Takhar & Takhar
[2023] FedCFamC1F 330
FEDERAL CIRCUIT AND FAMILY COURT OF AUSTRALIA
(DIVISION 1)
Takhar & Takhar [2023] FedCFamC1F 330
File number(s): PAC 3386 of 2019 Judgment of: HARTNETT J Date of judgment: 4 May 2023 Catchwords: FAMILY LAW – PARENTING – Interim Orders – Where the mother sought a recovery order for child to be returned to her care – Where the father did not return the child in accordance with interim orders – Where the father makes allegations of abuse against the mother and the mother’s partner – Where the mother alleges the father coached the child – Where allegations are denied – Where the matter is already listed for trial – Where the father seeks trial be vacated – Child to be returned to the mother – New South Wales Police to provide a Report under s 69ZW of the Family Law Act1975 (Cth) – Order for Department intervention under s 91B of the Family Law Act 1975 (Cth) – Restraint upon the mother, the father and the mother’s partner – Costs reserved – Application dismissed. Legislation: Family Law Act 1975 (Cth) Part VII, ss 60B, 60CC, 65D, 67Q Cases cited: Deiter v Deiter [2011] FamCAFC 82
Goode v Goode (2006) FLC 93-286
SS v AH [2010] FamCAFC 13
Division: Division 1 First Instance Number of paragraphs: 77 Date of hearing: 27 April 2023 Place: Heard in Albury (via videolink), delivered in Melbourne Counsel for the Applicant: Mr Grew Solicitor for the Applicant: Coleman Greig Lawyers Counsel for the Respondent: Ms McMahon Solicitor for the Respondent: Gordon & Barry Lawyers Pty Ltd Solicitor for the Independent Children's Lawyer: Ark Law Lawyers ORDERS
PAC 3386 of 2019 FEDERAL CIRCUIT AND FAMILY COURT OF AUSTRALIA (DIVISION 1)
BETWEEN: MS TAKHAR
Applicant
AND: MR TAKHAR
Respondent
INDEPENDENT CHILDREN'S LAWYER
order made by:
HARTNETT J
DATE OF ORDER:
27 april 2023
THE COURT ORDERS THAT:
1.Pursuant to section 69ZW(1) of the Family Law Act 1975 (Cth), it is ordered that the New South Wales Police Service (as a State Agency prescribed by Regulation 12CD/schedule 9 of the Family Law Act Regulations 1984 (Cth)) provide to the Court by no later than 4.00pm on 25 May 2023 all documents and information held by them about one or more of the following:
(a)any notifications to the New South Wales Police of suspected abuse or family violence of or by the following:
(i)MR TAKHAR born 1981 of B Street, Suburb C NSW (father of the child);
(ii)MS TAKHAR born 1985 of D Street, Suburb E NSW (mother of the child);
(iii)X born 2017 (child); and
(iv)Mr F born 1987 of D Street, Suburb E NSW (mother's partner).
or any of them.
(b)Any notification of suspected family violence affecting the above child or any of them.
(c)Any assessment by the agency of investigations into a notification of suspected abuse or family violence and/or the findings and outcomes of those investigations;
(d)Any reports commissioned by the agency in the course of investigating a notification;
and provided that no document need be provided which identifies directly, indirectly or by reference the identity of any notifier or witness (unless a party to the proceedings or a Police Officer) and to achieve compliance with this order and with section 69ZW(3) the entirety of documents in the possession or control of the agency are to be produced to the Court and prior to production any names of notifiers or any material that would infer, suggest or disclose the identity of a notifier or witness is to be blanked out or otherwise removed or obliterated from the document/s so produced.
2.Pursuant to section 91B of the Family Law Act 1975 (Cth), IT IS REQUESTED THAT the Department of Communities and Justice ("the Department") intervene in these proceedings.
3.Upon request from the Department, the Court provide it with copies of all documentation relevant to the proceedings before the Court to enable the Department to consider the request to intervene in these proceedings.
4.Leave to all of the parties to issue any necessary subpoenas in preparation for the trial commencing on 30 May 2023.
5.The Independent Children's Lawyer provide the following documents to Dr G:
(a)Mother's Application in a Proceeding filed 20 April 2023;
(b)Mother's affidavit filed 20 April 2023;
(c)affidavit of Mr F filed 20 April 2023;
(d)Father's Response to an Application in a Proceeding filed 24 April 2023;
(e)Father's affidavit filed 24 April 2023; and
(f)any safety assessment outcome that is produced by the Department.
6.Until further order that each of the Mother and Father by themselves, their servants and/or agents are hereby restrained from:
(a)inflicting corporal punishment upon X ("the child") born 2017;
(b)coaching the child in respect of any matters going to this proceeding and/or discussing this proceeding with or in the presence of the child; and
(c)engaging in any form of family violence toward the child and/or exposing the child to family violence.
7.Until further order the Mother is restrained from bringing the child into the presence and/or hearing of her fiancée Mr F, and further is restrained from discussing the Department and New South Wales Police investigations with the child.
8.Notwithstanding any other orders to the contrary the child be forthwith returned to the Mother's care and before 4.00pm this day and thereafter the child shall remain residing with the Mother for a continuous period of 7 days. At the expiration of this period the operative orders as to residence and time spent with and communication had between the child and each of the Mother and Father continue in accordance with the operative interim orders made on 19 September 2019 and 12 December 2022.
9.Otherwise all extant interim applications are dismissed.
10.Costs of the parties are reserved.
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 10.14(b) Federal Circuit and Family Court of Australia (Family Law) Rules 2021 (Cth)), or to record a variation to the order pursuant to r 10.13 Federal Circuit and Family Court of Australia (Family Law) Rules 2021 (Cth).
Section 121 of the Family Law Act 1975 (Cth) makes it an offence, except in very limited circumstances, to publish proceedings that identify persons, associated persons, or witnesses involved in family law proceedings.
IT IS NOTED that publication of this judgment by this Court under the pseudonym Takhar & Takhar has been approved pursuant to s 121(9)(g) of the Family Law Act 1975 (Cth).
REASONS FOR JUDGMENT
HARTNETT J
INTRODUCTION
This matter came before the Court on 27 April 2023 for an urgent interim hearing following the applicant mother (“the mother”) filing an Application in a Proceeding on 20 April 2023. The mother sought urgent orders for the return of the parties’ child X (“the child”) born 2017, currently aged six years, to her care. The primary issue before the Court was whether the child should return to the mother’s care after the respondent father (“the father”) did not return the child to the mother’s care on 18 April 2023 in accordance with the existing orders of the Court. That over-holding of the child followed the child making disclosures he was abused in the mother’s care by the mother and her partner, Mr F.
The Court has made multiple interim parenting orders throughout the course of this matter. Relevantly, interim parenting orders operative on the hearing date, were made respectively on 19 September 2019 and 12 December 2022. These orders are to be read together.
The orders dated 19 September 2019 provide relevantly, that the child live with the mother; the child spend time with the father on Monday and Thursday between 7.00am and 5.00pm; from 9.00am to 12.00pm on alternate Sundays and alternate weekends from 5.00pm on Saturday to 12.00pm on Sunday. In essence, the orders provided for the child to live with the mother and spend time with the father for five days or part thereof, and one night per fortnight. There were also additional orders in relation to the mother residing within 10 kilometres of Suburb E; the father paying $500 per week to any agent toward the mother's rental accommodation; and orders in relation to changeover.
The orders dated 12 December 2022, extended the child’s time spent with the father to provide for a regime of four nights per fortnight during the school terms. Relevantly, in a two week cycle, in week one from Thursday after school to Friday before school and in week two, from Monday after school to Tuesday before school and Friday after school to Sunday 3.00pm. The orders also made provision for the child to spend time with the father on the child's birthday, on the Easter long weekend, for Christmas 2022, and during the New South Wales gazetted school holidays. The school holiday provision provided for four periods of five nights during the December/January holidays and for one period of five nights from 13 April 2023 to 18 April 2023 and one period of two nights from 24 April 2023 and 26 April 2023 during the April holidays. Orders also included provision for interstate travel and changeover.
It is noted Order 7 of the orders dated 12 December 2022 provides:
Paragraph 8 and its subparagraphs and paragraph 9 of the order of the Court made on 19 September 2020 be discharged.
There appears to be an error on the face of the Order which should more properly refer to the Orders made 19 September 2019, not 19 September 2020, however this has not been yet amended by application of the slip rule.
By her Application in a Proceeding the mother sought orders for the father to return the child to her care, and in the event the father failed to comply with the return order that a recovery order pursuant to section 67Q of the Family Law Act 1975 (Cth) (“the Act”) be issued; and that the Australian Federal Police deliver the child to the mother. The mother sought her costs of and incidental to the proceeding.
On 24 April 2023, the father filed a Response to Application in a Proceeding. The Response sought orders, relevantly, that the interim orders made 19 September 2019 and 12 December 2022 be suspended; the child live with the father; and that the mother’s time with the child be reviewed following the conclusion of the investigations by the New South Wales Department of Communities & Justice (“the DCJ”) and the New South Wales Police, in relation to the conduct of the mother and her partner. Further, that the mother be restrained from bringing the child into contact with her partner. The father sought his costs of and incidental to the proceeding.
On 26 April 2023, the Independent Children’s Lawyer (“ICL”) sought orders as follows: for the interim parenting orders of 19 September 2019 and 12 December 2022 to be suspended until such time that the investigations by the DCJ and the New South Wales Police are complete; the final hearing be vacated until after the completion of the investigations of the DCJ and the New South Wales Police; the ICL provide Dr G: the mother’s Application in a Proceeding filed 20 April 2023; the mother’s affidavit filed 20 April 2023; the affidavit of Mr F filed 20 April 2023; the father’s Response to Application in a Proceeding; and the father’s affidavit filed 24 April 2023. On the hearing of the matter, the ICL no longer sought a vacation of the trial date, which is fixed for hearing over a number of days at the end of May 2023. I note the proceeding commenced on 18 July 2019.
On 27 April 2023, the father sought orders as follows: that the child live with the father and have no further contact with the mother pending further order of the Court; the mother's application for recovery be dismissed; the mother pay the father’s costs in defending the application; the final hearing dates be vacated and the matter return for a mention once all investigations, currently being carried out by the DCJ and the New South Wales Police are completed.
RELEVANT BACKGROUND
The mother was born in 1985 and is currently aged 38 years. The mother works as in administration.
The father was born in1981 and is currently aged 41 years. The father works as a professional.
The parties commenced cohabitation in 2013 and separated on a final basis in 2019. The child was aged two years. Thereafter, the father remarried in 2021 but separated from his second wife in 2022. He resides in the home of his parents.
The mother has re-partnered with Mr F and they cohabitate. They are to marry in a civil ceremony in 2023.
It is not contested the child went into the father’s care on 13 April 2023 in accordance with the 12 December 2022 orders and was to return to the mother’s care on 18 April 2023 at 3.00pm pursuant to Order 8.3.1 of the orders dated 12 December 2022. The father did not return the child to the mother’s care on 18 April 2023 and the child had remained in the father’s care at the time of hearing with no time spent or communication had with his primary carer since 13 April 2023, being a period of two weeks. The child has not spent such an extended time away from his mother before.
On 18 April 2023, the mother was notified by the DCJ disclosures had been made by the child. The mother was not provided with information in relation to the disclosures made by the child to the DCJ. That same day, the mother’s solicitor received a letter from the father’s solicitor advising the father was not returning the child to the mother’s care and set out some of those disclosures as alleged.
A few days later, the New South Wales Police Child Abuse Squad interviewed the child. That day, the mother and Mr F were interviewed by the New South Wales Police and a provisional Apprehended Domestic Violence Order (“ADVO”) was issued against the mother and Mr F for the protection of the child.
Six days later, the ADVO was heard in the Suburb H Local Court. The matter was listed for mention in mid-2023. The mother and her partner deny the allegations and intend to contest the making of an interim or final ADVO.
MATERIAL RELIED UPON
The mother relied on:
(a)Application in a Proceeding filed 20 April 2023;
(b)her affidavits filed 20 April 2023 and 26 April 2023; and
(c)affidavits of Mr F filed 20 April 2023 and 26 April 2023.
The father’s relied on:
(a)Response to Application in a Proceeding filed 24 April 2023;
(b)his affidavit filed 24 April 2023; and
(c)his Outline of Case filed 27 April 2023.
Counsel for the father tendered in evidence eight photographs the father had taken of bruises on the body of the child, which he claimed had been sustained by the child when in the mother’s care and further, at the hands of the mother. The photographs dated between 29 December 2022 and 20 March 2023. The father also relied upon the correspondence tendered by the ICL.
The ICL relied upon an Outline of Case filed 26 April 2023. The ICL further relied upon email correspondence between the ICL and the DCJ, together with emails between the ICL and Ms G (“the single expert”). These emails were tendered in evidence at the hearing.
LEGAL PRINCIPLES
The relevant principles in relation to parenting and interim proceedings are set out in Goode & Goode (2006) FLC 93-286.
In applying the law to the facts, the Court must uphold the relevant objects and principles set out in Part VII of the Act that guide the making of orders in respect of children. Pursuant to s 65D of the Act, the Court has the power to make such parenting orders it deems proper. In doing so, the paramount consideration is the best interests of the child.
The objects of the Act in relation to parenting orders, as set out in s 60B of the Act, are to ensure that:
(a)children have the benefit of both of their parents having a meaningful involvement in their lives to the maximum extent consistent with their best interests;
(b)children are protected from physical and psychological harm;
(c)children receive adequate and proper parenting to help them achieve their full potential; and
(d)parents fulfil their duties and meet their responsibilities concerning the care welfare and development of their children.
When considering what interim orders should be made the Court identifies the competing proposals and issues in dispute on the basis of the agreed or uncontested facts. However, the Court may, and in some circumstances must, have some regard to the matters in dispute.
In Deiter v Deiter [2011] FamCAFC 82, the Full Court determined that when making an interim order, a Court should have regard to its likely duration, especially in cases where the interim order under consideration involves some disadvantages which may need to be endured by a child.
The Court must make orders as are in the best interests of the child as a result of a consideration of the matters set out in s 60CC of the Act.
The primary considerations, which are contained in s 60CC(2) of the Act, 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.
Section 60CC(2A) of the Act provides that in applying these considerations, I am required to give greater weight to the need to protect the child from harm than to the benefit to the child of having a meaningful relationship with both parents. Although the meaning of “meaningful relationship” is not defined in the Act, it has been interpreted as meaning a relationship which is “important” or “significant”.
Further, in determining what is in the child's best interest, the Court must consider additional considerations set out at s 60CC(3) of the Act.
Those relevant s 60CC of the Act matters have been considered by me and are included below. Not all additional considerations are required to be set out in these reasons, but all were considered by me as is required by the legislation.
There are limitations on the Court in relation to making findings of fact at an interim hearing. These limitations have been observed by the Full Court in SS & AH:[1]
100. The intuition involved in decision-making concerning children is arguably of even greater importance when a judge is obliged to make interim decisions following a hearing at which time constraints prevent the evidence being tested. Apart from relying upon the uncontroversial or agreed facts, a judge will sometimes have little alternative than to weigh the probabilities of competing claims and the likely impact on children in the event that a controversial assertion is acted upon or rejected. It is not always feasible when dealing with the immediate welfare of children simply to ignore an assertion because its accuracy has been put in issue.
[1] SS v AH [2010] FamCAFC 13.
EVIDENCE
The father's evidence in relation to allegations relevant to this interim hearing are set out in his affidavit filed 24 April 2023 under the sub heading ‘[X's] allegations of abuse and assault’ as follows:
(1)On 2 February 2023, the father observed the child to have a graze on his nose. The father asked the child if he fell at school and the child told the father “no, mum pushed me into the wall at home”. The father asked the child “why did she do that?” to which the child responded “mum said you're bad and that you kicked us both out of the house and I said no, my dad would not have done that”[2];
(2)On 20 February 2023, the father observed the child had bruising on his buttocks. The father asked the child what happened and the child told the father “mum hit me on Friday night with a big wooden spoon after asking what I told [Ms G]”. The father then took the child to Dr J and Dr J said to the father “the bruises have begun to fade. If it happens again, bring him to be straight away so I can see if there is anything of concern.”[3];
(3)On 3 April 2023, the child told the father “daddy, someone hurt my penis”. The father asked the child “who” and the child replied “mum's boyfriend [Mr F]”. The father also asked the child “how did he hurt you” and the child replied “he put his hands in my underwear, touched and pulled my penis”. The father also asked when it happened and the child said “on Saturday”. The father asked the child if Mr F had touched him before and the child respondent “yes, during the summer holidays and school time”. The father continued and asked the child why he had not told the father before and the child responded he “told mum, but she got angry with me and hit me with a big wooden spoon and locked me in my bedroom”[4]; and
(4)On 4 April 2023, the father took the child to Dr J again. Following Dr J speaking to the child alone, Dr J told the father “the allegations [X] has made against his mother and her new partner are concerning and reportable”.[5] The father understands Dr J made a report to the DCJ.
[2] Father’s affidavit filed 24 April 2023, paragraph 13.
[3] Father’s affidavit filed 24 April 2023, paragraphs 14-15.
[4] Father’s affidavit filed 24 April 2023, paragraphs 17-18.
[5] Father’s affidavit filed 24 April 2023, paragraph 20.
It was the father's position he was contacted by the DCJ shortly after and was advised the DCJ wanted to interview the child whilst in his care. The child was to return to the father’s care on 13 April 2023. The father agreed with the DCJ for the interview to take place some days later, following the father and child returning from a holiday.
The father deposes to becoming aware of the child making further disclosures to Dr J, the DCJ and the New South Wales Police including disclosures Mr F has:
(1)Touched and pulled the child’s penis several times over the past months;
(2)Penetrated the child’s anus with his fingers a number of times;
(3)Exposed his penis to the child and asked him to touch it; and
(4)Shown him pictures of naked adults and children.
It is the father’s evidence he also learnt from Dr J, the DCJ and the New South Wales Police that the child told the mother about Mr F’s alleged abuse and the mother:
(1)Called the child a “fucking idiot”, “bastard” and “dog”[6];
(2)Physically assaulted the child by hitting him on his back, bottom and legs with a wooden spoon and shoe;
(3)Locked the child in his bedroom;
(4)Threatened further harm to the child if he told anyone; and
(5)Forbade the child speak to his father.
[6] Father’s affidavit filed 24 April 2023, paragraph 31.
On 18 April 2023, the father's solicitor wrote to the mother's solicitor outlining they were instructed:[7]
(1)In the past week or so, the child made certain disclosures to the father about the mother’s partner touching him inappropriately;
(2)The father took the child to consult his General Practitioner (Dr J). The doctor spoke to the child independently and alone. The father was not in the room. The father understands from the doctor afterwards that the child made similar disclosures to the doctor. Following that consultation, the doctor reported the matter to the DCJ.
(3)Soon after, case officers from the DCJ attended the father’s home and spoke to the child independently and alone. The father was not in the room. The father understands the child made similar disclosures to the DCJ case officers, as he had to our client and the doctor. Following the interview with the child the DCJ case officers advised the father:
(i)The child has made disclosures to them about the mother’s partner inappropriately touching him for the past months and the mother hitting him;
(ii)They are concerned about the child’s safety in the mother’s home;
(iii)They recommended that the child remain in the father’s home pending their investigations (including police investigations), which could take up to four weeks; and
(iv)They would advise the mother of the situation and their recommendation for the child to remain with the father pending their findings and seek her agreement to same.
[7] Mother’s affidavit filed 20 April 2023, Annexure B.
It is the mother’s position she was not told with any specificity what the allegations were until her solicitor received the abovementioned correspondence from the father’s solicitor. The correspondence from the father’s solicitor is annexed to her affidavit filed 20 April 2023.
The mother denies each and every allegation. Mr F also denies each and every allegation.
The mother alleges that the father and the paternal grandparents have coached the child to say that which he is reported to have said. The mother’s allegation of the father’s coaching of the child, predate the current investigations.
The ICL informed the Court and the parties, at the hearing, that the New South Wales Police investigation had concluded with no charges laid.
CONSIDERATION
I have not made any findings of fact in relation to the allegations made by each party at the interim hearing. Where the matter came before me on an urgent basis, and where allegations have been made by the father in relation to the conduct of the mother and Mr F, and where each of the mother and Mr F deny such allegations, I consider it premature to make any findings. Likewise, I consider it premature to make any finding as to the mother’s allegation of coaching of the child by the father and/or his parents. It is necessary for further evidence to be obtained and provided to the Court for a proper assessment of the matters before the Court, with findings of fact to be made after an opportunity has been had by each of the parties to test the evidence at final hearing.
Primary considerations
Section 60CC(2)(a) the benefit of the child of having a meaningful relationship with both of the child’s parents
It is clear to the Court both parents care deeply for the child and are concerned for his welfare. The child has enjoyed a meaningful relationship with both his parents in accordance with previous interim parenting orders. These previous orders provided for the parties to both spend time with the child during school holidays and special occasions, thereby facilitating the child sharing in the enjoyment of memorable occasions with each of his parents.
Given the allegations raised in this matter and the urgency on which this matter came before the Court, the parties in their affidavit material and submissions made during the interim hearing did not draw the Court's attention to the benefit of the child having a meaningful relationship with both of the child’s parents. Notwithstanding this, it is a factor the Court has regard to in considering interim care arrangements for the child.
Section 60CC(2)(b) the need to protect the child from physical or psychological harm from being subjected to, exposed to, abuse, neglect or family violence
It is the mother's position the father has coached the child and has a history of coaching. These allegations are not new to the proceedings, with the mother deposing to such coaching in previous affidavits filed.
At the interim hearing, the ICL submitted, and the mother agreed, that if the father was coaching the child, then the child was at risk of psychological abuse, and may well be encouraged to make further allegations against the mother should the child remain in the father’s care.
The mother's affidavit filed 20 April 2023 includes allegations that the father coached the child in the lead up to a meeting between the child and the ICL, which was scheduled to take place on 2 December 2022. The mother alleged that, on 29 November 2022, the child said to the mother “on Friday at 4 o'clock I have to speak to dadda's friend on the computer”; “I need to tell dadda's friend that I love dada and that I want to live with him”; and “mumma is mean to me”[8]. It is the mother's evidence the term “dadda's friend” was a reference to the ICL. The child's meeting with the ICL was subsequently rescheduled to take place on 7 December 2022. It is the mother's evidence, that when the child returned to her care following time with the father on 4 December 2022, the child presented as quiet. When the mother asked the child if he was okay, the child told the mother he had to tell “dadda's friend” that “mumma is mean to me and hit me”[9].
[8] Mother’s affidavit filed 20 April 2023, paragraph 42.
[9] Mother’s affidavit filed 20 April 2023, paragraph 44.
Mr F deposes to the child relaying comments the father has made to the child including ”your mumma is a [bitch]”; “your mumma is a [tail of a dog]”; “Your […] is a [buffalo]”[10]; and “tell your teacher that your mumma is bad…your mums is mean…[Mr F] hits you”[11].
[10] Affidavit of Mr F filed 20 April 2023, paragraph 20.
[11] Affidavit of Mr F filed 20 April 2023, paragraph 22.
The father denies the allegations of coaching.
The father alleges the child is at risk of verbal, physical and sexual abuse in the mother’s care. This risk arises from the mother allegedly verbally and physically abusing the child and Mr F sexually abusing the child.
I am unable to make a finding based on the current, untested evidence before me as to whether the mother caused bruising to the child, such bruising being that as evidenced by the photographs tendered by the father. On the father’s version of events, the father observed the child to return from the mother’s care with bruises for approximately five months, being from December 2022 to April 2023. The father, at no stage during that period of time, sought to discuss his concerns, if he had them, with the mother. Nor did he bring any Application before the Court. Rather, he returned the child to the mother’s care on a number of occasions.
In my view, an order restraining both parties from engaging in the conduct each alleges against the other, shall be sufficient to protect the child whilst otherwise promoting his best interests by a continuation of his living arrangements as between his parents.
I am also not able to make any finding as to the recent allegations levelled at the mother’s partner, which are denied by him. Nevertheless, in ensuring the safety of the child pending the investigation of the DCJ, the ventilating of matters before the Court, and noting the nature of the risk to the child posed, I propose to restrain Mr F from having any contact or communication with the child. This will of course be difficult for him and the mother in the context of their impending marriage, and denial of the allegations. However, I note that such an order is not opposed by the wife or her partner. In his affidavit filed 26 April 2023, Mr F states he is “ready, willing and able” not to live with the mother when the child is in her care “until the investigation is complete”[12].
[12] Affidavit of Mr F filed 26 April 2023, paragraph 12.
The ICL, as noted above, advised the Court that New South Wales Police have concluded their investigation following the child’s disclosures. At this time, it is not known to the Court exactly what the child disclosed to New South Wales Police. It is however known, that both the mother and Mr F attended upon New South Wales Police for an interview in early 2023 and subsequent to this attendance, the investigation has closed with no charges laid.
Additional considerations
Section 60CC(3)(a) any views expressed by the children
The emphasis on the issues for the Court to consider at this interim hearing are not the views of the child per se, but rather the risk each of the parents present to the child in light of the disclosures the child has allegedly made to the father, and otherwise as made to the DCJ and New South Wales Police, together with the allegations made by the mother as to the father and his family members coaching the child.
Section 60CC(3)(b) the nature of the relationship of the child with each of the child’s parents and other persons
Each of the parties depose to having a loving and positive relationship with the child.
It is the mother’s evidence that on 12 April 2023, being the last day she saw the child before he commenced to spend continuous time with the father, the mother and child went on an outing to K Venue. The mother deposes to the child being happy and excited. Photographs of the child with various animals are annexed to the mother’s affidavit filed 26 April 2023. Such photographs appear to support the mother’s assertion the child was happy and excited whilst in the mother’s care on 12 April 2023.
Section 60CC(3)(c)-(ca) the parents opportunity to participate in decision making, spend time and communicate with the child and the fulfilment of the parent’s obligations to maintain the children
Counsel for the mother raised significant issue that the father had not communicated any of his concerns or allegations to the mother prior to the filing of his affidavit filed 24 April 2023. This was notwithstanding the father’s position that he held concerns about the child in the mother’s care from at least December 2022.
It was the mother's evidence that upon the child going into the father’s care on 13 April 2023, the father unilaterally then took the child to a General Practitioner, who was not the agreed General Practitioner on which the child should attend. The outcome of that consultation was a mandatory reporting of the child’s allegations.
These are matters to be further explored at trial.
Section 60CC(3)(d) the likely effect of any changes in the child’s circumstances
Interim parenting orders were made as recently as the 12 December 2022. It is not in dispute that both parties complied with these orders, together with the interim parenting orders dated 19 September 2019, until 18 April 2023.
As at the time of the interim hearing, the father had retained the child in his care from 13 April 2023, being 14 consecutive nights.
The mother does not seek any variation to the current parenting arrangements. Accordingly, if orders are made in the terms as proposed by the mother, absent a recovery order as also sought by her, the child will return to his usual care arrangements in accordance with interim orders.
The mother however, also seeks a cessation of what she alleges has been occurring, namely the coaching of the child by the father and the paternal grandparents.
The father seeks for the child to remain in his care and not have any contact with the mother pending further order. Accordingly, if orders are made in the terms as proposed by the father, the child will spend an extended period in the father’s care with such a period being an extension of what is already longest period the child has spent away from the mother since proceedings commenced.
I note that the Court is not bound by the parties proposals.
The father sought for the child to not have any contact with the mother pending further order. He did not canvass the ways in which the child might be protected from any potential risks, as presented by both parties evidence. It has, I find, been a significant time for the child to have spent away from his primary carer, there being no factual dispute that the mother has occupied that role since the separation of the parties, and that the child has never spent such an extended period away from his mother’s care. He remains a young child. The likely effect of that is that a return to his mother’s care will require some immediate sense of stability and continuity of arrangement for him, which can be provided by an initial slightly extended period of continuous time in her care once all the necessary safeguards as shall be ordered are in place. In my view, that is imperative to promote the best interests of the child.
Section 60CC(3)(f) the capacity of each of the child’s parents; and 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
The allegations of verbal and physical abuse against the mother, sexual abuse against Mr F and psychological abuse against the father raise the question of whether both the mother and the father have a reduced capacity to provide for the needs of the child.
Where the abovementioned allegations are denied and the Court is unable to make a finding of fact, the Court is limited in making a factual determination as to whether the parties’ capacity to provide for the needs of the child is limited.
Section 60CC(3)(i) the attitude to the child and to the responsibilities of parenthood, demonstrated by each of the child’s parents
The parents continue to have a highly conflictual co-parenting relationship and it is clear there is a high level of mistrust between them. The allegations and counter-allegations are serious and need to be tested at trial.
Section 60CC(3)(l) whether it would be preferable to make the order that would be least likely to lead to further litigation in relation to the child
The father sought orders for the final hearing to be vacated in circumstances where he proposes that the child, for the first time by order of the Court, live with him and spend no time with his primary care giver. If the Court were to make such an order, it would be necessary to re-list the matter for final hearing at a considerable time into the future. This matter has already had one adjourned trial hearing. It commenced in 2019.
Notwithstanding the initial orders sought by the ICL, the ICL conceded a final decision needs to be made sooner rather than later in this matter to best advance the interests of the child. That is a view with which I entirely concur.
The care arrangements for the child have been under purview of this Court for an extended period of time and the child, together with the parties, would benefit from this matter reaching a conclusion in a timely manner, as would the other users of the Court who seek an opportunity to have their own matters heard.
CONCLUSION
Where or not it is contested that the New South Wales Police have not pressed any charges against the mother or Mr F, it is appropriate for the Court to be duly informed about the information provided to the New South Wales Police so it may be considered at final hearing. I therefore consider it necessary for a section 69ZW Order to be made to the New South Wales Police so the parties may be provided with material from the Police prior to the final hearing.
To ensure the Court is also informed directly by the DCJ, I am satisfied it is appropriate to request the DCJ to intervene in these proceedings where there have been recent reports to the DCJ with an investigation currently open and the Court may be assisted by their involvement at the trial.
Interim orders made in relation to the care of the child will be in force pending further order. I am satisfied if restraints are in place such that Mr F not come into contact with the child, and restraints are in place by reference to the alleged risk each of the parties pose to the child, such that any risk is ameliorated, the child should, on an interim basis, return to the mother’s care.
The child has at present, spent the longest continuous period away from his mother since the proceedings started. He has been for a very long period of time (relatively speaking) in his father’s care, in circumstances where the mother alleges the child is exposed to a risk of psychological harm by virtue of being coached by the father to make allegations against the mother and her partner. I make no finding about that allegation but as a further protective measure, and importantly to assist the child in his re-adjustment and settling in to his return to his primary carer, I shall order that the child be returned to the mother’s care for a continuous period of seven days, and thereafter the parties shall return to the interim parenting arrangements as per the orders of 19 September 2019 and 12 December 2022.
I certify that the preceding seventy-seven (77) numbered paragraphs are a true copy of the Reasons for Judgment of the Honourable Justice Hartnett. Associate:
Dated: 4 May 2023
2
0