Sweeney and Hillman

[2016] FamCA 480

FAMILY COURT OF AUSTRALIA

SWEENEY & HILLMAN [2016] FamCA 480

FAMILY LAW – INTERIM PARENTING ORDER — DHHS involvement — child’s best interests — overnight time introduced pending final determination.

APPLICANT: Mr Sweeney

RESPONDENT: Ms Hillman

INTERVENOR:

INDEPENDENT CHILDREN’S LAWYER: Ms M Casey

FILE NUMBER: MLC 365 of 2011

DATE DELIVERED: 12 April 2016

PLACE DELIVERED: Melbourne

PLACE HEARD: Melbourne

JUDGMENT OF: Bennett J

HEARING DATE: 12 April 2016

REPRESENTATION

COUNSEL FOR THE APPLICANT: Mr A. Combes

SOLICITOR FOR THE APPLICANT: Perisic Lawyers

COUNSEL FOR THE RESPONDENT: Mr MacFarlane

SOLICITOR FOR THE RESPONDENT: Wightons Lawyers

COUNSEL FOR THE INDEPENDENT CHILDREN’S LAWYER: Mr P O’Connell

SOLICITOR FOR THE INDEPENDENT CHILDREN’S LAWYER: Victoria Legal Aid

Orders

IT IS ORDERED UNTIL FURTHER ORDER THAT:

1.Paragraphs 2(a) and (b) of the Orders made on 9 February 2016 be discharged.

2.The child B born … 2007 (“the child”) spend time with the mother as follows:

a)From the conclusion of school or 3.30 pm Friday until 12.00 noon on Saturday in each alternate week commencing on 15 April 2016;

b)From the conclusion of school or 3.30 pm on Friday until 4.00 pm on Saturday in each alternate week commencing on 22 April 2016;

c)From 3.00 pm on 27 June 2016 to 3.00 pm on 28 June 2016.

3.The mother arrange and be responsible for the payment of after school care for the child in the event that the mother is unable to collect the child from school at the commencement of her time with the child.

4.Changeover for the purposes of paragraph 1 hereof be the child’s school where specified on a school day or McDonalds Family Restaurant, C Street, Suburb D at all other times.

IT IS DIRECTED:

5.That the independent children’s lawyer make enquiries as to the status of an educational assessment for the child, and the mother and the father do all acts and things necessary to facilitate such assessment if necessary including the implementation of any recommendations.

IT IS ORDERED THAT:

6.My reasons for decision this day be transcribed and when settled a copy be placed on the Court file and provided to the parties to the proceedings.

7.The evidence of the mother this day be transcribed and a copy be placed on the Court file.

8.Otherwise, the Application in a Case filed by the mother on 10 March 2016 and the response thereto be dismissed.

9.That pursuant to Sections 65DA(2) and 62B the particulars and 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.

AND IT IS NOTED that this matter is otherwise listed for final hearing before me on 18 July 2016 at 10.00 am.

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

FAMILY COURT OF AUSTRALIA AT MELBOURNE

FILE NUMBER: MLC 365 of 2011

Mr Sweeney

Applicant

And

Ms Hillman

Respondent

And

INDEPENDENT CHILDREN’S LAWYER

REASONS FOR JUDGMENT

Ex Tempore

1. This matter comes before me as an interim parenting hearing in circumstances where there is a final hearing listed before me in July 2016 and both parents seek that their daughter, B, who is currently eight years old, reside with them. At the moment the child resides with the father. The matter has a fairly complex history, which I will not, for today’s purposes, rehearse. However, the child was in the primary care of the mother until 2014 then placed with the father. Both parents have been the subject of allegations of inappropriate sexual or physical or emotional abuse of the child.

2. The matter has a reasonably extensive history with the Department of Health and Human Services (“DHHS”). In that respect, the most recent communication from DHHS, pursuant to section 69ZW of the Family Law Act 1975 (Cth), is that dated 3 February 2016, which was provided to the parties on the last date at which this hearing was set. It is a helpful, well-reasoned, comprehensive report, which represents a snapshot of DHHS’s assessment of the child and the parents, albeit with the benefit of their fairly extensive previous involvement. As far as care arrangements are concerned, Child Protection supports that the child’s “time with [the mother] to progress as recommended by the Family Court, given [the child] has not raised concerns about the time with [the mother]”.[1] Recommendations for longer term arrangements for the child should be made, taking into consideration recommendations and input from the family therapist for the child, who is Ms E. Although it is not mentioned in the DHHS communication, there is to be a family report in this matter, which will be commenced and available by approximately 10 June 2016. At the moment, the mother has weekly time with her daughter. She has from 4 pm to 8 pm on Fridays and from 10 am to 4.30 pm on Sundays. This time is unsupervised. The changeovers are effected at McDonald’s.

   [1] Department of Health & Human Services, Report pursuant to Section 69ZW Order, 3 February 2016, 5.

3. The mother seeks to incorporate overnight time however, the father opposes any overnight time whatsoever. The father says that the time should remain as is, apart from there being an allowance for the mother to see the child on her birthday from 10 am until 3 pm on the day of her birthday which falls within the school holiday period. The mother seeks to maintain the current arrangement for each alternate weekend but in the other weekend, when her work allows her to do so, she have the child for two consecutive nights.

4. The independent children’s lawyer has an alternative proposal, which does involve overnight time; that is, that the mother have the same time each week from after school or 4 pm on Friday to 4 pm on Saturday. In recognition of the mother’s employment commitments, that would involve each alternate week the mother placing the child into after school care and collecting the child therefrom when she has finished her nursing shift at the F Centre at G Health. In relation to birthday times, the independent children’s lawyer has no difficulty with the mother’s proposal to have the child on her birthday from 12 noon on the Monday until 3 pm on the day of her birthday. The mother had proposed a more conservative time in order to give the father time with the child however, it turns out that the father is working on that day and will not be free from that commitment until 2.30 pm on the day of the child’s birthday.

5. The independent children’s lawyer’s proposal is significantly more than the father seeks and significantly less than the mother seeks. It was submitted by Mr O’Connell on behalf of the independent children’s lawyer and, in my assessment, with some force and merit, that the mother’s time with the child should now alter to be extended in relation to hours as well as in relation to quality to include overnight time. The father does not agree. He says that the child has only just started to see the therapist, Ms E. The father says that that therapy should be allowed to progress and not stand to be disrupted or diluted by a change in time with the mother.

6. The mother and, indeed, the independent children’s lawyer, as I understand it, view the therapy more as a safety net than something which would be an obstacle to increased time. There is merit in their characterisation. The father’s case against overnight time, apart from the very serious allegations which he makes in this case is that in the last few weeks the child has been very difficult to organise to go to her mother. The father says that the child is “very distressed” and that when she returns home from spending time with her mother her behaviour is “problematic”.

7. Notably, the father’s view is not supported by DHHS. The Child Protection report of 3 February 2016 states:[2]

   [2] Ibid 3–4.

   Child Protection Assessment:

   During all three interviews with [the child], she was observed to be somewhat reluctant to talk about her family, at times stating she does not want to answer any more questions asked by Child Protection. [The child] did report that she enjoyed the unsupervised time with [her mother] and also enjoyed spending time with [her father], [her father’s] partner. … and [her father’s partner’s daughter], … [The child] was consistently avoidant of discussing in depth her feelings towards either parent, including her experience at handover. [The child’s] motivation for avoiding this discussion was unclear to Child Protection. However, when reassured that she was entitled to both positive and negative feelings about things, in relation to handover, [the child] stated that she did not like ‘arguing’. [The child] was reluctant to elaborate therefore it was difficult to ascertain whether [the child] had experienced arguing between the parents recently, or historically or whether she was concerned that her parents may argue during handover.

   [The father] had raised concerns about [the child’s] behaviours following time with [the mother]. [The child’s] school have not reported any changes in [the child’s] behaviour since unsupervised time with [the mother] commenced. Child Protection attended [the father’s] home a few days following [the child’s] time with [the mother] and observed [the child] to be happy and settled. This is despite [the father] reporting to Child Protection that [the child] had been unsettled and difficult in the home in the days following time with [the mother]. The home visit which occurred on the 15 December 2015 was following [the child’s] time [the mother]. [The father] and [his partner] had reported to Child Protection that [the child] had been unsettled following the time with [the mother], however this was not observed by Child Protection. When this was raised by Child Protection, [the father] and [his partner] explained that day was the first day that [the child] had been settled.

   [The father] and [his partner] reported to Child Protection that [the child] raised concerns about the time with [the mother] to extended family members, including [the father’s partner’s] mother. When this information was investigated it was assessed the concerns could not be verified.

   Therapy:

   Child Protection supports the involvement of Family Therapist, [Ms E] to work directly with [the child] and her parents and support [the child’s] transition between her parents and any care arrangements with her parents.

   [The father] had reported to Child Protection on 15 December 2015 that [the child] was scheduled to commence therapy sessions with [Ms E] in the second week in February 2016. Child Protection contacted [Ms E] on 25 January 2016 to confirm [the child’s] referral for therapy. [Ms E] advised that she did not have an active referral for [the child] thus there as not start date for assessment/treatment.

   Child Protection followed up with Children’s Solicitor, Ms Marie Casey, who advised Child Protection in November 2015 that she had made contact with [Ms E]. Ms Casey advised that ‘there had been agreement for family therapy with [Ms E] last year (2015) also that the therapy situation would be confirmed after the first court mention on 9 February 2016. [Ms E] confirmed that she had spoken to Ms Casey in November 2015 to discuss her capacity to take on a new referral but that no referral for [the child] had been made. At present [the child] and her family have not been referred to commence therapeutic treatment with [Ms E]. Child Protection is fully in support of this referral being made as a matter of urgency.

   Other Support Services/Victims of Crime Compensation:

   In the background of events that occurred in 2013 at [the child’s] primary school and following up if [the child] may be eligible for any assistance, it is the understanding of Child Protection that the child would not be eligible for victims of crime compensation given the ages of the children involved in the sexualised behaviour incident when [the child] was at school and that no changes resulted from this.

8. The history of the matter is, as far as DHHS is concerned, set out at pages 6, 7 and 8 of the report, which I will not extract in detail, save to record the following:[3]

   The outcome of the current report to Child Protection in November 2015 followed a period of further Psychological Assessment of [the father] and [the mother] as part of the Family Law proceedings following Child Protection closing. The current report raised concerns about [the child’s] unsupervised time with her mother being reinstated given the earlier assessment of Child Protection to substantiate emotional harm towards [the child] by her mother.

   The outcome of the current Child Protection investigation is substantiation of likely harm under Section 162(e) in relation to both parents. This decision is based on current evidence that [the child] is subject to the situation involving both her parents being dissatisfied with the care that the other provides [the child]. This has led to repeated allegations of [the child] being subject to harm by each parent. The Form 4 Notice of Child Abuse, Family Violence or Risk of Family Violence is indicative of this. [The child] is reluctant to share with Child Protection any detail about her experience of either parent; be that good or bad. She is aware that when adults such as Child Protection practitioners meet with her and ask her questions about her, and her time in either parent’s care, this may have implications. During the current investigation, [the child] reported feeling positive about time she spends with each parent. [The child] was reticent when provided the opportunity to discuss anything which concerned her or made her feel unsafe in the care of either parent. She changed the subject or withdrew from the conversation entirely. This is worrying given the need for [the child] not to feel she cannot communicate wholly about either parent. (emphasis in original)

   …

   Overall, Child Protection recommends that [the child’s] contact with her mother continues to progress. [The child] herself has not raised concerns about contact visits with [the mother] and Child Protection has not been able to corroborate the concerns expressed by others regarding [the child’s] experience of time with her mother being negative. The determination of [the child’s] care in the future should be informed by feedback provided by [Ms E], Family Therapist, who in her work with [the child], [the mother] and [the father], would be able to shed further light on which care arrangements are best suited to meeting [the child’s] primary care needs. It is recommended that … [the father’s] partner be included in this therapeutic assessment and intervention, given her role in the family home which is currently [the child’s] primary residence.

   [3] Ibid 6–7.

9. The parents have also been seen by Dr H, psychologist, and his report is before the Court and has been since January 2015. It raises more concerns about the father than it raises about the mother but I am acutely aware that it has not been the subject of cross-examination and therefore has not been tested.

10. In making any parenting decision, I take into account the best interests of the child as the paramount consideration. In doing so, I weigh the two primary considerations, which are the need to protect the child from physical or emotional abuse and, in particular, what orders are necessary to do so and the prospective assessment of the benefit to the child of a meaningful involvement by each parent in her life. This case does not emphasise the second primary consideration. It is more about keeping the child safe from harm.

11. I have read the affidavit material submitted by each party for today.

12. Mr MacFarlane for the father sought to cross-examine the mother and he did so. That cross-examination did not, in my view, alter or make any inroads into the mother’s evidence.

13. My impression, upon reading the independent and relatively recent evidence from DHHS, which I recognise has not been tested in cross-examination, is that the child is likely to be sensitised to the extremely high conflict and dysfunction in the parental relationship. I do not make any conclusion today but wouldn’t be surprised if, ultimately, the expert evidence is to the effect that this child may say to each of the parents that which she understands that that parent or those around that parent wish to hear. This would explain why the affidavit material submitted by both parents can be so much in conflict and yet actually be the product of his or her own honest assessment of the matter.

14. In the circumstances of this case, I am satisfied that the independent children’s lawyer has made a responsible, reasoned and careful assessment of the matter and I am prepared to proceed with the recommendation which the independent children’s lawyer makes through Mr O’Connell of counsel.

15. I asked the parties to prepare minutes which provide for the increased time. They should specifically provide for the mother to be responsible for the placement of the child in after-school care on that alternate week where the mother does not finish work until after school ceases and then there is the birthday time from 12 noon on the Monday to 3 pm on the Tuesday, which is the child’s birthday. The birthday times will have to be subject to handovers at McDonald’s, otherwise I am encouraged and consider it to be a positive move forward that the regime which I now adopt and implement in this order involves less changeover times between the parents face-to-face, which should be a relief to the child if I accept, as I provisionally do, the assessment of DHHS as set out in the most recent report.

16. In this particular matter I do not consider the practicability of equal time or shared time. The dispute as run before me is confined. They will, of course, be relevant considerations for the final hearing, which approaches us in July of this year.

17. It has been pointed out to me by counsel for the father that, perhaps given the delay in arranging matters, the child was not able to see Ms E and, instead, is seeing Ms I.

18. Otherwise, I note that the DHHS report refers to an educational assessment. The father says that he has spoken to the school and the school say they have contacted DHHS about it or will do so. My reading of the DHHS most recent report is that it is something for which the parents or the school, but not DHHS, will be responsible. There seems to be a high likelihood that the educational assessment and arrangements therefore could fall through the cracks. It ought not do so.

19. Therefore, the minutes should include a direction to the independent children’s lawyer to make inquiries about the progress of that matter and for the parties to cooperate in anything that must be done to have that undertaken, either by DHHS or the school, or if by neither of those then themselves.

20. I make orders in the terms of the minute proposed by the Independent Children’s Lawyer. I do so being satisfied that the arrangement is consistent with the best interests of the child. This order will operate between now and a determination of the matter at final hearing.

I certify that the preceding twenty (20) paragraphs are a true copy of the reasons for judgment of the Honourable Justice Bennett delivered on 12 April 2016.

Legal Associate:

Date: 15 June 2016