SPEARMAN & SPEARMAN

[2019] FCCA 3182

FEDERAL CIRCUIT COURT OF AUSTRALIA

SPEARMAN & SPEARMAN [2019] FCCA 3182

Catchwords:
FAMILY LAW – Recovery application – assessment of risks after applicant threatened to jump out of moving vehicle in presence of child – risks to child in respondent’s household – child with special needs – recovery refused – child to live with respondent pending further order.

Legislation:

Family Law Act 1975 (Cth), ss.60CB, 60CC, 60I, 67T, 67V, 69ZW

Cases cited:

Slater & Light [2011] FamCAFC 1

Jones v Dunkel (1959) 101 CLR 298

Applicant: MS SPEARMAN

Respondent: MR SPEARMAN

File Number: SYC 7998 of 2014

Judgment of: Judge Obradovic

Hearing date: 24 October 2019

Date of Last Submission: 24 October 2019

Delivered at: Parramatta

Delivered on: 7 November 2019

REPRESENTATION

Appearing for the Applicant: Mr Nguyen

Solicitors for the Applicant: West Legal

Appearing for the Respondent: In person

PENDING FURTHER ORDER:

1. Paragraphs 3 and 5 of the Orders made by consent on 7 September 2016 are suspended.

2. The child X born … 2011 shall live with the father, Mr Spearman.

3. The child shall spend time with the mother Ms Spearman as follows:

   (a)Each Friday from after school to 7pm; and

   (b)Each Sunday from 10am to 4pm.

   Provided that such time is either supervised by a professional supervising service as agreed between the parties or occurs in the presence of Mr D, provided he agrees to being so present and confirms his agreement in writing to the parties.

THE COURT FURTHER ORDERS:

1. The application for a recovery order made by way of Application in a Case filed 15 August 2019 is dismissed.

2. Pursuant to s.68L of the Family Law Act1975 an Independent Children’s Lawyer is appointed for X born … 2011 and request the Legal Aid Commission of NSW to provide such representation.

3. 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.

4. 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.

5. The father, Mr Spearman is to file and serve an Initiating Application (setting out any final and interim orders he seeks), Affidavit and Notice of Risk by 4pm on 29 November 2019.

6. The mother, Ms Spearman is to file and serve a Response, Affidavit and Notice of Risk by 4pm on 6 December 2019.

7. Pursuant to s.11F of the Family Law Act1975, the parties are directed to attend with a Family Consultant for the purpose of a Child Inclusive Child Dispute Conference on 12 December 2019 at a time advised by Child Dispute Services.

   (a)The parties shall continue to attend at such times, dates and places as the consultant may advise;

   (b)The parties and each of them shall do all things necessary to ensure the attendance of their child the subject of these proceedings to attend at the conference and to be available to meet with the Family Consultant;

   (c)The Family Consultant is requested to provide to the Court and to the parties (unless in the Consultant’s view it is inappropriate to do so), a memo outlining and reporting on:

   (i)     Any agreement reached between the parties;

   (ii)The issues raised by the parties and which will require determination by the Court;

   (iii)Any views or opinions expressed by the child interviewed and any comment regarding the factors perceived to influence or impact upon those views and opinions or otherwise relevant to same;

   (iv)Any recommendations by the Consultant including as to Case Management, referral to external (community based or private) services and/or programs and resources to be allocated to the matter including but not limited to expedition, Independent Children’s Lawyer and/or full Family Report.

8. Pursuant to Section 13C (1) b of the Family Law Act1975 the parties shall, as soon as reasonably practicable but preferably before the next Court event, attend family dispute resolution with an accredited Family Dispute Resolution Practitioner as agreed between the parties.

9. Forthwith upon a Family Dispute Resolution Practitioner being agreed or nominated then each party shall:

   (a)Do all things, sign all documents and give all consents, authorities and instructions necessary to instruct and retain that practitioner;

   (b)Pay one half of all fees charged by the practitioner;

   (c)Attend at such times, dates and places necessary to complete    family dispute resolution.

10. List the matter for directions at 10am on 19 December 2019.

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

FEDERAL CIRCUIT COURT
OF AUSTRALIA
AT PARRAMATTA

SYC 7998 of 2014

MS SPEARMAN

Applicant

And

MR SPEARMAN

Respondent

REASONS FOR JUDGMENT

Introduction

1. By Application in a Case filed 15 August 2019 the applicant sought an urgent recovery order with respect to the child X born on … 2011.

2. X and his sister Ms A were the subject children of final parenting orders made on 7 September 2016. Pursuant to those orders, X is to live with the applicant and Ms A with the respondent. There are orders for the children to spend time with the party with whom they are not living with.    

3. The first return date of the urgent recovery application was 27 August 2019. Both parties appeared, with the applicant being represented by a solicitor. The respondent confirmed that he had retained the child despite the final orders providing for the child to live with the applicant. The respondent advised the Court that he had significant concerns about the safety and wellbeing of the child in the applicant’s care.

4. The applicant’s affidavit filed in support of the Application in a Case included the following evidence:

   11. On 9 July 2019, around 4pm, I was in a car with my friend, Mr D. X was in the back seat. Mr D was driving X and me from the city towards Suburb F. I was feeling very depressed that day and I was crying. Along the way, I had a sudden impulse to end my life, and I attempted to open the front passenger door. Mr D held me back and restrained me. Mr D immediately drove me to Suburb F Police Station for some assistance, and while we were there, the police called the Respondent Father to come and collect X.

   12. I was grateful that X was being looked after. Later that evening, I felt much better. There were things weighing on my mind, including the fact that my father is very ill and lives overseas so that I cannot see him. I am perfectly fine mentally but sometimes I feel depressed.

5. Given the serious nature of the risk which the Court identified on the first return date of the recovery application, as a result of the applicant’s evidence referred to above, the proceedings were adjourned and the matter was listed for (interim) hearing on 24 October 2019. In the meantime, an order pursuant to s.69ZW Family Law Act1975 (Cth) (“Act”) in respect of any relevant documents held by the Department of Communities and Justice and the New South Wales Police Service was made. Directions were made for the respondent to file a response to the Application in a Case and an affidavit in support of any orders he sought. The applicant was given the opportunity of filing further evidence.

6. On 26 September 2019, the respondent filed a lengthy affidavit and a response to the application in a case. The applicant attempted to file a further affidavit, which was rejected by the Registry, but which was served on the respondent. Leave to rely on that affidavit, affirmed on 17 October 2019, was granted when the matter came on for hearing on 24 October 2019. At the hearing, the applicant tendered a report from Mr C, Clinical Psychologist, dated 12 October 2019. That report was not annexed to an affidavit of Mr C. Both parties made submissions with the applicant again being legally represented.

7. The respondent seeks orders for the final orders to be “dispensed with” and for X to live with him. He asks the Court to order time with the applicant only when X’s sister is spending time with the applicant and only during daylight hours at a public place, unless otherwise agreed by the parties. The respondent seeks a number of other orders in respect of the passport, birth certificate and Country B Name Change Certificate for the child, Ms A.

8. The parties have a long history of litigation before this Court. Whilst the respondent was not represented at this last trench of the litigation, he appeared to the Court to be an articulate and intelligent man, who had at least some understanding of Court processes.

Documents Relied Upon 

1. At hearing, the applicant relied upon the following documents:

   a)Application in a Case filed 15 August 2019;

   b)Affidavit of the applicant filed 15 August 2019;

   c)Affidavit of the applicant affirmed 17 October 2019, filed in Court on 24 October 2019; and

   d)Exhibit 1 being the psychological report of Mr C dated 12 October 2019.

2. The respondent relied upon the following documents:

   a)Response to an Application in a Case filed 26 September 2019;

   b)Affidavit of the respondent filed 26 September 2019; and

   c)Exhibit 2 – selection of documents produced pursuant to s.69ZW order.

The Law and Procedure

1. In proceedings for Recovery Order, the Court may, subject to s.67V of the Act make such Recovery Order as it thinks proper. Pursuant to s.67V in deciding whether to make a Recovery Order in relation to a child a Court must have regard to the best interest of the child as the paramount consideration. Standing to apply for a Recovery Order is set out in s.67T. The applicant is a person who has the benefit of an order for the child to live with her and as such has standing to bring the application. A recovery order is, inter alia, defined as an order requiring the return of a child to a parent of the child.

2. Sections 60CB to 60CC deal with how a Court determines the child’s best interest. In determining what is in a child’s best interests, the Court must consider the matters set out in s.60CC. 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. In applying the considerations set out in subsection 60CC(2), the Court is to give greater weight to the consideration set out in paragraph (b).

3. The Act does not mandate the discussion of considerations under s.60CC 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]

4. There are a number of procedural difficulties with the applications before the Court. Final orders were made in September 2016 and all outstanding applications were finalised. As at the date of the filing of the Application in a Case there were no proceedings on foot. An Application in a Case is an application for interim orders sought in respect of proceedings which are presently before the Court. It is not clear how and why the applicant was permitted to file in the Court Registry an Application in a Case when there were no proceedings on foot.

5. In any event, the Court can dispense with any formal requirements, and for that purpose the Application in a Case is treated as an Initiating Application. Apart from an order seeking to dispense with the requirement for a s.60I certificate, the only orders sought were in respect of the recovery of the child.

6. There then remains the added difficulty of how to treat the orders sought by the respondent in his Response to an Application in a Case (a document he filed in accordance with a direction made by this Court given the application which was on foot). The orders which the respondent seeks are final orders. He asks the Court for an order discharging the final orders and in lieu of those he outlines the orders he seeks as noted earlier in these reasons. The orders sought by the respondent are not said to be ‘pending further order’ or similar so that they can properly be said to be an application for interim orders only. Furthermore, the Rules of this Court provide that an application for interim orders may not be filed unless there is an application for final orders already made or included in that application.

7. Whilst the Rules may be dispensed with, except to treat the Application in a Case as an Initiating Application and the Response to Application in a Case as a Response it is not appropriate in light of the final orders made and the present dispute to treat the applications as anything but applications for final orders. This does not mean that the Court is bound by the proposal of the parties, and that if the recovery application is not acceded to the Court does not have the power to make interim orders pending a full final hearing if the respondent’s application is pressed. This is particularly so where the evidence has not yet been tested, and where the recovery application was heard on a relatively urgent basis. It is a matter of procedural fairness, and the applicant cannot be in any doubt that a consequence of the Court not making the orders she seeks might be that there are alternative interim arrangements put in place for X, by way of interim orders.

8. The requirements of s.60I of the Act are that the requirements for dispute resolution must be complied with before an application is made for a parenting order. Subject to subsection (9) the Court must not hear an application for a Pt VII order unless the applicant files in Court a s.60I certificate. She has not done so. The requirements for the certificate do not apply where the application is made in circumstances of urgency. The recovery application was brought in circumstances of urgency. The application for orders sought by the respondent, particularly in respect of Ms A, was not. The Court is therefore of the view, that even if not prevented from hearing that application without the parties undergoing alternative dispute resolution it is still appropriate for the parties to attend such dispute resolution before any applications for final orders are further advanced.

9. The Court notes that there is a s.60I certificate dated 18 February 2019 annexed to the respondent’s affidavit, which indicates that the parties did not attend family dispute resolution as the matter was not deemed appropriate for family dispute resolution by the practitioner. Given the final orders it is not clear to the Court on what basis that assessment was made and what might have been said to the practitioner. The applicant certainly deposed that she was willing to attend and participate in family dispute resolution and the respondent is the person who sought it.

Relevant Considerations

1. According to the applicant, X was diagnosed with autism and attention deficit hyperactivity disorder (“ADHD”) in 2015. The diagnoses are not in evidence. What is in evidence is a medical certificate saying the child suffers from those conditions, and National Disability Insurance Scheme information and plan for X. According to the applicant, X requires medication for the ADHD. In December 2018, X told the applicant that the respondent does not give him the prescribed medication. In 2019, X has been suspended from school on two different occasions, whilst in the respondent’s care. The applicant believes that X’s actions that led to his suspension were a direct result of not being given the medication prescribed to treat his ADHD.

2. The applicant states that X has missed school on at least three occasions in 2019, being the days when he was spending time with the respondent.

3. In a text message sent to the applicant on 16 July 2019, the respondent stated as follows:

   … X’s behavioural problems are not the result of ADHD or Autism. They are the result of not having Ms G and me in his life every day AND mostly, being scared of you and not getting the attention he needs. X is really a well behaved kid. He is a normal 8 year old with me…

4. Further in an email dated 31 July 2019, the respondent wrote to the applicant as follows:

   Somehow, you have gotten X diagnosed with ADHD in December last year. You already had him diagnosed with autism. Which one is it? You had him prescribed Catapres again. That is not an appropriate drug for a child unless they have very acute symptoms… My family GP has known X since he was born. He agrees that X is simply a traumatised 8 (then 7) year old and that Catapres is not appropriate for X. He also agrees that X exhibits no signs of autism or ADHD…

5. In addition to the matters which the applicant set out in her affidavit as referred to earlier in these reasons at paragraph 4, the applicant also gave evidence in her July affidavit that the parties agreed for X to spend time with the respondent for an additional few days prior to time in accordance with the final orders occurring, such that the child spent time with the father from 9 July 2019 to 13 July 2019 as agreed, and then in accordance with the orders for the second half of the school holiday period. He was due to be returned to the applicant’s care at the beginning of the school term. Children returned to school on 23 July 2019, but X did not attend school on that day nor was he returned to the applicant. X has remained living with the respondent since that date.

6. The applicant’s October 2019 affidavit is a much lengthier document, and seeks to answer the factual assertions made by the respondent in his affidavit. Much of the evidence by the respondent and consequently as answered by the applicant is not central to the issue of whether the Court should make the recovery order. Such evidence may ultimately be relevant in respect of the respondent’s application to discharge the final orders and make an order for the child to live with him.

7. The respondent alleges that the applicant uses excessive physical discipline on the child. The applicant asserts that she does not hit X, either with her hand or any object. The child had a lump on his hand which was diagnosed as a ganglion cyst, at or around the time the respondent alleges that he observed a scar on the child’s hand which the child indicated was the result of the applicant hitting him with a hairbrush and cutting his hand. The respondent observed the scar on the child’s hand in August 2018. A lump is distinctly different from a scar.

8. Recently, there are three events which the Court has significant concerns about, in summary they are:

   a)Applicant’s possible overdose/misuse of prescription medicine;

   b)Applicant’s possible attempt at self- harm by placing a rope around her neck; and

   c)Applicant’s attempt at jumping out moving vehicle.

9. To piece together the events which occurred has taken considerable effort. These matters should have been addressed in the applicant’s case properly and fully. It is a poor way to conduct litigation, particularly parenting proceedings.

10. Exhibit 2, being the Police records for the report made on 9 July 2019 read as follows:

    The VIC has reported that the PN has become increasingly agitated and began threatening to end her life if the VIC leaves their intimate domestic relationship. The PN has then attempted to jump out of the moving vehicle whilst it was travelling along the motorway. Whilst this was occurring the child began crying and screaming as the PN continued to make threats of suicide. Police spoke to the child who appeared upset at the events that had occurred. The child stated that the PN attempted to jump out of moving car before and also disclaimed that the ON is always upset and crying. The VIC further explained police that last night approximately 6:00PM onwards 8/7/2019 the VIC found the PN in backyard of… the PN had attempted to end her life through the use of a rope tied around her neck, the VIC approached the PN and removed the rope. The PN then ran down E Street, Suburb F, Suburb F yelling “I’m going to kill myself”. Police have scheduled the PN under the Mental Health Act S.22 due to the serious attempts at self-harm by the PN.

1. In respect of the incident on 9 July 2019, the applicant deposes in her October 2019 affidavit that she did not have any intention of jumping out of the car. The applicant states that she said the words which were said on that day out of exasperation, and that Mr D panicked. The applicant acknowledges that X was upset at the words which were exchange between her and Mr D, but he did not see any physical action of the applicant attempting to jump out of the car except maybe seeing her unlock the car door. In her July 2019 affidavit, the applicant specifically stated “I had a sudden impulse to end my life, and I attempted to open the front passenger door”. This is inconsistent with her later sworn evidence.

2. The applicant did not disclose to the Court in her affidavits that she was taken to hospital from the police station. These are matters which came to the Court’s attention through the exhibits, one of which was tendered in the applicant’s case. There is no mention in the affidavits of the incident involving a rope on 8 July 2019.

3. The applicant’s evidence in respect of an alleged overdose is as follows:

   34. …. I say that it relates to an incident when I inadvertently drank wine after consuming two sleeping pills. Mr D was worried that I had overdosed and took me to the hospital. My voice had slurred, and I had become quite drowsy. Mr D thought that I had passed out, but I had fallen asleep. He must have considered it serious enough to conclude that I required medical attention.

4. Exhibit 2, as far as it relates to the incident of the applicant potentially misusing prescription medication, reads as follows:

   About 8:00pm on Monday 21^st of January 2019 the MHP was at home with the NOK and consumed around 2 bottles of wine. The NOK accused the MHP of having an affair which the MHP denied. The MHP then told the NOK she was going to kill herself by ingesting a packet of sleeping tablets, before going to her room. The NOK followed the MHP into her bedroom a short time later and found a box and found the blister packs all opened with no tablets remaining. The NOK believed the MHP had consumed the whole packet of tablets and called police. About 10.00pm the same night, police arrived and were met by the NOK who invited them inside. Police spoke with the MHP who appeared well affected by alcohol. The MHP told police she had only consumed 3 tablets and had removed the remaining 23 pills from their blister packs and them then in a child proof container. The MHP took police to her bedroom where she retrieved the remaining 23 pills and gave them to police. When police asked the MHP why she had threatened to kill herself, the MHP told police she was upset that the NOK had accused her of having an affair. Police called an ambulance, however due to a heavy workload there was none available. Police appraised the supervisor and was granted permission to convey the MHP, who was fully complient (sic), by police vehicle to Suburb F Hospital under section 22 of the Mental Health Act. Police arrived at Suburb F Hospital a short time later and left the MHP in the care of hospital and security staff. ….

5. Exhibit 1 is the report of Mr C. His opinions are based on what the applicant and Mr D apparently told him, and some limited documents, some of which are not in evidence. It is not clear for example, what the document referred to as “Court Attendance Notice” was which Mr C had regard to is it was not annexed to the report, nor the applicant’s affidavits nor was the applicant’s solicitor able to inform the Court what it might be. The version of events recorded in Mr C’s report are different to those contained in Exhibit 2. The applicant presented “discharge papers provided by the hospital” to Mr C. They are not in evidence. Exhibit 1 reads as follows:

   Ms Spearman reported an incident that happened earlier this year. She presented the discharge papers provided by the hospital. Ms Spearman was worried that her ex-husband will present this in court and will try to manipulate proceedings as she feels that he has done previously. In that report there are three references that we explored:

   An incident where Ms Spearman’s husband called for help as Ms Spearman threatened to overdose;

   A claim made that her partner, Mr D stated that the previous night she was at the back of the house and had a rope around her neck and when he took it away she run down the street stating that she will kill herself;

   Whilst driving on the freeway, she attempted to jump out of the car threatening self-harm.

   Each of those incident was explored extensively in session. Mr D was also invited in one of the sessions, with Ms Spearman’s consent, in order to provide further information about her mental health.

   Ms Spearman noted that she has been assessed by the mental health team and found to be no risk to herself.

   In regards to the claim of wanting to overdose Ms Spearman categorically denied doing so. She noted that she has never attempted to overdose, nor has any intent to do so. Ms Spearman noted that on the night that it refers to she had her normal medication for pain relief as well as a sleeping pill and she had two glasses of wine which interacted with the medication. Ms Spearman noted that her speech was slurred as a result but not because of the amount of pills that she did take. Ms Spearman noted that she was very frustrated on the night with her ex-husband and she could not settle herself so she had unwittingly two glasses of wine along with the medication, not realising the interaction between the two.

   In regards to the second incident she noted that there was no rope involved but just a string belt for her dress and her claim of wanting to kill herself was more an exclamation of despair due to ex-husband’s behaviour rather than having an intent.

   In regards to the third incident she noted that whilst driving with her partner, Mr D, she had an anxiety attack and exclaimed her need to stop the car and get out rather than jump out of the car as at no stage she took her seatbelt off nor she attempted to open the car door.

6. The parties were not cross-examined, and as such, the various inconsistencies in the applicant’s case were not put to her. However, they are sufficient to raise a concern about her credit and the veracity of her evidence, particularly noting that Mr D was not a witness in her case. There was no suggestion that he was not available to give evidence. As such, the Court draws an inference[2] in respect of the evidence of Mr D.

   [2] Jones v Dunkel (1959) 101 CLR 298

7. There are many factual disputes between the parties, which are not determinative of the application for a recovery order. The resolution of those factual disputes remains and if this matter proceeds further may need to be determined at a final hearing or otherwise as appropriate.

Court’s Determination

1. It is not in dispute that X came into the respondent’s care as a result of the incident of 9 July 2019, where on the applicant’s evidence[3] she attempted to open the front passenger door of a moving car, acting on a sudden impulse to end her life.

   [3] Being her affidavit filed in support of the recovery order

2. It is also not in dispute that the parties agreed for X to remain with the respondent from 9 July 2019 until the end of the school holidays, partially in accordance with final orders.

3. The parties agree that Ms A, who lives with the respondent pursuant to final orders, has not spent time with the applicant for over a year despite orders providing for this.

4. It was submitted on behalf of the applicant that:

   a)The child ought to be returned to her care; and

   b)That she does not pose an immediate risk to the child or indeed an unacceptable risk.

5. The father submitted that the child is scared of the applicant and that he does not want to return to her care. He says that the child should only spend time with the applicant if his older sister is there as he would then feel safe. The difficulty with this submission is that the daughter of the applicant does not spend time with her in accordance with the final orders and has not done so since June 2018, so to suggest that the subject child of this application should spend time with the mother only when his sister is in practical terms a suggestion that the child spend no time with the mother. This is indeed what has occurred since the child was retained in July 2019 until orders were made on 24 October 2019. That is, X has not spent any time with the applicant. The respondent says the parents cannot communicate and that the applicant has not made any attempt to contact the child. In light of the application for a recovery order this is not a submission that can be accepted.

6. According to Mr C’s opinion after conducting a mental health assessment, the applicant did not meet the criteria for any mental health disorder. This of course is not the end of the matter.

7. The applicant still acted in a manner which frightened the child and indeed it appears Mr D, who took the applicant to a police station on 9 July 2019. The applicant was then taken to hospital and subsequently released. The applicant’s actions on 9 July 2019 certainly placed the child at risk. However, that risk has been somewhat ameliorated by the applicant attending upon Mr C. The extent to which the risk has been ameliorated is however a difficulty for the Court to assess as it appears that Mr C may not have been told the complete story by the applicant, that his notes are not available and that he was not himself a witness in the proceedings.

8. X has now not lived with the applicant for over three months. She has been his primary carer his whole life, and she is the person who has the benefit of an order for X to live with her. The respondent, despite his concerns, has not sought until now, to discharge or vary the final orders.

9. The respondent does not accept that X is a child who has autism or ADHD. He does not ensure that X takes medication which he has been prescribed. Consequently, the potential risks to X are significant in both households.

10. The inconsistencies in the applicant’s evidence, together with the lack of evidence from Mr D, the issues with Mr C’s report which have led the Court to placing limited weight on Mr C’s opinion and the applicant’s own opinion as to her present vulnerabilities and lack of risk to the child in her care are cumulatively such, that the Court finds that there is an unacceptable risk of harm to X if he is presently returned to live with the applicant in accordance with final orders.

11. The effect on X on having witnessed the applicant making threats of self-harm is also a matter which requires appropriate evidence and to date has not been addressed by either party.  The potential risks to X as a consequence of this may be significant.

12. Both the applicant and the respondent raise a number of other matters which are said to give rise to risks to X in the other party’s respective household. The applicant asserts the respondent uses marijuana on a significant basis, drinks alcohol to excess and is manipulative, coercive and controlling.

13. For the purpose of the present application for a recovery order, the Court’s view is that in the respondent’s household the most significant risk identified is that the respondent asserts that X may not have been properly diagnosed and that he does not appear to be administering the child his medication in accordance with valid prescriptions. Weighing up that particular risk to the potential risks flowing from witnessing an attempt at jumping out of a moving vehicle and indeed hearing the applicant say that she wanted to kill herself, the Court finds that the risks to the child in the applicant’s household are not only greater than those in the respondent’s household, but also unacceptable.

14. It may be that ultimately, after all of the evidence has been tested, different findings are made.  This is of course, only an interim decision, and one made in circumstances of some urgency. The authorities are clear that it may be appropriate in certain situations for the Court to act cautiously. This is one of those situations.

15. Given that the application for a recovery order is to be dismissed, the next issue is what happens in the interim period. It is in X’s best interest that he remain living with the respondent, and to spend some limited time with the applicant. The respondent has indicated that X trusts and misses the applicant’s partner Mr D, and that the respondent would not have any difficulties with Mr D supervising the applicant’s time with the child. Mr D’s willingness or otherwise to be a supervisor is not known, however, it appears from Exhibit 2 that he has the capacity to act protectively towards X. Whilst following the hearing on 24 October 2019 some time was ordered for X to spend with the applicant, on reflection and having how had the opportunity of properly considering the evidence before the Court, it is appropriate that going forward any time between the applicant and the child be either professionally supervised or occur in the presence of Mr D, if he is so willing.

16. It is in X’s best interest that there remain as much stability for him as possible, including in the therapies which may be provided to him through the NDIS, and any assistance he receives from the school he is presently enrolled in. Whilst the respondent indicated that he wanted to change the child’s enrolment to a school closer to his residence, this is not appropriate at this stage of the proceedings. The Court notes that the final orders already provide for the parties to be restrained from changing the child’s school enrolment without order or agreement.

17. It is also appropriate for an Independent Children’s Lawyer to be appointed and for this matter to come back to Court on a relatively quick basis after that appointment. It may be of assistance to the Court if the parties issued appropriate subpoena, including to any of X’s treating medical professionals and to Mr C, and any relevant material was ultimately tendered.

18. On the basis of the procedural difficulties which have been identified and each of the parties’ applications as they presently stand, it is appropriate that the respondent to the Application in a Case to file and serve an Initiating Application, setting out the final orders he seeks, together with any interim orders he might seek, an Affidavit in support together with a Notice of Risk. The respondent will then become the applicant in the substantive proceedings. Likewise, the applicant to the Application in a Case will be directed to file a Response, Affidavit and Notice of Risk. In this manner the proceedings can be conducted in a more orderly fashion.

I certify that the preceding fifty-four (54) paragraphs are a true copy of the reasons for judgment of Judge Obradovic

Date: 7 November 2019