Swain & Lorne

[2021] FamCA 99

FAMILY COURT OF AUSTRALIA

Swain & Lorne [2021] FamCA 99

File number(s):	WOC 391 of 2019
Judgment of:	REES J
Date of judgment:	5 March 2021
Catchwords:	FAMILY LAW – CHILDREN – Interim parenting – Family violence – Orders for the children to continue to live with the mother, in the absence of her current partner, and spend weekend time with their father.
Number of paragraphs:	49
Date of hearing:	4 March 2021
Place:	Sydney
Solicitor for the Applicant:	Ms Kermode, Duffy Law Group
Solicitor for the Respondent:	Ms Mokwena, Stanfords Solicitors
Solicitor for the Independent Children's Lawyer:	Ms Barton, Legal Aid NSW

ORDERS

WOC 391 of 2019

BETWEEN:

MR SWAIN
Applicant

AND:

MS LORNE
Respondent

LEGAL AID NSW

Independent Children’s Lawyer

ORDER MADE BY:	REES J
DATE OF ORDER:	5 MARCH 2021

THE COURT ORDERS, PENDING FURTHER ORDER:

1.That, the children Y born … 2011; Z born … 2012 and X born … 2014, (“the children”) live with the father each weekend from after school on Friday until the start of school on Monday, and with the mother at all other times.

2.That Mr B be restrained from residing with the children; spending time with the children or having any contact with the children or any one of them in the home of the mother, Ms Lorne, at C Street, D Town NSW or at any other place.

3.That the father ensure that the children are collected from school on Friday and delivered to school on Monday.

4.That each parent is restrained from discussing these proceedings or from denigrating the other parent in the presence or hearing of the children and each shall ensure that no other person does so.

5.That the Independent Children’s Lawyer is at liberty to provide a copy of these orders to the Department of Communities and Justice.

6.That pursuant to Sections 65DA(2) and 62B of the Family Law Act 1975 (Cth) the particulars of the obligations these Orders create and the particulars of the consequences that may follow if a person contravenes these Orders and details of who can assist parties adjust to and comply with an order are set out in the Fact Sheet attached hereto and those 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 Swain & Lorne has been approved by the Chief Justice pursuant to s 121(9)(g) of the Family Law Act 1975 (Cth).

REASONS FOR JUDGMENT

Rees J:

1. Mr Swain (“the father”) and Ms Lorne (“the mother”) are the parents of four children. The oldest is W who is 16 years of age and in respect of whom the parents agree no orders are sought.

2. These proceedings concern the parenting arrangements for the three younger children, Y born in 2011; Z born in 2012 and X born in 2014 (“the children”).

3. The substantive proceedings have been set down for hearing before me commencing on 19 July 2021 and orders have been made for the preparation of a family report.

4. An Independent Children’s Lawyer (“ICL”) has been appointed for the children.

5. In order to understand the ambit of the dispute, it is necessary to have some understanding of the family’s situation.

6. The parents commenced their relationship in 2000 and separated in October 2013 or November 2014. After the separation, the children remained in the care of the mother and spent time with the father.

7. The mother has re-partnered with Mr B with whom she has two children, V who is four years old and Q who is eight months old.

8. The father has also re-partnered with Ms F who has a daughter aged five years who lives with them. Ms F is expecting their child in early 2021.

9. The children’s maternal grandparents, Ms G and Mr H have had substantial involvement with the children as has their maternal aunt, Ms J.

10. A Child Inclusive Conference Memorandum (“the memorandum”) prepared on 5 September 2019, sets out the issues then to be considered in relation to the parenting arrangements for the children. It is convenient to include here the substance of that memorandum.

11. At the time the memorandum was prepared, W was not living with either parent but was living with her maternal aunt, Ms J.

12. Under the heading “Risk Factors”, subheading “Family violence” the Family Consultant stated:

    •There was an Apprehended Violence Order made for twelve months in January 2015 protecting Ms Lorne from Mr Swain.  Mr Swain said that he was convicted of common assault and malicious damage.  Mr Swain said that he has a criminal history for putting his arms on the chair arms of his chair to stand up and Ms G alleged that this was an assault. 

    •Mr Swain alleges that he and Ms Lorne were arguing with increasing intensity towards the end of their relationship, commenting that things would escalate quickly and that he has pushed and shoved Ms Lorne away from him after she would hit and throw things at him.

    •Ms Lorne said that Mr Swain has been physically and verbally abusive to her during the time of their relationship that culminated in police and Family and Community Services involvement.  She denies that there has been instances of family violence between she and Mr B.  Ms Lorne said that she remembers her mother throwing a plate of dinner at her father once, but otherwise grew up with no exposure to family violence from her parents.

    •Ms G and Mr H said that they have been present when Mr Swain has been violent and aggressive and that they have been repeatedly called by Ms Lorne after Mr Swain allegedly physically assaulted her. 

    •Mr B said that there is no instances of family violence between heand [sic] Ms Lorne.

13. Under the subheading “Child safety and wellbeing” the Family Consultant recorded:

    •The maternal grandparents and Ms J said that Mr Swain continues to pose a risk to the children from alleged alcohol and drug use as well as from alleged violent and aggressive behaviour towards and around the children.  They allege that he has driven recklessly while driving at high speed after becoming upset with his children who were in the car, had an accident when driving intoxicated with W in the car, forcibly brushed Z teeth causing them to bleed, forced Z to spend time with him by dragging him screaming to the car and that he is insensitive to the children’s additional needs.  Ms Lorne said that Mr Swain appears to be more balanced in her recent interactions with him and she does not think that he would harm the children.  Mr Swain said that he is a capable and appropriate parent to the children.

    •Ms G, Mr H and Ms J raised concerns about the capacity for Ms Lorne to parent the children, alleging that she is unable to provide adequate care to the children with medical, school, and professional intervention follow up and that she does not provide them with basic needs.  They said that Z needs NDIS funding, occupational therapy, speech therapy and support from R Services but that Ms Lorne refuses to engage or follow up on these services, that W has needed counselling and support and has not gotten it and that X needs speech therapy and a developmental assessment.  Mr Swain, the maternal grandparents and maternal aunt raised concerns about the impact of the mother’s alleged long term and chronic use of marijuana on her parenting.  Ms G said that she used to take the children groceries [sic] each week, provide significant levels of physical and financial support to the mother and children and consistent emotional support to Ms Lorne.  She is concerned about how Ms Lorne will cope without that support.  The maternal grandparents and maternal aunt allege that Ms Lorne has threatened to kill the children were they unable to live with her.  Ms Lorne said that she is able to appropriately care for and support the children.  She appeared aware of the children’s learning difficulties but did not comment about assessments or interventions.

    •Concerns were raised by Ms Lorne, Mr Swain and Mr B about the remote and small residence that Ms G and Mr H live at.  They raised safety concerns about Mr H’s alleged mental health issues and about Ms G’s epilepsy.  The maternal grandparents said that they are capable and competent carers for Y and would be for the other children.  Ms G said that she is stable on her epilepsy medication and has not had a seizure for two years.

    •The maternal grandparents and maternal aunt allege that Mr B has threatened to kill V in Easter 2019 after Ms Lorne and Mr B argued.  They allege that Mr B continues to use illicit substances and ows [sic] money to various drug dealers, has put his dog in with another dog to watch one kill the other and has taken the children shooting including allowing them to handle weapons.  They consider Mr B as a man who is incapable of feeling and is highly manipulative.  Mr B said that he has a significantly volatile youth and young adulthood, but is committed to being an active and positive father figure to V and said that he is safe and capable of caring for her.

14. The father admitted a history of drug use, including marijuana and speed. He denied continuing use.

15. The mother admitted a history of marijuana use but said she had stopped six weeks before the interview.

16. The mother, the father and Mr B all raised concerns about the drug use of Ms J’s partner.

17. Mr B admitted chronic drug use. The memorandum stated:

    •Mr B said that he began using marijuana when 14 years of age and smoked it regularly for the following 20 years except when he was in rehab or prison.  He said that between the age of 14 years and his twenties he used cocaine, speed, ecstasy and methamphetamine on a few occasions.  He said that he had his last smoke of cannabis on 27 July 2019 and has not smoked since.  He reported that his drug test was positive for low levels of marijuana, stating that his use was fairly chronic and likely to take time to leave his system.  Mr H, Ms G and Ms J allege that Mr B continues to use illicit substances and continues to associate with known drug using peers.

18. In relation to the adult relationships, the memorandum stated:

    •The maternal family and Ms Lorne currently do not speak.  Ms Lorne, Mr Swain and Mr B report that the maternal grandparents are controlling and manipulative.  Mr Swain and Mr B want the children to have little to no contact with their maternal grandparents.  The maternal grandmother said that Ms Lorne is “cranky” with them for “speaking up” about their concerns with her.  The maternal grandparents had little positive to say about either father.

    •Mr Swain and Mr B reported to have minimal to do with each other, with Mr Swain reporting that he keeps it “brief” whenever they interact.  They deny significant issues between them.   Ms Lorne reports that the fathers have had several heated arguments where they have appeared close to a physical altercation, only for one to walk away. 

19. Under the heading “Issues for the Children”, the memorandum stated:

    •Ms J said that she is concerned about W’s welfare and safety were she to live with her mother or her father.  She said that W has accessed counselling and youth worker support while living with her and that she is settling back into school (at K School), gradually improving her grades.  She has additional learning needs and is currently within a school class with limited numbers and a tailored approach to meet her individual learning needs.  Mr Swain raised concerns about W being in the “slow learning” class and emphasized that she was improving academically while he had her enrolled at L School in 2019.  Ms Lorne said that W prefers attending K School and is well supported there.  She said that she and W have made significant gains in restoring their former close and positive relationship and are talking about W returning to live with her.

    •Y [sic] has lived with her maternal grandparents since about aged 2 years but appears to have, until the previous few months, had reasonably consistent contact with her siblings.  She is described as “below average” with school (her grandmother takes her to and from Q School, a 1hr15min one way trip so that Y [sic] attends school with her siblings) and as increasingly experiencing behavioural difficulties.  Ms G said that Y [sic] will lash out physically at her including punching and hitting, often after spending time with her mother, and that she has been moved to a separate table at school due to behavioural concerns.  Ms G said that Y [sic] has been attending a counsellor, Ms N at M Medical Centre regarding her emotional outbursts and behaviour.

    •Z is described by his family as a sometimes worried boy with additional needs.  Ms Lorne said that Z is suspected of having Autism Spectrum Disorder (ASD), has the developmental stage of a typical three to four year old that he experiences anxiety and difficulties adjusting to change.  Mr Swain said that Z requires speech therapy and additional support at school and he alleges that Ms Lorne does not support or follow up these interventions.  Ms G said that she has attempted to support Ms Lorne to access NDIS funding and interventions for Z, but that she repeatedly refused to sign the paperwork (believed to have been earlier this year) and that the school have, without Ms Lorne’s support, accessed assessment of Z and subsequent funding of $14000 for the 2019 school year. 

    •X is described by his mother as outgoing and to be settling in well at school and she considers him to be progressing well with his school work.  Ms G said that X also has delays in his speech and that he would be supported by speech therapy but that Ms Lorne does not support the same. 

    •V is described by her parents as a happy child.  Ms Lorne said that V has a close and significant relationship with her sisters and brother’s especially.  V’s parents each said that V has spent limited time with her maternal grandparents.

20. Although the memorandum was prepared over a year ago, it sets out the issues that were then apparent to the Family Consultant and gives an understanding of the complex issues facing this family.

21. For some time in 2020, Y lived with the father but she has returned to live with the mother and has, from time to time, refused to spend time with her father.

22. The father asserts that the children’s time with him has been sporadic and that Y has been told by the mother and the maternal grandparents that he does not want her.

23. W is presently living with her mother.

24. The event that precipitated the present application occurred on 5 February 2021 when the father went to the mother’s house to collect the children. Although there is a dispute about some of the elements of what then occurred, it is not in dispute that the father was brutally assaulted by Mr B. The father asserts, and the mother denies, that the mother held him down while Mr B kicked him a number of times in the head. Whether any of the children witnessed the assault is in dispute.

25. The father was hospitalised and will require surgery for his facial injuries.

26. The mother and Mr B have been charged with assault.

27. After the assault, Z and X were placed by the mother in the care of the maternal aunt. W and Y remained with the mother. The father was not told that Z and X were not living with the mother.

28. The father was unable to work for about the next six weeks.

29. On 1 March 2021, the father filed an Amended Application in a Case seeking orders that the children live with him and spend time with the mother on alternate weekends. The mother opposed that application.

30. When the applications came before me on 4 March 2021, I listed the substantive proceedings for hearing in the week commencing 19 July 2021; made orders for the urgent preparation of a family report and directions for the filing of trial affidavits.

31. The issue then to be determined was where the children should live until July 2021.

32. The father proposed that they live with him. He wished to change their present school and enrol them at a school closer to his home. However, in the course of submissions, that position was modified and the Court was told that, with the assistance of his mother and his sister, he would be able to ensure that the children continued to attend their present school which is about a half hour journey from his home.

33. The mother proposed that they live with her on the basis that Mr B not be present and be restrained by injunction from being in the home when the children are there.

34. Mr B, who was present, told the Court that he would consent to an order restraining him from being at the home.

35. The ICL proposed that the children continue to live with the mother, in the absence of Mr B, that they remain in their present schools and that they spend weekend time with the father.

36. These proceedings are interim in nature and necessarily involve limited and untested evidence.

37. The matter is complicated by the fact that the Department of Communities and Justice (“DCJ”) is conducting its own investigations and no decision has yet been made by DCJ whether to commence proceedings in the Children’s Court.

38. There is no evidence of the children’s views.

39. At the time of the Child Inclusive Conference the Family Consultant reported that Z appeared to have a good relationship with both his mother and his father; X said that his parents were each angry with the other parent but reported that he was safe with his mother and Y appeared to have a fraught relationship with both parents.

40. There is no more recent evidence about the children’s relationships with their parents.

41. It would appear that the mother has been less than diligent in ensuring that the children spent time with their father and has allowed the children to decide whether or not they would go with him.

42. I give greatest weight to the fact that these children have lived primarily in the care of their mother since the parents separated some six years ago. They have never lived with their father.

43. In the mother’s household, the children have three other siblings, W, V and Q. Although W has lived elsewhere from time to time, the children have always lived with V and Q.

44. The capacity of the parents to provide for the physical and emotional needs of the children is a significant issue to be determined in the substantive hearing, as is the issue of family violence, having regard to the very recent serious assault upon the father at the hands of, it is alleged, the mother and her partner.

45. Until such time as the substantive proceedings have been determined, it is appropriate for the children to remain in the care of the mother, subject to Mr B being restrained from any contact with them.

46. That injunction will have the effect of limiting the time that Mr B’s children can spend with him, until the completion of these proceedings and therefore I propose to order that the children spend time with the father every weekend. They should be collected by the father from school on Friday afternoon and returned by him, or his nominee, to school on Monday morning. That will allow Mr B to return to the home to spend time with his children each weekend.

47. The mother should understand that it is not for children of the ages of these children to decide whether or not they will spend time with their father. It is her responsibility to ensure that they go with him and that no one, including the mother, interferes with their going.

48. Ensuring that children have a continuing relationship with the other parent is a significant responsibility for every parent and failure to do so will be given appropriate weight in the substantive proceedings.

1. It is also important that the children be protected, as far as is possible, from being involved in the parenting dispute and, on the application of the ICL, orders will be made restraining the parents from discussing the proceedings with the children or from denigrating the other parents. Those orders will also require the parents each to ensure that no other person discusses the proceedings with the children or denigrates the other parent.

I certify that the preceding forty-nine (49) numbered paragraphs are a true copy of the Reasons for Judgment of the Honourable Justice Rees.

Associate:

Dated:       5 March 2021