SHELBY & MARR
[2017] FCCA 530
•3 May 2017
FEDERAL CIRCUIT COURT OF AUSTRALIA
| SHELBY & MARR | [2017] FCCA 530 |
| Catchwords: FAMILY LAW – Interim Parenting – young child – whether there is an unacceptable risk of harm to the child if she is to spend time with the father – allegations of drug use – both parents tested positive for use of illicit substances – allegations of family violence against father – presumption of equal share parental responsibility not rebutted – child to live with mother and spend time with the father. |
| Legislation: Family Law Act 1975, ss.68B, 60I, 67Q, 60CA, 60B, 60CC, 60CA, 61DA, 65DAA, 69ZT, 61C, 60CG Evidence Act 1995 |
| Cases cited: Banks & Banks (2015) FLC 93-637 Slater & Light [2011] FamCAFC 1 |
| Applicant: | MS SHELBY |
| Respondent: | MR MARR |
| File Number: | PAC 4951 of 2016 |
| Judgment of: | Judge Obradovic |
| Hearing date: | 19 December 2016 |
| Date of Last Submission: | 19 December 2016 |
| Delivered at: | Parramatta |
| Delivered on: | 3 May 2017 |
REPRESENTATION
| Appearing for the Applicant: | Ms Pierluigi |
| Solicitors for the Applicant: | Sydney Family Law Specialists |
| Appearing for the Respondent: | Ms Makdo |
| Solicitors for the Respondent: | Dignan & Hanrahan |
PENDING FURTHER ORDER:
The parents have equal shared parental responsibility for the child X born on (omitted) 2014.
The child live with the mother.
The child spend time with the father as follows:
(a)Commencing on the first Saturday after the making of these Orders, each alternate Saturday from 10am to 6pm on Sunday (with such time to be suspended on Mother’s Day Weekend);
(b)Commencing on the second Tuesday after the making of these Orders, each alternate Tuesday from 10am to 6pm on Wednesday;
(c)From 10am to 2pm on 4 August each year;
(d)Commencing on 25 December 2017, from 3pm on Christmas Day until 6pm on Boxing Day and each alternate year thereafter;
(e)Commencing on 24 December 2018, from 9am on Christmas Eve until 3pm on Christmas Day and each alternate year thereafter; and
(f)On the Father’s Day Weekend from 10am on Saturday to 6pm on Sunday.
Pursuant to s68B of the Family Law Act1975 both parties are restrained by injunction from consuming or using any illicit substances for a period not less than 48 hours prior to the child coming into their care and for the duration of the time the child is in their care.
For the purposes of paragraph (3) above changeover is to occur at the child’s day-care/preschool or alternatively at the parents’ residence and:
(a)the father shall ensure that the paternal grandmother is available to collect or arrange the collection of the child at the commencement of each period the child is due to spend with the father; and
(b)the mother shall ensure that she is available to collect or arrange collection of the child at the conclusion of each period the child is due to spend with the father.
Each parent shall keep the other advised at all times of their residential address and residential telephone number and emergency contact number.
Neither parent shall denigrate or permit any other person to denigrate the other parent or any member of the other parent’s household in the presence or hearing of the child.
Each parent shall ensure that the other is advised promptly of any medical emergency or significant illness suffered by or relating to the child and including sufficient details to enable both parties to be consulted with respect to and fully advised regarding such illness or condition and any treatment recommended or provided and to visit the child if hospitalised or confined to bed.
Each parent shall do all things and sign all documents necessary to authorise and direct any day-care/ pre-school attended by the child to discuss with the parents the child’s attendance and progress, furnish reports, photos and copies of any correspondence, newsletter or other written material produced by the day-care/pre-school and distributed to parents or relating to the child specifically and both parties shall be entitled to fully participate in all and any activities at the day-care/pre-school or connected with it.
Pursuant to Section 68L of the Family Law Act an Independent Children’s Lawyer is appointed for X born on (omitted) 2014 and request the Legal Aid Commission of NSW to provide such representation.
The parties are to provide to the Independent Children’s Lawyer, within 48 hours of receiving notice of their appointment, all documents thus far filed by them in these proceedings together with all existing orders and copies of any relevant reports.
The parties are to provide to the Independent Children’s Lawyer immediately upon notification of their appointment, a copy of any subpoena issued in the proceedings.
Within seven (7) days, each of the parents shall attend to provide a sample for forensic testing with respect to the presence of cannaboids, opiates, amphetamines, methamphetamines and benzoids and such sample shall be provided and testing shall occur in accordance with the appropriate Australian standard for supervised chain of custody testing and upon provision of a testing report arising from same, each parent shall cause and ensure that report to be provided to the Independent Children’s Lawyer and the other party.
In the event that the testing report discloses a reportable quantity of any of the above substances, that parent shall then continue to attend and provide a sample and cause such sample to be tested in accordance with the above order no less than each seven (7) days and until such time as a report is provided which discloses no reportable quantity of any of the tested substances.
In the event any test is positive as above, the parent who has been subject to a positive testing report shall then forthwith contact such service local to them as the Independent Children’s Lawyer may nominate for the purpose of enrolling in a course or program designed to assist them in addressing their drug use and becoming and remaining drug free.
List the matter for directions at 11.30am on 8 August 2017.
The Independent Children’s Lawyer has liberty to apply to have the matter restored to the list on 7 days’ notice.
IT IS NOTED that publication of this judgment under the pseudonym Shelby & Marr is approved pursuant to s.121(9)(g) of the Family Law Act 1975 (Cth).
| FEDERAL CIRCUIT COURT OF AUSTRALIA AT PARRAMATTA |
PAC 4951 of 2016
| MS SHELBY |
Applicant
And
| MR MARR |
Respondent
REASONS FOR JUDGMENT
Introduction
These are the Reasons for Judgment in relation to interim parenting proceedings concerning the child, X born on (omitted) 2014.
The central issue for determination is whether or not unsupervised time with the father poses an unacceptable risk of harm to the child. Such assessment is to be made by the Court at this interim stage with much of the evidence being untested and in dispute; and with very few agreed facts.
The parties to the proceedings are the Applicant mother, Ms Shelby and the Respondent father, Mr Marr.
The proceedings were commenced by way of Initiating Application filed on 21 October 2016, when the Applicant sought that the matter be listed urgently on an ex parte basis and that the requirement for the parties to obtain a s60I certificate be dispensed with. The Applicant also sought a Recovery Order pursuant to section 67Q of the Family Law Act 1975.
The request for the matter to be listed on an ex parte basis was not granted however the matter was listed at short notice for first return before the Court at 9.30am on 25 October 2016.
On 25 October 2016 orders were made by consent inter alia that:
a)The child be returned to the care of the mother at 4pm on 25 October 2016;
b)The child shall live with the mother in week one and each alternate week thereafter;
c)Commencing 3 November 2016 the child shall live with the father in week two and each alternate week thereafter;
d)That each of the parents undertake urinalysis drug testing; and
e)That the parents be restrained from consuming illicit substances 48 hours prior to the child coming into their care and whilst the child is in their respective care.
It was noted that the orders were agreed to by the parties on a without prejudice basis to their respective interim applications.
The Interim Hearing occurred at 2.15pm on 19 December 2016 and judgment was reserved.
The matter was subsequently listed for delivery of judgment on 27 March 2017, with the parties being notified administratively of such listing on 13 March 2017.
On 15 March 2017, the mother filed an Application in a Case seeking to re-open the interim hearing. That application came before the Court on 22 March 2017, with orders being made on that day vacating the delivery of judgment and listing the application to re-open on 26 April 2017, with associated procedural orders being made.
On 26 April 2017, the Court heard the mother’s application to re-open and made orders permitting the mother to rely on a further affidavit filed by her on 15 March 2017 in respect of the interim parenting matter. These reasons take into consideration that further evidence.
The Relevant Law
Parenting proceedings are governed by the provisions of Part VII of the Family Law Act 1975. Section 60CA provides that in deciding whether to make a particular parenting order, the Court is to regard the best interests of the child as the paramount consideration.
Section 60B of the Act outlines the objects and principles underlying Part VII of the Act.
In determining what is in a child’s best interests, the Court must consider the matters set out in s60CC. Section 60CC outlines the primary and additional considerations that the Court is to take into account in determining what is in the best interests of the child.
The Act does not mandate the discussion of considerations under s60CC in any particular order, and it is well recognised that additional considerations may outweigh primary considerations.[1]
[1] see for example Slater & Light [2011] FamCAFC 1at [45]
In applying the primary considerations, the Court must give greater weight to the need to protect the child from physical or psychological harm, from being subjected to, or exposed to, abuse, neglect or family violence than to the benefit to the child of having a meaningful relationship with both of the parents.
It has been held that a meaningful relationship “is one which is important, significant and valuable to the child.”[2] The focus is not on the relationship as such, but on the benefit the relationship might have for the child.[3]
[2] Mazorski & Albright [2007] FamCA 520 at [26], cited with approval by the Full Court in McCall & Clark [2009] FamCAFC 92 at [121]
[3] McCall & Clark [2009] FamCAFC 92 at [122]
In addition, in considering what order to make, the Court must, to the extent that it is possible to do so consistently with the child’s best interest being the paramount consideration, ensure that the order does not expose a person to an unacceptable risk of family violence.[4] The Court may include[5] in the order any safeguards that it considers necessary for the safety of those affected by the order.
[4] S.60CG(1)(b); see the brief discussion of s60CG in Salah & Salah [2016] FamCAFC 100 at [35]
[5] See s60CG(2), such safeguards are for the purposes of sub-paragraph (1)(b)
Section 61DA of the Act provides that when making a parenting order, the Court must apply a presumption that it is in the best interests of the child for the child’s parents to have equal shared parental responsibility. The presumption does not apply where there are reasonable grounds to believe a parent has engaged in abuse of the child or family violence and the presumption may be rebutted if the Court is satisfied that an order for equal shared parental responsibility would not be in the child’s best interests. In interim proceedings, the presumption applies unless the Court considers that it would not be appropriate in the circumstances for the presumption to be applied when making an interim order.[6]
[6] s61DA(3)
In the event that the Court orders the parents to have equal shared parental responsibility, the Court must apply the provisions of section 65DAA which provides for a consideration of the child spending equal time with the parents. If the Court finds that it is not in the child’s best interests and reasonably practicable, then the Court must consider the child spending substantial and significant time with the parents. Section 65DAA is expressed in imperative terms.[7]
[7] MRR v GR [2010] HCA 4 at [15]
The Full Court in Goode v Goode[8] mandated that this legislative approach must be followed in all parenting cases, and in particular set out the procedural steps to be followed on an interim application, such as this one. The Full Court in Goode & Goode also said:
.. 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 should not be drawn into issues of fact or matters relating to the merits of the substantive case where findings are not possible.
[8] (2007) 36 Fam LR 422, (2006) FLC 93-286 at [81]
Further Full Court authority has expanded upon what the Full Court said in Goode & Goode. In Marvel & Marvel[9] the Full Court made the following obiter comments:
As has frequently been emphasised interim parenting proceedings, and orders made as a consequence, are a necessary but temporary measure until all the evidence can be tested, evaluated and weighed at a final hearing by the making of final parenting orders. Decisions judicial officers have to make in interim proceedings are difficult and, often for very good reason, a conservative approach, or one which is likely to avoid harm to a child is adopted. This is often to the understandable distress of a party who may not achieve the outcome he or she desires, or thinks to be in the best interests of their child or children. Interim parenting orders are frequently modified or changed after a final hearing, and any allocation of parental responsibility made at an interim hearing is disregarded at the final hearing….
[9] [2010] FamCAFC 101 at [120]
Notwithstanding that a cautious or conservative approach is at times appropriate, such an approach cannot fetter a Court’s discretion judiciously exercised. Any outcome determined by the Court must be based on evidence and it must be an outcome which the Court holds is in the child’s best interest.
In relation to the issue of unacceptable risk of harm[10], Her Honour Justice Ryan stated:[11]
If the Court determines that it cannot or should not make a positive finding that there has been abuse, the Court must determine whether in all the circumstances there is an unacceptable risk of it. Where none, rather that some only, of the accumulation of factors considered satisfy the standard of proof it is generally accepted a judge should be cautious in reaching a conclusion that an unacceptable risk of abuse has been established. Whether or not there exists an unacceptable risk involves an evaluation of the nature and degree of risk and whether, with or without safeguards, it is acceptable. The components, which go to make up that conclusion, need not each be established on the balance of probabilities. The Court may determine that a constellation of factors comprises an unacceptable risk even though none or only some are proved to that standard.[12]
[10] In the context of a final hearing though
[11] Richards & Brown [2011] FamCA 662 at [32]
[12] Referring to Johnson & Page (2007) FamCA 1235
A proper assessment of risk of harm is difficult at the interim stage where findings of fact can often not be made due to the untested nature of much of the evidence. However, some guidance is offered by the Full Court, for example by what was said in Keats & Keats[13], in respect of the conduct of interim proceedings:
…the principles that emerge from cases such as SS v AH [2010] FamCAFC 13, [are] namely, that apart from relying upon the uncontroversial or agreed facts, a judge may have little alternative than to weigh the probabilities of competing claims and the likely impact on children in the event that a controversial assertion is acted upon or rejected.
[13] [2016] FamCAFC 156 at [9]
Competing Proposals
The interim parenting orders sought by the mother at the Interim Hearing on 19 December 2016 were as follows:
a)That all previous orders relating to the child be discharged;
b)That the mother have sole parental responsibility for the child;
c)That the child shall live with the mother;
d)That the child be returned to the mother at 4pm on 19 December 2016 and for the purpose of facilitating these orders, the father shall cause the child to be returned to the mother at (omitted) Police Station;
e)That the child shall spend time with the father for two hours each alternate Friday with such time to be supervised by Catholic Care at (omitted) and to occur at dates and times nominated by that centre;
f)That to facilitate the father spending time with the child pursuant to these Orders, the mother and father shall do all things and acts and sign all documents necessary to register with Catholic Care at (omitted).
g)That the mother and father shall equally pay the costs associated with the father spending time with the child pursuant to these Orders as well as the costs of any reports prepared by Catholic Care;
h)That within 7 days of the date of these Orders, the father is to attend on his treating General Practitioner and obtain a referral to a psychiatrist as recommended by his treating General Practitioner;
i)That within 7 days of receiving the referral, the father is to contact the psychiatrist and accept the first available appointment for the purpose of overseeing and reviewing his mental health;
j)That the father is to engage and attend upon the psychiatrist as recommended by them and is to follow all recommendations made by them including but not limited to taking any medication prescribed to him in the prescribed dosage;
k)That the father is to notify the mother’s solicitor of the date of each appointment scheduled with the psychiatrist within 48 hours of making any such appointment and shall confirm his attendance at such appointment within 48 hours of attendance;
l)That the father will engage and attend upon his treating General Practitioner as recommended and not less than one consultation per calendar month for the purpose of overseeing and reviewing his mental health.
m)That within 7 days of a request by the mother’s solicitor, the father is to attend upon his General Practitioner and do all things necessary and provide all authorities to obtain a copy of any report and/or reporting letters of the psychiatrist held by his General Practitioner and shall provide a copy of any such report and/or reporting letter to the mother’s solicitor as soon as practicable.
n)That the father follow all recommendations and treatment plans of his General Practitioner including but not limited to ongoing referrals to a treating psychiatrist and/or psychologist and to any prescription medications and will engage and attend upon appointments with any treating psychiatrist that he may be referred to and the father shall ensure he takes any medication prescribed to him in the prescribed dosage;
o)That within 48 hours of receiving any further referral to a psychiatrist and/or psychologist, that the father notify the mother’s solicitor in writing of the details of the psychiatrist and/or psychologist that he has been referred to attend upon;
p)If at any stage, the father attends upon a different General Practitioner, the father is to notify the mother’s solicitor of the details of such General Practitioner within 48 hours of such change;
q)That leave be granted to the mother’s solicitor to provide a copy of these Interim Orders to the father’s treating General Practitioner and father’s treating psychologist or psychiatrist;
r)That pursuant to section 68L of the Act an Independent Children’s Lawyer be appointed to represent the interest of the child;
s)That the father undertake urinalysis for drug screening on no more than one occasion each month and within 48 hours of receipt of a request to do so from the Independent Children’s Lawyer with such request to be communicated by email or facsimile transmission to the solicitor for the father or directly to the father should he not be legally represented and provide copies of the result of the test to the other party and the Independent Children’s Lawyer within 48 hours of receipt of same;
t)That within 14 days from the date of these orders the father will do all things and acts and sign all documents as is necessary to enrol in a post-separation parenting course with Relationships Australia or such other organisation as he may be referred to by them; and
u)That within 7 days of completing the parenting course, the father will provide the mother, through her legal representative, with a certificate of completion.
The father sought interim parenting orders in accordance with his Response filed 17 November 2016 as follows:
a)That the parties shall have equal shared parental responsibility for the child X born (omitted) 2014;
b)That the child shall live between the mother and the father on shared care arrangements as follows:
i)From Thursday of every week at the conclusion of day care to the following Thursday to the commencement of day care with the mother; and
ii)From the alternate Thursday of every week at the conclusion of day care to the following Thursday to the commencement of day care with the father.
c)That for not less than one half of each New South Wales school holiday period as agreed between the parties and failing agreement as follows:
i)For the first half of all such holidays in 2017 and each alternate year thereafter with the father; and
ii)For the second half of all such holidays in 2018 and each alternate year thereafter with the mother.
d)During Christmas period as agreed between the parties and failing agreement as follows:
i)9am Christmas Eve until 3pm Christmas Day with the father in each alternate year commencing Christmas Eve 2016;
ii)3pm Christmas Day until 6pm Boxing Day with the mother in each alternate year commencing 2017.
e)From 5pm Saturday until the commencement of school Monday on the Father’s Day weekend in each year (and provided that in the event that Mother’s Day falls on a weekend when the father would, pursuant to these orders, be spending time with the child then the father’s period, for that weekend, shall conclude at 6pm Saturday).
f)For a period of time on the birthday of the child and of the father as agreed between the parties or failing agreement:
i)If a non-school day from 1pm until 6pm;
ii)If a school day from the conclusion of school until 6pm
g)For such further time and/or periods as agreed between the parties from time to time.
h)That for the purpose of the father spending time with the child, that the paternal grandmother shall be responsible for collecting or arranging the collection of the child at the commencement of each period and, at the conclusion of each period:
i)In the event that the period is to conclude by the child being delivered to the child’s school then the paternal grandmother shall ensure that the child is so delivered; and
ii)In any other case the mother shall collect or arrange for the collection of the children from the father.
i)That each party shall:
i)Keep the other advised at all times of their residential address and residential telephone number and emergency contact number;
ii)Notify the other party if going on holiday outside of Sydney of a contact telephone number;
iii)Be entitled to telephone and speak with the children at all reasonable times and with reasonable frequency.
j)That neither party shall denigrate or permit any other person to denigrate the other party or any member of the other party’s household in the presence or hearing of the said children or either of them.
k)Each party shall ensure that the child is transported to any sporting or cultural activities in which the child is participating from time to time and which occur at times when the child is in the care of each party together with any training or other tuition relating to that activity.
l)Each party shall ensure that the other is advised promptly of any medical emergency or significant illness suffered by or relating to the children or either of them and including sufficient details to enable both parties to be consulted with respect to and fully advised regarding such illness or condition and any treatment recommended or provided and to visit the child if hospitalised or confined to bed.
m)That each party shall do all things and sign all documents necessary to authorise and direct any pre-school or school attended by the child to discuss with the father the child’s school attendance and progress, furnish reports, photos and copies of any correspondence, newsletter or other written material produced by the school and distributed to parents or relating to the child specifically and both parties shall be entitled to fully participate in all and any activities at the school or connected with the school.
n)That each party shall do all things within their power to actively promote and encourage the relationship between the children and the other parent and members of the other parents extended family.
Documents relied upon at Interim Hearing
The Applicant relied on the following documents at Interim Hearing:
a)Initiating Application filed 21 October 2016;
b)Affidavit of Ms Shelby filed 21 October 2016;
c)Affidavit of Ms Shelby filed 15 March 2017; and
d)Outline of Case document.
The Respondent relied upon the following documents at Interim Hearing:
a)Response filed 17 November 2016;
b)Affidavit of Mr Marr sworn 16 November 2016 and filed 17 November 2016;
c)Notice of Risk filed 17 November 2016; and
d)Case outline document.
The following documents became Exhibits in the proceedings:
a)Exhibit 1 – Sleeve 4 – Subpoena material produced by (omitted) Family Centres for Children – File Note dated 14 September 2016 being Tab S5;
b)Exhibit 2 – Sleeve 1 – Subpoena material produced by New South Wales Police being tabs S6 – S16;
c)Exhibit 3 – Sleeve 10 – Subpoena material produced by (omitted) Hospital being tabs S18 – S21;
d)Exhibit 4 – (omitted) Pathology Report for Mr Marr dated 12 December 2016 and (omitted) Pathology Report for Ms Shelby dated 3 November 2016;
e)Exhibit 5 – Letter dated 7 December 2016 from Sydney Family Law Specialists to Dignan & Hanrahan Solicitors;
f)Exhibit 6 – Letter dated 15 December 2016 from Sydney Family Law Specialists to Dignan & Hanrahan Solicitors;
g)Exhibit 7 – Medical Certificate from (omitted) Medical Centre for Mr Marr dated 12 December 2016;
h)Exhibit 8 – Facsimile transmission from (omitted) Pathology dated 2 December 2016 to Dignan & Hanrahan Solicitors; and
i)Exhibit A – Final Apprehended Domestic Violence Order dated 17 February 2017.
Uncontested Relevant Evidence
The mother was born on (omitted) 1982 and is currently aged 34 years.
The father was born on (omitted) 1983 and is currently aged 34 years.
The mother has three older children from a previous relationship and they live with the mother in a three bedroom rental home. These children do not spend any time with their father due to his incarceration.
The mother is currently employed on a casual basis and generally works three days per week.
The mother has been diagnosed with depression and was prescribed an anti-depressant which she had ceased taking. Her General Practitioner then prescribed a different medication.
The father is currently unemployed and lives with his parents in a three bedroom home.
The subject child of these proceedings was born on (omitted) 2014 and is currently aged 2 years.
The parties were never in a serious relationship however were intimate on a number of occasions during their friendship.
Issues in Dispute
The issues to be determined at this interim stage are:
a)Parental responsibility;
b)Whom the child shall live with; and
c)What time the child shall spend with the other parent.
A significant issue in the case is the alleged and admitted drug use of the mother and the father with both parties having returned positive urinalysis drug screening results.
The other significant issues in the case are the mental health of the father and whether any time that he is to spend with the child should be limited and supervised by a Contact Centre.
There is also the ancillary issue of the father allegedly engaging in family violence.
Primary Considerations and Risk of Harm
The protection of a child from harm is an important matter for the Court’s consideration when weighing up the primary considerations. Indeed, the Court must prioritise the need to protect the child from harm as against the benefit of the child having a meaningful relationship with the parents.
The child is still very young and as such extremely vulnerable. She is not of an age yet where she can verbalise her concerns to any significant or meaningful extent, nor where she can protect herself from risks which might exist in either or both of her parents’ households.
The issue is however not simply about the risk of harm, it is about the nature of the risk, the degree of risk, what might be done about the risk and the balancing of assessed risks against the benefit of the child having a relationship with the parent against whom the risk of harm is alleged to be unacceptable.[14] The issue is the extent of the risk and the things that might be done reasonably to alleviate (not eliminate, but alleviate) the risk.[15]
[14] Jopson & Lilwall (No.2) [2016] FamCAFC 262 at [58]
[15] Jopson & Lilwall (No.2) [2016] FamCAFC 262 at [56]
What are the alleged risks?
A number of risks are alleged by the mother as against the father, which are said to constitute an unacceptable risk of harm, such that the child’s time with the father must be supervised.
The father also makes a number of allegations but does not submit to the Court that the child spending time with the mother poses an unacceptable risk to the child.
Use of Illicit substances
The mother has concerns that the father consumes illicit substances and is putting the child at risk while doing so.
The mother recounts an occasion when the father had a car accident with the child and the mother in the car. She describes how she observed the father to “be vacant” whilst driving the vehicle and that he was “drifting across the road” before crashing into a side barrier. It is because of this behaviour the mother believes that the father was under the influence of an illicit substance at the time of the accident.
The father denies the mother’s allegation that he “blacked out” whilst driving. The father says that there was a mechanical fault with the car which caused him to crash the car into the side barrier. The father says that the police attended the accident and that he was breath tested and returned a negative reading.
The mother’s untested evidence is that she has observed the father to have a “red nose and glassy eyes” and that since the child’s first birthday his behaviour has changed. She says that he becomes easily irritated and is quick to become violent and is keeping with bad company.
The father states that he does smoke marijuana “every 3 weeks or fortnightly”. He denies ever using methamphetamine or “ice” as alleged by the mother in her Affidavit.
While the Court is urged to take a cautious approach at the interim stage, such an approach is really an assessment of “the likely impact on children in the event that a controversial assertion is acted upon or rejected.[16]”
[16] Keats & Keats at supra n.9
To put a child in the hands of a drug-affected parent would be to place the child at an unacceptable risk of harm. But the issue is not as simple as that. To make an assertion that a parent is using illicit substances is an easy matter; to prove those assertions requires probative evidence on the issue.
The Court does have before it the following evidence:
Regarding the Mother
a)The mother concedes that she smokes marijuana “recreationally on the occasional weekend” however not around the children.
b)A Pathology Report dated 4 November 2016 in respect of a sample collected on 1 November 2016 showing that “Cannabis Metabolites” were detected in the sample;
c)A Pathology Report dated 14 December 2016 in respect of a sample collected on 14 December 2016 showing that there was no detection of any drugs which the sample was tested for; and
d)A Pathology Report dated 24 February 2017 in respect of a sample collected on 23 February 2017 showing that there was no detection of any drugs which the sample was tested for.
Regarding the Father
e)The father states that he does smoke marijuana “every 3 weeks or fortnightly”;
f)A Pathology Report dated 28 October 2016 in respect of a sample collected on 26 October 2016 showing that methamphetamine was detected in the sample tested and that the results “require further testing” however, the mass spectrometry confirms “the Amphetamine Type Substance finding and indicates a pattern consistent with the ingestion of methamphetamine.”
g)A Pathology Report[17] dated 15 November 2016 in respect of a sample collected on 15 November 2016 showing that there was no detection of any drugs which the sample was tested for;
h)A Pathology Report dated 12 December 2016 in respect of a sample collected on 30 November 2016 showing that there was no detection of any drugs which the sample was tested for; and
i)A Pathology Report dated 7 March 2017 in respect of a sample collected on 2 March 2017 showing that methamphetamine was detected in the sample tested and that the results “require further testing” however, the mass spectrometry confirms “the Amphetamine Type Substance finding and indicates a pattern consistent with the ingestion of methamphetamine.”
[17] Issue is taken by the mother’s representative in respect of this report as it does not indicated that AS4308:2008 was complied with
In respect of a drug screen which was conducted on 26 October 2016, the father denies using methamphetamine despite returning a positive reading to this on a urinalysis test. The father says the positive reading was a result of his recent health complications and using protein supplements which contain substances “which are classified as having methamphetamine characteristics and ingredients”. The Court notes that a chain of custody procedure was not followed in relation to this screening.
The test results note that the detection of amphetamine type substances “indicates a pattern consistent with the ingestion of methamphetamine”, and that the father “had not declared the use of any medication”.
It was submitted on behalf of the father that he continues with the assertion that the positive result for methamphetamine substance in respect of the urinalysis conducted on 2 March 2017 is his use of protein supplements.[18] Once again, it appears that a chain of custody procedure may not have been followed in relation to this screening.
[18] Such submission was made in the context of the hearing to re-open the interim hearing, but the Court notes it for present purposes as well.
The father of course, is not an expert, and as such, his evidence is simply lay opinion. Notwithstanding this, by virtue of s69ZT of the Act much of the Evidence Act 1995 (Cth) does not apply to parenting proceedings and as such the Court is left with the father’s evidence, with what little weight can be attached to it.
There is no expert evidence in relation to the test results either way. The Court does not have before it any evidence as to how the results are to be interpreted and what a positive result indicates, except that at their highest, they show the detection of methamphetamines[19] and/or cannabis metabolites[20] in the sample on the day tested.
[19] For the father
[20] For the mother
Certainly, an inference may be drawn that the father had been consuming or using substances containing methamphetamines and that the mother had been consuming or using substances containing cannabis; but to what extent and in what circumstances are matters which require a careful testing of the evidence.
The discharge summary of the father’s admission to (omitted) Hospital notes that the father was admitted on 7 November 2016 and discharged on 14 November 2016. Relevantly for the determination of the interim parenting issues, the discharge summary[21] reads as follows:
[21] page 23 of the father's affidavit filed 17 November 2016
Active ICE user – known to Drug and Alcohol
smoker – cigarettes + marijuana
…
2. Drug and alcohol follow up – GP to arrange
In relation to the discharge summary annexed to the father’s Affidavit, and the reference in the one line[22] referred to above, there is no other evidence to suggest that the father is in fact an “active ICE user” or “known to Drug & Alcohol”. It is of some relevance that there was no material produced on Subpoena and tendered in the proceedings which might corroborate these issues.
[22] Which may be an admission against interests, but such argument was not developed at hearing
The positive result for methamphetamines is not evidence of an “active ICE user”. As already noted, at its highest it is evidence of methamphetamines being present in the sample tested on the day the test was conducted. There was no expert evidence as to any interpretation of those results.
Exhibit 2 evidences as follows:
a)On 19 October 2015 the father was the driver of a vehicle which was stopped by the police for a traffic related incident and for the purposes of a random breath and drug test. Although he returned a negative result to the breath test, the father returned a positive detection to cannabis and methamphetamine after being subjected to an oral fluid test. The father was issued with a notice of prohibition from driving for a period of 24 hours and he was issued with a future Court Attendance Notice for the offence of drive with illicit drug present, and was to attend Campbelltown Local Court on 15 February 2016;
b)On 13 January 2016 the father was searched by the police and he apparently “made admissions of being a prohibited drugs (sic) user and appeared nervous while speaking with the police”;
c)On 26 January 2016 the father was the driver of a vehicle which was stopped by the police; he appeared agitated and was sweating profusely. The police carried out a test of sobriety which he passed, and carried out a search of the vehicle which did not locate any items of interest. The child the subject of these proceedings was in the vehicle at the time; and
d)On 7 September 2016 the father was in a vehicle which was stopped by the police and searched for drugs. No drugs were found.
At this stage of the proceedings, particularly noting that much of the evidence is in dispute, that there is no expert evidence in relation to the drug screen results and that there has been no testing of evidence in cross-examination, the Court is not able to make any findings about either parents’ drug use, except in so far as admissions are made by them. The Court declines to make any inference about the parents’ alleged drug use although the Court is persuaded to act cautiously.
The Father’s Mental Health
Annexed to the father’s Affidavit is a discharge summary from (omitted) Hospital which has already been referred to.
That summary also discloses as follows:
3. personality disorder
- patient has mood swings and has required security on many occasions due to violent nature of patient
- usually calmer when family around
- has often threatened to harm others around him
- will often judge people initially in black and white – he will either like you or will not tolerate you from first impression
…
Discharge Plan
…
3. Consider mental health review for personality disorder.
Further tendered in the proceedings is a “GP Mental Health Care Plan” dated 12 December 2016, showing “Presenting Problem” for the Father to be:
anger problems, incident with security guard in emergency department, feeling hopeless and fidgety, stress over custody court case over daughter with ex-partner
Diagnosis
anger issues
…
Changes desired by patient
control anger
Actions taken
psychotherapy
It was submitted on behalf of the mother that she is seeking orders to address the Father’s possible undiagnosed mental health disorder.
At this stage of the proceedings, once again particularly noting that much of the evidence is in dispute and that there has been no testing of evidence in cross-examination, the Court is not able to make any findings about the father’s mental health, except to the extent of any admissions made. The father does not admit that he has any mental health issue, what he does admit, through the evidence tendered in the proceedings (which is also hearsay; both first hand and second-hand hearsay) is that he wishes to control his anger. To this end, it appears on the evidence that the father has taken some steps.
Allegations of Family Violence
The father says in his Affidavit that he has witnessed the mother physically assault her other children by punching the eldest daughter “in the face three times in a row” and “kicking and throwing” her eldest son around. He says that he has also witnessed the mother “grab X’s arm and hit her with force when X unintentionally threw some paper on the floor”.
The father says that the mother on one occasion punched him in the face with her left hand and accused him of kidnapping her son from day care.
The material tendered[23] from the bundle produced by New South Wales police shows that:
a)The father was a person of interest, a person named or a suspect in relation to a number of events from May 2015 to October 2016;
b)The child was named as a child at risk in relation to three events;
c)The father’s current partner was a person of interest, a person named and a victim in relation to a number of events from 2014 to 2016. There were two events which were the subject of specific tenders those being events dated 23 December 2014 and 3 February 2016 relating to the father’s current partner. The father was not present, the child was not present and there is no evidence that the father was aware of these events.
[23] Exhibit 2
The mother addresses a number of allegations of family violence in her evidence. The father denies the allegations made against him by the mother in her Affidavit.
The mother has described incidents of physical violence which she asserts were perpetrated by the father towards her in the presence of the children[24]. The mother says her older children are afraid of the father due to the incidents they have witnessed.
[24] These are otherwise referred to under the heading “Evidence in Mother’s case”
The father denies ever threatening the mother or her family as alleged by the mother. The father denies that the mother’s other children are afraid of him and that he has always had a good relationship with them.
The mother describes an incident when the mother and father had each individually approached a dual lane roundabout when the father “turned sharply and cut me off before driving off”. The mother had her three older children in the car with her at the time. The child the subject of these proceedings was in the care of the father at the time, however the mother is unsure whether the child was in his car when this incident occurred.
In her Affidavit, the mother describes an incident when she awoke to the father yelling and screaming in her backyard early in the morning of the child’s first birthday party saying “give me my fucking daughter” and pulling on a window in the laundry and pulling on the screen door. The mother says that the father also on this occasion threw petrol around the backyard. The mother telephoned the police and fire brigade who both attended the mother’s home.
The father’s account regarding this incident is very different to that given by the mother.
The father says that he had arrived at the mother’s home at approximately 7.30am to mow the lawn for the child’s first birthday party as requested by the mother. He says that the mother did not answer the door until 8.05am and was verbally abusive towards him. The father became frustrated at the lack of appreciation from the mother and kicked the jerry can over. The mother and father had a verbal altercation prior to the father leaving the mother’s premises.
The father says that he returned home and the police attended his residence. He said he was frustrated and began kicking chairs and asking his mother to leave him alone. An Apprehended Domestic Violence Order was applied for his mother’s protection on this occasion, however his mother dropped the charges.
The material tendered[25] from the bundle produced by New South Wales police shows that:
a)On 9 August 2015 the father attended the mother’s home at 7am to mow her lawn in preparation for the child’s birthday. When he arrived he became angered because the mother was not yet awake and ready. An argument ensued between the parties. The father then began to throw items, including a plastic container filled with petrol throughout the backyard and he was yelling at the mother before bashing on the rear door of the house. The mother was inside the house and she repeatedly told the father to leave. The father then walked to the front of the house and started bashing on the front door. The mother told the father that she was going to call the police and the father returned to his home address at about 7:30am where he had a conversation with his own mother, the paternal grandmother, regarding the mother being lazy. The father then got very angry he went out to the backyard where he began throwing and smashing items. The police were called to that address and when they arrived they heard banging and smashing coming from the rear of the house. When they attempted to speak to the father he said to them “fuck off. I do want you cunts here.” The paternal grandmother then let the police in who observed the father pacing angrily was yelling and throwing objects in the back yard, he seemed very agitated and would often tell the police to “fuck off.” The father then entered a small shed and came out with a shiny piece of metal which to the police appeared to be some kind of blade, he started walking towards the police yelling and waving his arms while holding the piece of metal. The police then drew and covered the father with a Taser. The father immediately dropped the metal and put his arms out to be handcuffed. He was placed under arrest when the father was speaking with the police in the backyard and had the small piece of metal in his hand he had turned has back on the police, making them suspect that he was going to self-harm. Upon being told to drop the metal the father had done so immediately and offered to be handcuffed and raised his arms. The father did not at any time threaten the police with the metal or resist arrest. The piece of metal was a tool that is used for measurement and it was not at any time an offensive weapon or instrument.
[25] Exhibit 2
Tendered[26] in the proceedings is a file note dated 14 September 2016 from the childcare centre which X attends. That file note states that the mother called to cancel the child’s attendance at the centre on Wednesdays and that she advised that the father was not allowed to collect the child from the centre. That day the father arrived to collect the child and when the staff told him that the mother had requested that the child not go home with him, the father became “extremely aggressive swearing and being abusive” towards the two of the staff. The father continued to demand that he be able to take his daughter and the staff asked him to calm down and they would get the child for him. While the father was speaking to the mother on his mobile phone, he put one of the staff members on the phone to speak to the mother. The mother then advised the centre to let the child go with the father “and she could use us as witnesses to his aggression caused by his drug use.” The child went with the father and the centre staff later called the police and were advised that as there were no court orders in place that the father had “access” to the child.
[26] Exhibit 1
What is concerning from this evidence is not only the father’s apparent aggressive behaviour at the childcare centre, but also the mother’s instruction to the staff not to permit the child to leave with the father then changing her mind very shortly thereafter in circumstances where she was noted as being able to hear the father abusing the staff (while she was on the phone to them). It is also troubling that the mother appeared to be more concerned in trying to get witnesses in her case, rather than being focused on the child’s safety in circumstances where, on the face of it, the father was exhibiting “extremely aggressive” behaviours caused by his ‘drug use’. If the mother truly believed the father was drug affected, she ought to have acted protectively. It may be inferred that the mother’s concerns on this occasion were not genuine and that she created the situation to assist her in these proceedings. It may also be inferred that the mother’s concerns were genuine but she did not, for reasons which are not explained, act to protect the child. The availability of such inferences shows the danger of the evidence being untested.
On 24 September 2016 the mother attended the home of the father to collect the child. The parties had an argument when the mother was putting the child in the car and the father pushed the mother making her fall onto the bonnet of the car. The mother says the father then picked up a piece of timber and raised it as if he was going to hit her with it. The mother got into her car and drove off and observed the father in her rear view mirror throw the timber at the car.
The father denies having thrown a piece of timber at the mother’s car. He concedes that there was timber around on the floor on this day as he was working on X’s treehouse. However the pieces of timber were “heavy and massive and it would be close to impossible to carry them on my own”.
On 25 September 2016 the mother received text messages from the father to the effect of:
Father:
Don’t give X to anyone else. If I see your car at work and X is not there you won’t like the outcome.
Mother:
Is that a threat?
Father:
No bitch it’s a promise.
Mother:
But if I am working why can’t X stay with my dad?
Father:
You are a selfish cunt. Your dad works.
On 30 September 2016 the mother says she received a number of threatening text messages and telephone calls from the father such as “I am going to run your dad over”, “I am going to stab your brother”, “I am going to your house”, “I am going to your fucking brother’s house” and “your whole family is going to get a piece of this”. The mother became so concerned that she attended the Police Station. Whist at the Police Station the mother says she received a further estimated 30 missed calls from the father. The Police Officer answered one of the phone calls and was observed saying to the father “you need to stop swearing at me” and “you need to calm down”.
The mother’s evidence in chief is that the Police on that occasion applied for provisional Apprehended Domestic Violence Order naming the mother as the protected person and the father as the Defendant. The provisional Apprehended Domestic Violence Order was due to lapse on 1 November 2016 unless revoked or further order made.
The father concedes that an Apprehended Domestic Violence Order was applied for the protection of the mother.
It was submitted on behalf of the mother that she has been the victim of family violence, which resulted in an interim Apprehended Violence Order.
The order which is annexed to the mother’s Affidavit and said to be an interim Apprehended Domestic Violence Order was in fact, only a provisional Apprehended Domestic Violence Order. There is a significant distinction in the duration of the different types of orders and the application process.
Part 7 of the Crimes (Domestic and Personal Violence) Act 2007 (NSW) deals with provisional orders. It sets out when a police officer may apply for such an order, when such an order must be applied for and that the order may be issued in circumstances where there are reasonable grounds for making the order. A provisional Apprehended Domestic Violence Order is issued by an authorised officer or a senior police office and is taken to be an application to the Court for an Apprehended Domestic Violence Order. It is not a Court order per se. No interim order was in evidence.
Part 4 of the Crimes (Domestic and Personal Violence) Act 2007 (NSW) is the relevant part in respect of apprehended domestic violence orders. In particular, s16 sets out when a court may issue such an order, and s17 sets out what matters the court must consider when making such an order. Nothing in those provisions, or indeed in that Act, requires a finding that relevant violence has occurred before an order is made.
The Crimes (Domestic and Personal Violence) Act 2007 (NSW) also defines what a domestic violence offence is, which is a relevant matter in the context of Apprehended Domestic Violence Orders. That definition is different to the definition of family violence in s4AB of the Family Law Act 1975.
As such, the fact that there was in existence a provisional Apprehended Violence Order does not mean that family violence has been proven. The same is true of a Final Apprehended Violence Order.
The grounds for application for the provisional order are as annexed to the mother’s Affidavit. Such grounds are hearsay. They relate to 30 September 2016 when the parties apparently signed a ‘parenting plan’ near Campbelltown Court House.
Some of the allegations by the police officer who applied for the order are:
a)That the father messaged the mother saying “Go fck your self mother fcker where going to war tonight you putrid fckn cunt keep me from my daughter you fckn pig slut.” (errors in original)
b)that the father said to the mother “I’m gonna kill you slut, I’m gonna stab you” and “I’m gonna stab your brother. If I see your dad walking on the street, I’ll run him over. Your whole family’s gonna get a piece of this.”
The father attended (omitted) Police Station while the mother was making a statement, it appears, of his own volition. He participated in an electronically recorded interview where he denied making any threats towards the victim, although he admitted calling the mother “every name under the sun” but at no stage did he threaten to kill, stab or run over the victim or any other person. The father was then apparently charged.
The charge sheet is not in evidence. The father’s criminal history which is tendered, shows that the father was issued with a Court Attendance Notice for “offence against the pers other child/young person at risk” on 30 September 2016. There was no evidence of the COPS event or any police notes or entries tendered in the mother’s case or indeed in the father’s case.
There are some internal conflicts in the mother’s evidence in relation to this alleged event. The mother says the interim Apprehended Violence Order was applied for by the police in relation to phone calls the father made to the mother on 30 September 2016. She says that the parties signed a parenting plan on 4 October 2016 which is said to be annexed to the mother’s Affidavit. There is no such ‘parenting plan’ annexed, it is a Statutory Declaration made by the mother on 4 October 2016 declaring that she and the father reached some type of parenting agreement. Those evidentiary conflicts may be resolved at final hearing. However, at this stage of the proceedings the Court is left with conflicting evidence from the mother.
The father’s evidence as to what he says occurred on 30 September 2016 is certainly not clear. He says that he was charged with assault but this was later withdrawn and he was charged with stalking and intimidation to which he originally pleaded not guilty. The facts alleged by the police are not in evidence. However, as far as the Court understands the father’s evidence, he says that the assault charges relate to a different event, one which from the mother’s material is said to have occurred on 24 September 2016, which the father denies.[27]
[27] This being when the mother says the father threw a piece of timber at the car after he had pushed the mother and had raised the timber as if he was going to hit her with it
On 17 February 2017, the Local Court at Campbelltown made a Final Apprehended Violence Order for a period of 12 months that the father must not do any of the following to the mother or anyone she has a domestic relationship with:
a)Assault or threaten her;
b)Stalk, harass or intimidate her; and
c)Intentionally or recklessly destroy or damage any property that belongs to or in the possession of the mother.
The father had pleaded not guilty to the charges of stalking and intimidation and the Court understood that those proceedings were listed before the Local Court on 17 February 2017. While no evidence was specifically relied upon at the interim hearing in relation to this matter (that is the criminal hearing on 17 February 2017), the Court notes the evidence read in the hearing to re-open the issue, where the father deposed to:
a)a plea of guilty in respect of the charge of intimidation; and
b)a conviction with a deferred sentence upon the father entering into a 12 month good behaviour bond and a fine of $2,000.
There is not before the Court any fact sheet or other evidence on the basis of which the Final Apprehended Violence Order was made on 17 February 2017 (except in so far as the basis for it might be the Provisional Apprehended Violence Order referred to earlier. It must also be that at some stage before 1 November 2016, an interim Apprehended Domestic Violence Order was made).
The evidence in both parties’ cases is not particularly satisfactory. Furthermore, the evidence is not only disputed as between the parties, but appears to contain internal inconsistencies. Even noting that this is only an early interim stage of the proceedings and that the affidavits were filed with some urgency, the Court is still left to sift through the evidence to try to piece together what has occurred. Notwithstanding such difficulties with the evidence, the Court is nevertheless asked to find that the child is at an unacceptable risk of harm in the father’s care.
Since consent orders were made on 25 October 2016, the child has been living week about with each of her parents. Albeit those orders were noted to have been made “without prejudice to the parties (sic) Applications” they were made in circumstances where the mother had been seeking an urgent recovery order for the child to live with her and for the child to spend supervised time with the father at Catholic care at (omitted).
In Salah & Salah[28] in not too dissimilar circumstances the Full Court held:
[28] [2016] FamCAFC 100 (it is noted that the reference to paragraph 6 is a reference to the second paragraph numbered 6 which does not follow numerically, but rather appears after paragraph 15 and before paragraph 16.)
[6] Order 5 of the July consent orders was described by the father’s counsel as a “notation”, the assertion underlying that submission being that, notwithstanding the father had agreed to the presence of his family members when spending time with the children, it was made without admission as to its necessity and therefore did not have the same effect as an order. We reject that submission. Order 5 contained an enforceable obligation and one recognised as falling within the definition of a parenting order in s64B of the Family Law Act 1975 (Cth) (“the Act”). The addition of the words “the parties agree” and “without admission” do not detract from or modified the obligation.
…
[22] Paragraph 5 of the July consent orders was said by the mother to have been required by her expressions of concern as to the father’s parental capacity and her allegations of family violence. The father maintained that he was forced to agree to the monitoring order in paragraph 5 without which, he would not have been able to spend time with the children.
…
[60] … His Honour gave no reasons why he effected a change of the position earlier agreed by the parties nor that he considered at the father’s concession in order five of those consent orders in any way. Further it was argued, and we accept, that in setting out the terms of the earlier orders, His Honour made no mention of the notation in which the father agreed that the following orders were in the best interests of the children.
[61] The facts and circumstances of the making of the recent consent orders, while not determinative of the issue were, in our view important factual background to the issues before His Honour and were worthy of consideration by him. That His Honour did not consider them, is in our view an error.
At the time of the making of the consent orders on 25 October 2016, no subpoenas had been issued and consequently none of the documents which subsequently became available to the parties for the interim hearing on 19 December 2016, were then available.
The consent orders also predated the incident at (omitted) Hospital which is referred to in Exhibit 3.
While on the face of it, and notwithstanding the “without admissions” notation, the position of the mother might have been viewed with some concern given the allegations she raises in her Affidavit and that notwithstanding those applications she consented to an order for the child to live with each of the parents on a week about basis, the Court does not draw any adverse inference in relation to the mother’s capacity to be protective, particularly so in light of the evidence tendered during the interim hearing.
Exhibit 2 shows that the father was charged with assault in relation to a further incident on 30 October 2016. The alleged facts are not contained in the Exhibit, however, it appears that the incident might relate to the father’s admission at (omitted) Hospital as referred to below.
From the material produced under Subpoena by (omitted) Hospital and tendered[29] in the proceedings, the following matters are relevant:
a)On 30 October 2016, on admission the father was “agitated and irritated, swearing without a clear reason before the examination commenced”;
b)There were several episodes of distress noted, yelling out, anger and threats to punch staff. The father apparently stated “when I go off no one is going to be able to control me”;
c)The paternal grandmother stated that such behaviour was not unusual for the father, that he becomes anxious and angry if he is away from home and that it is for this reason that he still lives with his parents. Apparently angry outbursts are common;
d)The father became more aggressive and later during the evening, threatening to punch or fight the staff at the hospital, he spoke clearly and chose to walk towards several staff to within 30cm distance, making sudden threatening movements with his head and fist stating “I’m a fighter, I’m going to hurt you all if you do try to stop me.” Such behaviour was exhibited in the presence of hospital security who witnessed very specific threats. It appears from the record that the father did not want to have the treatment which was being recommended by the hospital; and
e)At about 10:30pm that night, the father returned to the Emergency Department where he threatened to throw a bottle at security and became more aggressive. He was restrained by security staff. The police were called and attended and indicated that they would charge the father but not incarcerate him.
[29] Exhibit 3
There is no evidence in the father’s case that he had disclosed to the mother those events noted in the material which was ultimately tendered. Despite the fact that he swore his Affidavit on 16 November 2016, the father does not mention the incident which occurred at (omitted) Hospital on the 30 October 2016 (as described in the exhibit).
The father has not called any evidence from his parents with whom he lives. There is no explanation as to why no such evidence was called in circumstances where the father must have been aware that the primary issue for determination at the interim hearing was the unacceptable risk of harm to the child in the father’s household. Notwithstanding that no such evidence was called, the Court finds that the presence of the paternal grandparents in the father’s home is a significant protective factor in all of the circumstances. The child has after all been living in the home of the paternal grandparents for significant periods of time since she was born.
While there is no evidence that the child has come to any harm to date as a result of the father’s drug use (both alleged and admitted), this does not automatically result in a conclusion that there is no risk of harm to the child as a result of the father’s drug use (both alleged and admitted). At best it means that to date no such risk has materialised that is the subject of any evidence. It also means that the risk, on the evidence, is not unacceptable. The same can be said in relation to the mother’s drug use (both alleged and admitted).
Not only because of the interim nature of these proceedings and the evidence being untested, but also because of what appears to be inconsistent evidence of the parties themselves, the Court has had the difficult task of assessing the risk and the likelihood of the child being placed in harm’s way without being able to make any findings of fact which would usually be needed to assess the risk properly.
While broken into their single components, the allegations might not be capable of, at this interim stage, proving that there is an unacceptable risk of harm, the cumulative effect of all of the evidence is such that the Court is persuaded to act somewhat cautiously in relation to this child.
Benefit of a Meaningful Relationship
The nature of the child’s relationships with her parents is discussed elsewhere in these Reasons.
The mother proposes a continuing relationship between the child and the father, albeit by putting restrictions on the time the child spends with the father and in what circumstances. The mother recognises that there is a benefit to the child of having a meaningful relationship with the father, and does not submit to the Court that there should be no time.
Additional Section 60CC Factors
Views of the child
The child was two years and four months old at the time of the interim hearing. Her views are not only unknown, but she is too young for any such expressed views to be taken into account.
Nature of child’s relationships
Since she was about one or two months old, the child has been spending overnight time with the father, starting with one night per week. Time gradually increased and during 2016 it was such that the child was spending four nights with the father and three nights with the mother. The mother says that such a routine was not appropriate because the child was missing out on spending time with the maternal family, and that she did not have time with the child on weekends. The child was with the mother every Sunday, Monday and Thursday night and with the father every Tuesday, Wednesday, Friday and Saturday night.
The child has an established relationship with both of her parents. Indeed, she has been living with her parents on a week about basis pursuant to consent interim orders made on 26 October 2016.
The father lives with the paternal grandparents.
The mother lives with her other children, who are half-siblings of the child.
While not the subject of any specific evidence, the Court is able to infer that the child would have a number of established relationships in both households. The strengths of those relationships however, is a different matter and is not the subject of any inference.
Parent’s involvement with decision making, spending time and communicating with the child and Maintenance of the children
The mother gives evidence that following the birth of the child the parties’ intimate relationship ceased. She says that the father would occasionally visit the child and stay the night at her home. This occurred for approximately one to two months.
The mother says she was solely responsible for the care of the child including feeding, bathing, changing and settling her. The mother says that on the occasions when the father would stay at her home, he would offer to assist in feeding and bathing the child to which the mother encouraged. The mother also says that during the time that the father would sleep at her home he would sleep on the sofa and often with the child.
The mother became concerned that the father would “smother” the child during the night if he continued to sleep with the child. The mother says that the father ignored her requests to stop doing this and on one occasion he fell asleep with the child in his arms and dropped the child off the side of the couch. Following this event the mother says that the father did not co-sleep with the child again.
Gradually the father’s time with the child progressed to overnight time when the child was approximately two months old and this occurred approximately once or twice per week to fit in with the father’s availability. The mother says that this time continued to increase as the child got older and that by the time the child was two years old she was spending four nights per week with the father and three nights per week in her care.
The mother became concerned that the child was spending too much time away from the maternal family and that she was missing out on a number of family events such as birthday parties.
The mother says that the father has not facilitated the child spending more time with the mother and her family and that she currently does not have any weekend time with the child.
The father says that he would visit the mother and the child following her birth at the mother’s home every day and would spend between six to nine hours with the child while the mother cared for her other children.
The father says that he cared for the child on his own from the time she was two months old with some assistance from his mother.
The father denies having dropped the child when he fell asleep saying that the mother had:
Swaddled X tight to my arm and when I had lightly fallen asleep; my arm slightly fell off while I had it resting on my tummy with X wrapped around my arm. I felt my arm falling off my tummy and I immediately was awakened.
The father denies the allegation that the child was missing out on maternal family events and says that he recalls the mother arranging to pick up the child from the father to take her to a cousins birthday party.
On both parties’ cases, and despite their apparent difficulties in co-parenting, both parents have been active and involved parents.
Likely effect of change and practical difficulty of spending time
These matters are not of any significant weight in the Court’s determination. There is no expert evidence of the likely effect of any change on the child’s relationships, and there certainly does not appear to be any practical difficulty with either parent’s proposal. The parents live in the same suburb of Sydney.
Capacity to provide for children’s needs and the attitude to the children, and to the responsibilities of parenthood, demonstrated by each of the children's parents
At the time of swearing her Affidavit in October 2016, the mother says she had not seen the child since 4 October 2016 when the father had retained the child following a hand over at Campbelltown Court House. On this day the mother says that the parents signed a ‘parenting plan’ which provided that the child would spend each Monday, Tuesday and Wednesday with the father and each Thursday, Friday and Saturday. The ‘parenting plan’ does not state with who the child is to be in the care of on a Sunday. The Court has earlier made some comments in respect of the difficulties with the mother’s evidence on this point.
It was submitted that the father has no insight into the importance of the child’s relationship with the mother, as demonstrated in his actions in retaining the child.
Both parents have at times, it appears, demonstrated a poor attitude to their responsibilities of parenthood. This is not surprising given their volatile relationship.
Institution of further proceedings and other relevant matters
These are only interim orders, and it is likely that if the matter proceeds to final hearing, there may be a time period of at least some twelve months before the matter is decided on a final basis, much depending on whether a Family Report is to be ordered.
The length of time that the matter will take to reach readiness for a final hearing is also something which the Court has considered in making these interim orders, particularly in trying to balance the child having a meaningful relationship with both of her parents given while ensuring that her safety is ensured as much as possible.
Parental Responsibility
Section 61C of the Act provides that each of the parents of a child who is not 18 years has parental responsibility for the child. This section states the legal position that prevails in relation to parental responsibility to the extent to which it is not displaced by a parenting order.[30] Section 61DA provides for a presumption of equal shared parental responsibility that applies when the Court makes a parenting order. The presumption of course, applies only to parents.
[30] See note 1 s61C
As noted earlier, in interim proceedings, the presumption applies unless the Court considers that it would not be appropriate in the circumstances for the presumption to be applied when making an interim order.[31] The presumption is also rebutted where there are reasonable grounds to believe that a parent has engaged in family violence.
[31] s61DA(3)
The Court is mindful of what the Full Court said in Salah & Salah[32] in respect of applying a cautious approach in the context of disputed allegations of family violence, the rebuttal of the presumption of equal shared parental responsibility contained in s61DA(3) and having regard to the Court’s obligations under s60CG.
[32] [2016] FamCAFC 100
The parents do not have a good working relationship at present. There appears to be very little trust between them, but the evidence is not such that it would lead the Court to conclude that any long term decisions in relation to the child would not be capable of being made jointly by the parents.
At this stage of the proceedings, the Court is not persuaded to make an order for sole parental responsibility and the Court does not find on the evidence that the presumption of equal shared parental responsibility has been rebutted. As such, an order for equal shared parental responsibility is made.
It is noted for the benefit of the parties that in making a final parenting order in relation to a child, the Court must disregard the allocation of parental responsibility made in the interim order.[33]
[33] s61DB
Section 65DAA is enlivened due to the order for equal shared parental responsibility. Relevantly, s65DAA states:
(3) In determining for the purposes of subsections (1) and (2) whether it is reasonably practicable for a child to spend equal time, or substantial and significant time, with each of the child's parents, the court must have regard to:
(a) how far apart the parents live from each other; and
(b) the parents' current and future capacity to implement an arrangement for the child spending equal time, or substantial and significant time, with each of the parents; and
(c) the parents' current and future capacity to communicate with each other and resolve difficulties that might arise in implementing an arrangement of that kind; and
(d) the impact that an arrangement of that kind would have on the child; and
(e) such other matters as the court considers relevant.
Having regard to the above criteria and the various considerations discussed throughout these Reasons, at this interim stage equal time is not supported by the facts in this matter, but significant and substantial time is[34].
[34] within the meaning of s65DAA(3)
Conclusion
The absence of discussion of any particular s 60CC factor above does not reflect any failure to consider it. Rather, it is reflective of the Court’s assessment that such factor has no sufficient relevance in the circumstances of this case to displace the determinative significance of those factors which were specifically addressed: Banks & Banks (2015) FLC 93-637 at [52]. It is also reflective of the Court’s assessment that some of the factors overlap and in those circumstances, they are only addressed just the once.
While the Court has reached the conclusion, at this interim stage, that there are a number of identified risks to the child, those risks are not unacceptable risks of harm such that there should be no time between the child and the father or that such time should be supervised, but they are risks which can be ameliorated by the orders which the Court makes. These include the drug screening requirements for both parents, the injunction against use of illicit substances in certain circumstances and to an extent, the appointment of an independent children’s lawyer.
The Court also finds that the father’s residing with the paternal grandparents is a protective factor for the child in all of the circumstances.
The continuation of a shared care arrangement in the circumstances of this case is not reflected by the best interests considerations. The parents, it seems on the evidence so far, are not capable of communicating and being respectful towards one another such as to support a shared care parenting arrangement.
While the Court accepts that the father has had significant involvement in the child’s care, including an equal shared care arrangement and otherwise significant and substantial time, the matters which tipped the scale against more time with the father are the matters which have been identified as risks to the child in the father’s care.
In all of the circumstances and for all of the reasons set out above, it is in the child’s best for orders to be made as set out at the forefront of these Reasons.
I certify that the preceding one hundred and fifty-seven (157) paragraphs are a true copy of the reasons for judgment of Judge Obradovic
Date: 3 May 2017
Key Legal Topics
Areas of Law
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Civil Procedure
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Administrative Law
Legal Concepts
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Judicial Review
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Standing
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Procedural Fairness
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Natural Justice
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Jurisdiction
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