself and the mother began.  This is not disputed in the application and response documents. 

4. The mother was living at a refuge at the time when that relationship began.  The parties began living together in early 2009 and lived together for about three years.  C came to live with the parties during 2009. 

5. On 19 July 2010 there was a notification made to the NSW Department of Family and Community Services (“the Department”) of there having been an incident of domestic violence two months prior, presumably in May 2010, where the mother was injured but subsequently returned with C to live with the father.[2] 

   [2] Exhibits 1and 4

6. On 25 October 2010 concerns about the mother’s parenting of C were expressed to the Department.[3]

   [3] Exhibit 5 (tab 11) and Exhibit 1 (tab M5)

7. On 9 January 2011, the maternal grandmother reported that C had made sexualised comments and suggestions to her, including:

   a)A request for her to “put your finger in my vagina”;

   b)A statement that the child had “kissed her stepbrother’s penis”; and

   c)A statement that the family dog had licked her vagina. 

8. In 2011 the subject child was born and about nine or 10 months later, the parties separated.  The separation was a complete one and the father has not seen the child since separation.

9. The mother, the subject child and C moved in to live with the maternal grandmother.  Thereafter began a period of turbulence as the mother apparently struggled with having authority as a mother in the maternal grandmother’s home. 

10. In April 2012 there were concerns expressed about C’s behaviour and on 17 July 2012, C’s first appointment with a psychologist took place after F Org became involved.

11. On 31 July 2012 the subject child started at day care.

12. In August 2012 Exhibit 6 (tab 7) suggests that the mother was using rather harsh methods of punishment for C.

13. In November 2012 the father began living with his current partner and her daughter.

14. Also in November 2012 there was ongoing conflict between the mother and the maternal grandmother.  There were other members of that household, including the mother’s sister and the sister’s boyfriend.[4] 

    [4] Exhibit 6 (tab 4)

15. On 18 December 2012 the mother’s relationship with the maternal grandmother was described by F Org as “… so confrontational”.[5] F Org accordingly withdrew its support until the relationship had improved and the household could be stabilised.

    [5] Exhibit 6 (tab 3)

16. In late 2012 the mother began her relationship with Mr E. 

17. In January 2013 the mother left the home of the maternal grandmother and was in urgent need of housing; there was conflict right across the extended maternal family. 

18. In May 2014 the parties attended mediation with no success.

19. In approximately mid-2014, the mother conceived her third child to her current partner. 

20. On 6 March 2015, after a second attempt at mediation, the father filed an Initiating Application in this Court seeking orders for time and communication with the child. 

21. In 2015 the mother’s child was born.  She is now six months old. 

22. Accordingly, the mother’s household consists of herself, Mr E, their new baby, C and the subject child. 

23. The parties have agreed, at least on an interim basis, that the subject child should continue to live with the mother and an Order by consent will be made.

The Law

1. The decision in Goode & Goode (2006) FLC 93-286 is authority for the approach to be taken by a judge in an interim hearing.

Presumption of Equal Shared Parental Responsibility

1. The making of a parenting order triggers the application of a presumption that it is in the best interests of a child for their parents to have equal shared parental responsibility.

2. In this case, there are reasonable grounds to believe that a parent has engaged in family violence.  The father concedes conduct towards the mother, C and the subject child, which was within the definition of family violence, such as shutting them out of the house, breaking a hole in a wall of the home in anger during an argument and either locking or closing C into a bedroom and throwing away her toys. 

3. In any event, if there were no family violence, and all allegations are untested, the presumption is rebutted.  The child has not seen the father since she was 10 months old.  It would not be in her best interests for the father to be making decisions or attempting to consult with the mother at this time. Their relationship is presently non-existent and the Family Consultant observed that each mistrusted the motives of the other and wished to have nothing to do with the other.  The father asserts, and it was not denied, that he has paid child support for the child. 

4. In my view, in these circumstances, no order in relation to parental responsibility need be made on an interim basis.

5. As the presumption for equal shared parental responsibility does not apply, the Court is at large on orders for time and communication. 

6. This is a sensitive situation.  It is submitted quite reasonably on behalf of the mother if an order was to be made for time to be spent by the child with the father, she does not know whether it could be a negative experience with long-term negative outcomes.  I agree there is some risk of emotional harm to her.  There is also some risk of emotional harm in the child being denied the opportunity to know who her father is and getting to know him. 

Primary and Additional Considerations

1. The object of the Family Law Act 1975 (Cth) (“the Act”) is to ensure that a child has the benefit of both parents having a meaningful involvement in the life of that child to the maximum extent consistent with a child’s best interests.

2. Best interests are determined by consideration of the following matters. 

The benefit to the child of having a meaningful relationship with both of the child’s parents

1. Presently, the child has her most important relationship with the mother and there is no concern expressed about her care by the mother, which is reflected in the consent Order for residence. 

2. The child has no relationship with the father, does not know him and believes that Mr E is her father.

The need to protect the child from physical or psychological harm from being subjected or exposed to abuse or family violence

1. There are serious allegations of abusive conduct by the father towards C, although she is not the subject child. 

2. The father has an older child, G, a boy of 13 years, with whom he spends substantial and significant time. There may be an issue of inappropriate exposure of that child to adult sexuality, although the allegations about that are vague and, of course, untested. 

3. The cautious approach in such a situation is for supervision of any time between the child and the father, pending further order. 

4. The need to keep the child safe has priority over meaningful relationships.  To his credit, the father has understood that supervision will be necessary to ensure that a relationship develops in safety. 

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

1. The child is not in a position to have any view because there is a great deal she does not yet know. 

The nature of the relationship of the child with each of their parents and other persons (including any grandparent or other relative of the child)

1. The child has important relationships with the mother, Mr E, C, and her baby sister. 

2. She has the potential to develop relationships with the father, her father’s partner, and her child. 

3. Unknown to the Court at this stage is how much time, if any, the child spends with the maternal grandmother or any members of the extended family. 

The extent to which each of the child’s parents has taken or failed to take the opportunity to participate in making decisions, to spend time with the child and to communicate with the child

1. In this regard, the father has failed to participate in the child’s life from the age of 10 months. 

2. He has made two attempts at mediation, in January 2013 and in May 2014, and commenced proceedings in 2015, acting for himself. 

3. The reasons for the father not making a move to ensure that he became a part of the child’s life will no doubt be explored in final hearing. 

4. The mother has at times called on the assistance of the maternal grandmother to make decisions about the child and to provide a good deal of care.  This is entirely understandable, given the age of the mother when she had her first child and her circumstances at that time. 

The extent to which each of the child’s parents has fulfilled or failed to fulfil the parent’s obligations to maintain the child

1. As stated, the father has paid child support, although at this stage there is no detail of how much and what the respective financial circumstances of the parties are.

The likely effect of any changes in the child’s circumstances including the likely effect on the child of any separation from either of his or her parents, or any other child or other person

1. This application does not involve separation.  Rather, it involves a possibility of a new extended family for the child.  To some extent, there would be separation for the child from C and that issue needs management. 

2. The evidence suggests that C does not have any knowledge of or relationship with the father.  Again, that would be a matter for final hearing. 

The practical difficulty and expense of a child spending time with and communicating with a parent

1. The father has proposed, in a concession which is a reasonable and fair one, that he should bear the costs of supervision in the event that the child is spending time with him. 

The capacity of the child’s parents and any other person to provide for the needs of the child, including emotional and intellectual needs

1. Over the last 10 years, the mother has struggled, unsurprisingly, with having her first child at 16, with a violent partner of that child, a second child, C, and the subject child, with a partner who has allegedly been violent to her and to C. 

2. She has had real conflict with the maternal grandmother, at the same time expressing gratitude for the support and assistance provided by her.  The mother has struggled to achieve autonomy and it appears that she now has reached a place at least of stability and contentment in her current relationship.

3. The father’s capacity as a parent is revealed to some extent by his ongoing relationship with his 13 year old son and, apparently, a working relationship with that child’s mother, although there is very little evidence about that. 

4. The mother has the ability to provide for the needs of the child.  She is resisting the reintroduction of the child’s father and the need to meet the child’s emotional need for the truth of her own situation. 

5. I do consider that the mother has the capacity to explain to the child, without damaging the relationship between the child and Mr E, that her biological father is another person.  There would be no better person to explain to the child the reality of that situation. 

6. The father is showing a commitment to the child, both financial and by this process.  That commitment will be tested by the slow process required to create a relationship. 

7. It seems to me that the recommendation of the Family Consultant, that the mother consult a psychologist to help her with the reinstitution of the relationship, is a sensible one. 

8. Although the mother, in my view, is well-able to explain the relationship to the child, reintroduction, especially with other siblings to consider, is a more complex matter and I consider the mother would be assisted and will need some time for those things to be put in place.  A period of about three months seems appropriate. 

The maturity, sex, lifestyle and background of the child and either of their parents and any other characteristics of the child that the court thinks are relevant

1. The child is a four year old girl with two sisters, aged almost 10 and just six months, and a stepfather who she knows as ‘dad’.

The attitude to the child, and to the responsibility of parenthood, demonstrated by each of the child’s parents

1. The mother has had a rather disrupted life over the last 10 years since her first pregnancy.  There have been periods of time when she has lived with partners, and other times where she has lived in the maternal grandmother’s household with other family members.  C has been to six different schools. 

2. The mother has become anxious and there is evidence of a script for Lexapro, an anti-depressant.  No doubt, she fears disruption of her current arrangements. 

Any family violence involving the child or a member of the child’s family, and 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

1. There is apparently no current apprehended violence order touching the lives of either of the parties or any of the children. 

2. There has been a reference to an apprehended violence order in place between the mother and the maternal grandmother in the past, but that evidence is not before me at this stage. 

Any other fact or circumstance that the court thinks is relevant

1. The child, at four, is in a position to receive new information which will not be as unsettling to her as it would be for an older child closer to puberty, when the mother runs the risk that the child would become reproachful towards her and Mr E about having been misled. 

1. I consider that if a reasonable period of three months is allowed for the mother to get expert assistance about the reintroduction process, then an order for the child to see the father once a month in supervised circumstances, pending further order, will keep the process slow and unpressured, both for the child and the mother. 

Conclusion

1. There was an application made by the Independent Children’s Lawyer for drug testing to take place.  Misuse of drugs and alcohol was a feature of the parties’ relationship, although the evidence, to the extent that it is there, tends to suggest that each of them have moved away from drug and alcohol abuse. 

2. Both parties have consented to drug and alcohol testing. In the case of the father, both drugs and alcohol; In the case of the mother, drug testing.  Orders have been made accordingly.

3. An order was sought by the father restraining the mother from moving away.  There is no evidence before me which would permit imposition of that kind of restraint.  However, it is appropriate for the father to be advised in advance, for practical reasons relating to supervision services and his own travel to see the child, of a proposed move.

4. Accordingly, an order will be made that the mother advise the father in writing of any intended change of residence for the child not less than 28 days prior to the move

5. The Independent Children’s Lawyer offered to nominate a psychologist or counsellor appropriately qualified to assist the mother in the process of reintroduction of the child to the father, and that offer has been taken up by an Order being made in that way.

6. On behalf of the mother, it was submitted that the best way for the mother to access such assistance would be way of referral from her general practitioner and an Order is made accordingly.

7. Otherwise, time is to start not less than three months from the date of these Orders by an accredited supervision service and, failing agreement, by D Contact Centre, not less than once per month, to continue until the matter can be either resolved or heard and determined.

8. I will list the matter for directions and most likely for the preparation of a Family Report. 

9. I make Orders accordingly.

I certify that the preceding eighty seven (87) paragraphs are a true copy of the

ex tempore reasons for judgment of the Honourable Justice Cleary delivered on 14 October 2015.

Associate: 

Date:  4 November 2015