STALEY & BIRCH

[2020] FamCA 47

FAMILY COURT OF AUSTRALIA

STALEY & BIRCH [2020] FamCA 47

FAMILY LAW – CHILDREN – change in residence of child – noncompliance with orders regarding changeover – risk of future noncompliance with orders.

Family Law Act 1975 (Cth) s 60CC
APPLICANT:	Mr Staley

RESPONDENT: Ms Birch

INDEPENDENT CHILDREN’S LAWYER: Ms Mistry

FILE NUMBER: CAC 1456 of 2017

DATE DELIVERED: 24 January 2020

PLACE DELIVERED: Canberra

PLACE HEARD: Canberra

JUDGMENT OF: Gill J

HEARING DATE: 22 January 2020

REPRESENTATION

SOLICITOR FOR THE APPLICANT: Pyrmont Legal

SOLICITOR FOR THE RESPONDENT: Self-representing

SOLICITOR FOR THE INDEPENDENT CHILDREN’S LAWYER: Legal Aid, ACT

Orders

1. Order 1 of the orders made 3 October 2019 is dismissed.

2. Unless otherwise agreed in writing between the parents, the child, X, born … 2012, shall live with the Father.

3. X shall spend time with his Mother each alternate weekend commencing the first weekend following the commencement of school in each term, from immediately after school on Friday until the commencement of school on Monday, unless either of those days is a public holiday in which case X’s time with his Mother shall then commence at 3pm on the last school day of the week and recommence at the commencement of school the following week.

4. During school holiday time X shall spend time with his Mother from 3pm on the last day of school for the term until 3pm on the Saturday closest to the mid-point of the school holiday period. 

5. The matter is transferred to the Registrar's list pending further application or the removal of the matter for the making of trial directions.

6. On the Mother's compliance with Order 9 of the orders of 3 October 2019 it is requested that the Independent Children’s Lawyer seek a re-listing of the matter for further directions.

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

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

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 r 17.02 Family Law Rules 2004 (Cth).

FAMILY COURT OF AUSTRALIA AT CANBERRA

FILE NUMBER: CAC 1456 of 2017

Mr Staley

Applicant

And

Ms Birch

Respondent

REASONS FOR JUDGMENT

1. An application is made that involves a request by both parties for a modification of the interim orders that govern the time that their child X spends with them. 

2. Currently he spends time with them on an alternating week basis.  What the Father now seeks is that X live primarily with him and spend each alternate weekend with the Mother.  By oral application, the Mother sought that the time with the Father be supervised. 

3. The conclusion to be reached in this case is reached on the basis of what is in X’s best interests.  That is a conclusion to be reached on the consideration of the matters that are set out in the Family Law Act 1975 (Cth) at s 60CC, which considerations tell me what is in X’s best interests. In considering those matters, I have to bear in mind the limitation in coming to factual conclusions in an interim hearing where I have not been able to test the evidence fully yet.

4. The general history of this case is set out in the judgment I delivered on 10 July 2019.  It is a case in which X and each of the parties have and do face fairly extraordinary circumstances.  The proceedings in July 2019 resulted in interim orders to remedy the fact that X had not been spending time with his Father despite the fact that there were then already orders in place that he do so.  He had spent almost no time with his Father from November 2018 through to July 2019.

5. At the contested hearing that took place at that time the Mother asserted that X should spend no time with his Father.  Orders were made to transition into a temporary arrangement whereby X would spend every weekend with his Father and a Child Inclusive Conference was directed to take place.  The proceedings were adjourned to 3 October 2019 with provision being made for each of the parties to file further material. 

6. The memorandum from the Child Inclusive Conference was produced in September 2019.  The parties filed no further material in the lead up to the 3 October 2019 hearing date but they, and the Independent Children’s Lawyer, agreed to there being a change in the orders about X such that it would move to a week about arrangement for X.

7. The proceedings returned at short notice before me following an application by the Father.  They returned initially for directions on 18 December 2019 and then for hearing on 20 December 2019 with provision being made for the Mother to file material in response to the Father's urgent application.  The Mother did not file material.

8. At that stage, the Father's application was seeking that X live with him and spend alternate weekends with the Mother.  The driver of that application was that the Mother was not providing X in accordance with the orders and that X was missing school.  The Father also sought a recovery order.  X was handed over to the Father at Court with the assistance of a Family Consultant. 

9. The proceedings were then adjourned to today as I declined to make orders at that time, but gave the Mother further opportunity to file material.  The Mother did file material.  One of the parts of the context which told against making any orders at that point is that X did not face the prospect of missing school because he was then on school holidays.  I gave judgment on 20 December 2019.

10. While the Mother filed an affidavit, she had still not filed a response and so I was reliant upon her oral application that sought for the Father's time to be supervised.

11. Before me this week, the Father pressed for orders that X would live with him and spend each alternate weekend with the Mother.  He provided no further evidence beyond what had already been provided for the December proceedings. 

12. The Independent Children's Lawyer strongly supports the Father's position. 

13. The Mother, in orally seeking supervised time, sought it until she said she would be able to properly present her case.  The Mother is presently unrepresented.  It should be noted that while the December proceedings were brought on at short notice, the adjournment of a further month gave the Mother adequate opportunity to prepare a case.

14. The circumstances relied upon by the Father are as set out in the judgment that I gave on 20 December 2019.  In short, there were repeated failures for X to be at the nominated changeover at school.  Orders have been made which reduce the need for the parties to come into contact with each other by having each party deliver X to school and each party to collect X from school.  However, through November and into December, X was not in attendance at school at periods that coincided when he was due to be collected by his Father.  Fall back provisions had been made in the previous orders, such that there were other arrangements should X not be in attendance at school.

15. On 1 November 2019, X was not at school and instead was handed over at the fall back place which was the then D service station in Suburb B. 

16. On 15 November 2019, when X was again due to be handed over to his Father, he was not at school.  He was also not given to the Father at the fall back place at the D service station.  Instead, the Father was caused to attend at Town G, near the Mother's home where he asked the Mother to hand X over at the local supermarket.  She did not do so.  He involved the police.  Following the involvement of the police, X was handed over at the Mother's residence.  The Mother has not explained the circumstances which surround that failure to provide X.

17. On 29 November 2019, X was again not at school but handover took place at the D service station.

18. On 13 December 2019, X was again not at school and was not provided.  Instead, a medical certificate was provided which outlined that X was suffering from psychosomatic nausea, vomiting and abdominal pain related to time with his Father.  He referred to his Father's home as a house of horrors and later that day made a telephone call to his Father asserting that he was scared and that he would run away if he was forced to attend at his Father's home.  What was described there in the doctor's certificate and in the telephone call by X are in stark contrast to what was observed at the Child Inclusive Conference and what was also observed by the Family Consultant at the facilitated handover that occurred at Court on 20 December 2019.  Neither of those were indicative of the descriptions given either in the medical certificate or in the telephone call by X.

19. Further issues were identified at the proceedings, most clearly by the Independent Children’s Lawyer.  The Independent Children’s Lawyer referred to exhibit ICL1 which comprised school records and also records of interactions with the local welfare authority.  The school record that was produced there, being the attendance record, showed that since the intervention by the Court to reinstate the time between X and his Father in July 2019 and up until 18 December 2019, X had been either late or absent from school on 25 occasions, occasions which appeared to occur while X was spending time with his Mother.  Some explanation appeared in the school records, for example, the need to remove X from school or appointments with doctors or to attend at the Child Inclusive Conference.  There were also explanations of illness and also an occasion where there was no explanation.  There was, however, a large coincidence between his non-attendances at school and when the Father was due to collect him from school. 

20. The records also contain file notes including of a report in 2019 whereby the Mother was recorded as saying that she was having difficulties coping with X and in relation to X that she may hurt him in the future. 

21. She reported that her home was to be repossessed, although orally from the bar table she asserted that it was not so.  Some exchange occurred in December from the bar table in relation to the status of the Mother's home.  She alleged that it had been affected by fire.  While my recollection and the Independent Children’s Lawyer’s recollection was that the Mother had said that the home had been burnt down, which contradicted the Mother’s again assertion from the bar table in January that it had not been burnt down, a review of the recorded transcript of the proceedings indicated that the Mother had merely said that the home was affected by fire and had not made an inconsistent statement between the two proceedings.

22. X, in the records that were produced in ICL1, was also recorded as saying to his classmates that his Mother eats pills and that they make her crazy and that on occasion when that had occurred she had shot the Father.  When the parties attended for the Child Inclusive Conference, there were mutual allegations that the other had engaged in verbal abuse or improper discussions in front of X. 

23. The Mother also alleged that the Father was possibly responsible for turning off power at her home and that he was in some manner responsible for the Mother's cancer.

24. The Mother was observed by the Family Consultant to be presenting in a confusing and disjointed manner and displaying incongruent emotions with the subject matters being discussed.  She was described as rambling and nonsensical, making a reference to a black witch being in love with the Father.  She asserted that she had undergone surgery under her true name but discovered that she had an alias when she woke up post operatively.  She asserted that the Suburb H police wished to interview her. 

25. Due to these matters and the Mother’s presentation, the Family Consultant indicated that the Mother may warrant further assessment and suggested that that occur by means of a psychiatrist.

26. In the orders of October 2019, the parties, including the Mother, consented to such a course of action.  It was to take place within 90 days.  It has not taken place as of yet.  The Mother explained from the bar table that she consulted a psychologist and then realised that it needed to be a psychiatrist.

27. In the Child Inclusive Conference, X complained that each parent had been exposing him to the proceedings.  He also expressed some concerns that the Father would not return him to the Mother, but it does not seem to have been any such occasion indicative that the Father would not do so.  It should be recollected, as reflected in the previous judgments in this case, that when the Mother was incarcerated for a period of approximately one year, the Father regularly took X to visit the Mother at gaol.  X also expressed that he was scared that the Father would yell at him and said that when the Father yells he feels frightened.  What was absent was support for the Mother's description of an intense negative reaction by X towards the Father.  That was certainly not what was observed by the Family Consultant.

28. In the context of interim proceedings in which the capacity to find facts for the Court is circumscribed, emphasis is to be placed on what is uncontroversial and particularly where risk is an issue in interim proceedings, reliance is to be placed on that which is objectively supported.  In that context, the considerations which loom loudest in trying to determine what is in X's best interests centre on the preservation of meaningful relationship with each of the parents and the benefits that X has from those.  The risk that the Mother alleged flowed from exposure to family violence in the past and the Father alleges flows from a risk of neglect on the part of the Mother.  Those are connected to an assessment of parenting capacity and the nature of X's relationships with each of his parents and also a consideration of the impact of change in circumstances.  Each of the parties urges that there should be a change of circumstances. 

29. There is a family violence allegation in this case.  It is uncontroversial that there has been at least one strong incident of family violence.  It is highly controversial as to how that occurred and hence who was responsible or who perpetrated the violence.  It is not suggested that X is currently exposed to family violence, save being exposed to raised voices.  Raised voices in themselves do not necessarily correspond to family violence, although they may.  In large part the concerns raised about family violence are countered by the consent orders, whereby each of the parties indicated that there could be equal time with the other party. 

30. Absent evidence of concerns raised by X, save for the doctor's certificate produced ultimately by the Father, the Mother's concession that she thought X would settle into 50-50 arrangement if not exposed to conflict between them, this is a matter which carries little weight.  In examining the nature of the relationship, I observed the above things, but I also observed that where the Mother alleges that there are significant problems between X and the Father, that contrasts strongly with the Child Inclusive Conference and what was seen in the facilitated changeover.

31. It is difficult to escape the notion that there is actually a positive relationship between X and his Father.  On the question of parental capacity, those issues are to be viewed against the background previously set out.  The context is that there is a raising of mental health issues in relation to the Mother by the Family Consultant following the Child Inclusive Conference.  The Mother has failed to obtain the psychiatric assessment that she agreed that she would in the orders of October.  Where records are produced, they are unexplained by the Mother, particularly where those records produced indicate that the Mother had said that she was having difficulty coping and that she may hurt X in the future.  I note also X's comments about the pills and the Mother appearing crazy.

32. Further, I note what appears to be an obstructive approach to time with the Father on the part of the Mother and that X has been missing significant amounts of school without adequate explanation, despite the Mother having the opportunity to do so.  What explanation is given, in so far as it relates to X's relationship with the Father, as I observed earlier, conflicts with the Child Inclusive Conference and the facilitated handover.  That is a matter which speaks loudly where many of X's absences appear to coincide with the school handover days to his Father. 

33. It appears then that the care for X in his Mother's house, in some respects, noting that the care comes from the Mother who has been his primary carer for a significant period, has lapsed into inconsistency and some degree of chaos.  It undermines his school, undermines his time with his Father.  That occurs where there are underlying questions about the Mother's mental health and underlying questions about her potential to harm X. 

34. The proposal by the Father is for a transition from week about to an alternate weekend regime with the Mother.  That change is not as significant as the other changes which have been brought about by the orders made in 2019.  It is one which would not protect him from all deficiencies in the Mother's household, but would preserve his relationship with his Mother, which is undoubtedly an important one.  It would provide X with stability of schooling and stability of care arrangements and stability of home, noting the queries about whether the Mother is going to be able to retain the home.  It removes him, in large part, from potential risk that flows from the Mother not coping.  It still, however, maintains significant school and non-school time for X with the Mother.  It is true that those arrangement and the stability they offer could still be undermined if the Mother does not comply with the orders to provide X.  That is a matter which would need to be addressed on a future occasion if it occurred.

35. At present, there is no order for parental responsibility.  Each of the parents holds full parental responsibility under those circumstances.  I was not addressed by either of them as to changing the position as to parental responsibility and I do not do so.  That means that an order will not be made for equally shared parental responsibility and the pathway of reasoning need not be followed.

36. On the s 60CC analysis that I have given, on balance those considerations call for orders in accordance with those sought by the Father.  However, there should be a capacity to review those orders, particularly when the Mother brings evidence to allay concerns in relation to her mental health.

I certify that the preceding insert thirty-six (36) paragraphs are a true copy of the reasons for judgment of the Honourable Justice Gill delivered on 24 January 2020.

Associate: 

Date:  5 February 2020