SHELBURN & BEAZLEY

[2020] FCCA 3502

FEDERAL CIRCUIT COURT OF AUSTRALIA

SHELBURN & BEAZLEY [2020] FCCA 3502

Catchwords:
FAMILY LAW – Interim parenting.

Legislation:

Family Law Act 1975 (Cth), ss.60B, 60CA, 60CC(2), (3)

Cases cited:

Goode & Goode (2006) FLC 93-286

Eaby & Speelman (2015) FLC 93-654

SS v AH [2010] FamCAFC 13

Applicant: MS SHELBURN

Respondent: MR BEAZLEY

File Number: HBC 1011 of 2020

Judgment of: Judge McGuire

Hearing date: 17 December 2020

Date of Last Submission: 17 December 2020

Delivered at: Melbourne

Delivered on: 23 December 2020

REPRESENTATION

The Applicant: Appearing in person

Counsel for the Respondent: Ms Watson

Solicitors for the Respondent: Legal Aid Commission of Tasmania

Counsel for the Independent Children's Lawyer: Ms Ryan

Solicitors for the Independent Children's Lawyer: Mary Anne Ryan

ORDERS

1. That the final parenting orders of the Judge Harman made 30 April 2019 respect of the child, X born in 2015 remain in full force and effect.

2. That all interim applications be otherwise dismissed.

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

FEDERAL CIRCUIT COURT
OF AUSTRALIA
AT BURNIE

HBC 1011 of 2020

MS SHELBURN

Applicant

And

MR BEAZLEY

Respondent

REASONS FOR JUDGMENT

Applications

1. These are parenting proceedings in respect of a child, X born in 2015 (aged five years). The application before me now is an interim application following a substantive application Initiating proceedings filed by the mother on 14 October 2020.

2. The mother is self-represented. She filed affidavits and made submissions to me albeit by telephone that satisfied me that she is understanding of the nature of the proceedings and properly and informed in her preparation.

3. The father is represented by solicitors.  The Court has the benefit of an Independent Children's Lawyer represented by Counsel at this hearing.

4. The mother asks for an order that time for X with the father be suspended/reserved.

5. The father asks for an order that X’s primary place of residence change from being with the mother to X living with him.

6. The Independent Children's Lawyer supports the father's application.

Background

1. The parties were in a short relationship between May and June 2014.  X was born in 2015 following the demise of that relationship.

2. X has effectively lived with the mother for all of her life.

3. There has been dispute in respect of X's living and parenting arrangements virtually since birth.

4. On 30 April 2019 his Honour Judge Harman made final orders by consent inter-alia that the parents have equal shared parental responsibility for X; that X live with the mother; and that X spend time with the father on a graduated regime up to the following:

   (f) commencing Sunday, 2 February 2020 at 9:00am until Monday, 3 February 2020 at 5:00pm and in each week thereafter for a period of 12 months;

   (g)commencing on the first Sunday in February 2021 at 9:00am until the following Tuesday at 5:00pm and in each week thereafter.

5. The mother's affidavit material discloses that she lives at Suburb B in Tasmania.  The father lives at Suburb C and therefore the parties live in relative proximity. The father shares a house with the paternal grandfather and the father's other child from another relationship, namely D who is three years old.  D spends time with the father weekly from Sunday until Tuesday.  D’s mother, Ms E is supportive of the father and provided an affidavit for him in this application.

6. The mother may have re-partnered with a man who lives at Town F which is approximately the 70 minutes travel from the mother's home.  This is a factor that is of some relevance in the submissions put by the Independent Children's Lawyer and the father in relation to the mother over holding the child.

7. Since the making of final orders by his Honour in April 2019, the mother has brought another application Initiating proceedings filed in January 2020.  That application was summarily dismissed by her Honour Judge Baker on 12 February 2020.

8. The mother has now brought the current application Initiating proceedings filed 14 October 2020.

The Mother’s Case

1. The mother argues variously that X has been subjected to sexual abuse in the care of the father and/or physical abuse evidenced by returning to her with bruises and/or that the father does not have the capacity to care for X and causes harm or risk of harm to her physical, psychological and emotional health.

2. Specifically, the mother argues that X returned to her in February 2020 with bruises to her ear and her cheek and without satisfactory explanation from the father.

3. The mother alleges that the father exposes X to sprays and deodorants which aggravate her eczema condition.

4. The mother says that from April 2020 X's behaviour has deteriorated as has her emotional health. She was refusing to attend school. She was soiling herself.  She became frightened of the dark and would not sleep in her own bed.  She mentioned being scared of 'monsters'.  She was becoming distressed during overnight time spent at the father's home.  X was insisting that the mother watch her take her toilet and wash her private areas.

5. The mother says that X has made statements regarding a form of assault by a 'monster' which the mother interprets as being possible sexual assault of the child and the father's care.

6. The mother says that X has been refusing to go to the father.

7. The mother says that since she unilaterally stopped X's time with the father in July 2020 that X has improved in each of the matters of concern set out above.

8. The mother has received support from her own mother, Ms G, in an affidavit affirmed 15 December 2020 who deposes to similar observations but also alludes to the father's ‘control’ over the mother. 

9. Both the mother and the maternal grandmother make references as to alcohol and/or substance abuse by the father.  Both also make reference to the father's own parents’ emotional and psychological health as being contrary to X's best interests.  Both raise issues generally as to the father's hygiene.

The Father's Case

1. The father says that the mother has entered into a course of alienation of X from him contemporaneously with refusing to permit X to spend time with him pursuant to interim orders.  The father denies the allegations made by the mother and says she makes such allegations out of self-interest.

2. The father argues that the mother's refusals to allow X to attend in compliance with Court orders are now frequent and that they will continue unless the mother receives therapeutic assistance and that, at least during this period, X move to live primarily with the father.

3. The implication of the father's argument is that the mother has engaged in systems abuse in respect of X which in turn endangers the child's emotional and psychological welfare.

The Independent Children's Lawyer’s Case

1. The Independent Children's Lawyer (‘ICL’) supports the father's argument and contention. The ICL says that there have been full and thorough investigations by the appropriate authorities including Child Safety and Tasmania Police and that none of the mother's allegations are corroborated.  To the contrary, it is suggested that X is at risk of emotional abuse in the continuing primary care of the mother.  The ICL argues that the mother requires mental health therapy and agrees with the father that X should be removed from the mother's primary care at least during the course of this therapeutic intervention.  The ICL says that X is so effected by the mother's animosity to the father that the ‘cycle needs to be broken’.

Relevant Law

1. The orders that I am to make are parenting orders and therefore I am to have X's best interests as my paramount consideration pursuant to S.60CA of the Family Law Act 1975 (‘the Act’). In determining those best interests I am to reference the proposals of the parents and the ICL together with the probative evidence to the numerous considerations set out in s.60CC(2) and (3) of the Act against a background of the objects and principles of the legislation at s.60B.

2. Not unusually in interim parenting matters, the focus of the balance here is to the two ‘primary’ considerations being, firstly, at s.60CC(2)(a) where the Court is to … make orders which benefit children having meaningful relationships with both of their parents … and s.60CC(2)(b) … where necessary to make orders which protect children from family violence or abuse.

3. It must be emphasised that an interim hearing is a completely different creature to the final trial.  At the interim stage applications are brought on quickly and often without the benefit of the full forensic investigation and the assistance of the various tools that this Court can provide for parents to resolve their disputes. Commonly, parties provide affidavits, making assertions of fact and allegations which are often met with blanket denials. Consequently, it is generally acknowledged that the process for judges at this stage is a difficult one where the making of findings of disputed fact and credit are difficult if not impossible where the hearing is conducted by way of submissions and without the benefit of the testing of the material by cross-examination. Nevertheless, and despite these limitations and the truncated nature of the hearing, the Court remains obliged to follow a course of statutory consideration set out in the well-known decision of the Full Court in Goode & Goode[1] where the Court noted at [68]:

   … the procedure for making interim parenting orders will continue to be an abridged process where the scope of the enquiry is 'significantly curtailed'.  Where the Court cannot make findings of fact it, it should not be drawn into issues of fact or matters relating to the merits of the substantive case where findings are not possible.  The Court also looks to the less contentious matters, such as the agreed facts and issues not in dispute and would have regard to the care arrangements prior to separation, the current circumstances of the parties and their children, and the parties’ respective proposals for the future.

   [1] (2006) FLC 93-286

4. Another Full Court in Eaby & Speelman[2]  noted the difficulties for Courts in making findings of fact and credit at interim hearings but emphasised:

   … that does not mean that merely because the facts are in dispute, the evidence on the topic must be disregarded, and the case determined by reference to the agreed facts.

   [2] (2015) FLC 93-654

5. Similarly, a majority of the Full Court in SS v AH[3] observed:

   … Apart from relying upon the uncontroversial or agreed facts, a judge will sometimes have little alternative than to weigh the probabilities of competing claims and the likely impact on the children in the event that a controversial assertion is acted upon or rejected.  It is not always feasible when dealing with the immediate welfare of children simply to ignore an assertion because its accuracy has been put into issues.

   [3] [2010] FamCAFC 13 @ [100]

6. These therefore are the difficulties confronting Courts at the interim stage of proceedings where the issues are often complex, as in the matter now before me, where the various assertions of fact are denied and untested and the full forensic preparation and corroborative evidence is not always available but where, in any event, the Court must consider, weigh and balance the evidence ultimately towards the best interests of the children.

Consideration

1. The mother makes numerous and serious allegations in respect of the father ranging from possible sexual abuse of X to his general capacity and issues of hygiene. Those complaints have been investigated by Tasmania Police and by the child protection authorities without further action. Nevertheless, and as the mother properly argues, her complaints have not yet been fully and forensically tested by these or other competent Courts.

2. It is reasonable to assume on the evidence before me and simply by historical fact that X's primary source of attachment is to her mother.  She has habitually lived with the mother and her relationship with her father has been punctuated by lengthy gaps in time and relatively limited visits and overnight time. It follows that a removal of X from the primary care of her mother into the care of her father will be problematic for the child.  Nevertheless, such is only one of a plethora of considerations towards X's best interests and certainly not of itself determinative of her parenting and living arrangements even at this interim stage.

3. The thrust of the father's criticism of the mother is as to her lack of insight and commitment into facilitating and encouraging X's relationship with him.  He goes so far as to suggest that the mother is 'alienating' X from him and if the evidence subsequently proves this to be the case then this in itself is a serious form of child abuse.

4. There is concerning and disturbing evidence as to the history of the mother withholding X from the father.  The chronology provided by the ICL suggests that this began as long ago as mid-2017 when X and the father were denied contact for many months.  A further withholding took place in March 2018.  The mother again withheld X from the father in January 2020 and February 2020.  Finally, the mother has now withheld X from the father since July 2020.  Punctuating these withholdings have been final orders made by consent on 30 April 2019 providing inter-alia for X to spend time with the father and the summary dismissal of the mother’s Initiating Application by Judge Baker in February 2020.

5. Following the most recent withholding, X has been interviewed by Tasmania police in August 2020 and referred by the mother to the Sexual Assault Support service on 16 August 2020.  X made no disclosures to either authority. Child Safety services have also investigated the mother's allegations and have found them to be unsubstantiated but with evidence, to the contrary, of suspicion of potential emotional abuse of X due to 'conflict between her parents'.  Child Safety files indicate a concern shared by the father that the mother may have entered into a process of alienation. 

6. Still further, Counsel for the ICL notes concerning coincidences with the mother as are cessation of time for X with the father and issues of the mother's self-interest as, for instance, dictating that father travel the 75 minutes to Town F and return to collect X presumably from where the mother's boyfriend lives but under sanction of losing his time with X.  Such evidence corroborates the concerns of the father and the Independent Children's Lawyer as to the mother's lack of insight and prioritising of X's needs to have a relationship with the father.

7. On the evidence before me, albeit only at this interim stage, I am not able to make findings as asserted by the mother that X suffers an unacceptable risk being in the care of the father.  There are authorities charged with investigating allegations of abuse namely Tasmania Police, Child Sexual Assault, and Child Safety. There is no corroborating evidence from any of those investigations.

8. More generally, there is evidence which supports the contention that the mother puts matters of self-interest over and above X's need to have a relationship with her father but not to the stage that can persuade me on the balance probabilities that the mother has developed a positive intent to enter into a course of alienation.  At this stage I can find only that the mother lacks the necessary insight as set out above.

9. In summary, the mother's propensity to breach Court orders is of concern.  The material before me suggests that she would not have a 'reasonable excuse' in the sense of any Contravention application and where there is objective evidence that does not corroborate the mother's assertions.  An obvious conclusion is that a continuation of the mother's propensity in this respect will cause damage and harm to X personally and directly in respect of her relationship with her father.

10. To the contrary, however, I maintain some concerns in respect of X's best interests should I, at this stage, remove her from the primary care of her mother and place her into her father's care. X is just five years of age. Her parents separated prior to X's birth. She has only known her mother as her primary carer. That is a crucial relationship of bond and attachment. The criticisms of the mother relate almost solely to her insight in respect of continuing X's relationship with the father. It is important that the mother is made to understand that the obligations that she has following Court orders which placed X into her primary care and those obligations and responsibilities being primarily pursuant to s.60CC(2)(a) to facilitate X having a meaningful relationship with her father. To put this bluntly, should the mother continue to deny X that relationship then the balance of the pendulum will inevitably swing to a point where the Court has no option but to remove X from the mother's care. Whilst my determination in this matter is finely balanced, I am not yet at the stage of making such an order but should the mother repeat such behaviour then it is highly likely, if not inevitable, that X will be moved from her care to live with the father.

11. Consequently, at this stage, I propose to continue the status quo from the orders of his Honour Judge Harman made in April 2019 but with the mother on the firm and direct notice that she is to comply with those orders. 

I certify that the preceding forty-four (44) paragraphs are a true copy of the reasons for judgment of Judge McGuire

Associate: 

Date: 23 December 2020