SPRING & STAFFORD

[2018] FCCA 1508

FEDERAL CIRCUIT COURT OF AUSTRALIA

SPRING & STAFFORD [2018] FCCA 1508

Catchwords:
FAMILY LAW – Interim parenting – finely balanced case.

Legislation:

Family Law Act 1975 (Cth), ss.60B, 60CA, 60CC, 61DA, 61DAA, 65DAA

Cases cited:

MRR v GR [2010] HCA 4

Goode & Goode [2006] FamCA 1346

Applicant: MS SPRING

Respondent: MR STAFFORD

File Number: PAC 350 of 2018

Judgment of: Judge Altobelli

Hearing date: 16 May 2018

Date of Last Submission: 16 May 2018

Delivered at: Wollongong

Delivered on: 22 May 2018

REPRESENTATION

Solicitors for the Applicant: Legal Aid NSW Campbelltown Family Law

Solicitors for the Respondent: MDV Family Lawyers

Solicitors for the Independent Children’s Lawyer: Rebecca Bailey & Associates

THE COURT ORDERS PENDING FURTHER ORDER THAT:

1. All previous parenting Orders be discharged.

2. From the Saturday immediately following the making of this Order, the Child shall live with the Mother.

3. The Child shall spend time and communicate with the Father at all times as agreed between the parties but failing agreement then as follows (subject to Order 4):

   (a)During  school term, each alternate weekend from 5.00pm Friday to 5.00pm Sunday, extended to 5.00pm Monday if a long weekend

   (b)For one half of all NSW school holiday periods as agreed between the parties but failing agreement then for the first half in all even numbered years and the second half in all odd numbered years

   (c)By telephone on all reasonable occasions sought by the Child and the Mother shall facilitate such times.

4. The Child spend time with each of her parents on the following special occasions:

   (a)With the Mother

   (i)From 2.00pm Christmas Eve to 2.00pm Christmas Day, 2018

   (ii)On the Mother’s Day weekend and the Father’s time as per Order 3(a) shall be suspended on that weekend.

   (b)With the Father

   (i)From 2.00pm Christmas Eve to 2.00pm Christmas Day, 2019

   (ii)On the Father’s Day weekend from 5.00pm Friday to 5.00pm Sunday

5. For the purpose of changeovers, the parties shall meet at Petrol Station, Suburb D.

6. The Father shall facilitate the Child contacting the Mother at all reasonable times as sought by the Child when she is spending time with him.

7. The Child is to remain enrolled in the School 2 unless both parties consent to her enrolment at an alternate primary school and each party shall authorise that school to provide to the other parent any information sought regarding the Child’s education or welfare at school as requested by that party.

8. The Mother is to ensure that the Child attends each day of school unless the Child is unwell and she provides to the school a medical certificate sufficient to explain her absence, with a copy to be provided to the Father also.

9. The Mother shall ensure that the Child attends upon her GP doctor for the purpose of obtaining a referral for the Child to undertake a hearing and vision test and will thereafter ensure that the Child undertakes such tests.

10. Each party shall keep one another informed of any occasion that the Child requires urgent medical attention and shall provide all authorities to any relevant health professional to provide to the other parent any and all information relevant to the health of the Child at their request.

11. Each party shall be restrained from taking the Child to attend upon any mental health care professional without the consent of the Independent Children’s Lawyer.

12. Both parties are restrained from striking the Child or from physically disciplining the Child.

13. Both parties shall ensure that the Child is supervised by an adult at all times.

THE COURT FURTHER ORDERS THAT:

1. Both parties shall, within 14 days, enrol in and thereafter successfully complete a Parenting After Separation program.

2. Both parties shall, within 14 days, do all things and sign all such documents necessary to cause the name of the Father to be entered into the child’s Birth Certificate.

3. The matter be adjourned to 4 September 2018 at 9:30am for Mention.

4. Liberty is granted to the Independent Children’s Lawyer to re-list the matter on 7 days’ notice by application to the Court in Chambers in appropriate circumstances.

THE COURT NOTES THAT:

A.The parties may participate in a Legal Aid Conference prior to the adjourned date.

B.On the adjourned date, the Court will consider whether to order a Family Report and list the matter for Final Hearing.

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

FEDERAL CIRCUIT COURT
OF AUSTRALIA
AT WOLLONGONG

PAC 350 of 2018

MS SPRING

Applicant

And

MR STAFFORD

Respondent

REASONS FOR JUDGMENT

1. This case is about [X], who is 11 years old. The decision the Court has made is a difficult one. The case was finely balanced. The strong impression formed from the material before the Court is that this child would be exposed to a measure of risk of harm or neglect whether she lives with the Father or with the Mother. The Mother, who is the Applicant, lives in the Region 1 region of New South Wales. The Father, who is the Respondent, lives in the Region 2 region. It takes about two hours by car to travel between their homes.

2. Until December last year, the child has always lived with her Mother. In December, there was an event. The Father decided to keep [X] in his care. This meant that she had to change schools and started living with her Father in a situation where she had not done so before. It meant becoming a member of a new household which included the Father’s partner and her children as well as moving to a new community. It also meant that her relationship with her Mother changed quite dramatically.

3. The Court had to decide whether [X] should remain living with her Father or go back to live with her Mother. Both the Mother and the Independent Children’s Lawyer proposed that [X] would return to her Mother’s care. The Father proposed that she remain in his care. The evidence that each party relied on, together with a summary of the arguments they each made is contained in the case outlines that their respective lawyers filed. The Court found these documents very helpful and expresses its appreciation to the lawyers involved.

4. In addition, there was a substantial quantity of documents that were tendered in evidence, mainly in the form of an agreed tender bundle. The relevant list has been incorporated into the first schedule of these reasons.

The Applicable Law

1. The applicable law is, of course, Part VII of the Family Law Act 1975 (Cth) (hereafter referred to as ‘the Act’). In determining parenting matters under Part VII of the Act the Court must regard the best interests of the child as the paramount consideration: s.60CA.

2. The objects and principles of Part VII are set out at s.60B:

   60B  Objects of Part and principles underlying it

   (1)     The objects of this Part are to ensure that the best interests of children are met by:

   (a)     ensuring that children have the benefit of both of their parents having a meaningful involvement in their lives, to the maximum extent consistent with the best interests of the child; and

   (b)     protecting children from physical or psychological harm from being subjected to, or exposed to, abuse, neglect or family violence; and

   (c) ensuring that children receive adequate and proper parenting to help them achieve their full potential; and

   (d)     ensuring that parents fulfil their duties, and meet their responsibilities, concerning the care, welfare and development of their children.

   (2)     The principles underlying these objects are that (except when it is or would be contrary to a child’s best interests):

   (a)     children have the right to know and be cared for by both their parents, regardless of whether their parents are married, separated, have never married or have never lived together; and

   (b)     children have a right to spend time on a regular basis with, and communicate on a regular basis with, both their parents and other people significant to their care, welfare and development (such as grandparents and other relatives); and

   (c) parents jointly share duties and responsibilities concerning the care, welfare and development of their children; and

   (d)     parents should agree about the future parenting of their children; and

   (e)     children have a right to enjoy their culture (including the right to enjoy that culture with other people who share that culture).

   (3)     For the purposes of subparagraph (2)(e), an Aboriginal child’s or Torres Strait Islander child’s right to enjoy his or her Aboriginal or Torres Strait Islander culture includes the right:

   (a)     to maintain a connection with that culture; and

   (b)     to have the support, opportunity and encouragement necessary:

   (i) to explore the full extent of that culture, consistent with the child’s age and developmental level and the child’s views; and

   (ii)     to develop a positive appreciation of that culture.

3. At the very core of Part VII of the Act is the creation of a presumption of equal shared parental responsibility in s.61DA. Section 61DA provides:

   61DA  Presumption of equal shared parental responsibility when making parenting orders

   (1)     When making a parenting order in relation to a child, the court must apply a presumption that it is in the best interests of the child for the child’s parents to have equal shared parental responsibility for the child.

   (2)     The presumption does not apply if there are reasonable grounds to believe that a parent of the child (or a person who lives with a parent of the child) has engaged in:

   (a)     abuse of the child or another child who, at the time, was a member of the parent’s family (or that other person’s family); or

   (b)     family violence.

   (3)     When the court is making an interim order, the presumption applies unless the court considers that it would not be appropriate in the circumstances for the presumption to be applied when making that order.

   (4)     The presumption may be rebutted by evidence that satisfies the court that it would not be in the best interests of the child for the child’s parents to have equal shared parental responsibility for the child.

4. If the presumption applies, the Court is required to consider certain things:

   65DAA Court to consider child spending equal time or substantial and significant time with each parent in certain circumstances

   Equal time

   (1)     If a parenting order provides (or is to provide) that a child’s parents are to have equal shared parental responsibility for the child, the court must:

   (a)     consider whether the child spending equal time with each of the parents would be in the best interests of the child; and

   (b)     consider whether the child spending equal time with each of the parents is reasonably practicable; and

   (c) if it is, consider making an order to provide (or including a provision in the order) for the child to spend equal time with each of the parents.

   Substantial and significant time

   (2)     If:

   (a)     a parenting order provides (or is to provide) that a child’s parents are to have equal shared parental responsibility for the child; and

   (b)     the court does not make an order (or include a provision in the order) for the child to spend equal time with each of the parents; and

   the court must:

   (c) consider whether the child spending substantial and significant time with each of the parents would be in the best interests of the child; and

   (d)     consider whether the child spending substantial and significant time with each of the parents is reasonably practicable; and

   (e)     if it is, consider making an order to provide (or including a provision in the order) for the child to spend substantial and significant time with each of the parents.

   (3) will be taken to spend substantial and significant time with a parent only if:

   (a)     the time the child spends with the parent includes both:

   (i) days that fall on weekends and holidays; and

   (ii)     days that do not fall on weekends or holidays; and

   (b)     the time the child spends with the parent allows the parent to be involved in:

   (i) the child’s daily routine; and

   (ii)     occasions and events that are of particular significance to the child; and

   (c) the time the child spends with the parent allows the child to be involved in occasions and events that are of special significance to the parent.

   (4)     Subsection (3) does not limit the other matters to which a court can have regard in determining whether the time a child spends with a parent would be substantial and significant.

   Reasonable practicality

   (5)     In determining for the purposes of subsections (1) and (2) whether it is reasonably practicable for a child to spend equal time, or substantial and significant time, with each of the child’s parents, the court must have regard to:

   (a)     how far apart the parents live from each other; and

   (b)     the parents’ current and future capacity to implement an arrangement for the child spending equal time, or substantial and significant time, with each of the parents; and

   (c) the parents’ current and future capacity to communicate with each other and resolve difficulties that might arise in implementing an arrangement of that kind; and

   (d)     the impact that an arrangement of that kind would have on the child; and

   (e)     such other matters as the court considers relevant.

5. Because s.65DAA refers to the best interests of the child, the Court must then go back to consider s.60CC which specifies how the Court must determine what is in a child’s best interests.

   Determining child's best interests

   (1)  Subject to subsection (5), in determining what is in the child's best interests, the court must consider the matters set out in subsections (2) and (3).

   Primary considerations

   (2)  The primary considerations are:

   (a)  the benefit to the child of having a meaningful relationship with both of the child's parents; and

   (b)  the need to protect the child from physical or psychological harm from being subjected to, or exposed to, abuse, neglect or family violence.

   Note:         Making these considerations the primary ones is consistent with the objects of this Part set out in paragraphs 60B(1)(a) and (b).

   (2A)  In applying the considerations set out in subsection (2), the court is to give greater weight to the consideration set out in paragraph (2)(b).

   Additional considerations

   (3)  Additional considerations are:

   (a)  any views expressed by the child and any factors (such as the child's maturity or level of understanding) that the court thinks are relevant to the weight it should give to the child's views;

   (b)  the nature of the relationship of the child with:

   (i)  each of the child's parents; and

   (ii)  other persons (including any grandparent or other relative of the child);

   (c)  the extent to which each of the child's parents has taken, or failed to take, the opportunity:

   (i)  to participate in making decisions about major long-term issues in relation to the child; and

   (ii)  to spend time with the child; and

   (iii)  to communicate with the child;

   (ca)  the extent to which each of the child's parents has fulfilled, or failed to fulfil, the parent's obligations to maintain the child;

   (d)  the likely effect of any changes in the child's circumstances, including the likely effect on the child of any separation from:

   (i)  either of his or her parents; or

   (ii)  any other child, or other person (including any grandparent or other relative of the child), with whom he or she has been living;

   (e)  the practical difficulty and expense of a child spending time with and communicating with a parent and whether that difficulty or expense will substantially affect the child's right to maintain personal relations and direct contact with both parents on a regular basis;

   (f)  the capacity of:

   (i)  each of the child's parents; and

   (ii)  any other person (including any grandparent or other relative of the child);

   to provide for the needs of the child, including emotional and intellectual needs;

   (g)  the maturity, sex, lifestyle and background (including lifestyle, culture and traditions) of the child and of either of the child's parents, and any other characteristics of the child that the court thinks are relevant;

   (h)  if the child is an Aboriginal child or a Torres Strait Islander child:

   (i)  the child's right to enjoy his or her Aboriginal or Torres Strait Islander culture (including the right to enjoy that culture with other people who share that culture); and

   (ii)  the likely impact any proposed parenting order under this Part will have on that right;

   (i)  the attitude to the child, and to the responsibilities of parenthood, demonstrated by each of the child's parents;

   (j)  any family violence involving the child or a member of the child's family;

   (k)  if a family violence order applies, or has applied, to the child or a member of the child's family--any relevant inferences that can be drawn from the order, taking into account the following:

   (i)  the nature of the order;

   (ii)  the circumstances in which the order was made;

   (iii)  any evidence admitted in proceedings for the order;

   (iv)  any findings made by the court in, or in proceedings for, the order;

   (v)  any other relevant matter;

   (l)  whether it would be preferable to make the order that would be least likely to lead to the institution of further proceedings in relation to the child;

   (m)  any other fact or circumstance that the court thinks is relevant.

The Case Law

1. In MRR v GR [2010] HCA 4, the High Court referred to s.65DAA(1) and said

   9.  Each of sub-ss (1)(b) and (2)(d) of s 65DAA require the Court to consider whether it is reasonably practicable for the child to spend equal time or substantial and significant time with each of the parents.  It is clearly intended that the Court determine that question.  Sub-section (5) provides in that respect that the Court "must have regard" to certain matters, such as how far apart the parents live from each other and their capacity to implement the arrangement in question, and "such other matters as the court considers relevant", "[i]n determining for the purposes of subsections (1) and (2) whether it is reasonably practicable for a child to spend equal time, or substantial and significant time, with each of the child's parents".

2. A little later in the judgment the High Court said:

   13.    Section 65DAA(1) is expressed in imperative terms.  It obliges the Court to consider both the question whether it is in the best interests of the child to spend equal time with each of the parents (par (a)) and the question whether it is reasonably practicable that the child spend equal time with each of them (par (b)).  It is only where both questions are answered in the affirmative that consideration may be given, under par (c), to the making of an order.

3. At [15] the High Court emphasised the need for a practical approach:

   15.    Section 65DAA(1) is concerned with the reality of the situation of the parents and the child, not whether it is desirable that there be equal time spent by the child with each parent. The presumption in s 61DA(1) is not determinative of the questions arising under s 65DAA(1). Section 65DAA(1)(b) requires a practical assessment of whether equal time parenting is feasible.

4. The Full Court’s decision in Goode & Goode [2006] FamCA 1346 provides some guidance about the interpretation of Part VII and the way to proceed in interim hearings.

   68. In our view some of the comments of the Full Court in paragraph 18 are still apposite. For example, the procedure for making interim parenting orders will continue to be an abridged process where the scope of the enquiry is “significantly curtailed”. Where the Court cannot make findings of fact it should not be drawn into issues of fact or matters relating to the merits of the substantive case where findings are not possible. The Court also looks to the less contentious matters, such as the agreed facts and issues not in dispute and would have regard to the care arrangements prior to separation, the current circumstances of the parties and their children, and the parties’ respective proposals for the future.

   …

   72. In our view, it can be fairly said there is a legislative intent evinced in favour of substantial involvement of both parents in their children’s lives, both as to parental responsibility and as to time spent with children, subject to the need to protect children from harm, from abuse and family violence and provided it is in their best interests and reasonably practicable. This means where there is a status quo or well settled environment, instead of simply preserving it, unless there are protective or other significant best interests concerns for the child, the Court must follow the structure of the Act and consider accepting, where applicable, equal or significant involvement by both parents in the care arrangements for the child.

   …

   82. In an interim case that would involve the following:

   (a) identifying the competing proposals of the parties;

   (b) identifying the issues in dispute in the interim hearing;

   (c) identifying any agreed or uncontested relevant facts;

   (d) considering the matters in s 60CC that are relevant and, if possible, making findings about them (in interim proceedings there may be little uncontested evidence to enable more than a limited consideration of these matters to take place);

   (e) deciding whether the presumption in s 61DA that equal shared parental responsibility is in the best interests of the child applies or does not apply because there are reasonable grounds to believe there has been abuse of the child or family violence or, in an interim matter, the Court does not consider it appropriate to apply the presumption;

   (f) if the presumption does apply, deciding whether it is rebutted because application of it would not be in the child’s best interests;

   (g) if the presumption applies and is not rebutted, considering making an order that the child spend equal time with the parents unless it is contrary to the child’s best interests as a result of consideration of one or more of the matters in s 60CC, or impracticable;

   (h) if equal time is found not to be in the child’s best interests, considering making an order that the child spend substantial and significant time as defined in s 65DAA(3) with the parents, unless contrary to the child’s best interests as a result of consideration of one or more of the matters in s 60CC, or impracticable;

   (i) if neither equal time nor substantial and significant time is considered to be in the best interests of the child, then making such orders in the discretion of the Court that are in the best interests of the child, as a result of consideration of one or more of the matters in s 60CC;

   (j) if the presumption is not applied or is rebutted, then making such order as is in the best interests of the child, as a result of consideration of one or more of the matters in s 60CC; and

   (k) even then the Court may need to consider equal time or substantial and significant time, especially if one of the parties has sought it or, even if neither has sought it, if the Court considers after affording procedural fairness to the parties it to be in the best interests of the child.

Discussion

1. Each parent makes quite serious allegations against the other. The Father alleges, for example, that the Mother is neglectful of the child, and for example, has failed to ensure that [X] attends school regularly last year, failed to ensure that she was adequately supervised and failed to respond adequately when [X] was found to have self-harmed. The Father alleges that there is a risk of violence in the Mother’s household in the form of the Mother physically disciplining [X]. Moreover, he alleges that the Mother’s parenting capacity is such that she is simply not coping with the care of this child. 

2. The Mother alleges that the Father has greatly overstated the so-called concerns about her household. She alleges that, in fact, there is a greater risk to the child by being exposed to the dysfunctional and violent household that is constituted by the Father, his partner and the children. She also expresses concern about the Father’s history of substance abuse.

3. The Independent Children’s Lawyer’s case outline contained a very useful chronology which the Court has incorporated into the second schedule of these reasons. The chronology draws from the evidence of both parents as well as a number of independent sources, namely, the documents produced on subpoena. The Court has reviewed the tender bundle and is satisfied as to the accuracy of the chronology insofar as it relates to the issues before the Court. 

4. Referring to that chronology and to the documents comprised in the tender bundle, the Court is able to make the following observations about this case.

5. Firstly, the parents were not in a long-term relationship when the child was conceived. They appear to have both been quite young, and they were not cohabiting at the time.

6. Secondly, whilst the Father has been involved in [X]’s life, that was not necessarily consistent but certainly on a regular basis. Nonetheless and whatever the precise history of contact between the Father and the child was, the relationship between them appears to have been a good one. By 2014 or 2015, there was a record of consistent alternating weekend contact as well as half the school holidays.

7. Thirdly, the Father’s relationship with his current partner Ms J appears to have had some dysfunctional aspects for quite some time. In 2015, for example, there are police records suggesting that there was physical violence between them. An AVO was obtained against the Father. He was charged with assault and subsequently convicted. 

8. The precise status of the Father’s current relationship with Ms J is unclear. The objective records, particularly those produced by Mission Australia, suggest more recent incidences of violence and abuse and that their relationship might be a tenuous one. The Court’s concern, certainly articulated by the Independent Children’s Lawyer, is that there is a very real risk to [X] that she will, at the very least, continue to be exposed to the dysfunction in the Father’s relationship with Ms J as well as to the violent aspects of it. It is quite possible, the Court is concerned, that the Father in his case has minimised the nature and extent of the dysfunction in his relationship with Ms J as well as the violent aspects of that relationship. Thus, if the relationship is intact, the risk that is described above is present.

9. If the Father separates from Ms J, then this opens up a whole new range of uncertainties about how the Father would care for [X], where he would live, where she would go to school, etcetera. If [X] remains with her Father, there is almost certainty, the Court feels, the prospect of either continued exposure to dysfunction or another significant change in her living arrangements. 

10. Fourthly, the main event that seems to have precipitated the child going into the Father’s care occurred in September 2017 when she appears to have cut herself deliberately with a stick on her leg. The Mother deposes to this.  She explains that she immediately confronted the family of the 13 year old friend who was involved in the incident and told the child that she was forbidden from spending time with that friend. 

11. Later in 2017, it appears that the child started having problems at school.  Indeed, the evidence suggests that she, that is the child, was the perpetrator of the bullying behaviour. The objective evidence that has come in from her school suggests that even then she was struggling at school and there were periods of unexplained absences from school. When she was with her Father during the December holidays, there were a number of disputes between the parents but, in any event, it seems that they agreed that she was due to be returned to the Mother on 15 or 16 January. She was not returned. The Father says that [X] was resistant to going back to her Mother and made a number of disclosures.

12. Fifthly, it is interesting to look at the reasons the Father advanced for retaining the child. He seems to have relied on the child not wanting to return, her self-harm and the child’s negative experience at her school.  But what the Court now knows, however, is that [X] has expressed the view to the Family Consultant that she does want to return to her Mother. The Court now has the school records that suggest that apart from some behaviour problems, there were no serious issues at school which would warrant her not returning there. Moreover, there is more information about the alleged self-harm incident which now creates the impression that it was not perhaps as serious as what the Father may have thought. In any event, the reality is that the Father has enrolled her in a local school where she seems to be doing quite well.

13. Sixthly, at the time that the matter came before the Court for the first event on 16 February, orders were made by consent for [X] to remain living with her Father but to spend time with her Mother each other weekend. Interestingly, both parents were ordered to undertake a drug test and that provided by the Father was positive to cannabis, but later drug tests were negative.

14. Seventhly, a Child Inclusive Conference was held on 17 April 2018. As foreshadowed above, the child expressed a clear view that she wanted to return to live with her Mother and the maternal siblings. She enjoyed spending time with her Father on weekends but did not want to remain living there. The Family Consultant formed the impression that [X] had been exposed to conflict between her Father and Ms J, his partner. This, the report notes, is quite consistent with the documents produced by Mission Australia.

15. The Independent Children’s Lawyer submitted that the Court would be concerned, more than anything else, about the clear evidence suggesting conflict, indeed, family violence in the Father’s household to which the child was exposed. The Independent Children’s Lawyer emphasised that even if the Father’s relationship ended, this would lead to instability for [X], but she was concerned that some of the material suggested that the Father’s violence was also projected onto his partner’s children. 

16. She was seriously concerned about the manner in which the Father’s evidence and indeed, his partner’s evidence minimised their dysfunctional relationship by, for example, describing it themselves as “having relationship problems”, particularly when the Mission Australia material provides such a strong contrast. The Independent Children’s Lawyer conceded that certainly historically the Mother has struggled with parenting but there appeared to be no recent concerns in this regard.

17. The problems in the Mother’s case are reflected in the submissions that an order would actually need to be made for the Mother to ensure that [X] attends school. The solicitor for the Mother adopted the Independent Children’s Lawyer’s submissions but went further.  She submitted that the Father’s criticism about how the Mother managed the self-harm incident was unfair and that, in fact, it was appropriately managed by her. Indeed, there was implied criticism of the highly opportunistic way in which the Father used this evidence, given that he had known, it is alleged, about the incident for some time but had done nothing.

18. The submissions in the Father’s case emphasised how well [X] was going at school. It emphasised the risk of harm considerations in the Mother’s household, pointing to evidence that suggested she was struggling with her parenting and was, indeed, ambivalent at times about [X] being returned to her. Concerns were expressed about the Mother’s mental health and whether she had engaged in services to assist her. Nonetheless and quite appropriately, the Father’s case acknowledges that there was much that needed to be done within his own household and he had, for example, engaged in a Men’s Behavioural Change program. 

Determination

1. As I said before, this case is finely balanced. There are good reasons to keep [X] where she is, but the Court believes there are even better reasons for returning her to her Mother’s care. Firstly and consistently with what the Court believes to be the independent evidence of the Family Consultant in the Child Inclusive Conference memorandum, it seems this is what [X] wants. But, secondly and consistent with the objective evidence produced by Mission Australia, the Father’s household appears to be dysfunctional and would be a negative continued influence on [X]. 

2. Thirdly, whilst the Court does have concerns about the Mother’s parenting capacity, the scrutiny which these proceedings bring on her household will act as a mitigating factor so far as the risks are concerned.  When all the relevant considerations are taken into account, the Court believes that the Independent Children’s Lawyer’s proposal which was adopted by the Mother is the proposal that is in the best interests of [X].

3. I will also make an order for a Family Report and I will also list the case for a two-day hearing which will be sometime in 2019.  An additional order will be made requiring the Mother to ensure that [X], in fact, attends school. So the orders, then, are the orders sought by the Independent Children’s Lawyer, and I note specifically, Ms Oliver, that the order says that, in effect, they come in from this Saturday. So I am not suggesting we disrupt [X] in the middle of a school week but that this commence from the Saturday. 

I certify that the preceding thirty-four (34) paragraphs are a true copy of the reasons for judgment of Judge Altobelli

Date: 26 June 2018

Schedule 1

Agreed Tender Bundle

File No: PAC 350/2018
Name: SPRING/STAFFORD
Proposed exhibit tender

No.	Description	Tendered by	Tendered as
1	Child Inclusive Memorandum dated 17.4.18	ICL
2	Letter from Mission Australia dated 18.1.18	ICL
3	Father’s COC Drug Screen urinalysis dated 19.02.2018 and 18.04.2018	ICL
4	Letter from ICL to Father’s solicitor with authority to release information addressed to Mission Australia dated 7 May 2018	ICL
5	Email from School 2 dated 4 May 2018	ICL
6	Email from School 1 dated 7 May 2018	ICL
7	[X]'s Facebook page	ICL
Documents produced by NSW POLICE on subpoena (ISSUED FEB 2018)
8	Criminal record of Mr Stafford	ICL
9	COPS EVENTS  in relation to Mr Stafford dated 6.10.2017 to 4.12.2010 (pages 1 to 10)	ICL
10	COPS EVENT in relation to Ms Spring Dated 08.02.2014 (page 2, marked R8) Dated 05.10.2010 (page 5/6, marked R9) Dated 09.04.2009 (page 6/7, marked R10) Dated 4.12.2008 (page 8, marked R11)	F
Documents produced by DEPARTMENT OF EDUCATION on subpoena (ISSUED FEB 2018)
11	2017 Student Summary	ICL, F
12	2017, Semester 2 school report	ICL
13	2016, Semester 2 school report	ICL
14	2016, Semester 1 school report	ICL , F
15	Transfer form, reading recovery  23.7.2013	ICL
16	School readiness observation 13 September 2011	ICL
17	Kindergarten interview for 2012 – Health issues	ICL
18	Kinder to year 5/6 attendance record	ICL
19	Year One note – “[X] is a confident student who requires assistance to complete set tasks. She struggles to make and keep friends”	ICL
20	NAPLAN results 2017	F
21	NAPLAN results 2015	F
Documents produced by DEPARTMENT OF FAMILY AND COMMUNITY SERVICES on subpoena (ISSUED FEB 2018)
22	Contact record  dated 4.4.2011 (marked R12, 13, 14)	F
23	Face to Face record dated 17.3.2009 (marked R15)	F
24	Contact record dated 15.03.2009 (marked R16)	F

Schedule 2

Independent Children’s Lawyer’s Chronology

Date	Event	Evidence
1975	Mother born	AM1 para 2
1982	Father born	Agreed
1998	Ms S born (child, [X]’s, maternal sibling) aged 20 years (living independently)	Agreed
1999	Mr J born (child, [X]’s, maternal sibling) aged 19 years (living in Mother’s home)	Agreed
2004	[B] born (child, [X]’s, maternal sibling) aged 13 years (living in Mother’s home)	Agreed
2007	Child [X] (“[X]”) born (aged 11 years)	Agreed
From mid 2007 to June 2008	Father commenced spending time with [X] once every couple of weeks	AM1 para 17-19
June 2008	Mother relocated to Suburb B. Father asserts that Mother did not move until mid 2009	AM1 para 20 RF1 para 16
From June 2008	Father commenced spending time with [X] one weekend every couple of months increasing to each alternate weekend and half of school holidays.	AM1 para 21-23 Agreed
Father asserts that [X] has spent the last four entire Christmas school holidays with him	RF1 para 18
15.06.2015	COPS Event: POI Father, Victim, Father’s partner, Ms J. Argument about child minding arrangements. Victim attempted to leave with children in car. As she was reversing, POI slapped his hand on the driver’s side window. Victim called 000 Police came. POI left to spend night elsewhere.	NSW Police
25.06.2015	COPS Event: POI Father, Victim, Father’s partner, Ms J. Parties separated. POI left but then returned and demanded to be let inside. POI bashed windows waking the children inside. Victim called police.	NSW Police
12.07.2015	COPS Event: Parties argued over laptop. Physical struggle. Police called. Father agreed to stay elsewhere that night.	NSW Police
02.08.2015	COPS Event: Father is POI, Father’s partner, Ms J, Victim. Sunday, after Ms J returned [X] to Mother’s home, POI upset with victim. POI informs victim he wants to leave relationship. POI became verbally abusive. POI walked up to victim and grabbed hold of her hair and pulled it. As he was leaving, POI threw his belongings at victim. Caused lump to form on victims head as items were heavy. POI left. Victim locked door. POI returned and verbally abused victim. Police called. Provisional ADVO made for victim	NSW Police
02.08.2015	Interim ADVO made protecting Father’s partner, Ms J, from the Father. Father charged with of Assault occasioning actual bodily harm	NSW Police
14.08.2015	ADVO made and Father convicted of assault	NSW Police
2016	[A] born (child, [X]’s, paternal sibling) aged 18 months	Agreed
2016	[X] commenced Year 4 at School 2	School 2
2017	Mother moved to Suburb C	AM1 para 31
March 2017	Father and his friend/partner, Ms J, were referred to Mission Australia Domestic and Family Violence Program for case management support. Referral made by Family and Community Services with low to medium level DV concerns	Letter from Mission Australia Mission Australia notes
26.04.2017	Father’s partner, Ms J, agreed to sign in to the Mission Australia Domestic Violence Case Worker program	Mission Australia notes
01.09.2017	COPS event: Police called to a domestic dispute involving car keys. The victim (Father’s partner Ms J) and POI (Father) have been friends for a number of years and approx. 4 weeks ago both persons decided to move in together. POI recently made redundant. This put financial strain on the victim as she had to cover living costs to prevent being evicted.	NSW Police
September 2017	Mother allowed child to go to nearby park with 13 year old friend at around 2pm. Child did not return until 7pm. Child admitted to cutting herself deliberately with a stick on her leg. Mother immediately confronted family of 13 year old friend and [X] was forbidden from “hanging out” with her again	AM1 para 31-39
06.10.2017	COPS event: Father and partner involved in verbal argument. Father is noted as the Victim. The Father called POI (presumably his partner, Ms J) a “fat slut”. POI became enraged and encouraged Victim stating “Cmon, do it”. The POI grabbed victim. Victim then called police. Police of the view that Victim was a willing participant and prompted POI into her actions. This was agreed by the Victim.	NSW Police
October 2017	Mother asserts she had a conversation with Ms J who disclosed that Father had assaulted her when he was drunk “because he had no pot and carried on grabbing me by my throat and screaming at me”. Father does not respond to allegation.	AM1 para 66
November 2017	Mother asserts Ms J sent Mother a text message regarding whether [X] was cutting herself. Mother informed Ms J of incident in September 2017	AM1 para 40
23.11.2017	Father agreed to sign in to the Mission Australia Domestic Violence Case worker program Mission Australia recommended Father attend at the parenting program “Caring Dads” run by Mission Australia. Father declined due to work commitments noting that Father is working most days now on a casual basis. Father referred to Anglicare “Men’s Behaviour Change” program	Mission Australia notes
28.11.2017	[X] on detention at school. [X] harassing another student during class and at lunchtime. She took another student’s ball and gave it to someone else. There are no records where [X] is the subject of any bullying.	School 2 notes
08.12.2017	Semester 2, 2017 School report. “Although she is not disruptive during times of instruction, her focus frequently wanders and she misses crucial information”, “[X] finds it challenging to focus on her learning rather than what else is going on around her”, “[X] is a quiet student who has demonstrated some small improvements this year. She finds most class tasks challenging and is hesitant to ask questions when she is experiencing difficulties. [X] has received additional support throughout the year and has enjoyed working in one-on-one situations. At times, she can be more focused on what is going on around her”.	School 2
Mid December 2017	Mother asserts [X] went to stay with Father for half of the school holidays. It was arranged for her to return on 15 January 2018	AM1 para 41-42
12.012.2017	Father asserts Mother sent him a text message telling him to collect [X] immediately. When Ms J arrived the Mother and [X] were upset. [X] was upset for the following few days, saying she did not want to go back to her Mother. NOTE: Term 4 did not end until 14.12.2017. Child in Father’s care for the last three days of Term 4	RF1 para 20-24
15.01.2018	Mother asserts she received a call from a friend advising “[X] is crying and doesn’t want to come home” and proposing that she be returned on 20.01. 2018. Mother agreed.	AM1 para 43-45
15.01.2018	Mother asserts she has text message conversation with Ms J about returning [X]. No agreement. Further email message from Ms J including “She doesn’t really have a reason y she doesn’t want to go back home she just keeps telling me because she wants to go to school hear and live down hear and make new friends at school so its nothing against you by any means…… I just think she wants a change and after spending time with [A] that may be why as well”.	AM1 para 46-47 and Annexures “B” and “C”
16.01.2018	Mother asserts Ms J sends a message to Mother informing her that the Father will not be returning the child home	AM1 para 49
17.01.2018	Father asserts that he obtained legal advice and applied for Legal Aid	RF1 para 40
18.01.2018	Mother sought urgent legal advice and a letter was sent to the Father from Legal Aid Campbelltown seeking the return of the child	AM1 para 52 Annexure “E” Letter from legal aid
18.01.2018	Letter issued by Mission Australia regarding Father’s reports of [X] expressing “emotional distress upon her planned return to her mother’s residence” and “[X] has disclosed feeling worried about her return” and “[X] has also disclosed experiencing negative relationships with her peers at School 2”. It notes that Ms J has observed “injuries resulting from [X] self harming”.	Letter from Mission Australia
24.01.2018	Father took child to local doctor for a mental health care plan for assistance with school bullying.	RF1 para 39 annexure “A”
30.01.2018	Father enrolled child into the School 1	Agreed
15.02.2018	Father arranged for child to attend on a psychologist at 8.30am. It is not clear whether the child actually attended on the psychologist. The Father does not provide any detail of the psychologist	RF1 para 63-64
16.02.2018	Interim Orders made by consent in FCC.	Interim Orders
19.02.2018	Father tests positive for Cannabis in COC drug screen urinalysis (450 ug/L) NOTE: cut off is 50ug/L. Test undertaken 1 day late.	Drug Screen 18.2.18
January to May 2018	Father and Ms J missed a number of appointments with Mission Australia DV program Mandatory reports made to FACS by Mission Australia regarding disclosures made during sessions Verbal abuse escalating between Father and Ms J	Mission Australia notes
17.04.2018	Parties attend at court for CIC interviews. Family Consultant records -    “She spoke of feeling sad at living apart from her mother and maternal siblings and voiced a wish to return to live with her mother” -    “[X] said that, while she enjoyed spending time with her father on weekends, she did not want to remain living in his home and away from her mother and siblings”. -    “It seems [X] may have been exposed to conflict between Mr Stafford and “Ms J””. -    “[X] has voiced a clear wish to return to live with her mother and maternal siblings which is unsurprising given that this has been her primary base for much of her life…… the current arrangement represents a major departure from her previous care”.	Child Inclusive memo dated 17.04.2018
18.02.2018	Father tests negative for cannabis in COC drug screen urinalysis	Drug test 18.4.18
07.05.2018	Father’s solicitor provides letter from Mission Australia dated 18 January 2018 to ICL and Mother’s solicitor.	Letter from Mission Australia dated 18.01.2018
07.05.2018	ICL sends letter to Father’s solicitor requesting that the Father sign authority to Mission Australia as a matter of urgency seeking the release of their file. Note: Father has failed to respond or provide signed Authority to ICL	Letter from ICL to MDV Lawyers dated 7 May 2018