Tarbell & Pedlar (No. 2)
[2021] FamCA 28
•27 January 2021
FAMILY COURT OF AUSTRALIA
Tarbell & Pedlar (No. 2) [2021] FamCA 28
File number(s): BRC 2400 of 2019 Judgment of: HOGAN J Date of judgment: 27 January 2021 Catchwords: FAMILY LAW – CHILDREN – best interests – final orders made Legislation: Family Law Act 1975 (Cth) Cases cited: Allesch v Maunz (2000) 204 CLR 172
Banks & Banks (2015) FLC 93-637
Donnell & Dovey (2010) FLC 93-428
Kioa v West (1985) 159 CLR 550
R v The Minister for Immigration and Multicultural and Indigenous Affairs; ex parte Lam (2003) 214 CLR 1
Number of paragraphs: 72 Date of hearing: 27 January 2021 Place: Brisbane Counsel for the Applicant: Ms Pendergast Solicitor for the Applicant: Dore Family Law Solicitor for the Respondents: In person Solicitor for the Respondents: In person ORDERS
BRC 2400 of 2019 BETWEEN: MS TARBELL
Applicant
AND: MR PEDLAR
First Respondent
MS EMMET
Second Respondent
ORDER MADE BY:
HOGAN J
DATE OF ORDER:
27 JANUARY 2021
THE COURT ORDERS BY WAY OF FINAL ORDER THAT:
1.All parenting plans and previous parenting orders are discharged.
2.The Applicant paternal aunt, Ms Tarbell, shall have sole parental responsibility for the child, X born … 2018 (“the child”), and that save and except for a medical emergency involving the child, she will not exercise major long-term aspects of parental responsibility in respect of the child unless and until:
a.the mother and the father have been informed in writing (by mail, email or text) of the details of the proposed decision and the reasons it is being made or contemplated; and
b.the views and opinions of the mother and the father are sought; and
c.the views and opinions of the mother and the father are considered by reference to the best interest of the child; and
d.when any such decision is made by the Applicant paternal aunt, the mother and the father are promptly advised of that decision, in advance if reasonably possible and if not then as soon as is reasonably practicable.
3.Notwithstanding that the Applicant paternal aunt has parental responsibility for the child, she will:
a.advise the mother and the father as soon as practicable after the occurrence of any medical emergency for the child; and
b.advise the mother and father as soon as practicable of any serious illness or in capacity from which the child may suffer at anytime and keep them advised of her prognosis and progress; and
c.ensure that the mother and father are informed about any medication that the child may require from time to time and provide such medication for any period where the child might spend time with either the mother or the father; and
d.keep the mother and father informed about any visits by the child to any specialist medical practitioner, along with any diagnosis or recommended treatment or medication that the child receive from that specialist; and
e.advise the mother and father of the school that the child becomes enrolled in, or any change to that schooling; and
f.advise the mother and father as soon as it is practicable of any change of residential address or mobile phone number for herself and the child; and
g.authorise any school that the child attends to provide copies of the child’s school reports and/or school notices (including order forms for school photographs) to the mother and the father at request of such person and at that person’s expense.
4.The child, X, born … 2018 (“the child”) live with the Applicant paternal aunt, MS TARBELL.
5.To give effect to Order 4, the child may travel interstate and internationally with the Applicant paternal aunt, Ms Tarbell, born … 1985 (“the paternal aunt”).
6.While the child is living in Australia with the Applicant paternal aunt:
a.the child to spend supervised time with the mother as follows:
i.for no less than four (4) days on no less than two (2) occasions in each calendar year, in Brisbane, or such location as the mother is residing, at dates as nominated by the paternal aunt, and supervised by D Services or such other facility as nominated by the paternal aunt, with the mother and paternal aunt to share those supervisor fees; and
ii.at dates as agreed between the mother and the paternal aunt, to occur at G City or such location as the child may be residing at with the paternal aunt and her family, and supervised by such facility as nominated by the paternal aunt, with
A.the mother and paternal aunt to share those supervisor fees; and
B.the mother to inform and notify the paternal aunt of her intention to travel to that location and spend time with the child, no less than thirty (30) days prior to the intended dates at which the mother seeks to spend time with the child; and
C.the paternal aunt to make arrangements with the facility offering the supervised visits and advise the mother of the times and dates that have been arranged for spending time with the child; and
b.the child to spend supervised time with the father as follows:
i.for no less than four (4) days on no less than two (2) occasions in each calendar year, in Brisbane, or such location as the father is residing, at dates as nominated by the paternal aunt, and supervised by D Services or such other facility as nominated by the paternal aunt, with the father and paternal aunt to share those supervisor fees; and
ii.at dates as agreed between the father and the paternal aunt, to occur at G City or such location as the child may be residing at with the paternal aunt and her family, and supervised by such facility as nominated by the paternal aunt, with
A.the paternal aunt be responsible for those supervisor fees; and
B.the father to inform and notify the paternal aunt of his intention to travel to that location and spend time with the child, no less than thirty (30) days prior to the intended dates at which the father seeks to spend time with the child; and
C.the paternal aunt to make arrangements with the facility offering the supervised visits and advise the father of the times and dates that have been arranged for spending time with the child.
7.The paternal aunt give both parents no less than thirty (30) days’ notice in writing of any intention to change the child’s residence from the Commonwealth of Australia and to remove her from this country for that purpose.
8.No less than fourteen (14) days prior to the child departing Australia to live with the paternal aunt in another country, the paternal aunt shall provide each parent with:
a.a copy of the ticket for such travel; and
b.Skype details and contact Skype number to facilitate the Skype communication.
9.In the event that the child is living outside of Australia with the Applicant paternal aunt:
a.the child to spend supervised time with the mother as follows:
i.for no less than four (4) days on no less than one (1) occasion in each calendar year, in Brisbane, if the mother is residing in the greater Brisbane area, at dates as nominated by the paternal aunt, and supervised by D Services or such other facility as nominated by the paternal aunt, with the mother and paternal aunt to share those supervisor fees; and
ii.at dates as agreed between the mother and the paternal aunt, to occur at such location as the child may be visiting at with the paternal aunt and her family, and supervised by such facility as nominated by the paternal aunt, with
A.the paternal aunt be responsible for those supervisor fees; and
B.the paternal aunt to inform the mother of the intended travel dates to Australia, and the location at which they will be visiting with the child, no less than thirty (30) days prior to the arrival date in Australia; and
C.the mother to inform and notify the paternal aunt of her intention to travel to that location and spend time with the child, no less than fourteen (14) days prior to the child’s arrival date in Australia; and
D.the paternal aunt to make arrangements with the facility offering the supervised visits and advise the mother of the times and dates that have been arranged for spending time with the child; and
b.the child to spend supervised time with the father as follows:
i.for no less than four (4) days on no less than one (1) occasion in each calendar year, in Brisbane, if the father is residing in the greater Brisbane area, at dates as nominated by the paternal aunt, and supervised by D Services or such other facility as nominated by the paternal aunt, with the father and paternal aunt to share those supervisor fees; and
ii.at dates as agreed between the father and the paternal aunt, to occur at such location as the child may be visiting at with the paternal aunt and her family, and supervised by such facility as nominated by the paternal aunt, with
A.the paternal aunt be responsible for those supervisor fees; and
B.the paternal aunt to inform the father of the intended travel dates to Australia, and the location at which they will be visiting with the child, no less than thirty (30) days prior to the arrival date in Australia; and
C.the father to inform and notify the paternal aunt of his intention to travel to that location and spend time with the child, no less than fourteen (14) days prior to the child’s arrival date in Australia; and
D.the paternal aunt to make arrangements with the facility offering the supervised visits and advise the father of the times and dates that have been arranged for spending time with the child.
10.The Applicant paternal aunt be solely responsible for the day-to-day care of the child while she is in her care, including enrolling the child to attend an approved child care centre/facility and be supervised by a child care professional who holds a current Working with Children Check.
11.The Applicant paternal aunt provide details of any child care centre/facility, daycare centre, Kindergarten and school attended by the child within seven (7) days of first enrolling her in the same.
12.This Order authorises the Applicant paternal aunt to provide a copy of these Orders to the appropriate person at such child care centre/facility, daycare centre, Kindergarten and school, together with the application for enrolment of the child at that child care centre/facility, daycare centre, kindergarten and school.
13.The Applicant paternal aunt, mother and father are authorised by these orders to obtain from the daycare centre, kindergarten and school that the child attends, copies of the child’s progress reports, photographs (at the costs of the party requesting the photos) and examination results, notices of parent/teacher meetings, school assemblies, sport and swimming carnivals and any other school activities to which parents are invited to attend any correspondence, newsletters and notices as they fall due.
14.The father and the mother shall be restrained from consuming alcohol to excess and from consuming illicit substances during those times that they spend with the child and for the twelve (12) hour period prior to their time spent with the child.
15.The mother and the father:
a.undertake a random hair follicle testing with H Services as requested by the Applicant paternal aunt, and such requests occur at not more than three (3) monthly intervals, on a hair sample of not less than 3cm of hair extracted by H Services; and
b.refrain from cutting their hair shorter than 3cm in length; and
c.provide copies of the results of all tests to the other parent and the Applicant paternal aunt within twenty-four (24) hours of receipt of same; and
d.the costs of all tests to be paid by the mother and father respectively; and
e.in the event that the father/mother return a test that indicates that they have not consumed illicit substances or alcohol, the paternal aunt will give consideration to the child spending time with that parent on an unsupervised basis; and
f.in the event that the child is spending time unsupervised with either parent and that parent:
i.refuses to undertake a hair follicle test upon request by the Applicant paternal aunt in accordance with this Order; or
ii.returns a test which indicates a parent has consumed illicit substances or alcohol within the last three (3) months; then
the time the child spends with that parent will revert to supervised time.
16.The mother and the father are to keep the Applicant paternal aunt informed of their residential addresses if these change, and their telephone contact details if these change.
17.The mother and the father each have reasonable telephone and/or Skype communication with the child, at times and frequency as agreed between the mother and the paternal aunt, and as agreed between the father and the paternal aunt.
18.Pursuant to Section 11(1)(b) of the Australian Passports Act 2005 (Cth) the child, X, born … 2018, is permitted to have an Australian Travel Document and travel internationally with the Applicant paternal aunt, Ms Tarbell, born … 1985 (“the paternal aunt”).
19.The Applicant paternal aunt has leave to provide a copy of these Orders to the appropriate person within the Department of Foreign Affairs and Trade with the child’s application for an Australia travel document.
20.The Applicant paternal aunt shall hold the Australian Travel Document/Passport for X born … 2018, after it has been issued.
21.The Applicant paternal aunt, Ms Tarbell, born … 1985 is at liberty to remove the child, X, born … 2018 from the Commonwealth of Australia to spend time with the child outside of Australia provided that she:
a.give each parent no less than thirty (30) days written notice prior to the child’s intended departure from Australia; and
b.give each parent a copy of the travel ticket/s for the child, including the departure date and time from Australia and the return arrival date and time to Australia; and
c.provide the mother and the father with a contact Skype telephone number for the child for the duration that the child will be outside of Australia.
AND IT IS FURTHER ORDERED THAT
22.No party is permitted to use any documents provided to them in the course of this proceeding for any purpose other than this proceeding or any appeal in respect of those orders.
23.The Independent Children’s Lawyer is discharged unless a Notice of Appeal is filed by any party within the time prescribed or such other time as allowed by Order.
24.Pursuant to s 65DA(2) and s 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 to adjust to and comply with an Order are set out in the Fact Sheet attached and these particulars are included in these Orders
NOTATION
A.For the purposes of the child, X, born … 2018 (“the child”) obtaining an Australian travel document it is noted by this Court, that under this parenting order:
i.the child lives with the Applicant paternal aunt; and
ii.the Applicant paternal aunt has sole parental responsibility for major long-term issues relating to the child; and
iii.the Applicant paternal aunt has parental responsibility for the child under this Order, and is authorised and permitted to apply for and receive an Australian Travel Document for the child, X, born … 2018 including any renewal application for the child’s passport, passport number … regardless of whether the mother and father complete and/or sign the application for the child’s travel document.
B. The Independent Children’s Lawyer has this afternoon advised the Court that Ms Emmet has been provided with information to assist her in making decisions about her personal safety given the contents of Exhibit 1 which has been provided to each of the parents and which each of the parents have taken with them when they left the Court today.
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 Tarbell & Pedlar has been approved by the Chief Justice pursuant to s 121(9)(g) of the Family Law Act 1975 (Cth).
EX TEMPORE REASONS FOR JUDGMENT
Hogan J
It may be thought strange, in circumstances where a child’s parents have chosen not to continue to participate in proceedings relating to parenting orders for their child, that discourse occurred between the Court and the Applicant’s barrister about the form of orders and the frequency of the time the child should spend with each of her parents.
It would be understandable, it seems to me, for it to be thought that the parents’ individual decisions to choose not to continue to participate in these proceedings would remove a requirement for the Court to consider such matters.
Whilst understandable, an appreciation of the obligation imposed upon the Court can only properly occur when consideration is given to the fact that final parenting orders made in the terms sought be the Applicant will have the results that the child, who has lived in her care for the vast majority of her very short life to date, will continue to do so; further, if orders are also made in the terms sought, they will impose upon the Applicant the obligation of exercising parental responsibility in relation to major long-term issues relating to the child and remove that right from her parents.
Thus, it can be seen, I think, that such decisions, whilst at first blush seemingly obvious, have significant consequences for X, the child who is the subject of these proceedings, and who was born in 2018.
X currently lives with her paternal aunt and her cousins, Y, Z and W, in G City, in New South Wales. As a consequence of the effect of the COVID pandemic, she is joined on occasions in that home by her paternal uncle. At other times, he continues to be engaged in work in Country F. His work and his labours have provided the source of funds used to support X since she has started to live as a member of his and his wife’s family; of course, his efforts and exertions support financially his children and the Applicant, his wife.
G City is about 10 hours’ drive from Brisbane. It is possible to fly between G City and Brisbane. The costs associated with X’s travels to Brisbane to spend time with each of her parents since she has lived in the care of the Applicant are as set out in aspects of paragraph 183 of the affidavit of the Applicant sealed 13 November 2020. Reference to this established that they are not insignificant in any way.
Not only have the Applicant and her husband met the costs associated with accommodation, flights and car hire to facilitate X’s time with her parents, they have also borne the costs of the supervision imposed over that time. At the time of the affidavit at least, those costs were close to $19,000.00, together with further anticipated costs as at that time of a further, roughly, $3,500.00: so, a not insignificant sum earned through the exertions of X’s aunt’s family have been applied to ensuring that she has been able to spend supervised time with her parents. The costs to which I have referred do not, of course, include the costs associated with X’s day-to-day care and support and also the legal fees incurred as a consequence of these proceedings.
Such matters are, of course, relevant to the consideration and determination of what additional parenting orders should be made on a final basis to facilitate X continuing to spend time with her parents – given that each of them, before they determined each to leave this hearing, informed the Court that, at least at present, they acknowledged that it was in X’s best interests to continue to live with the Applicant. It is, I think, appropriate that I record that Mr Pedlar’s acknowledgement of this appeared to me to be much more reluctant and grudging than the acknowledgement afforded by Ms Emmet.
I should also, I think, properly record that, during the course of her discourse with the Court prior to leaving the proceedings, Ms Emmet was complementary of the Applicant and verbally acknowledged her care of, and support of, X in a way that I thought was appropriate.
Whilst I have already delivered short oral reasons in support of my decision to continue to hear the proceedings in the absence of the parents, I think it appropriate, given that final parenting orders will be made, to further record that I am satisfied, particularly insofar as Ms Emmet is concerned, that, at the time she left the proceedings, she was well aware of the orders sought by the Applicant.
In saying that, I am referring to particulars of those orders as they developed during the course of discussion between Ms Pendergast, who appears for the Applicant, and myself. I am easily satisfied, as I have already recorded, that both parents were aware, as a consequence of the orders being included in the Case Information document sealed 8 December 2020, of the orders sought by the Applicant in these proceedings.
Given the effect for X of final parenting orders, in relation to matters to which I have already referred, it is, I think, appropriate to record that it is a fundamental rule or aspect of the Australian legal system that, generally speaking, when an order is to be made which will deprive a person of some right or interest, he or she is entitled to know the case sought to be made against him or her and to be given the opportunity of replying to the same: see, for example, the discussion by Mason J in Kioa v West[1] at [582]; the comments of Gleason CJ in R v The Minister for Immigration and Multicultural and Indigenous Affairs; ex parte Lam[2] where his Honour discussed the concept of fairness at [37] of his Honour’s Reasons (noting that it is not an abstract concept, but is one that is essentially practical); and also the well-known comments of Kirby J, particularly at [35], [38] and [39] of his Honour’s Reasons, in Allesch v Maunz.[3]
[1] (1985) 159 CLR 550.
[2] (2003) 214 CLR 1.
[3] (2000) 204 CLR 172.
I am well satisfied, as I have already outlined, that each of X’s parents have been afforded the opportunity to be heard in these proceedings. In fact, despite their failure to comply with the Orders and Directions made on 27 August 2020 when the matter was set for final hearing, each of them was afforded the opportunity to inform the Court of their respective positions. This opportunity was afforded to Ms Emmet in circumstances where, despite the proceedings being on foot for a relatively lengthy period of time, she has not filed any affidavit material; insofar as Mr Pedlar is concerned, no affidavit material has been filed since mid-2019 following the cessation of his legal representation.
It is, I think, appropriate to record that Mr Pedlar’s position, as outlined by him from the bar table, included, by way of summary: his opposition to the continued imposition of supervision over X’s time with each of her parents; his request that she be afforded the opportunity to spend more frequent time with both of her parents; his opposition to her living with the Applicant in Country F; his opposition to orders which would provide for him to travel to G City for the purpose of spending time with X on the basis that he lacked the financial capacity to do so; and, in essence, that, if supervision were to continue over his time with X (something he thought was unnecessary), he did not have the financial capacity to contribute to the costs associated with that.
Mr Pedlar also outlined his position that both parents should be included in the decisions to be made in the exercise of parental responsibility for X, and that all three adults who are the parties to the proceedings be involved in making decisions about major long-term issues relating to his daughter. He was opposed to any orders which would provide for him to undertake hair follicle testing to ascertain the presence or absence of illicit substances. His position – I thought clearly articulated – was that he would not participate in random hair follicle testing, and certainly would not pay for any tests ordered.
This position – namely, that he would not participate in random hair follicle testing – seems to me to be simply an expression of his actions to date, given a previous request made by the Applicant in early August 2020 when she requested that each of X’s parents participate in and undergo hair follicle testing. Her evidence in this respect may be found at paragraph 175 of her affidavit. I accept that neither parent responded to her request, despite her position then being that she was willing to pay for each of them to participate in or undergo hair follicle testing. So the father’s position is consistent, it seems to me, with his actions of the past.
Ms Emmet’s position in relation to the orders sought by the Applicant today was to inform the Court that she did not necessarily disagree with many of the orders sought. She proposed that she and the Applicant share equal shared parental responsibility in the sense that her proposal was that the Applicant consult with her about such issues (and, after that consultation, make the relevant decision) but not consult with the father. It is relevant to record that Ms Emmet told the Court that she trusted the Applicant’s judgement, given that the Applicant continues to raise her own three children. Ms Emmet had no particular issue other than a financial one with participation in future drug testing.
I also thought that Ms Emmet’s position today included, in essence, a broad acceptance of the orders proposed by the Applicant – an acceptance that such orders in broad form were likely to be made. I also note, though, for the record that Ms Emmet sought today some process to be put into place whereby she could spend increased time with her daughter, and, eventually, have X live with her.
Ms Emmet’s decision to remove herself from the hearing meant that I was unable to take up with her, during the course of any submissions she might have made in support of her proposal, the prospect that the evidence before the Court simply does not provide an evidentiary basis where I could be satisfied that it would be in X’s best interests at present to start to embark upon a process of gradually increasing time with a view to X moving to live with her mother.
The mother’s decision not to provide affidavit evidence means that the Court is deprived of that opportunity: that is, the opportunity of assessing whether she has been able to put into effect practically, and with lasting consequence, any or some of those matters about which she expressed hope during her comments that she would be able to do. Those comments and her hope – which I accept for the purpose of this proceeding were expressed honestly and genuinely – could be summarised, in effect, as being that she would find herself in a position of being able to manage her very significant history of alcohol abuse such that the Court and the Applicant would be confident that X would not be at an unacceptable risk of harm were she to spend unsupervised time with her.
At present, there is simply no evidence before the Court to satisfy me that that is the case now. In fact, the contents of Exhibit 1, at least in part, suggest that it is more likely than not that it will take Ms Emmet a great deal of effort and perseverance to be able to manage her previous difficulties with alcohol abuse.
The contents of Exhibit 1 certainly suggest that such issues are longstanding. For example, on 2 September 2020, Ms Emmet provided information, in the context of a referral about her difficulties in managing her consumption of alcohol, which outlined a history of consuming 20 to 40 standard drinks a day for eight years and a current alcohol consumption of four litres of port every one-and-a-half to two days: see page 489 of Exhibit 1. The contents of Exhibit 1 also establish that a previous attempt by Ms Emmet to engage in in-patient detoxification was unsuccessful in that she failed to complete the intended course of admission.
The information provided today by her from the bar table included that she was intending to and hopeful of re-engaging with such a service in 2021 – a year, which her comments today suggested at least, she regarded as being a very big year for her in her attempts to deal with and confront her previous and ongoing addiction to alcohol.
However, at this point in time, as I have said, there is no evidence to suggest that Ms Emmet has been able to implement those hopes which she expressed orally today. Until those hopes are put into practical effect in a manner that would permit her to adduce evidence to a Court to satisfy the Court that X would not be at an unacceptable risk of harm in her care, then it seems to me – as is the case with X’s father – that the only orders that can realistically be made are orders which continue X’s primary living arrangements with the Applicant and which provide for her to spend supervised time with each of her parents.
The determination of such orders for living arrangements and spending time arrangements, of course, occur according to the statutory framework imposed by the relevant sections of the Family Law Act 1975 (Cth). Those sections are to be implemented in a case such as this in the way authority requires when, as here, one of the parties to proceedings for parenting orders is not X’s parent.[4]
[4] See, for example, Donnell & Dovey (2010) FLC 93-428.
I do not intend to engage in more substantive recitation of the various applicable authorities. Rather, I have deliberately, simply, specifically noted that this case involves an application by a “non-parent” for parenting orders in relation to X so that there can be no doubt that I am fully cognisant of the manner in which the relevant statutory matters must be considered in determining those parenting orders which, in the circumstances as established by the evidence, are in X’s best interests now.
Consequently, any intermingling of my discussion of the relevant evidence, to the extent that I consider it necessary in the circumstances that have arisen today[5] and the considerations should not be regarded as demonstrative of any confusion about the appropriate application of binding principle.
[5] See, for example, Banks & Banks (2015) FLC 93-637.
It is clear that I may make such parenting orders as I think proper; but, in determining the terms of the same, I must have regard to the Objects of Part VII of the Act and the principles which underpin those Objects, noting always that the paramount consideration is X’s best interests.
Further, whilst the matters to which regard must be had in determining those parenting orders which are in X’s best interests now are as prescribed by s 60CC of the Act (as well as other relevant statutory provisions), the requirement to consider each of the matters does not necessarily mean that each must be the subject of any particular discussion – particularly where the evidence leads inexorably to a particular conclusion: again, see Banks & Banks,[6] noting that, whilst that was a decision of the Full Court which considered interim parenting orders, there is no reason, in my view, to think that the underlying principle espoused there does not apply to proceedings in which the Court is asked to make final parenting orders.
[6] (2015) FLC 93-637.
I also note that the process of “considering”, as I am required to do, involves taking note of the necessary matters, or giving heed to them, or thinking over or reflecting on them: I have done that in the course of the preparations that I have undertaken prior to commencing the hearing today, during the course of various occasions on which I have stood down during the course of today, during my hearing of the submissions made by Counsel for the Independent Children’s Lawyer and Counsel for the Applicant (respectively) and during the relatively short period of adjournment following the taking of those submissions. I have indeed given heed to, thought over and reflected on all of the relevant considerations enlivened by the evidence before me in arriving at my conclusions about those orders which are now in X’s best interests.
Consequently, any failure to mention in these Reasons (delivered orally this afternoon) a relevant consideration should not be taken to establish that such consideration has been overlooked in my deliberations about those orders which are now in X’s best interests.
In arriving at those conclusions I have been assisted by a number of Family Reports prepared by Ms C, psychologist.
The first of those, dated 30 August 2019, followed interviews conducted on 9 July 2019. I have had regard to the contents of that report, and I have noted Ms C’s recommendations contained within that report and the issues she identified there also.
I have also taken into account the contents of an addendum email dated 3 September 2019 which Ms C prepared following provision to her of the positive results for amphetamine of the father’s hair‑follicle testing following the collection of a sample on about 15 July 2019. I note, as Ms C did, that that collection occurred about six days after he was interviewed by Ms C on 9 July 2019. I also accept generally, the contents of the views and opinions expressed by Ms C in her email dated 3 September 2019 – which included her concerns about whether, given his history, any abstinence by the father from the use of illicit substances, as he had recounted to her, was likely to be able to be maintained into the future.
I also accept, as Ms C recounted in her email of 3 September 2019, that each of X’s parents have been consistent in attending supervised time with her. I also accept, though, that the responsibility for actually organising that and funding it has, like so many other aspects of X’s care, fallen pretty much entirely to the Applicant to date.
In arriving at my conclusions about the parenting orders which are in X’s best interests now, I have also had regard to the contents of Ms C’s 1 October 2020 report which followed upon her interviews of the Applicant and Mr Pedlar (via Zoom because of the impacts of the COVID-19 pandemic) on 30 September 2020. I generally accept Ms C’s assessment and opinions of the matters she outlines in that report.
Having heard Ms Pendergast’s submissions and having reflected upon the same – particularly where they touched upon the issue of the support provided by the Applicant for X’s ongoing relationship with each of her parents – I am satisfied that it is more likely than not that, should X, as she ages, want to develop a sense of herself in relation to her family members, she will be supported in such development by the Applicant. That conclusion and finding addresses one of Ms C’s tentative concerns as expressed in the 1 October 2020 report, at least as I interpret it.
I am also confident, because of the evidence about the manner in which the Applicant has taken up and approached her care of and support for X and X’s relationship with each of her parents, that she will be well able to ensure that X is not placed into a position of feeling any sense of abandonment by each of her parents, or either of them, into the future.
I accept, generally, Ms C’s assessments as at 30 September 2020 that X was then currently well provided for by the Applicant; I also accept, on the evidence before me, that that remains the case. I also accept that she has been welcomed into the Applicant’s family and has been well-loved by, and cared for within, that family unit.
I note that, at that time, Ms C’s recommendations included that X continue to live with the Applicant; that all three adults in X’s life be accorded parental responsibility for her; that the Applicant be able to choose where X lives; and that she travel to Brisbane every school holidays to facilitate X spending time with her parents at a Contact Centre, albeit that she be afforded the responsibility and the opportunity to vary the requirement for supervision if she thought that reasonable.
I also note that, in that report, Ms C outlined a view that, if each or either of X’s parents’ health and lifestyle choices – which I have taken to be the euphemism she has chosen to use to refer to their respective issues with illicit drug abuse and alcohol abuse and/or dependency – continue to improve, then they could look to engaging with the Applicant with a view to extending their role in X’s life.
Again, the absence of evidence provided by either of X’s parents means that there is simply no way to determine whether they have continued to improve their health or lifestyle choices, or whether they have improved their choices and health at all, or whether their previous difficulties in relation to illicit drug use and alcohol use simply continue relatively unabated.
I have also been assisted in the course of my deliberations about those orders which are now in X’s best interests by the contents of Ms C’s updated Family Report (dated 8 January 2021), which was prepared following interviews conducted on 30 December 2020 and supplementary investigations or questions occurring on 4 and 5 January 2021.
Whilst each of X’s parents participated in the interviews for this report, it seems that X’s father failed to respond to Ms C’s attempts to contact him for further interview following her observations of his interactions with X.
I generally accept the contents of Ms C’s updated Family Report, and I also generally accept her opinions and assessment. These opinions included that, for X, the consequence of her care arrangements to date is that she has, effectively, been or lived as part of the Applicant’s family unit for almost two years, and has, effectively, become the youngest of a sibling group of four; that, as a consequence of those care arrangements, the Applicant is X’s primary attachment figure; and that it was then thought safest for X to continue to live with her aunt (the Applicant) in her primary care at present.
I also note that Ms C’s most recent report contains the mother’s recounting to her that she would be willing, or prepared, to move to live in G City if she felt she would be given regular opportunities to spend time with X – albeit that she also expressed a view that she did not see there to be any reason why such time would continue to have to be supervised. I generally accept Ms C’s assessment of, and opinion about, the mother’s observed capacity to engage with X – at least under supervision. I also note and accept Ms C’s opinion, in her most recent report, to the effect that, whilst X’s mother had previously said that she would move to live in G City so as to improve her opportunities to spend time with X, she has not done so to date.
I also accept Ms C’s opinion and/or assessment that the mother is, at the very best, in the early stages of a recovery from what Ms C described as a chronic addiction with attendant unstable mental health. I also accept Ms C’s opinion to the effect that, even if the mother moved to live in G City whilst the Applicant was continuing to live there with X, it was likely that there would be a requirement for an initial period of supervised time to occur so as to enable the establishment of trust: I conclude, not only between X’s mother and X’s aunt, but also between the mother and X so that X could feel comfortable in her care, absent supervision.
I note Ms C’s most recent recommendations that X continue to live in her aunt’s primary care. She recommended most recently that the Applicant be accorded parental responsibility, subject to a requirement to consult with X’s parents before she made any major decisions. She maintained a recommendation that X’s aunt ensure that X travel to Brisbane every school holiday period so that she could spend supervised time with her parents and that X’s time with her parents be varied if the Applicant concluded it was reasonable for the child to spend time, absent supervision, with one of her parents.
Ms C’s recommendations also appeared to me to include, if not specifically, at least generally, support for orders requiring X’s parents to engage in ongoing support to assist them, or at least Ms Emmet, in particular, to recover from what she described as long-term alcohol dependence. I do not intend today to make any orders to regulate X’s parents’ engagement with any external service provider to assist them to deal with their previous, and perhaps, ongoing substance abuse issues. Their determination to leave the proceedings means that I have not had the benefit of being able to take up with them such a prospect – although I think it highly likely, given his opposition to ongoing hair follicle testing, that Mr Pedlar would be oppositional to such a requirement and I also suspect that Ms Emmet may have raised issues about the costs associated with anything, albeit that I suspect she may also have made a further expression of hope that she might be able to do so in the near future.
The evidence before me makes it clear to me that it is in X’s best interests to continue to live with the Applicant and also that, at present, her time with each of her parents continue on a supervised basis. This situation is, I think, something that is likely to have to continue to occur absent the Applicant being persuaded by either parent, through their engagement with her, that they have dealt with their substance abuse issues in such a manner that X would not be at risk if she were to spend unsupervised time with them, or until each parent is in a position to provide a Court with evidence to establish that they are no longer in a position where their misuse of substances has the effect on their respective behaviours that mandates a continuation of supervision over X’s time with them.
Given X’s age and the fact that I am asked today to make final parenting orders, it is, I think, appropriate that I record that, as is the case in all parenting matters, it is always open to X’s parents to seek different orders from the Court later. It is also, though, appropriate that I record that any such application would need to be supported by independent evidence to establish that the respective parent has, in fact, addressed their substance abuse issues and the consequences of the same on their behaviours. Any application absent such evidence is, I think, almost guaranteed to be unsuccessful.
If, though, either parent was, in the future, in a position of being able to provide the Court with evidence capable of satisfying the Court that they have, in fact, dealt with their substance abuse issues and, importantly, the consequences for each of them, in behavioural terms, of their decisions about consuming such substances, then it would be, as I have said, open to them to seek to be heard in the future about different parenting orders for X.
Recourse to a transcript of my discourse with Ms Pendergast would establish that I had initially been concerned about the frequency of X’s time with each of her parents, as proposed by the Applicant. That concern, I think, particularly arose given X’s age and the requirement for the Court to consider the benefit to her of a meaningful relationship with each of her parents.
Whilst others may disagree, I have, after not insignificant reflection about this particular aspect of the orders sought, been persuaded by Ms Pendergast’s submissions in relation to the manner in which X’s future time with each of her parents should be regulated by order. In arriving at that conclusion, though, I have particularly placed weight upon Ms Pendergast’s submissions to the effect that, should the Applicant and her family live in Brisbane, there would be no issue taken with X being afforded the opportunity to spend more frequent time (albeit under supervision at this stage) with each of her parents.
I have taken that submission and relied upon it as evidencing an attitude by the Applicant towards supporting X’s time with her parents. I have regarded such attitude as being, in essence, one to the effect that, if it were possible for there to be more than the “no-less-than two occasions” in each calendar year for face-to-face time to occur, the Applicant would ensure that that take place.
The requirement for “no-less-than” two occasions of time for X to spend face‑to‑face time with each of her parents under supervision should be seen as a minimum. I have arrived at the conclusion – which I suspect others may disagree with – taking into account and placing particular weight upon Ms Pendergast’s submissions to the effect that, in this case, the Applicant has, in essence, been left to shoulder all of the burdens (or at least a very significant proportion of them) in relation to not only funding supervised time, but doing everything practical to make it occur.
The orders proposed by the Applicant also afford to each of X’s parents an opportunity, should they make the effort, to travel to G City to spend supervised time with X.
I have also taken into account and placed particular weight upon Ms Pendergast’s submissions to the effect that X’s observed interactions with her parents – as reported by Ms C in her most recent Family Report following the interviews that occurred most recently on 30 December 2020 – have reflected or manifested the actual support provided by the Applicant to X in maintaining her relationship with her parents. I certainly accept, generally, the proposition that, given the very minimal time X had been able to spend with each of her parents prior to that observation as a consequence of the imposts from the COVID pandemic, it would be unlikely for Ms C to have seen what she saw and reported about X’s interaction with her parents if she (X) had not been well-supported by the Applicant in her relationships with them.
So it is a combination of two things predominantly – namely, that, if logistics permitted it, the Applicant would propose more frequent time and, secondly, X’s interactions with her parents to date – that has persuaded me, on balance, that taking into account the burdens taken up by the Applicant in assuming responsibility for X’s care and her burdens and those of her husband in providing care and support for their three biological children, it is appropriate in this case to make less prescriptive orders for frequency of time than I would otherwise have made given X’s very young age.
Therefore, for those Reasons, the orders which I intend to make will take up Ms Pendergast’s submission, albeit, as I earlier said, perhaps seen as semantics – although in this case I hope not – of inserting the phrase “no less than” in relation to various aspects of the time-with orders which will issue.
I am satisfied on the evidence before me that the presumption that it is in X’s best interests that her parents have equal shared parental responsibility for her, as mandated by s 61DA of the Family Law Act 1975 (Cth), does not apply because of the fact of a previously operative domestic violence order between X’s parents and the subsequent evidence in relation to the manner in which, on the evidence before me, Mr Pedlar, in particular, has acted towards Ms Emmet.
Even if the presumption of equal shared parental responsibility applied in the present case, I am easily satisfied, on the evidence before me, that it is rebutted because I am satisfied that it would not be in X’s best interests at present for her parents to have equal shared parental responsibility for her. Similarly, given the evidence in relation, particularly, to Mr Pedlar’s attitude towards the Applicant, I am not persuaded that it is in X’s best interests that there be an order that he and the Applicant share parental responsibility for decisions about major long-term issues relating to X.
Whilst the position may have been different vis-à-vis Ms Emmet and the Applicant, I have ultimately concluded, given Ms Emmet’s comments to me prior to her decision to leave the proceedings, that the order which is in X’s best interests is one which accords to the Applicant sole parental responsibility for major long-term issues relating to X, associated with: an obligation to seek out the parents’ positions about a proposed decision; to take that into account; and consider any such position before ultimately making a decision and then informing them of it.
Whilst I had taken up with Ms Pendergast, quite deliberately, the issue of making an order that did not impose upon the Applicant the obligation to seek out the opinion of X’s father about such issues, I have ultimately determined that it is in X’s best interests that both of her parents be afforded the opportunity to provide input into decisions that are encompassed by the phrase “major long‑term issues” as that is defined in the Family Law Act 1975 (Cth).
I have ultimately arrived at that conclusion because I think it much more likely than not that, absent such a decision and absent such an opportunity to provide input, Mr Pedlar’s current attitude towards the Applicant is unlikely to improve: in fact, it is, I think, more likely than not, to harden. Given X’s age and the prospect, always, for all parents to make improvements to their functioning and to seek, as a consequence of those improvements, to be further involved in their children’s lives, I consider that it is in X’s best interests to make orders which will minimise the possibility of a worsening in the relationship between Mr Pedlar and the Applicant – at least to the extent that orders can address such a situation.
On the evidence before me – and accepting that this may already have been the subject of some of the Reasons I have expressed today – I consider that, until each of X’s parents is able to adduce evidence of the manner in which they have respectively addressed their abuse of either alcohol or illicit substances and also to address what I regard as evidence of an established history of domestic violence between them, it is not in X’s best interests (at present) for her time with either of them to occur on an unsupervised basis unless, as a consequence of her opportunity to observe their interactions and in the event of the receipt of hair follicle testing that establishes an absence of alcohol or illicit substance use or misuse, the Applicant determines that it is in X’s best interests to commence to spend some unsupervised time with either of her parents.
In the context of the proceedings, the absence of evidence from the parents, the manner in which they have conducted their participation in the proceedings, their determination to leave the hearing today prior to having the opportunity to make submissions about particular aspects of the orders sought by the Applicant (and supported by the Independent Children’s Lawyer), I intend to make orders substantially in terms of the orders proposed by the Applicant, as particularised in the Case Information document sealed 8 December 2020 and as revised during the course of the proceedings today, because I am persuaded that such orders are in X’s best interests.
Consequently, I will make orders in such terms, amended to include the references to “no less than” in paragraph 5.1.a, 5.2.a and also so that the orders reflect the ongoing imposition on the Applicant of the responsibility of meeting the costs of supervision in its entirety. I arrive at that order because I simply think that an order that required the sharing of such costs would simply result in X not having the opportunity to spend supervised time with either of her parents.
I also intend to make orders to impose upon the Applicant a requirement to give both parents no less than 30 days’ notice in writing of any intention to change X’s residence from the Commonwealth of Australia and to remove her from this country for that purpose; further that, associated with this, the Applicant be required (no less than 14 days prior to the child actually departing Australia to live with her in another country) to provide each parent with a copy of the ticket and Skype details or a contact Skype telephone number to facilitate Skype communication.
Insofar as order 6.2 is concerned, I make orders that, in subparagraph (a), also include the reference “no less than one occasion”; “no less than” in paragraph 6.1(a) also.
I will make orders in terms of paragraph 11 as amended by Ms Pendergast during the course of today, as reflected in the handwritten document provided to the Court in substitution for the previous 11.5. I will make orders in terms of paragraph 14 as amended, as discussed with Ms Pendergast. What is order 15 as amended by me will be a notation to the orders. Order 16 will accord to the Applicant leave to provide a copy of the orders to the appropriate person within the Department of Foreign Affairs and Trade. I will make an order in terms of order 18 as amended during the course of discourse.
All of those orders are, in my view, in X’s best interests at present.
I certify that the preceding seventy-two (72) numbered paragraphs are a true copy of the Reasons for Judgment of the Honourable Justice Hogan. Associate:
Dated: 27 January 2021
0
3
1