Shields and Greer

[2017] FCCA 761

FEDERAL CIRCUIT COURT OF AUSTRALIA

SHIELDS & GREER [2017] FCCA 761

Catchwords:
FAMILY LAW – Interim parenting – serious allegations risk – child has special needs – orders made pending appointment of Independent Children’s Lawyer, completion of current Department of Health and Human Services Investigation and further interim hearing.

Legislation:

Family Law Act 1975, ss.62B, 65DA(2), 68L(2)

Cases cited:

Redmond & Redmond [2014] FamCAFC 155

Morgan & Miles [2007] FamCA 1230

Applicant: MS SHIELDS

Respondent: MR GREER

File Number: MLC 2834 of 2017

Judgment of: Judge Harland

Hearing date: 29 March 2017

Date of Last Submission: 29 March 2017

Delivered at: Mildura

Delivered on: 29 March 2017

REPRESENTATION

Counsel for the Applicant: Mr Strong

Solicitors for the Applicant: Victoria Legal Aid

Counsel for the Respondent: Mr Pavone

Solicitors for the Respondent: MIR Lawyers

ORDERS

1. The matter be adjourned for Interim Contested Hearing in Melbourne on 18 May 2017 at 10:00am.

2. The matter be consolidated with MLC2407/2017 between Greer & Shields.

3. Pursuant to s.68L(2) of the Family Law Act1975, the child X born (omitted) 2012 (“the child”) be independently represented AND IT IS REQUESTED that Victoria Legal Aid arrange such independent representation and:

   (a)forthwith upon appointment by Victoria Legal Aid or otherwise, the independent children’s lawyer file a Notice of Address for Service;

   (b)within 48 hours of notification of such appointment the solicitors for the respective parents (or, if unrepresented, then the parent himself or herself) provide to the independent children’s lawyer copies of all relevant documents relied upon;

   (c)the independent children’s lawyer fulfil the requirements set out in ‘Guidelines for the Independent Children’s Lawyer’ as published on the website of the Family Court of Australia, and in particular carry out the tasks set out in clauses 5, 6.2, 6.3, 6.5 and 6.7.; and

   (d)the independent children’s lawyer prepare a minute of the orders he or she will recommend be made as final orders.

4. Both parties undertake supervised drug screen testing (“the testing”):

   (a)the testing occur at a pathology centre or other place approved by the Independent Children’s Lawyer; and

   (b)the testing occur randomly and within 24 hours of the Independent Children’s Lawyer making a written request for the testing to occur.

   The results of the testing, on each occasion, be forwarded, as soon as possible, to the Independent Children’s Lawyer and the other party’s solicitors.

5. Until further order, the child live with the father.

6. The child spend time with the mother at times can be agreed, that time take place in (omitted) and in the absence of Mr R.

7. Pursuant to order 6 herein, the mother is to nominate, in writing, times in blocks of less than two days.

8. The mother provide the full name and date of birth of her partner, Mr R, to the father’s solicitor.

NOTING

1. Pursuant to ss.65DA(2) and 62B of the Family Law Act 1975, the particulars of the obligations these orders create and the particulars of the consequences that may follow if a person contravenes these orders and details of who can assist parties adjust to and comply with an order are set out in Attachment A and these particulars are included in these orders.

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

FEDERAL CIRCUIT COURT
OF AUSTRALIA
AT MILDURA

MLC 2834 of 2017

MS SHIELDS

Applicant

And

MR GREER

Respondent

REASONS FOR JUDGMENT

1. These reasons for judgment were delivered orally.  They have been corrected from the transcript.  Grammatical errors have been corrected and an attempt has been made to render the orally delivered reasons amenable to being read.

2. This is an urgent interim application that involves serious allegations in both directions about risk concerning a young child, X, born (omitted) 2012 (“X”).  X is a vulnerable child with global development delay who is sufficiently in need of special assistance that he attends a special school and is in receipt of services provided by the National Disability Insurance Scheme.

3. The evidence before the Court raises real concerns about X’s wellbeing and there are certainly allegations with respect to both parents.  And in this regard I am mindful of the Full Court of the Family Court’s comments in the decision of Redmond & Redmond [2014] FamCAFC 155. Whilst it is not possible on an interim basis for a Court to make findings of contested issues of fact, it is also not the position of the Court that it can ignore serious allegations of risk.

4. The Court has the assistance of a preliminary response from the Department of Health and Human Services (“the Department”) in response to a notice of risk.  The Department outlines that it has previously had five child protection reports and one previous investigation.  The previous reports mainly related to 2014 when the parties were still in a relationship.  The report does indicate that there were concerns about the father being a perpetrator of violence, using marijuana and using drugs including ice.  That refers to the 2014 period, and the Department ceased its involvement upon support services engagements with the mother and an intervention order being in place.

5. The Department notes that there was a further child protection report received on 4 October 2016 which claimed that the father was homeless.  The report also indicates that there have been new allegations made against the mother and the Department has initiated an investigation. The Department notes that the history of Child Protection involvement identifies potential risk issues with both parents.

6. One of the complicating factors in this matter is the fact that the mother lives in (omitted) and the father now lives in (omitted) which means there is a considerable distance between the parents, and both parents are of limited financial means which means that there is a real issue in terms of both parents being able to spend significant time with X, given their current locations.

7. The father’s case is that he moved to (omitted) eight months ago after becoming unwell and is living with his brother and sister-in-law.  The mother says that he moved 12 months ago.  For the purposes of today, it does not much matter. 

8. There is a real dispute between the parties as to several factual matters, including the level of involvement that the father has had with X prior to his overholding X in March 2017.  There is agreement, however, that in 2015 there was a shared care arrangement.  The dispute relates to the time that the father has spent with X since he moved to (omitted) with the father saying that he would see X in (omitted) for two-week periods and the mother saying that it was sporadic.

9. There is no dispute between the parties that the father spent time with X over the Christmas period, although there is a dispute about how that came about and whether that was by consent or not.  The father has overheld X since early March. 

10. The father makes several allegations about the mother’s care of X that range from concerns about neglect, including neglect of X’s medical needs, but also family violence and, in particular, he refers to an incident which he says occurred during a Facetime call where the mother lost patience with X and slapped him. The father raises concerns about the mother’s partner, and allegations both that the mother’s partner hit X on one occasion. It is significant that the mother’s affidavit, whilst responding to the father’s affidavit wherein he makes those allegations, is absolutely silent with respect to Mr R being violent towards X.  She denies being violent herself but says nothing about her partner.  There is a further allegation with respect to her partner and that is of concern.

11. The other concerns relate to X’s special needs being met.  The mother, in her affidavit, annexes several documents indicating the support services that have been engaged in X’s care.  Whilst those documents show that the mother has been involved in support services, as the father points out, they also indicate some inconsistencies on the mother’s part in providing for X’s needs which, I accept, are considerable.  Whilst it is not possible for the Court to determine contested issues of fact, the Court cannot ignore inconsistencies in the mother’s own evidence that do not support some of her claims.

12. There are two of the significant areas of inconsistency. First, relates to the mother saying that X has only run away once, yet the reports that she has given to Gateways Autism Assessment Team, which is annexed to her affidavit, refers to her reporting to the assessors that one of the difficulties with X was him absconding and running away on several occasions, he having gone missing several times.

13. The second is with respect to the report from (omitted) Speech Pathology, again which is annexed to the mother’s affidavit. Before referring to that I should refer to the letter from Ms J, a support worker from Bethany, which is annexed to the mother’s affidavit which refers to herself and other educators involved with X recommending to the mother that X needs consistency by attending kindergarten as well as childcare as much as possible in order to support his learning and development and that the mother had indicated that she was committed to taking him five days a week.  Yet the speech pathology report from (omitted) Speech Pathology dated 27 January 2017 indicates that there were significant periods of non-attendance and late attendance by X which had significantly impacted on his kindergarten experience.

14. It also indicates that the workers had agreed that he would receive speech pathology whilst attending kindergarten and childcare, yet the mother did not attend any of the eight sessions and X missed four sessions.

15. Those documents are supportive of the father’s allegation that X’s needs have been neglected whilst in the mother’s care.  Those concerns, combined with the concerns about the mother’s partner, raised issues about risk if X was returned to the mother’s care at this stage.  The mother’s counsel says that this is, in effect, an interim relocation application by the father and refers to the case of Morgan & Miles [2007] FamCA 1230.

16. The Department is undertaking an investigation.  The investigations by the Department typically take 28 days.  The counsel for the mother says that this is a protective factor.  If X returns to her care, the Department will be involved and attending her house for assessments.  It also refers to the fact that X has several support services in place in (omitted) and also his special school that he attends.

17. The father has enrolled X in a special school in (omitted).  The father’s counsel says that the father will engage in support services for X in (omitted) if he is granted the interim residence order, but has not been able to do so without having that in place, and that similar services are available in (omitted).  The ideal situation would be both parents living in (omitted) and X being able to remain engaged with those services pending the outcome of the investigation by the Department.  However, the Court is not dealing with an ideal circumstance.

18. In my view, rather than this being characterised as an interim relocation issue at this stage, the issue is the unacceptable risk to X if he is returned to the mother’s care pending the outcome of the investigation by the Department.  I acknowledge that there are allegations of risk with respect to both parents.  The mother raises allegations that the father was violent towards her during the relationship, and there is some support for that in the initial response of the Department.  However, there also is on both cases concessions that X has spent significant time in both parents’ care post-separation.

19. There are also allegations with respect to both parents and drug and alcohol use, and I intend to in this matter appoint an Independent Children’s Lawyer.  I am going to order that both parents undergo random drug testing as requested by the Independent Children’s Lawyer, once appointed.

20. In assessing the issues in this case, the Court has to take a cautious approach, which is leaving X in the father’s care pending the outcome of the investigation of the department.  I intend to accede to the request to list this matter in Melbourne rather than leaving it in (omitted), given the timeframes, as it will be necessary to assess this case on a further interim basis once the Department has completed its investigation.

21. As indicated previously, this is not an ideal situation, but I have to balance the risks on the information that I have, so I am going to, pending further order, order that X live with the father; that X spend time with the mother at times that can be agreed, and I accept there is an issue about how often she will be able to attend, and that time take place in (omitted).  As I indicated, I will appoint an independent children’s lawyer and order that the parties undergo random drug testing.  I will list this matter for interim hearing in Melbourne on 18 May at 9.30am.

I certify that the preceding twenty-one (21) paragraphs are a true copy of the reasons for judgment of Judge Harland

Date:  19 April 2017