SIMMONS & DAILEY - [2012] FMCAfam 549

FEDERAL MAGISTRATES COURT OF AUSTRALIA

SIMMONS & DAILEY

[2012] FMCAfam 549

FAMILY LAW – Interim arrangements for care of children aged 11 & 7 – high conflict family – allegations of exposure to family violence, abuse and neglect – drugs use – father has unilaterally retained children – involvement of State welfare authorities – assessment of risk.

Family Law Act 1975, ss.60CC, 69ZW, 91B

Goode & Goode (2006) FLC 93-286

Applicant:

MS SIMMONS

Respondent:

MR DAILEY

File Number:

ADC 3677 of 2007

Judgment of:

Brown FM

Hearing date:

5 June 2012

Date of Last Submission:

5 June 2012

Delivered at:

Adelaide

Delivered on:

8 June 2012

REPRESENTATION

Counsel for the Applicant:

Mr McGinn

Solicitors for the Applicant:

Mason Westover Homburg

Counsel for the Respondent:

Ms Droulias

Solicitors for the Respondent:

Aboriginal Legal Rights Movement Inc

Independent Children’s Lawyer:

Mr Kent

Counsel for Independent Children’s Lawyer

Ms Lindsay

Solicitors for the Independent Children’s Lawyer :

Legal Services Commission of SA

ORDERS

UNTIL FURTHER OR OTHER ORDER

The children of the relationship [X] born [in] 2000 and [Y] born [in] 2003 live with the father and he have parental responsibility for the children’s day to day care, welfare and development.
The father be authorised by these orders to enrol the children at the [B] Primary School.
In order to give effect order (1) the mother is directed to return the child [Y] to the father at 4:00pm on 11 June 2012 within the confines of the [B] Police Station.
The mother spend time with the children as follows:
(a)on alternate weekends commencing 16 June 2012 from 9:00am on Saturday until 4:00pm the following Sunday;
(b)in the other week of each fortnight commencing 23 June 2012 from 9:00am to 4:00pm each Saturday; and
(c)at any other times to be agreed between the parties.
The children are to be exchanged, in order to give effect to order (4) hereof in the foyer of the [U] Police Station and during such handover the parties are restrained from attending the handover with any other person.
Each party is restrained and an injunction issues restraining each of them from abusing, denigrating or assaulting the other or permitting any person to do so in the presence or hearing of the children.
Each party is restrained and an injunction issues restraining each of them from discussing the outcome of these proceedings in the presence or hearing of the children or permitting any other person to do so.
An injunction issue and the mother is restrained from attempting to remove the children from the [B] Primary School.
If the mother fails to comply with order (3) hereof the father be at liberty to apply to the court, without reference to the mother, for a recovery order to be issued directing the relevant police authorities to recover the aforesaid child from the mother and deliver her to the father.
Pursuant to section 91B of the Family Law Act 1975, the Minister for Education and Child Development (Families SA) is invited to intervene in these proceedings.
A copy of these reasons for judgment to be provided to the Department of Education & Child Development (Families SA).
Pursuant to Section 62G(2) of the Family Law Act (1975) the parties and the child/children of the relationship attend upon a family consultant nominated by the Dispute Resolution Co-ordinator of the Federal Magistrates Court of Australia on a date and at time/s to be advised for the purposes of the preparation of a family report, such report to be released by 14 September 2012.
The Family Report to deal with the following matters:
(a)any views expressed by the said child/ren and any factors (such as the said children’s maturity or level of understanding) that would affect the weight that the court should place on those wishes;
(b)the matters set out in ss60CC, 61DA and 65DAA of the Family Law Act 1975; and
(c)any other matters that the Family Consultant considers important to the welfare or best interests of the said children.
The solicitors for the parties forward copies of all documents filed with the Court to the nominated report writer in accordance with the directions of the Child Dispute Co-ordinator.
The matter is fixed for final hearing before Federal Magistrate Brown on 4, 5, 6 and 7 December 2012 at 10:00am NOTING 4 days allowed.
Further consideration of this matter is adjourned to 20 September 2012 at 9:30am for trial directions.

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

FEDERAL MAGISTRATES
COURT OF AUSTRALIA
AT ADELAIDE

ADC 3677 of 2007

MS SIMMONS

Applicant

And

MR DAILEY

Respondent

REASONS FOR JUDGMENT

Introduction

The parties to these proceedings are Ms Simmons “the mother” and Mr Dailey “the father”. They are the parents of two children: [X] born [in] 2000 and [Y] born [in] 2003.
These proceedings relate to interim arrangements for the care of the two children until such time as there can be a more thorough and exhaustive inquiry, involving more evidence, particularly in the form of a family report.
The parties were involved in a relationship with one another between 1999 and 2003. Since 2003, there have been several episodes of litigation between the parties, which have not effectively resolved issues arising between them regarding the ongoing parenting of the two children concerned.
It has long been the father’s position that the mother is a poor and neglectful parent, who has extensive issues to do with substance abuse. It is his case that his concerns about the mother have driven him to take the drastic action of withdrawing the children from their mother’s care.
The mother’s position is that she has been the children’s primary carer for the vast majority of their lives. She asserts that the husband will seize upon any pre-text to unilaterally remove the children from her care. In her submission, the father’s propensity to exercise self help, where the children are concerned, is indicative of an impaired insight into what is best for the children.
It is the mother’s case that the court should not condone the father’s unilateral actions and both children should be returned to her immediate primary care. She disputes the thrust of the father’s current allegations regarding her unfitness to be a parent.
Although there are many discrepancies in the respective evidentiary accounts of the parties, one thing is clear – the parties’ relationship is poor and mistrustful and currently categorised by a lack of communication. It is also the case that the South Australian child welfare authorities have been previously involved with the family, and, as such, [X] and [Y] are likely to be vulnerable children on many grounds.
In these circumstances, at an earlier stage of the proceedings, an order was made that each child be independently represented in these proceedings. Their representative is Mr Kent, an experienced family lawyer. Mr Kent has briefed Ms Lindsay, a barrister, to appear on behalf of the children in this matter.
In addition, the Department of Families & Communities (Families SA) has been ordered to provide its file records in respect of its involvement with the family to the court. Each of the parties concerned has had an opportunity to examine this file, which contains records going back to August of 2004.
However, at this stage, Mr Kent has not had an opportunity to obtain a detailed assessment of the family in this case, which would almost certainly involve some form of interview with the children, and an observation, by a suitably qualified expert, of their interactions with each of their parents.
It is Mr Dailey’s position that [X] has recently engaged in an episode of self harm because of his distress at his mother’s behaviour and the state of her household. By necessary implication, he would characterise [X]’s behaviour as a “cry for help”. He asserts that [X] is unwilling to return to his mother’s care and he is powerless to force him to do so.
The father took [X] to a doctor for medical attention to the wounds on his wrists, which were described as superficial. The records of the doctor concerned have been subpoenaed, although the doctor himself has not provided any detailed evidence in respect of the incident. It is clear however from his records that he did not refer [X] for any psychological or counselling support.
In the evidentiary context available to her, the mother doubts the gravity of [X]’s behaviour and fears that the father has exaggerated it to gain advantage over her in these proceedings. She acknowledges that a single cannabis plant was found growing in the garden of her home. She also acknowledges some casual cannabis use herself. She disputes that her current partner, Mr F, is a violent and abusive person.
At this interim stage, there is little independent evidence regarding [X]’s views and individual vulnerabilities. In addition, there is no independent assessment of what is, at first blush, both a complicated and conflicted family situation for the children.
It is against this difficult background that an interim determination must be made, as the parties themselves present as having no capacity to compromise with one another or focus jointly on what is best for their children.

Previous litigation

It seems uncontentious that the parties separated in mid 2003, around about the time of [Y]’s birth. The first round of litigation between the parties was in the Family Court at Adelaide, which the mother commenced in February 2005. I have not examined the file in relation to this matter.
The mother’s position is that the parties separated prior to or just after [Y]’s birth and, after separation, [X] lived with her and the father had very little to do with either child. She asserts that she was forced to initiate proceedings in early 2005 after Mr Dailey removed the children from her care and refused to return them to her. She says he did so because he was aggrieved on learning she had a new boyfriend.
The mother asserts that an order was made by the Family Court, on 10 March 2005, directing the father to return the children to her care. I have not seen this order. I have however been provided with a copy of a subsequent order, made by Judicial Registrar Forbes on 10 June 2005. This order was made on the mother’s application, but in the absence of the father.
Pursuant to this order both children were to live with their mother, who was to have sole parental responsibility for their day to day care welfare and development. The father was to have contact, with the children, on such terms and on such conditions as the parties agree from time to time.
It is the mother’s position that this first round of litigation is symptomatic of the father’s subsequent behaviour towards her and his behaviour in court, namely he unilaterally removes the children from her care or a pretext relating to their welfare; the children are returned to her by court order; and Mr Dailey subsequently fails to follow through with his initial complaint about her parenting.
On 5 July 2007, the father commenced proceedings in this court seeking both interim and final orders in respect of [X] and [Y]. At that time both parties lived in [U]. Mr Dailey sought the urgent listing of his application and orders that would see the children remaining in his care.
In his affidavit in support of his application, the father made a complaint that Mr F had inappropriately disciplined [X] and had locked the child out of his home as punishment. He also complained that the mother was abusing cannabis. He deposed as to suspicions that the mother and Mr F were using amphetamines.
At this stage, the father acknowledged his own previous use of amphetamines, whilst he and the mother were living together. He asserted that it was the mother who had introduced him to amphetamines. He also asserted that the children’s attendance at school had been irregular.
In her responding material, the mother complained that Mr Dailey had previously failed to return the children to her care. It was also her position that he had been unreliable in respect of spending time with [X] and [Y] pursuant to the earlier order of the Family Court.
The mother acknowledged smoking marijuana but denied amphetamine use. It was her case that Mr F had a good relationship with the children. She denied that he had ever struck [X] or locked him outside the home.
At this stage, it was Ms Simmons’ evidence that she had stable accommodation for herself and the children. She asserted that Mr Dailey led an unstable lifestyle and did not have a fixed place of abode. Significantly, she asserted her belief that the father had not overcome his previous use of amphetamines but returned to use the drug again every few months or so.
The court had to adjudicate between the parties’ respective competing claims for the interim care of the two children against these two very different evidentiary accounts. At that stage, there was no independent evidence to support either party’s version of events.
Ultimately, it was decided that the two children should return to their mother’s care, in [U], but thereafter they should spend time with their father on alternate weekends and overnight, in the other week, from Wednesday to Thursday morning. Orders were also made for the children to spend time with their father in the forthcoming October school holiday.
Given the serious allegations, particularly regarding mutual serious drug use and possible neglect and abuse of the children, it was ordered that the parties’ competing applications proceed to final hearing expeditiously in December of 2007 and a family report be prepared.
The interviews for the family report writing process were arranged for November of 2007. The report writer was Ms C. Neither party attended their scheduled interview. However, Ms C was able to observe, at a later stage, Mr Dailey interacting with both children. She thought both children had a good relationship with their father and were happy and relaxed in his company.
However, given the absence of formal interviews with each of the parties, Ms C was not in a position to make any formal recommendation in the matter. She did not observe the children with Ms Simmons.
In the lead up to the final hearing, scheduled for December, Ms Simmons filed a further affidavit. She disclosed that she suffered from manic depression, which had been diagnosed in her adolescence. She had been prescribed medication to deal with this condition. In this context, she deposed that she smoked marijuana to assist her with the side effects of her medication.
She also deposed that she and Mr Dailey had discussed the possibility of [X] moving into his father’s care. She indicated that she was open to this outcome, provided the father was not using amphetamines or abusing alcohol.
At the time Ms C completed her inconclusive family report, it was her understanding that [X] was living with his father. In her affidavit of November 2007, it is interesting to note that, notwithstanding her openness to [X] living with his father, Ms Simmons complained that Mr Dailey had arrived at her home, in September, in a drunken state and had made improper suggestions to her.
At the time of this affidavit, Ms Simmons was living in [U], whilst Mr Dailey had recently obtained accommodation in [B]. The parties had apparently met when both were students at [M] High School.
By way of background, the mother was born [in] 1980 in the United Kingdom but immigrated to Australia as an infant. The father was born in 1979. He is an Aboriginal person, who identifies himself as a [omitted] man.
Given the state of the evidence, particularly the incomplete nature of the family report, the trial scheduled for December 2007 did not proceed. It also seems to be the case that there was some uncertainty about what was actually in dispute between the parties, at that stage. Without wishing to be dismissive of the parties, their parenting relationship seems to be one of fluidity, punctuated by episodes of crisis.
An order was made for the family report process to be completed and the trial was rescheduled. Prior to the rescheduled trial date, each party’s solicitor filed a notice of ceasing to act. Neither party attended at the trial and their applications were dismissed and no further orders were made.
The parties were not involved in any further litigation regarding arrangements for [X] and [Y]’s care for a period approaching four years. This is a period of significant length. Both parties agree that from December 2008 until recently, both children lived with their mother and spent sporadic time with their father.[1] It is the mother’s case that there was a brief trial of [X] living with his father, but he was unhappy with this arrangement and returned to her care after about a fortnight.
[1] See mother’s affidavit filed 26 March 2012 at paragraph 14 and father’s affidavit filed 12 April 2012 at paragraph 8

The current proceedings

The mother commenced the current round of proceedings on 26 March 2012. In her application, she sought that a recovery order issue in respect of [X] and [Y] to obtain their return from the father. On both an interim and final basis, she sought an order that the two children live with her. She had no proposal as to the time [X] and [Y] should spend with their father.
In support of her application, she asserted that the father had spent time with the children on recent weekends commencing 17 February; 24 February; and 2 March. It was her position that the children were due to return to her care on 4 March but had not been returned.
In her affidavit, Ms Simmons deposed that it was her impression that Mr Dailey had become interested in spending time with the children following his recent marriage. She asserted that Mr Dailey had been seeing the children regularly from August 2011 onwards. At the time, he lived and continues to live at [B].
The mother further deposed that up until March of 2011, [X] was in year 5 and [Y] was in year 3 at the [M] College. She complained that her social security benefits had been reduced because of the father’s retention of the children.
Ms Simmons further deposed that she had contacted her solicitor on 6 March 2012 and had applied for legal aid. By implication, this was the reason for the delay of around three weeks between the date of her application and the father’s retention of the children.
Ms Simmons’ application was given a return date of 20 April 2012 before Kelly FM. I had previously been the docket Federal Magistrate when it was before the court in 2007/2008.
Mr Dailey concedes, as he must, that Ms Simmons had the predominant care of the children up until the first week of March 2012. It is his position that disclosures made primarily by [X] dictated that he should not return the children to their mother.
Notwithstanding this situation, Mr Dailey did not himself make application to the court to ratify this situation. Rather, he responded to the mother’s application, which he did on 12 April 2012.
On both an interim and final basis, the father seeks orders that he have sole parental responsibility for the children and they live with him. He does not have concrete proposals for the children to spend time with their mother. He sought an injunction restraining the mother from allowing Mr F to come into contact with the children.
In a procedural sense, the father sought that the children be independently represented as soon as possible and that a family report be prepared.
The mother’s affidavit in support of her application is brief. In essence she asserted that the father had reverted to previous modes of behaviour and had once again retained the children for no proper reason. In her affidavit, she did not allude to any of the areas of criticism of her, which were later raised by Mr Dailey in his answering affidavit material.

Mr Dailey’s criticisms of Ms Simmons’ behaviour and parenting of [X] and [Y] can be summarised as follows:
·[X] had several cuts on his left wrist. When asked how these cuts had occurred, [X] indicated they were self-inflicted and occurred because “I hate mum and Mr F, this makes me forget about my pain”.
·In conjunction with this statement [X] complained that his mother’s house was empty without food and lights and his mother was “always taking pills”.
·[X] also complained of having been assaulted by Mr F and having been locked out of the house at night. No timeframe was specified for this incident, which replicates an earlier criticism made by Mr Dailey.
·[Y] reported that her mother grew drugs in the yard and walked around the house naked and swearing. The children were apparently able to provide Mr Dailey with photographs taken by them of their mother’s marijuana plants.
Mr Dailey further deposed that he telephoned the mother on 4 March 2012 to advise her that he would not be returning the children. Ms Simmons apparently subsequently telephoned him, in response to a text message. Mr Dailey describes Ms Simmons as being intoxicated during the telephone conversation and of having telephoned him from a “rave party”.
In addition, the father deposed that he had taken [X] to his GP in [U] to seek advice and medical treatment in respect of [X]’s allegedly self-inflicted wounds to his wrist. The implication of his evidence in this regard being that the doctor advised him to retain the child.
Mr Dailey also advised that he contacted the [U] Police Station and was informed by an unnamed police officer that the mother and Mr F were heavily involved in the drug scene in [M] and their home had been raided by police and charges laid in respect of the possession of cannabis.
The unspecified police officer also indicated to Mr Dailey that, on an earlier occasion, the police had made a notification to the child welfare authorities in South Australia. As a result of this, Mr Dailey himself contacted the Department of Education & Child Development and was advised that a file had been opened in respect of Ms Simmons and the children, in respect of possible issues of neglect and abuse.
Mr Dailey consulted his solicitor on 12 March 2012 and she filed a notice of address for service on 15 March 2012 but did not formally institute proceedings. Against this complicated and evolving background, Mr Dailey enrolled the children at a school near to his home in [B]. Needless to say, he had neither consulted the mother nor obtained her consent to such an enrolment.
On 27 March 2012, the mother attended at the [B] Primary School allegedly demanding to collect the two children. It seems there was an unpleasant altercation thereafter. However, I have not been provided with a direct account of what occurred from anyone in authority at the school or who observed exactly what happened.
The incident at the school apparently led to a further notification being made to the Department of Education & Child Development.

Mr Dailey himself had earlier been advised that the Department would not be taking any action in respect of [X] and [Y] because they regarded the children as being safe from harm, whilst they remained in his care.
Mr Dailey has deposed as to his view that the mother and Mr F have longstanding issues to do with cannabis and amphetamine abuse. He categorises their relationship as being a violent and abusive one. He asserts that [X] has taken on the role of protecting [Y].
Mr Dailey has further deposed that he has made inquiries at the [M] College and been told that [X] has been persistently absent from school and both children have presented at school hungry and have been provided with sandwiches by the school authorities. In essence, it is Mr Dailey’s position that the mother’s household is highly dysfunctional and this is having adverse consequences for [X] and [Y].

The hearing of 20 April 2012

The situation confronting Kelly FM was a difficult one. The father had made serious allegations about Ms Simmons’ conduct and care of the children, to which she had not formally responded. It seemed likely that the Department of Education & Child Development would have documentary evidence regarding the mother’s recent involvement with the children. This material was not to hand. There was some cogent evidence to indicate that Ms Simmons was involved with marijuana use, although the extent of this involvement was far from clear.
For obvious reasons, there had been no time to appoint an independent children’s lawyer. Nor had any documents been obtained from relevant sources such as [X]’s general medical practitioner and the [M] College.
Clearly, an allegation that a child was self-inflicting a wound on his wrist – the implication being that this behaviour was suicidal in its ideation and arose because of parental neglect – was a matter of the upmost seriousness, which required some form of intervention by the court.
In these circumstances, Kelly FM made an urgent appointment of an independent children’s lawyer for [X] and [Y]. In addition, pursuant to the provisions of section 69ZW of the Family Law Act, she directed that the Department of Education & Child Development provide documents and details of its investigations into abuse notifications received in respect of the two children. A similar section 69ZW order was directed towards the South Australian Police Department.
In terms of interim arrangements for the children, Kelly FM ordered as follows:
“1.The children [X] born [in] 2000 and [Y] born [in] 2003 live with each of the parents as follows:
with the mother from 10.00am Saturday 21 April until 6.00pm Sunday 22 April 2012 and thereafter as follows;
each alternative weekend from the conclusion of school Friday until 6.00pm Sunday, commencing Friday 27 April 2012; and
each intervening weekend from the conclusion of school Friday until 6.00pm Saturday;
with the father at all other times.
2.The mother’s time with the children is subject to the following conditions:
the children are not exposed to any person using, consuming or producing illegal substances;
the children are not exposed to any aggressive or violent behaviour;
the children are not left alone in the care of Mr F.”
In keeping with the obvious tensions between the parties, it was further ordered that the children be exchanged between the parties, to give effect to these orders, inside the [U] Police Station. It was further ordered that the parties attend a child dispute conference, which was scheduled for 14 May 2012.

What has happened since 20 April 2012

Kelly FM was absent from the Adelaide Registry, for a period of about six weeks, commencing shortly after the interim hearing of 20 April 2012. In those circumstances, she adjourned the proceedings to a date to be fixed before another Federal Magistrate.
The Federal Magistrates Court is a busy first instance trial court, which operates a computerised file management system. Computers do not appreciate adjournments without specific dates. Nor do government instrumentalities. The file fell into temporary abeyance.
On 2 May 2012, the father issued a subpoena to the [U] Clinic where [X] had earlier received treatment. On 14 May 2012, the parties attended the child dispute conference. The parties were unable to reach any agreement at this conference.
It was reported by the parties that they had had significant difficulties with the existing arrangements. It was said that [X] had refused to spend time with his money on the preceding weekend and [Y] had refused to return to her father’s care, as the orders of 20 April 2012 stipulated.
Accordingly, as at 14 May 2012, the children were living in separate households and the parenting relationship between the parties had reached a fresh flashpoint. This was the background to Mr Dailey instituting further proceedings, on 16 May 2012, in which he sought his own recovery order in respect of [Y]. He also sought orders that would formally ratify the attendance of [X] and [Y] at the [B] Primary School.
In support of his application, Mr Dailey deposed that on 21 April 2012, the first day on which the children were to spend a weekend with their mother, [X] and [Y] refused to leave the [B] Police Station with their mother. It was alleged that there was an unpleasant altercation between Ms Simmons and Ms D, the father’s wife.
Later, Mr Dailey deposed that the mother telephoned him and asked to speak to [X]. As a consequence of this conversation, an agreement was reached between [X] and his mother that the children would spend a few hours with her later in the weekend. Mr Dailey complains that the children returned from this visit with inappropriate and expensive gifts.
Mr Dailey also asserts that the children reported to him that their mother had stated to them that he “would get hurt” if he did not return the children to her.
The mother apparently collected the children on the weekend commencing 27 April 2012 and arranged for them to sleep over at a relative’s home in [K]. [X] allegedly complained about the state of the accommodation and both children alleged that their mother had been drinking to excess and had vomited.
The next scheduled weekend for the children to spend time with their mother commenced on Friday, 4 May 2012. As this was a school day, it was anticipated that the children could be exchanged at their school without the necessity for the parties (and their associates) to come into contact with one another.
The principal of the school apparently contacted Mr Dailey during the morning on 4 May 2012 and advised him that the children had said they did not want to go to their mother. In those circumstances, he was unwilling to allow the school premises to be used for handover.
In those circumstances, urgent arrangements were made for the necessary handover to take place at the [B] Police Station. These arrangements apparently went awry and Ms Simmons did not arrive at the police station.
The next scheduled weekend visit was fixed for Friday, 11 May 2012. The father asserts that [X] had earlier contacted his mother and advised her that he did not want to see her. Nonetheless, Mr Dailey deposes that he arranged for both children to come with him to the police station as required. The father asserts that [X] refused to go with his mother and there was a further unpleasant altercation between Ms Simmons and Ms D, instigated by the former. [Y] however went with her mother.
[Y] was due to be returned to her father on 13 May 2012. [Y] had allegedly earlier telephoned her brother and indicated that she wished to stay with her mother. It is Mr Dailey’s opinion that she has been manipulated by her mother to say this.
Notwithstanding this state of affairs, Ms Simmons and [Y] attended at the police station as scheduled, but [Y] again reiterated her apparent desire to remain with her mother. However, it is Mr Dailey’s view that her presentation in this regard was obviously stage managed by her mother. It is Mr Dailey’s further allegation that Ms Simmons’ actions, in respect of [Y], are motivated by social security considerations.
This was the background to the child dispute conference of 14 May 2012. The convenor of the conference recommended that a family report occur as soon as possible. It is Mr Dailey’s evidence that Ms Simmons threatened him after the conference.
The independent children’s lawyer was appointed on 17 May 2012. As a consequence of Mr Dailey’s urgent application, the proceedings were listed before me on 30 May 2012. Regrettably, the Department of Education & Child Development had not responded to Kelly FM’s order because of the lack of a specific adjourned date in the order.
In these circumstances, the independent children’s lawyer felt unable to make any recommendation in the matter, until these documents had been produced. Accordingly, the independent children’s lawyer’s representative, Ms Lindsay, proposed that the proceedings be adjourned and no substantive orders be made in respect of children.
This application was vehemently opposed by counsel for the mother. She had filed an affidavit, on 17 May 2012, which responded to the father’s earlier affidavit, which had been highly critical of her. However, this affidavit did not deal with issues to do with handovers following the orders of 20 April 2012 and the resulting separation of the children.
Ms Simmons’ position, in respect of the care arrangements for the children prior to 20 April 2012 and her response to the father’s criticisms of her can be summarised as follows:
·She acknowledges that [X] had inflicted four distinct “scratches” on his forearm. When asked about these injuries, he told her that his father said “… its stop you feeling hurt”. It is the mother’s position that, during the parties' relationship, the father frequently cut and pierced himself.
·She denied that Mr F had ever assaulted [X]. She acknowledged that he had been put outside on the verandah of her home for “around two minutes” to discipline him for being naughty.
·She asserted that Mr F had grown one marijuana plant in the garden of their home. This had come to the notice of the police.
·The mother denied walking around her house naked and swearing or of having any pornographic DVDs.
·In respect of the allegation that she had been drunk at a rave party, the mother asserted that she had been at a concert in anticipation that the children would be with their father. She denied being drunk.
·She asserted that she had not used amphetamines and nor had Mr F for a period of at least three years.
·She denied that the relationship between her and Mr F was a violent one.
·She acknowledged that the children had been absent from school “from time to time”, whilst in her care. She asserted that some of these absences were due to either the father collecting the children early or returning them late during contact visits.
·She denied that the children went to school hungry and asserted that she provided them with sandwiches and fruit for lunch.
·The mother denied that the authorities at [M] College had ever raised any concerns with her regarding her care of the children.
·The mother reiterated her position that the father had historically been an unreliable presence in the children’s lives and had never provided any financial assistance for them.
The mother asserts that the children were confused at the abortive handover on 21 April 2012. She says that Mr Dailey did nothing to encourage the children and she left without them to avoid creating tension.
She acknowledges spending time with the children on 22 April 2012, during which she visited the [omitted] Zoo with them. She reports the children having the appearance of ringworms on their skin and of reporting to her that their father had got drunk to the point of vomiting because he was celebrating what he perceived to be a favourable ruling of the court made on 20 April 2012. She made further complaints that she was unable to speak to the children via the telephone.
The subpoena issued to the [U] Clinic, by the father’s solicitors, was answered on 21 May 2012. Notwithstanding this state of affairs, the material involved had not been inspected, by any of the parties, prior to the hearing scheduled before me on 30 May 2012. In addition, the South Australian Police department had not responded to the section 69ZW request.
For reasons which are unclear to me, none of the parties concerned has as yet subpoenaed any of the children’s school records from the [M] College. In these circumstances, I made urgent arrangements for the medical records to come into court.
The relevant record indicates that on 5 March 2012 [X] attended the “emergency doctor” with his father. It is indicated that [X] has lived with his mother and her partner for the last four years but visits his father fortnightly. Mr Dailey reported concerns about drug use and neglect, on the mother’s part, to the doctor, who observed “superficial cut l forearm” on the child.
[X] was reported as being happy to be with his father and there were “no themes of self harm”. No specific medical treatment was prescribed and no referral was made to any other professional person. It is the mother’s submission that the nature of this entry confirms her view that Mr Dailey has exaggerated the extent of [X]’s injury to justify his retention of the children.
At the hearing of 30 May 2012, the mother’s counsel handed up an affidavit, which had been earlier sworn by his client, which had been prepared to answer the father’s application for a recovery order to issue in respect of [Y].
At this stage, it was Ms Simmons’ position that [X] should be reunited in her care with [Y] and given that she had refuted all of Mr Dailey’s allegations against her, the circumstances leading to Kelly FM’s order of 20 April 2012 had radically changed, as the gravamen of Mr Dailey’s allegations had either been answered or refuted.
The mother’s affidavit had been faxed and bore an endorsement that it had been sent from the [K] Police Station. In answer to a question from me, Ms Simmons told me that [Y] was staying with relatives at [K], on the date of the hearing, and it was her (Ms Simmons’) wish to live with both children in [K], where she had family support.
She had not alluded to this expectation in her affidavit. Clearly, it was a significant development, as such a move would render it problematic for Mr Dailey to see the children, if he remained living in [B].
In addition, at this stage, the mother placed reliance on an affidavit from Ms N, who is the sister of the father. Ms N is critical of both her brother and his wife, whom she regards as being serious drug users. Ms N also regards her brother as being unreliable. She speaks positively of the mother and her relationship with the children.
In the absence of documents from the Department of Education & Child Development, I was unwilling to deal with the parties’ competing applications. On my own initiative I made contact with the Department and arranged for the documents requested by Kelly FM to come to court the following Monday. The proceedings were adjourned until 5 June 2012.
Ms Simmons denies any inappropriate behaviour, on her part, at any of the relevant handovers. She denies that [X] has ever demanded to be returned to his father. She acknowledges taking a panadol for a headache during one of the children’s recent visits to her home, but denies alcohol induced vomiting.

The documents produced by the Department of Education & Child Development

There are some historical notifications, which relate to both parties and raise concerns about both parties’ past drug taking behaviour, which placed their very young children at risk. Subsequently notifications were recorded for neglect and emotional abuse, which related to the mother’s care of the children.
However, the Department took no specific action in respect of these notifications. No specific confirmation of abuse or neglect has been made in respect of the mother’s care of the children. There are seven intake records between 2004 and 2008.
The more recent information commences on 15 February 2012. It is reported that the children had rung their father, in a distressed state, asserting that their mother was drugged and unconscious. The father had alerted the police, who attended the home. The police are reported to have said that the mother would not admit them to the house and she was observed to have glazed eyes but not to smell of alcohol.
On 28 March 2012, there is a further notification, which obviously originates from the [B] Primary School and coincides with the mother’s visit to the school. [X] is reported as disclosing that he would not go back with his mother because she grows dope; uses drugs all the time; has fallen asleep because of drugs; doesn’t give us food; keeps the house messy; and her boyfriend is described as being violent and scary. Some of these complaints were apparently confirmed by [Y].

The police were called to the scene by school staff, who were apparently unwilling to release the children to their mother. In these circumstances and on the intercession of the police, the mother left the school premises without the children.
As a result of this incident, the relevant departmental care workers elected to undertake a more definitive investigation of the family. In this context, they interviewed Mr Dailey and his partner, who reported their view that the children had suffered physical and emotional abuse at the hands of their mother. [Y] was at home, at the time, due to a cold. She was reported as appearing well and happy and said to the workers that she wanted to remain at her father’s home.
The principal of the [B] School was also interviewed. She described [X] as having “difficulty controlling his anxiety levels” when issues relating to his mother arose. He was reported as walking around saying “I don’t want to go to mum”.
[X] had been referred to the school counsellor, but not to the Child and Adolescent Mental Health Service because of concerns that this would be contrary to any Family Law Courts involvement or investigation in the case.
The principal did not have any concerns about Mr Dailey describing him as a “nice and caring father”. No issues had been raised about the children’s school attendance and [X] was described as happy with his living and school arrangements.
[X] was interviewed by the workers. In this interview, he stated that he did not want to live with his mother “because Mr F … hits and punches him … [and] his mother and Mr F use drugs and drink lots of alcohol …”.
Ms Simmons points to the fact that she has not as yet been interviewed by the workers concerned and therefore necessarily their investigation is incomplete. I agree that this is so. However, in my view, the material created by the Department raises significant issues about the mother’s care of the two children, which remain definitively unresolved.
It is a clear inference from this material that the Department support the children remaining in Mr Dailey’s care. They regard his household as being protective of the children, who appear happy in their current living situation and at their school, where they are said to have an Aboriginal mentor.

The hearing of 6 June 2012

On 30 May 2012, I ordered each party to undergo a supervised drug screen test no later than 4:00pm the following day. The rationale for this order was that it would ascertain whether either of the parties had been using serious illicit drugs in the period immediately prior.
The father complied with the order and provided a drug screen test result, which was negative for illicit drug substances. The mother indicated that she to had complied with the drug screen test, at [K], but had not as yet received the results.
On the date of the most recent interim hearing, counsel for the mother tendered a further affidavit on behalf of Ms Simmons in which she deposed that she would be returning to [M] within the next two weeks. Accordingly, [Y] had only been attending the [K] school on a temporary basis. I note in passing that [Y] has attended three schools since March of 2012.
In addition, Ms Simmons again confirmed her use of cannabis to assist with back pain and to help with sleep. She further deposed that she had the following medications prescribed for her: lexerpro; valium; avanza; and seriquil.
At this hearing, counsel for the mother asserted that there was no cogent evidence to support the father’s assertion that the children were at risk in the mother’s care and, as such, his self help was unjustified. Particular emphasis was placed on the undisputed fact that the children had been in the mother’s predominant care for the majority of their lives.
In these circumstances and given the mother had refuted all of the father’s allegations, it was submitted that the children should be returned to their mother’s care forthwith, as this represented a longstanding status quo. Ms Simmons is however prepared to continue to abide by the injunction which prevents the children coming into contact with Mr F.
The father, through his counsel, placed emphasis on the Departmental records and asserted that there was sufficient evidence to justify the father’s actions. In these circumstances, he submitted that [Y] should be immediately returned to his client’s care. It was further asserted that the mother had shown a disregard for the court’s earlier order by retaining [Y]. Mr Dailey personally told me that he would not be able to get [X] to go to his mother.
The representative for the independent children’s lawyer indicated to me that she found the case to be difficult and perplexing. As such, it presented no obvious solution at this interim stage. However, on balance, she was in favour of the longstanding status quo and submitted that the children should live with their mother pending a more detailed investigation.

The nature of an interim hearing

Interim hearings have to take place in a shortened form. There is no time available for the cross-examination of the parties concerned. The proper forum for the resolution of disputes of fact is the final hearing.
In addition, at the interim stage, decisions invariably have to be made against a background of urgency and controversy. So it is in this case. As a consequence, the evidence available to the court is often limited and hastily prepared. Again, so it is in this case.
In cases involving arrangements for children, the most significant piece of evidence, which is not usually to hand at the interim stage, is a detailed and independent assessment of the needs of the children concerned and the nature of their relationship with each of their parents. At the final hearing stage, such family reports play a crucial role in the determination of cases.
Once again, although an independent children’s lawyer has been appointed to safeguard the interests of [X] and [Y], there has not been sufficient time for a family report to be prepared. Given the complexity arising in this case, I will order that an urgent report be prepared for the court.
However, notwithstanding the limited and provisional nature of the evidence available to the court, at this interim stage, a decision must be made between the competing claims of the parties concerned. In an ordered society, governed by the rule of law, there must be a mechanism for resolving disputes between citizens, including between those citizens who are parents and fall into disputation about arrangements for their children.
If there was not such a system, chaos would prevail and the strong would take advantage of the weak. In seeking an adjudication from the court, the parties concerned are bound by its decision.
However, in resolving any such parenting dispute, the court is not primarily concerned with the rights of the actual disputants. It must regard the interests of the persons most fundamentally effected by its decision – the children concerned – as the paramount or most important consideration.
Necessarily, the final hearing is a longer one than the interim hearing, enabling the court to make any necessary findings of fact – essentially deciding what evidence it accepts on the balance of probabilities, following its assessment of the truthfulness or reliability of the relevant witnesses.
Given the limited nature of the evidence available at the interim stage and the absence of cross examination, it is very often impossible for the court to resolve disputed issues of fact. Again, notwithstanding this obvious practical difficulty, the court must still remain focussed on the best interests of the children effected by its decision and look to matters which are incontrovertible and assess the nature of the evidence available in respect of issues which are in dispute.
In this case, there are many issues in dispute between the parties. They can be summarised as follows:
·Is the mother a neglectful parent because of issues to do with her drug use;
·Have the children been subjected to abuse, family violence and neglect in the mother’s household either by the mother herself, by Mr F or by a combination of the two;
·Has the father a compromised attitude in respect of the responsibilities incumbent of being a parent, which has been manifested by his self-help in respect of the retention of the children;
·Is the father a person who has issues to do with drug and alcohol abuse;
·Are the children, particularly [X], indicating a strong preference regarding the outcome of this case, which is influenced by their prior experience of their mother.
·Are the children being emotionally manipulated, in the apparent expression of their views, by one or other of their parents or possibly both.
There are however some matters which can be conclusively established from the evidence available to the court at this stage. These include the following:
·The mother has been the children’s primary provider of care for the vast majority of her life;
·The family has come to the notice of the child welfare authorities in South Australia from 2004 onwards and there has been a significant recent involvement;
·The Department has no specific concerns regarding Mr Dailey’s parenting of the two children and there is recent independent evidence to indicate that he is drug free;
·Both parties have failed to comply with previous orders of the court, in respect of the parenting of the children, although it has not been definitively established whether in either case this was objectively reasonable.
The essential difference between an interim and final decision is that interim hearings do not determine long term arrangements for the care of the children concerned, whereas final hearings do. Accordingly, the outcome of an interim hearing is provisional in nature. However, although the nature of the hearing concerned is different, the same legal principles apply at both the interim and final hearing stage.

The legal principles applicable

In making the interim decision (as at the final stage), the best interests of the child or children affected by the decision remain the most important consideration. The matters which the court must take into account in deciding how a child’s best interests are to be served is set out in the Family Law Act [see section 60CC].
What have been called the best interest considerations rest on two main pillars. The first is the importance to children of having a meaningful relationship with his/her parents. The second is the need to protect children from physical and psychological harm as a result of exposure to abuse, neglect or family violence.
These factors are stressed in section 60B(1) which sets out the objects of the legislation relating to children and are reiterated as the primary considerations in how a court determines what is in the child's best interests by section 60CC(2).
Other criteria relating to how a court is directed to consider how the best interests of any children concerned may be served by any order which the court makes are set out in section 60CC(3). These criteria are categorised as additional considerations.
Pursuant to section 60CC(3)(m) the court is empowered to have regard to any other fact or circumstance, which it considers relevant. This ensures that the infinite variety of individual children’s circumstances may be addressed in any order which the court makes.
There is a presumption that it is in a child's best interests for his or her parents to have equal shared parental responsibility for him or her. [section 61DA]. The presumption relates to the allocation of parental responsibility, not to the allocation of time which a child spends with each of his or her parents.
The presumption does not apply if there are reasonable grounds to believe that a parent has engaged in abuse of the child or family violence has occurred. The presumption may also be rebutted if the court finds that it would not be in the best interests of the child for it to apply.
The court has a discretion not to apply the presumption at the interim stage if circumstances exist which make it inappropriate for it to be applied [section 61DA(3)]. This subsection is likely to be pivotal in interim proceedings, particularly in cases where untested or unverifiable allegations of child abuse or family violence arise.
By application of section 65DAA, if the presumption of equal shared parental responsibility applies in respect of a child, the court is required to consider firstly whether the child concerned should “spend” equal periods of time with both his or her parents, provided such an outcome is both likely to be in the child’s best interests and reasonably practicable.
If the court rejects equal time, it is then required to consider the child living with each of his or her parents for “substantial and significant” periods of time. Again, this outcome is subject to consideration of the child’s best interests and reasonable practicality.
In the case of Goode & Goode[2], the Full Court of the Family Court has laid out a pathway for the determination of interim hearings such as this one.
[2] Goode & Goode (2006) FLC 93-286
In determining interim parenting matters, after identifying the competing proposals of the parties, the issues in dispute, and any agreed issues, the court should:
·consider the section 60CC matters relevant and, if possible, make any relevant findings of fact;
·decide whether the presumption in section 61DA should be applied or, if it is rebutted because:
Ø there are reasonable grounds to believe abuse or family violence has occurred;
Ø or, in interim proceedings only, if it would not be appropriate to apply the presumption.
·If the presumption is rebutted or found not to apply, then make the orders considered to be in the best interests of the child, again as a result of applying the relevant section 60CC matters;
·If the presumption does apply, decide whether it should be rebutted because it would not be in the child's best interests;
·If the presumption applies, consider first making an order that the children spend equal time with each parent, then second, an order that the child spend substantial and significant time with each parent unless it is contrary to the children's best interests as a result of the consideration of any relevant section 60CC matter, or is impracticable in the terms specified by section 65DAA(5);
·If neither equal time nor substantial and significant time are considered to be in the best interests of the child, then make the orders which are considered to be in the best interests of the child when considering applicable matters in section 60CC.
·Even in this latter situation, it is open to the court to make an order for equal time or substantial and significant time if the court considers it to be in the best interests of the child concerned.
The case, at this stage, is fundamentally centred on the assessment of risk. It is the father’s case that, for the court to return the children to the mother’s care, would result in an appreciable risk of [X] and [Y] coming to physical or psychological harm, as a result of being exposed to abuse, neglect or family violence in Ms Simmons’ household.
In the context of these proceedings, on the basis of the limited evidence available to me, I must make some assessment of the degree of risk arising to the two children concerned. If a risk is found to exist, I must shape orders which are commensurate with the degree of risk involved and with due regard to the best interests of the children concerned, including their entitlement to maintain a meaningful level of relationship with each of their parents.
The High Court has stipulated that the test to be applied to the assessment of such risks is the “unacceptable risk test”. The test being expressed by saying that a court will not grant custody or access to a parent if that custody or access would expose the child to an unacceptable risk of coming to some form of emotional or physical harm as a result of abuse.
If the court does make a finding that an unacceptable risk of abuse exists, it is then necessary to consider what, if any, parenting orders should be made, particularly orders for the child concerned to spend time with a parent and what conditions should attach to such orders.
Again, this exercise involves an estimation of the magnitude of the risks involved and how those risks can be best managed, in all the circumstances of the particular case. Because the potential consequences of severing a worthwhile relationship, between the child and one of his or her parents is potentially so detrimental to the child concerned, the termination of such a relationship is in most cases the last resort.
However, once again, I must bear in mind the interim nature of these proceedings and the fact that any decision made at this interim stage is capable of reversal or amendment at the final hearing stage, or indeed on further interim hearing, when more evidence is likely to be to hand.
But, nonetheless, notwithstanding the provisional nature of any interim order, I must keep in the balance the potential detriments, to a child, of having a potentially meaningful parental relationship significantly curtailed.

Section 60CC factors

a) the primary considerations

In my view, the evidence indicates that [X] and [Y] currently have a meaningful level of relationship with their father. The material provided by the Department confirms this, although I appreciate that this evidence is as yet untested. In particular, I must exercise some degree of caution about the reported views of the principal of the [B] Primary School, given the children concerned have only attended the school for a relatively short period of time.
In addition, it must be the case that the children have a significant level of relationship with their mother, who has provided their predominant care for many years. It is the father’s case that I am not currently in a position to make a definitive assessment of the current quality of that relationship, given the statements about it, which have been attributed to [X]. I agree with this submission.
Accordingly, it is my view that, in the context of these limited interim proceedings, the second primary consideration, which is centred on the need to protect [X] and [Y] from physical or psychological harm as a result of being subjected to or exposed to abuse, neglect or family violence must be given pre-eminence.
Although the truncated nature of these proceedings precludes me from making any definitive findings regarding the various allegations raised by Mr Dailey, this does not absolve me from the responsibility of considering the degree of risk which arises from those allegations. I must respond in a way which I think is commensurate to that risk, bearing in mind the best interests of the children concerned.
At this juncture, I do not consider that Mr Dailey’s parenting of the children represents an unacceptable risk to the children. It is however the case that clearly he is not well disposed towards Ms Simmons and his recent actions must be viewed in the context of the parties’ acrimonious and difficult relationship, which has been marked by a quasi power struggle between them.
However, in the context of these proceedings, I am not in a position to determine whether either of the parties has been emotionally manipulating the children, in order to damage the otherwise viable relationship which the children would have with the other parent.
The chief detriment of [X] remaining in the father’s care and [Y] returning to it may be that such an outcome will have consequences for the children’s future relationship with their mother. However, similar concerns arise in respect of Ms Simmons, given her current position that [Y] will not easily separate from her.

The precise aetiology of [X]’s apparently self-inflicted injury to his wrist is unclear. The notes of the treating doctor do not indicate a significant degree of concern and the injuries themselves were described as superficial.
However, in my view, the incident remains a significant cause for concern and relevant to the assessment of the risk involved, particularly when placed in the context of the records produced by the relevant officers from the Department of Education & Child Development. Those records describe [X] as an anxious and troubled child, who has apparently reported significant deficits in the management of his mother’s household.
In the light of the mother’s acknowledged history of past serious drug use and given her current use of cannabis and other prescription drugs, the statements attributed to [X] regarding his mother’s behaviour, cannot be dismissed as being either fanciful or trivial. In my view, the evidence available to me indicates a significant possibility that there is something seriously amiss in the mother’s household.
I acknowledge that it is possible that Mr Dailey has orchestrated this state of affairs to advance his own cause against Ms Simmons but, at this stage, this possibility seems more unlikely than not. I acknowledge however that the department workers concerned have not interviewed Ms Simmons to obtain her version of events. In addition, I have not been provided with concrete evidence, from the [M] College, which is likely to throw light on some of Mr Dailey’s more historical complaints.
The rationale of the drug screen testing order made by me was that it would definitively indicate whether Ms Simmons had recently used amphetamines or some other significant illegal substance. The tight timeframe on the drug was advisedly imposed. I can appreciate that it is difficult for Ms Simmons, given where she lives and her financial circumstances, to convey the pressing nature of the drug screen testing request to those who must supply it. However, the fact remains that I have not as yet been provided with the results.
Issues to do with the exposure of a child of vulnerable years to neglect, abuse and family violence must be taken seriously by the court, given the long term psychological implications likely to arise for a child from being unnecessarily exposed to such abuse, neglect and family violence.
In giving proper regard to these issues, the court must also bear in mind that, particularly at the interim stage, it may be very difficult for the parent alleging such abuse, neglect or family violence to provide definitive proof of such behaviour, given that such things are likely to occur within the confines of a home and away from outside scrutiny. The most reliable witnesses of such actions may be the infant victims of it, who are not competent witnesses in courts of law.
I must also bear in mind that it is a frequent occurrence that parties involved in acrimonious and vitriolic litigation, such as this, frequently make unwarranted allegations of parental neglect or abuse, either as a result of clouded judgment or to advance a personal agenda.
Bearing those strictures in mind, I have come to the conclusion that, given the involvement of the Department in this matter, the allegations raised by Mr Dailey cannot be seen as obviously tactical or without substance.
In my view, there is sufficient evidence for me to conclude that the mother’s recent parenting of the children has been compromised and [X] in particular, has been effected by this to such an extent that he has voiced legitimate concerns to independent persons.
At this stage, I have come to the conclusion that there is an unacceptable risk that Ms Simmons’ parenting is currently compromised to such a degree that to return to [X] to her care may cause him some appreciable risk of sustaining psychological harm. In making this assessment, I also appreciate that there is some risk, if [X] remains in his father’s care, of the child losing a meaningful level of relationship with his mother.
However, for the reasons provided, I consider that the main focus of the court’s deliberations at this stage should be on the matters outlined in section 60CC(2)(b). In passing, I should note that, as these proceedings were commenced in April of 2012, the provisions of the Family Law Legislation Amendment (Family Violence & Other Measures) Act 2012 do not apply to these proceedings in terms of the weighting to be given to the primary considerations.

b) Other considerations

The children, but particularly [X] are said to have strong views in this matter. Ultimately, given his age, [X]’s views are likely to be important in the final outcome of these proceedings. However, at this stage, I must approach what is reported to be those views with extreme caution.
Given the competitive and uncooperative nature of the parties’ parenting relationship, it would seem inevitable that the children’s views will be influenced by this relationship and, as such, it may be difficult for them to provide proper feedback to their parents as to what they want to happen in respect of their ongoing care. In this context, anything said by the children is open to misconstrual by the parties concerned.
As I have previously noted, both children have a significant relationship with each of their parents. The evidence is more limited in respect of Mr F on the one hand and Ms D on the other hand. It also seems likely that the children are part of a wide extended family, on both their maternal and paternal aspects.
Both parties have shown a compromised attitude towards the responsibilities of being a parent, which include supporting a child’s relationship with the other parent. Both Mr Dailey and Ms Simmons have acted unilaterally.
[X] has attended two schools and [Y] three schools in the past few months. Both parties regard de-facto possession of the children as authorising them to enrol the children in the school of their choice, without reference to the other.
In addition, both parties accuse the other of serious antisocial behaviour. Both Mr Dailey and Ms Simmons assert that the other parent drinks alcohol to the point of such serious inebriation that vomiting ensues. Both say the other abuses drugs and engages in manipulative behaviour.
Essentially, each party asserts that the other is an inappropriate role model for the children. These are serious issues, which I cannot definitively resolve at this stage. It is also Mr Dailey’s case that Ms Simmons is unable to meet the children’s emotional and educational needs.
In terms of educational issues, in the absence of more definitive records from the [M] College, I am unable to resolve Mr Dailey’s allegations further. It does however appear to be the position that the departmental workers and the [B] Primary School view Mr Dailey as currently being able to supply the children’s educational needs.
Both [X] and [Y] have an Aboriginal inheritance. It is alleged that Mr F has made derogatory comments, in the children’s hearing, about their ethnicity. Again, this is an issue which cannot be resolved now. How the complex issues surrounding the children’s indigenous heritage will play out is likely to be an issue for the final hearing.
[X] and [Y] have lived in the same household for most of their lives. They are currently separated. The relationship between siblings is a central human relationship. As such, it is likely to be detrimental to the children to be separated from one another.

Conclusions

Up to this stage, the case appears to involve complicated and difficult issues. Whatever is the interim outcome, it is likely that it will be problematic and uncertain in its implementation. The case at this stage presents no obvious or easy solution.
If it is ordered that [X] returns with [Y] into the predominant care of the mother, Mr Dailey has said that he doubts that he will be able to prevail on [X] to go. This has the air of a self-fulfilling prophecy but cannot be dismissed given what [X] has purportedly said to the welfare authorities. The prospect of the police compelling the return of [X] to his mother fills me with foreboding.
In addition, for the reasons provided above, I am satisfied that there are still unresolved questions hanging over the mother’s past parenting of the children, which cannot be easily dismissed. In these circumstances, I am of the view that there is the real possibility of the children, particularly [X], suffering some appreciable level of ongoing psychological harm, if they are returned to their mother’s care.
Until those issues are more definitively investigated and ultimately resolved, in my view, it would be an unacceptable risk for the children to live predominantly with their mother.
In addition, given that the children are relatively close together in ages and have always lived together, in my view, it would be contrary to their best interests for them to be separated from one another. I am fortified in this view by references, in the welfare material, to [X] having cared for [Y], in the past.
Given these various factors, it would be simplistic to characterise this matter as being only a dispute between the parties concerned. Rather, it is an inquiry into the children’s fundamental welfare, where the evidence indicates that there are or have been raised serious issues relating to the capacity of each of the parents to fulfil their responsibilities and protect [X] and [Y] from harm.
The parties in this case (and so the children) each labour under a significant level of social disadvantage. Neither party is currently in the paid workforce. At the very least, in the past, each has had significant substance abuse problem. The mother has disclosed a history of psychiatric illness. The family itself has been subject to several notifications of potential child abuse.
In this State, the resources of the child protection authorities are scarce and thinly stretched. Increasingly, this court, a busy first instance court, becomes the preferred venue for the adjudication of cases concerning the fundamental welfare of a child or children.
The frontier between purely “welfare cases” (which are instituted by government instrumentalities, such as Families SA, the child protection arm of the Department of Education & Child Development and which fall in the strict purview of the State based courts) and cases concerning disputes between parents, which have some “welfare component,” (which falls within the remit of this Commonwealth based court) is an increasingly shifting and uncertain one.
The State authorities have the resources enabling them to conduct welfare inquiries, which involve visiting parents and children in their home environments and interviewing people who are significant to the care, welfare and development of children, such as school teachers. Such authorities have a staff of trained child protection workers, who are dispersed throughout the state.
This court does not have direct recourse to such facilities, but can obtain documentary information, if appropriate, about such investigations, before it makes any determination regarding a child that has been subject to some form of welfare investigation. I am grateful to Families SA for its prompt response to the notice issued to it pursuant to the provisions of section 69ZW.
However, the great concern, which must arise from the dichotomy in the mechanisms for resolving cases involving issues pertaining to the welfare of children is that children may unwittingly “fall between the stools” represented by these two different and separate systems. Essentially, the danger being that the welfare authorities may think that, if this court is seized of a matter, its responsibilities and obligations are finished and on the other hand this court may have inadequate resources to investigate properly such welfare matters.
Ms Simmons is critical that she has not been formally interviewed about the various matters raised against her, which she vigorously refutes. From the Department’s perspective, if the children remain in Mr Dailey’s care, no concerns are held about the children’s safety and accordingly it seems apparent that the Department itself will be loathe to act, particularly if there are proceedings on foot in this court.
I am very well aware that I have only had recourse to the Department’s bare documents. They are an unelucidated narrative, without any direct professional commentary. As such, the documents themselves do not lead to any professionally based recommendation for the children. Rather, the court must do its best to interpret these bald documents.
In all these circumstances, I will invite the department to intervene in these proceedings pursuant to the provisions of section 91B of the Family Law Act. I will also direct that a copy of these reasons for judgment be provided to the appropriate departmental officer.
In making this request, I am well aware the resources of the Department may preclude its involvement, particularly if the Department remains of the view that the children are not in need of protection, if they remain in Mr Dailey’s care.
On balance, I have come to the conclusion that the best interests of the children, in this difficult matter, will be served if they continue to live with Mr Dailey, as was envisaged by Kelly FM. I appreciate that Her Honour’s order was a “holding order” pending further investigations having been made. However, in my view, what subsequent investigations have occurred do not displace the court’s obligations to protect [X] and [Y] from potentially coming to some form of psychological harm.
This decision must mean that Ms Simmons returns [Y] to Mr Dailey. Her life has been considerably disrupted over the last few weeks. However, in my view, a return of [Y] to the [B] Primary School, the school which [X] continues to attend, is likely to be a further disruption with which she will be able to cope, given that she has attended the school before.
Ms Simmons has said that she has abandoned her plans to live with the children in [K]. This move did not appear to have particularly well considered, in the current context of the dispute between the parties. If Ms Simmons returns to live in [M], it seems probable that the parties will be able to facilitate the children spending time with their mother, certainly on weekends.
Mr Dailey portrays [X] as a traumatised and determined child, who will resist any overtures to spend time with his mother. Whether this is true or not, I am not in a position to determine. However, I consider that some steps need to be taken to repair the relationship between the two. At this stage, I consider that some weekend time between the mother and [X] and indeed [Y] is commensurate with the assessment of the risk I have made in this case, at this stage.
Ms Simmons is unlikely to accept my decision with equanimity. [Y] is to be returned to Mr Dailey no later than 4:00pm on Monday, 11 June 2012. She should be returned to him at the [B] Police Station. It would be preferable if this could be done without the intervention of authority. Thereafter, as has occurred up to this stage, arrangements for the exchange of the children are likely to be problematic.
For the indefinite future, the parties will have to continue to utilise a police station to exchange the children between them. I will nominate the [U] Police Station as the location for all handovers. I will direct that only the parties themselves attend these handovers.
Accordingly, I will order, pending final hearing of this matter, that [X] and [Y] live with their father and spend time with their mother on alternate weekends, including during school holidays from 9:00am on Saturday until 4:00pm the following Sunday commencing Saturday, 16 June 2012 and in the other weekend of each fortnight from 9.00 am to 4.00 pm on Saturday.
At this stage, given the unresolved allegations of neglect, abuse and family violence and the parties’ poor and mistrustful relationship, I consider that the presumption of equal shared parental responsibility is rebutted at this interim stage. For obvious reasons, it would not be practical for the presumption to be applied at this stage.
In terms of the ongoing case management of this matter, it is clear that there is a pressing need for an urgent and independent assessment to be made of [X] and [Y]’s ongoing parenting needs. It may ultimately prove to be useful if there is some input into this process by the departmental officers who have first hand knowledge of the family. I will order that such a report be prepared by an expert to be nominated by the court, pursuant to the provisions of section 62G, with the report to be available no later than 14 September 2012.
Thereafter it is self apparent that the parties need a final hearing allocation so that a forum is provided for the resolution of the various factual disputes arising between them. I will allow four days for the hearing, which I will schedule for 4, 5, 6 and 7 December.
I will list the matter before me following the release of the family report.
For all these reasons, the orders of the court will be as set out at the commencement of these reasons for judgment.

I certify that the preceding two hundred and seven (207) paragraphs are a true copy of the reasons for judgment of Brown FM

Date: 8 June 2012