Spicer & Bath

[2021] FamCA 283

FAMILY COURT OF AUSTRALIA

Spicer & Bath [2021] FamCA 283

File number(s):	BRC 4047 of 2021
Judgment of:	HOWARD J
Date of judgment:	14 April 2021
Catchwords:	FAMILY LAW – PARENTING – where the Applicants live in Western Australia and New Zealand – where the Respondent father lives in Brisbane – risk issues – appointment of an Independent Children’s Lawyer – preparation of a Family Report.
Legislation:	Family Law Act 1975 (Cth) ss 11F, 60CC, 65DAA, 69ZL.
Number of paragraphs:	15
Date of last submission/s:	14 April 2021
Date of hearing:	14 April 2021
Place:	Brisbane
Solicitors for the First and Second Applicants:	Frost & Associates
Counsel for the Respondent:	Ms Quinn
Solicitor for the Respondent:	Family Lawyers & Mediation Services

ORDERS

BRC 4047 of 2021

BETWEEN:

MS SPICER

First Applicant

MS RAND
Second Applicant

AND:

MR BATH
Respondent

ORDER MADE BY:	HOWARD J
DATE OF ORDER:	14 APRIL 2021

THE COURT ORDERS UNTIL FURTHER ORDER:

1.The children X born … 2013, Y born … 2018 and Z born … 2019 (“the children”) live with the Respondent, Mr Bath ("Father") who shall continue to reside with the children’s paternal grandfather, Mr B born … 1959.

2.That the children spend time with each of the Applicants on the occasions that each Applicant is in the city where the children reside at times as agreed between the father and the Applicants.

3.That the children communicate with each of the Applicants by video call with the Father to initiate the communication between 4 PM and 5 PM (Queensland time) on the following occasions:-

(a)on each Wednesday and Sunday;

(b)on Mother’s Day;

(c)on Christmas Day;

(d)on each child’s birthday;

(e)on the birthday of each Applicant.

4.That for the purposes of the communication:

5.The Applicants and the father shall ensure that they each have an operational telephone for the telephone number provided pursuant to these Orders;

6.The Applicants and the father shall ensure that neither of them nor any other person interferes with, monitors and/or restricts the telephone calls between the Applicants and the children;

7.That the father shall:

(a)keep each of the Applicants informed of the residential address and contact telephone number for the children;

(b)advise the Applicants immediately by telephone of any accident or medical emergency or serious injury or illness requiring the children to seek medical attention from ambulance, hospital or medical practitioner;

(c)provide the Applicants with copies of school reports, photographs, certificates and awards obtained by any of the children.

(d)within 7 days of the making of the Order, and fortnightly thereafter, the Father will attend an approved testing facility with appropriate identification and shall provide under supervision urinalysis testing to be undertaken and for the purposes thereof, doing all acts and things and sign all documents necessary to ensure that a copy of the test results obtained are delivered to the solicitor for the Applicants within 24 hours of receipt of the same. The Father undertaking the drug testing shall pay the costs thereof, regardless of the outcome.

(e)That the Father shall participate in and complete a “Parenting Program” and for this purpose:--

(i)the Father shall communicate with the program co-ordinator to arrange to participate in the program at the earliest available date;

(ii)within 14 days of the date of these Orders the Father provide to the Applicants written confirmation from the program co-ordinator of registration in the program;

(iii)the Father shall:--

A.comply with any reasonable direction of the program coordinator;

B.advise the program coordinator of his contact telephone number and of any change in that number;

C.attend and participate in the program as requested by the program coordinator;

D.provide a copy of these Orders to the program coordinator;

E.provide to the Applicants written confirmation from the program coordinator of completion of the program.

8.That the parties shall:

(a)not denigrate or insult another party or their relatives in the presence or hearing of the children;

(b)ensure that other persons do not denigrate or insult the other party or their relatives in the presence or hearing of the children;

(c)not discuss these proceedings, parenting arrangements, child support or financial issues in the presence or hearing of the children;

(d)ensure that other persons do not discuss these proceedings, parenting arrangements, child support or financial issues in the presence or hearing of the children;

(e)not engage the children in discussions about parenting arrangements;

(f)ensure that other persons do not engage the children in discussions about parenting arrangements.

9.That provided that there is an agreement in writing between the father and the Applicants, the parties (or one of them) is/are at liberty to take the children on a short term visit to New Zealand, in particular for the children to travel to New Zealand to attend any cultural events or gatherings.

THE COURT FURTHER ORDERS:

10.That the children be represented in these proceedings and it is requested that Legal Aid Queensland arrange such representation, and that the Independent Children’s Lawyer be at liberty to peruse and/or take copies of all documents filed in these proceedings upon the making of an appointment to do so with the Registrar of the Family Court of Australia at Brisbane.

11.That leave is granted to the parties’ legal representatives to inspect documents produced by the Department of Children, Youth Justice and Multicultural affairs produced to the Court pursuant to s69ZW of the Family Law Act 1975 and the legal representatives for the parties may take copies of such documents provided they do not provide copies to the parties or any other person.

12.That leave is granted to the Independent Children’s Lawyer to inspect documents produced by the Department of Children, Youth Justice and Multicultural affairs produced to the Court pursuant to s69ZW of the Family Law Act 1975 and the Independent Children’s Lawyer may take copies of such documents.

13.That leave is granted to the Independent Children’s Lawyer to inspect those documents, not objected to and produced by Queensland Police Service pursuant to s69ZW of the Family Law Act 1975 (marked S1) and the Independent Children’s Layer may take copies of the such documents.

14.That the Independent Children’s Lawyer organise for the preparation of a Family Report to be made available to the Court.

15.That the parties and the children of the relationship attend for Family Report interviews on a date and time to be advised by the Independent Children’s Lawyer.

16.That the Independent Children’s Lawyer has liberty to apply to seek any further direction in relation to drug testing or any other Orders – upon the giving of seven (7) days notice to the Court and to the parties.

17.That this matter be adjourned for Interim Hearing on a date to be fixed in the Family Court of Australia at Brisbane.

18.That upon the family report being prepared in this matter in accordance with paragraph 12 of these Orders, the Independent Children’s Lawyer shall notify the Court and a date for an Interim Hearing shall be allocated in this matter, along with any necessary directions for such hearing.

IT IS NOTED:

(A)Pursuant to section 65DA(2) of the Family Law Act 1975 the particulars of the obligations these Orders create and the particulars of the consequences that may follow if a person contravenes these Orders are set out in “Parenting Orders – obligations, consequences and who can help” and these particulars are included in these Orders.

Note:   The form of the order is subject to the entry in the Court’s records.

Note: This copy of the Court’s Reasons for judgment may be subject to review to remedy minor typographical or grammatical errors (r 17.02A(b) of the Family Law Rules 2004 (Cth)), or to record a variation to the order pursuant to 17.02 Family Law Rules 2004 (Cth).

IT IS NOTED that publication of this judgment by this Court under the pseudonym Spicer & Bath has been approved by the Chief Justice pursuant to s 121(9)(g) of the Family Law Act 1975 (Cth).

EX TEMPORE REASONS FOR JUDGMENT

A.         These reasons were delivered ex tempore on 14 April 2021 and have been settled and corrected for grammatical errors in order to convey the precise intention of the Court.

HOWARD J:

1. The matter before the Court relates to three children, X, born in 2013; Y, born in 2018; and Z, born in 2019.  They are the children of the respondent father, Mr Bath, and his former partner, Ms C – recently deceased.  These three children are currently living with their father in Queensland.  The children and the father all live in the home of the paternal grandfather at Suburb D.

2. Pursuant to section 69ZL of the Family Law Act 1975 (Cth), I’m giving short form reasons for the making of an interim parenting order.

3. Mr Frost, a solicitor from Western Australia, appears by telephone link today on behalf of the two applicants, Ms Spicer and Ms Rand.  Ms Spicer is the maternal grandmother and Ms Rand is the maternal great-grandmother.  The maternal grandmother lives in F City, although I note she is a “fly-in fly-out worker”, and the maternal great-grandmother, Ms Rand, lives in New Zealand.

4. The primary order sought on an interim basis on behalf of the applicants is for the three children to live with the maternal grandmother in Western Australia pending a final hearing of the case.  A final order is also sought that the children live with the maternal grandmother.  The matter was brought before the Court very recently, having been filed towards the end of March.  The father wants the children to stay living with him and he has given his counsel, Ms Quinn, instructions that he will stay living with the children at the paternal grandfather’s residence.  In that residence, there lives the paternal grandfather and his partner in Suburb D in Brisbane – along with the father and the children.

5. The affidavit of the applicant maternal grandmother filed 26 March 2021 makes it clear that a temporary protection order was issued with the mother as the aggrieved and the father as the respondent in February 2021.  There was a Court hearing listed for 29 March 2021.  The father admits that it was he who had assaulted the mother on 12 February 2021.  The mother died in 2021 – it seems from an infection – the precise cause of which I am not in a position to make a finding about on the current state of this evidence.  I am told (and I do not believe it’s in dispute), that there is an ongoing investigation by the police in relation to the father’s assault on the mother.

6. The matter came before Senior Registrar Spink very recently, and the Senior Registrar made various procedural orders and ordered that the parties attend a Family Consultant for a section 11F Memorandum under the Family Law Act. The matter was set today for a Case Management Hearing, and my intention is to set the matter down for an interim hearing but, it seems to me, given the opposing views of the parties today, that there needs to be some form of interim order put in place pending the interim hearing.

7. Prior to the time of the interim hearing, there will be the preparation of a family report and an Independent Children’s Lawyer will come on board because I’ve made that order for that appointment today also.  The Court is mindful of Part VII of the Family Law Act 1975 (Cth), in particular section 60CC – the need to protect children from various forms of harm, many of which have been highlighted by Mr Frost today: the fact that the children witnessed the assault on their mother, the fact that the father has admitted to that assault, and the fact that the father has admitted to the use of cocaine. These risk issues are well-documented and Mr Frost is quite right to draw the Court’s attention to those matters.

8. Ms Quinn of counsel, who appears for the father, draws to the Court’s attention the fact that the father is living with his own father now and that the children are there also. The father does now give instructions to his counsel that he will stay living with his father. The underlying point is – that will amount to an amelioration of the risk issues for the children. The Family Consultant saw this family yesterday and Ms Forbes prepared a section 11F memo which will be exhibit 1 for the purposes of today. I note in particular what the Family Consultant has written under the heading “ISSUES FOR THE CHILDREN”; and under the heading “Agreements Reached”. The Memorandum States:

   “ISSUES FOR THE CHILDREN

   There is concern that the children will experience further significant emotional trauma if removed from their current primary care giving attachments of the father and paternal family. All the children are very young and dependent on the primary care giver for not only their daily wellbeing needs but also their emotional and psychological needs to be met. This is made more significant by the traumatic loss of the mother and fracture of their most primary attachment, at significant development stages, which will impact significantly upon their development throughout their life. These children need stable, nurturing and attuned care giving to heal; positively it appears they currently have stable and loving care giving from the father, and the extended paternal family unit (who appear to be a significant protective factor in supporting the father’s ability). 

   If the children are at risk in the care of the father due to unstable mental health, drug or alcohol use and subsequent aggression.

   If the children are at risk in the care of the maternal grandmother due to drug and alcohol issues.

   The impact of long term parenting arrangements on the children and impact on their ability to maintain a meaningful relationship with the father and paternal family due to the geographical distance of both grandmother’s.

   Agreements reached

   No agreements reached during the conference. Though the father indicated that he was not opposed to the children, travelling to New Zealand to visit the mother’s grave for healing in accordance with their native traditions in the future.”

9. The first point noted by the Family Consultant was her concern that the children will experience further significant emotional trauma if removed from their current primary caregiving attachments with the father and the paternal family, and Ms Forbes makes the point that the children are very young.  They are dependent on the primary caregiver, not only for their daily wellbeing needs, but also for their emotional and psychological needs, and Ms Forbes reiterates and highlights the fact that this aspect is made more significant by the recent traumatic loss of the mother of these children.  The Family Consultant makes reference to the extended paternal family unit who appear to be a significant protective factor in supporting the father’s ability to care for these children.

10. I note there is an affidavit filed by the paternal aunt.  Each party is relying upon all of the material both have filed respectively.  In addition to the paternal grandfather with whom he lives, there is the paternal grandmother, and two paternal aunts, all of whom live in Brisbane; all of whom are ready, willing and able to assist the father with these children.  I note in Court today, the father is here present and two paternal aunts are here to give the father support. 

11. Mr Frost rightly points out that we do not know where this matter will end in relation to, for instance, the ongoing police investigation.  That’s a valid point made by Mr Frost and, depending upon what does occur, the matter may have to be revisited but, as the situation currently stands, the evidence from the Family Consultant leads the Court to conclude that the risk factors are ameliorated by the significant involvement of the paternal family in assisting the father with these children at this point in time. 

12. That is – the lowering of the risk in relation to these children comes about because of the paternal aunts and the paternal grandfather and the paternal grandmother assisting the father with these children and, more importantly, assisting the children. Those facts address section 60CC(2)(b) of the Family Law Act 1975. 

13. Keeping in mind that this is very much a circumscribed process today where it was set for Case Management Hearing.  It became apparent to the Court that something needed to be done by way of some form of interim order in order to stabilise the situation for these three young children pending an interim hearing.  With the assistance of an Independent Children’s Lawyer, with the assistance of a family report, the parties and the Court will be in a much better position at the time of the interim hearing to map out the way forward for these children and for this family. 

14. Before I move now to make some orders, I would point out that it is not necessary for me to go ahead and consider all of the section 60CC matters – and nor is it necessary to consider such matters as section 65DAA. It would not be reasonably practicable to make orders of the kind contemplated in section 65DAA in any event.

15. The Orders will be in broad terms as I have outlined today.  I accept the recommendations of the Family Consultant that the children shall stay with the father at this stage – noting that he is to remain living with the children at his father’s residence.

I certify that the preceding fifteen (15) numbered paragraphs are a true copy of the Reasons for Judgment of the Honourable Justice Howard.

Associate:

Dated:       7 May 2021