Tobin and Barkley and Anor

[2016] FCCA 3387

FEDERAL CIRCUIT COURT OF AUSTRALIA

TOBIN & BARKLEY & ANOR [2016] FCCA 3387

Catchwords:
FAMILY LAW – Interim parenting – risk of harm – drug use – neglect.

Legislation:

Family Law Act 1975, ss.4AB, 60CA, 60B, 60CC, 60CG, 61DA, 68B

Cases cited:

Goode & Goode (2007) 36 Fam LR 422, (2006) FLC 93-286
Keats & Keats [2016] FamCAFC 156
M & M  (1988) 166 CLR 69
MRR & GR [2010] HCA 4
Mazorski & Albright [2007] FamCA 520

SS v AH [2010] FamCAFC 13

Salah & Salah [2016] FamCAFC 100

Slater & Light [2011] FamCAFC 1

Applicant: MS TOBIN

First Respondent: MS BARKLEY

Second Respondent: MR TOBIN

File Number: PAC 4519 of 2016

Judgment of: Judge Obradovic

Hearing date: 9 December 2016

Date of Last Submission: 9 December 2016

Delivered at: Parramatta

Delivered on: 23 December 2016

REPRESENTATION

Counsel for the Applicant: Mr O'Brien

Solicitors for the Applicant: Mason Mia & Associates-Solicitors & Advocates

Appearing for the First Respondent: Ms Seivers

Solicitors for the First Respondent: DLH Solicitors

Appearing for the Second Respondent: In person

Appearing for the Independent Children's Lawyer: Ms Hafey

Solicitors for the Independent Children's Lawyer: Legal Aid New South Wales

ORDERS

1. That the Applicant have sole parental responsibility for the children X born (omitted) 2007 and Y born (omitted) 2009.

2. Commencing 6pm on 25 December 2016 the children shall live with the Applicant.

3. The children shall spend time with the mother as follows:

   (a)During the December/January school holidays for three block periods of no more than three consecutive nights as agreed between the Applicant and the First Respondent;

   (b)During the 2017 school year, commencing on the first Friday of each school term, from Friday after school until Monday before school each alternate week; and

   (c)During all other school holidays for two block periods of no more than three consecutive nights as agreed between the Applicant and First Respondent.  

4. That the Respondent mother shall have telephone contact twice a week (being Monday and Thursday) (between 7-8pm) or other times by agreement, with the mother to initiate the call to the Applicant’s mobile.

5. That the mother shall be permitted to have further telephone contact with the children if she is not otherwise spending time with them as follows:

   (a)On Mother’s Day at 10am;

   (b)On Easter Sunday at 10am;

   (c)On Christmas Day at 10am;

   with the mother to initiate the call to the Applicant’s mobile.

6. That the parties keep each other informed of their current home address and a contact mobile phone number and shall notify all parties within 24 hours of any change in these details.

7. That each parent shall not denigrate the other parties (or their family or partner) in the presence or hearing of the children and will use their best endeavours to ensure that no third party denigrates the other parties (or their family or partner) in the presence or hearing of the children or via nay form of social media.

8. That all communication regarding the children’s ongoing care and welfare and spending time with arrangements shall take place via SMS text message between the parties and the other parties shall ensure they reply promptly to any communications, and in any event within 24 hours.

9. That the Applicant shall advise the parents if there is an emergency in relation to the children whereby they require emergency medical treatment and condition of the children and provide authorities with the appropriate authorisation so that the parents may contact that medical practitioner or other health professional directly (if necessary) and these Orders shall be sufficient authority for this purpose.

10. That the Applicant shall cause to be forwarded to the parents a copy of any school reports from any school that the children may from time to time attend, as well as any photograph order forms and any other notices relating to the children within seven days of receiving same.

11. Pursuant to s68B of the Family Law Act1975 the paternal grandmother is restrained by injunction from:

    (a)permitting the children to be left alone in the presence of Mr Tobin; and/or

    (b)permitting or allowing Mr Tobin to physically discipline the children, assault the children or threaten or intimidate the children.

12. Pursuant to section 68B of the Family Law Act1975, the father shall be and is hereby restrained from contacting or approaching, or attempting to contact or approach the paternal grandmother or the children by any means whatsoever, including through any third party, and further the father is restrained from:

    (a)Attending at, or being within 100 metres of any place of residence of the paternal grandmother and/or the children at any time;

    (b)Attending at, or being within 100 metres of any school, pre-school or any such educational institution attended by the children at any time.

13. The proceedings are transferred to the Dubbo Registry of the Federal Circuit Court of Australia.

14. The matter is listed before Judge Dunkley for directions at 9.30am on 1 May 2017 in Dubbo.

IT IS NOTED that publication of this judgment under the pseudonym Tobin & Barkley & Anor is approved pursuant to s.121(9)(g) of the Family Law Act 1975 (Cth).

FEDERAL CIRCUIT COURT
OF AUSTRALIA
AT PARRAMATTA

PAC 4519 of 2016

MS TOBIN

Applicant

And

MS BARKLEY

First Respondent

MR TOBIN

Second Respondent

REASONS FOR JUDGMENT

Introduction

1. These are the Reasons for Judgment in relation to interim parenting proceedings concerning two young children, Y born (omitted) 2009 and X born (omitted) 2007.

2. The parties to the proceedings are the paternal grandmother who is the Applicant and the parents of the two children Ms Barkley who is the First Respondent and Mr Tobin who is the Second Respondent.

3. The proceedings were commenced by way of Initiating Application filed by the Applicant on 22 September 2016.

4. On 27 October 2016, being the first return date of the matter following the filing of the Initiating Application on 22 September 2016, the Court made the following orders:

   a)Interim consent orders for the children to live with the mother and spend time with the Applicant each Thursday from after school until the commencement of school on Monday;

   b)The appointment of an Independent Children’s Lawyer for the children;

   c)An order pursuant to section 91B of the Family Law Act1975 requesting the Department of Family and Community Services to intervene in the proceedings;

   d)Listing the matter for Interim Hearing on 9 December 2016.

5. During the course of the Interim Hearing the Court received an email from the Department of Family and Community Services advising that the Department had reviewed the material forwarded to the Secretary and a decision had been made not to intervene in the proceedings, however, the Department was “prepared to reconsider this decision in the event of fresh information previously unknown to the Department comes to light”.

Competing Proposals

1. The interim parenting orders sought by the Applicant in the Initiating Application filed 22 September 2016 are as follows:

   a)That the Applicant have sole parental responsibility for the children X born (omitted) 2007 and Y born (omitted) 2009.

   b)That the children shall live with the Applicant.

   c)That the Respondent mother spend supervised time with the children as follows:

   i)From 9am to 1pm each Saturday, such time to be supervised by the maternal aunt, Ms T at her home or other such place as agreed between the mother, maternal aunt and the Applicant; and

   ii)Such other time as agreed.

   d)If the maternal Aunt, Ms T is unable or unwilling to supervise this time, such time shall be supervised by the Applicant.

   e)In the alternative the mother shall spend time with the children at Interrelate (omitted) NSW, at such times and in such regularity as that service is able to arrange, and the Applicant or her nominee shall be responsible for delivering the children to the Interrelate contact centre at the commencement of the mother’s time and will collect the children from the Interrelate contact centre at the conclusion of the mother’s time with the children.

   f)That the Respondent father shall spend time with the children as agreed between the Applicant and himself, with all such time to be supervised by the Applicant.

   g)That the Respondent mother shall have supervised telephone contact twice a week (being Monday and Thursday) (between 7-8pm) or other times by agreement, with the mother to initiate the call to the Applicant’s mobile.

   h)That the Respondent father shall have supervised telephone contact twice a week (being Sunday and Wednesday) (between 7 – 8pm) or other times by agreement, with the father to initiate the call to the Applicant’s mobile.

   i)That the children shall be permitted to have telephone communication with their parents at any reasonable time, upon their request to the Applicant.

   j)That the mother shall be permitted to have further supervised telephone contact with the children if she is not otherwise spending time with them as follows:

   i)On Mother’s Day at 10am;

   ii)On Easter Sunday at 10am;

   iii)On Christmas Day at 10am;

   with the mother to initiate the call to the Applicant’s mobile.

   k)That the parties keep each other informed of their current home address and a contact mobile phone number and shall notify all parties within 24 hours of any change in these details.

   l)That each parent shall not denigrate the other parties (or their family or partner) in the presence or hearing of the children and will use their best endeavours to ensure that no third party denigrates the other parties (or their family or partner) in the presence or hearing of the children or via nay form of social media.

   m)That all communication regarding the children’s ongoing care and welfare and spending time with arrangements shall take place via SMS text message between the parties and the other parties shall ensure they reply promptly to any communications, and in any event within 24 hours.

   n)That the Applicant shall advise the parents if there is an emergency in relation to the children whereby they require emergency medical treatment and condition of the children and provide authorities with the appropriate authorisation so that the parents may contact that medical practitioner or other health professional directly (if necessary) and these Orders shall be sufficient authority for this purpose.

   o)That the Applicant shall cause to be forwarded to the parents a copy of any school reports from any school that the children may from time to time attend, as well as any photograph order forms and any other notices relating to the children within seven days of receiving same.

   p)The parents are at liberty to attend any childcare, school, sporting and social activities in which the children are involved in addition to the time that they spend with the children pursuant to these Orders.

   q)The Applicant will notify each parent as soon as practicable in relation to any activities that the children are involved in so that the parents can attend in the said activity.

2. The mother filed a Response to the Initiating Application on 26 October 2016 and sought the following orders on an interim basis:

   a)The children Y born (omitted) 2009 and X born (omitted) 2007 live with the mother.

   b)The mother have sole parental responsibility for the children.

   c)The father spend time with the children for a period of not less than two hours per fortnight supervised by Interrelate located at (omitted)(omitted), New South Wales, or such other location as agreed between the parties.

   d)The matter is transferred to the Federal Circuit Court of Australia, Dubbo Registry.

3. At the time of Interim Hearing the father had not filed any material and appeared in person. He indicated to the Court that he supported the orders sought by his mother.

4. At the commencement of the Interim Hearing the Independent Children’s Lawyer did not propose any substantial changes to the current consent orders other than to make provision for school holiday time and sought orders in addition to the Orders made 27 October 2016 as follows:

   a)The children shall spend time with the paternal grandmother during the holidays at the end of Term 4 2016 as agreed and failing agreement as follows:

   i)From noon on 29 December 2016 until noon on 2 January 2017;

   ii)From noon on 12 January 2017 until noon on 16 January 2017; and

   iii)From noon on 25 January 2017 until noon on 29 January 2017.

   b)For the purpose of order a) and unless otherwise agreed, changeover shall take place at the commencement and conclusion of the children’s time with the paternal grandmother outside the (omitted) Library.

   c)The paternal grandmother is restrained from permitting the father to live in her home upon his discharge from (omitted) House.

   d)The mother shall, within 7 days of receipt, provide to the paternal grandmother and to the Independent Children’s Lawyer copies of Semester 2 2016 school reports for X and Y.

Documents Relied Upon at Interim Hearing

1. The Applicant relied upon the following documents:

   a)Initiating Application filed 22 September 2016;

   b)Affidavit of Ms Tobin filed 22 September 2016; and

   c)Affidavit of Ms Tobin filed on 6 December 2016.

2. The mother relied upon the following documents:  

   a)Response filed 26 October 2016;

   b)Notice of Risk filed 26 October 2016;

   c)Affidavit of Ms Barkley filed 26 October 2016;

   d)Affidavit of Ms T filed 26 October 2016;

   e)Affidavit of Ms A filed 26 October 2016; and

   f)Affidavit of Ms Barkley filed in Court on 9 December 2016.

3. The following documents became Exhibits in the proceedings:

   a)Exhibit 1 - Sleeve 1 – Subpoena material produced by the Department of Family and Community Services being tabs A, B, C, C1, C2, D, D2, G, H, J, J1, M, M2 from Sleeve;

   b)Exhibit 2 - Sleeve 4 – Subpoena material produced by (omitted) Public School being tabs A and B; and

   c)Exhibit 3 - Letter dated 2 December 2016 from (omitted) Recovery Services.

Uncontested Relevant Facts

1. The paternal grandmother was born on (omitted) 1958 and is currently 57 years old.

2. The mother was born on (omitted) 1985 and she is currently 31 years old.

3. The father was born (omitted) 1987 and he is currently aged 29 years.

4. On (omitted) 2002 A, a child of the mother was born. A left the mother’s care at approximately one year old and currently lives with a family who have adopted him.

5. On (omitted) 2004 the mother’s second child B was born and currently lives with the mother. The Department have been involved in B’s care.

6. In late 2004/early 2005 the mother and father commence a relationship.

7. On (omitted) 2005 the mother’s third child C is born. He currently lives with the maternal grandmother and has done so from approximately six months of age. The mother asserts there are consent orders regarding his living arrangements.

8. In Mid 2006 the mother and father moved into a converted train carriage on the paternal grandmother’s property.

9. On (omitted) 2007 the eldest child the subject of these proceedings, X was born and is currently 9 years of age.

10. In mid-February 2007 the mother and X return to live in a renovated train carriage on the paternal grandmother’s property.

11. On (omitted) 2009 the youngest child the subject of these proceedings, Y is born and is currently 7 years old.

12. On 22 July 2009 a final Apprehended Domestic Violence Order between the father and mother is issued by Mudgee Local Court and the parties separate on a final basis in 2009.

13. The mother begins a relationship with Mr D in (omitted) 2009 and on (omitted) 2010 the mother gives birth to a child D, being a child to this relationship. D currently lives with the mother, Mr D (his father), B, and the subject children of these proceedings, X and Y.

14. In April 2016 the paternal grandmother found the father in a shed trying to hang himself. He was taken to hospital by Ambulance and from approximately 13 May 2016 he has been a voluntary inpatient at (omitted) House, in (omitted), New South Wales.

The Law

1. The central enquiry is for the Court to determine the outcome that will be best for the children the subject of these proceedings.

2. Parenting proceedings are governed by the provisions of Part VII of the Family Law Act 1975. Section 60CA provides that in deciding whether to make a particular parenting order, the Court is to regard the best interests of the child as the paramount consideration.

3. Section 60B of the Act outlines the objects and principles underlying Part VII of the Act.

4. In determining what is in a child’s best interests, the Court must consider the matters set out in s60CC. Section 60CC outlines the primary and additional considerations that the Court is to take into account in determining what is in the best interests of the child.

5. The Act does not mandate the discussion of considerations under s60CC in any particular order, and it is well recognised that additional considerations may outweigh primary considerations.[1]

   [1] see for example Slater & Light [2011] FamCAFC 1at [45]

6. In applying the primary considerations the Court must give greater weight to the need to protect the child from physical or psychological harm, from being subjected to, or exposed to, abuse, neglect or family violence than to the benefit to the child of having a meaningful relationship with both of the parents.

7. It has been held that a meaningful relationship “is one which is important, significant and valuable to the child.”[2] The focus is not on the relationship as such, but on the benefit the relationship might have for the child.[3]

   [2] Mazorski & Albright[2007] FamCA 520 at [26], cited with approval by the Full Court in

   [3] Ibid at [122]

8. In addition, in considering what order to make, the Court must, to the extent that it is possible to do so consistently with the child’s best interest being the paramount consideration, ensure that the order does not expose a person to an unacceptable risk of family violence.[4] The Court may include[5] in the order any safeguards that it considers necessary for the safety of those affected by the order.

   [4] S.60CG(1)(b); see the brief discussion of s60CG in Salah & Salah [2016] FamCAFC 100 at [35]

   [5] See s60CG(2), such safeguards are for the purposes of sub-paragraph (1)(b)

9. Section 61DA of the Act provides that when making a parenting order, the Court must apply a presumption that it is in the best interests of the child for the child’s parents to have equal shared parental responsibility. The presumption does not apply where there are reasonable grounds to believe a parent has engaged in abuse of the child or family violence and the presumption may be rebutted if the Court is satisfied that an order for equal shared parental responsibility would not be in the child’s best interests. In interim proceedings, the presumption applies unless the Court considers that it would not be appropriate in the circumstances for the presumption to be applied when making an interim order.[6]

   [6] s61DA(3)

10. In the event that the Court orders the parents to have equal shared parental responsibility, the Court must apply the provisions of section 65DAA which provides for a consideration of the child spending equal time with the parents.  If the Court finds that it is not in the child’s best interests and reasonably practicable, then the Court must consider the child spending substantial and significant time with the parents. Section 65DAA is expressed in imperative terms.[7]

    [7] MRR v GR [2010] HCA 4 at [15]

1. The Full Court in Goode v Goode[8] mandated that this legislative approach must be followed in all parenting cases, and in particular set out the procedural steps to be followed on an interim application, noting that in interim proceedings there may be little uncontested evidence to enable more than a limited consideration of these matters to take place.

   [8] (2007) 36 Fam LR 422, (2006) FLC 93-286

2. As stated by the Full Court in Keats & Keats, in respect of the conduct of interim proceedings:[9]

   …the principles that emerge from cases such as SS v AH [2010] FamCAFC 13, [are] namely, that apart from relying upon the uncontroversial or agreed facts, a judge may 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.

   [9] [2016] FamCAFC 156 at [9]

Issues in Dispute

1. The issues in dispute are the living arrangements for these two young boys and whether there is an unacceptable risk to the children if they are to remain living with the mother and her partner Mr D.

2. A significant issue in the case is the drug use of the mother and her partner Mr D whilst the children are in their care.

3. The mother concedes that she smokes marijuana when the children go to bed to help her deal with her anxiety and concedes that she has had a past drug habit, however that she no longer uses the drug “ice”.

4. The paternal grandmother has concerns that the mother is not adequately provided for the children’s health and living conditions, with concern arising from the general ill health of the children from colds, sore throats, cold sores, skin infections, loss of weight of the children, the children’s dental hygiene and their mental health. These issues are outlined in paragraphs 60 to 67 and 95 to 110 of the paternal grandmother’s Affidavit filed 22 September 2016.

Other Relevant Evidence

Evidence in the paternal grandmother’s case

1. The paternal grandmother asserts the Department of Family and Community Services have been involved with the care of the child A and that he was removed from the care of the mother.

2. Following the birth of X the paternal grandmother asserts that she was primarily responsible for the care of him during the day and that he would return to the care of his parents when they were taking less drugs or drinking less.

3. In late 2006 the paternal grandmother asserts she became aware that the mother was smoking marijuana whilst pregnant with X. The paternal grandmother says that the Department attended the home and conducted an assessment. She asserts that the case worker who attended the assessment said “The only reason that we will leave B with Ms Barkley is because you will be here to care for her”.

4. Between 2007 and 2008 the paternal grandmother says the parents would leave clothing and personal effects strewn over the train carriage and that the parents would clean up when the Department were due to visit.

5. The paternal grandmother asserts that the mother and B moved out of the train carriage in the winter of 2008, leaving the child X with the father and the paternal grandmother. This is denied by the mother.

6. At approximately the same time the paternal grandmother confronted the father after becoming aware that the parents were intravenous “speed” users and after finding a syringe.

7. From 2008 the paternal grandmother saw X and B several times a week by arrangement with the mother, including overnight time.

8. The paternal grandmother asserts that the mother’s appearance began diminishing by late 2008, and that she began presenting as “unwashed, unkempt and underweight”.

9. Following the birth of Y the paternal grandmother asserts that the care of the children declined and issues of family violence between the mother and father increased.

10. In 2012/2013 the paternal grandmother observed rapid changes in the father’s appearance, mood and behaviours and formed the view that he was using illicit drugs and keeping with a bad drug taking and supplying crowd.

11. During 2014 the paternal grandmother took the children to the dentist due to oral neglect issues. The paternal grandmother again on 28 May 2015 took X to the dentist in (omitted) due to urgent dental issues.

12. In 2014 the mother unilaterally stopped time between the paternal grandmother and the children however this time recommenced sometime later in 2014/2015.

13. In 2015 the paternal grandmother asserts that the mother is using “ice”. This assertion is formed due to the mother’s “rapid mood swings and irrational conversations”.

14. On 19 July 2016 the mother signed a statutory declaration giving permission for the paternal grandmother to take X to (country omitted) for a holiday for a three week period from 29 July 2016. During the holiday the paternal grandmother asserts that X made the following disclosures to her:

    a. I can’t leave my room and go to the toilet

    b. Mum smashed the pool table

    c. There are drugs in the house, Mum’s taking drugs;

    d. Mum sleeps in that’s why we miss the bus;

    e. Mum is up all night on her computer;

    f. B drives the car to the bus stop

15. During this time the maternal aunt Ms T, messaged the paternal aunt Ms S via Facebook. The messages contained the following:

    Things r really not good at their place…kids should not be living in that filth. Both Mr D and Ms Barkley are on bad drugs and $4000 behind in their rent…the kids underwear was a filthy X looked like they’d been out in the mud for a week with the dog pissing on them…were all really concerned for the kids.

    I’ve tried talking to her but it gets me nowhere. She denies there is a problem but e.

    They are defiantly on ice but I’m not sure what else.

    At least 10 times a month Ms Barkley rings mum to take the kids food to school because she didn’t have anything

    D has no lunch

    (omitted) is bad news….its since she has been around that the drugs got out of control.

16. The maternal aunt advised the paternal grandmother during her holiday to (country omitted) that she took B, Y and D for a week or so however they were returned by consent between the maternal aunt, the maternal grandmother and the mother as the mother had indicated that the Department was assisting her.

Evidence in the mother’s case

1. The mother in her Affidavit filed 26 October 2016 disputes a large majority of the assertions made by the paternal grandmother in her Affidavit filed 22 September 2016.

2. The mother asserts that A was adopted due to her young age at the time of his birth.

3. The mother denies the assertion that she, the father and B moved in with the paternal grandmother because they needed a place to live. She says that they moved in with the paternal grandmother to assist her following the loss of one of her arms. The mother says that she and the father assisted the paternal grandmother with day to day tasks such as house work and yard work.  In this regard the mother has concerns with the paternal grandmother’s ability to manage the children due to her physical and medical needs.

4. The mother agrees that the train carriage was “very cluttered” however denies that the photos of the carriage which are annexed to the paternal grandmother’s Affidavit were taken at a time when the mother was living in the carriage. She insists that they were taken at a time when she had moved out and when the father still lived in the carriage and was spending time with his other two children.

5. The mother denies using “ice” post 2015 saying at paragraph 35 of her Affidavit filed 26 October 2016 “my partner and I both stopped using ice in late 2015”.

6. The mother admits that she and the father began “hanging around” with a bad crowd in mid-2008 and “using drugs”. The mother does not state what drugs they were “using”.

7. In relation to the disclosures made by X to the paternal grandmother during their holiday to (country omitted) the mother states the following:

   a)She denies that the children are not allowed to leave their room to go to the toilet, however states that the children have routine and there “should be no reason for them to get out of their bed”;

   b)The mother is silent in relation to the disclosure regarding her smashing the pool table;

   c)The mother is silent in relation to the disclosure that there are drugs in the home;

   d)The mother admits that she sometimes sleeps in however she has always then driven the children to school;

   e)The mother denies that she is up all night on her computer and instead states that her computer is currently broken and that the children always stay in their beds and go to sleep;

   f)The mother admits that she allows B to drive the children to the bus stop, however she states only if she or her partner are in the car and that it only occurs on their property and not on the main road.

8. The mother denies that X is struggling at school as is asserted by the paternal grandmother. The mother annexes a copy of X’s school report for Semester 1, 2016 to her Affidavit which she says indicates that he is achieving at a “sound level”.

9. The mother agrees that Y does struggle at school and has some special needs.

10. The mother admits that the children have suffered from some of the medical issues identified by the paternal grandmother however she does not agree that this is due to neglect.

11. The mother admits that she has stopped time between the children and the paternal grandmother because she believes that the paternal grandmother is allowing the children to spend time with the father unsupervised.

Evidence in the father’s case

1. At the time of interim hearing the father had not filed any material in these proceedings.

2. He did however tender a letter from (omitted) House which became Exhibit 3 in the proceedings which confirmed that he is currently a voluntary inpatient at that facility and is receiving counselling and assistance for his drug and alcohol dependency.

Allegations of Domestic Violence

1. Family violence is defined in s4AB of the Act. The definition states:

   For the purposes of this Act, family violence means violent, threatening or other behaviour by a person that coerces or controls a member of the person’s family (the family member), or causes the family member to be fearful.

2. There are two elements to the definition. The first is the behaviour alleged and the second is the issue of causation, both of which must be proven to satisfy the definition.

3. Of assistance are the various examples provided in s4AB(2) of behaviour that may constitute family violence and the various examples provided in s4AB(3) of situations that may constitute a child being exposed to family violence.

4. At paragraph 28 of the mother’s Affidavit filed 26 October 2016 she describes an incident between her and the father which occurred in April/May 2009 where the father became physically and verbally aggressive towards her. The father had dragged her from the car across the road in the search for money that he believed the mother had hid from him. The police arrived at the scene and the father said to the mother words to the effect of “You say anything and I will come back and I will kill ya. Keep ya mouth shut”.

5. The police had asked the mother if she wanted to make a statement to them as they had already received reports from neighbours that they had “heard screams from a woman, and a woman being dragged across the road”.

6. The mother reports in paragraph 29 of her Affidavit that following the above scene the father had attended the home of the mother’s current partner, Mr D and said words to the effect “Mr Tobin had been here earlier frothing at the mouth and waving a baseball bat. Mr Tobin thought we were hiding you in our house”.

7. On 22 July 2009 a Final Apprehended Domestic Violence Order was made naming the children and the mother as protected persons and the father as the defendant.

8. At interim hearing, the father consented to an injunction restraining him from coming into contact with the children and from going to his mother’s home while the children were there.

9. The paternal grandmother submitted to the Court that an injunction in relation to the father was an appropriate order to be made.

Parental Responsibility

1. Section 61C of the Act provides that each of the parents of a child who is not 18 years has parental responsibility for the child. This section states the legal position that prevails in relation to parental responsibility to the extent to which it is not displaced by a parenting order.[10] Section 61DA provides for a presumption of equal shared parental responsibility that applies when the Court makes a parenting order. The presumption of course, applies only to parents.

   [10] See note 1 s61C

2. As noted earlier, in interim proceedings, the presumption applies unless the Court considers that it would not be appropriate in the circumstances for the presumption to be applied when making an interim order.[11] The presumption is also rebutted where there are reasonable grounds to believe that a parent has engaged in family violence.

   [11] s61DA(3)

3. The Court is satisfied on all of the evidence that not only are there reasonable grounds to believe that the father has engaged in family violence against the mother, but that it is not appropriate, having regard to all of the evidence in these proceedings for the presumption to be applied.

4. It is noted for the benefit of the parties that in making a final parenting order in relation to a child, the Court must disregard the allocation of parental responsibility made in the interim order.[12]

   [12] s61DB

5. The Court is satisfied that at this early stage in the proceedings, an order for the paternal grandmother to have sole parental responsibility is in the children’s best interest. The Court is so satisfied based on the dysfunction in the mother’s household.  

Primary Considerations and Risk of Harm

1. The protection of the children from harm is an important matter for the Court’s consideration when weighing up the primary considerations. Indeed, the Court must prioritise the need to protect the children from harm as against the benefit of the children having a meaningful relationship with the parents.

2. Many of the facts alleged by the parties are disputed. The father has not yet put on any evidence in the proceedings. The matter has come on in a relatively urgent fashion.

3. Even if the Court is unable to make findings of fact about many of the issues, the Court is still obliged to take into consideration the various allegations which have been made. In doing so the Court must weigh up any risk of harm to the child, all the while considering what might be in the children’s best interest. It is the existence and magnitude of the risk of harm that is a fundamental matter to be taken into account in deciding what orders are to be made in respect of where the children are to live, and what time, if any, they are to spend with the other parent.[13]

   [13] M & M (1988) 166 CLR 69 at 77

4. The submissions made in the mother’s case, in respect of risk of harm to the children, did not give the Court any comfort that the mother understood the gravity of the situation or how the children might be at risk in her care.  For example, while the mother admitted that she currently smoked marijuana as a coping tool, it was submitted on her behalf that generally in today’s age, a seven and a nine year old have ample opportunity to know what a “bong” is. This does not accord with the usual experience of the Court, except in circumstances where children are exposed to drugs. Furthermore, it was conceded by the mother in submissions that she had a terrible history of drug use. The mother has not gone to drug rehabilitation to help her deal with her historical and current drug use. Instead, she has sought to stay clean with the assistance of her family.

Additional Section 60CC Factors

1. The protection of the children from harm is in this instance a matter which is of primary concern to the Court, and the additional considerations were only considered as far as relevant, particularly noting that many of these considerations concern parents only.

2. The children’s views, except as told by the parties, are not known. X has disclosed to the paternal grandmother his concerns about what happens in the mother’s household.

3. There are a number of children currently in the mother’s household. The two subject children of these proceedings have two half-siblings currently living with them. The mother’s other two children do not live with the mother as noted earlier. There is little, if any, evidence about the children’s relationships with their parents and significant and others.

4. The children have had a troubled childhood so far, with their parents being involved with illicit drug use and all that goes with it. They appear not to have been looked after properly according to the Applicant’s evidence.  The Court has already expressed concerns about the insight of the mother into her difficulties, which has consequences upon her parenting capacity and ability to look after the children’s basic needs. The father, on his own admission, is not in a position to adequately meet the children’s needs.

5. The children have spent time with the Applicant and the orders which are made, will see the children spending time with the mother and their siblings in mother’s household.

6. There does not appear to be any significant practical difficulty of the children spending time with either the mother or the paternal grandmother, this is something which has in any event been occurring in accordance with the orders which were made by consent pending this interim hearing.  

7. These are only interim orders, and it is likely that if the matter proceeds to final hearing, there may be a time period of at least some twelve months before the matter is decided on a final basis, much depending on whether a Family Report is to be ordered.

8. The length of time that the matter will take to reach readiness for a final hearing is also something which the Court has considered in making these interim orders, particularly in trying to balance rights of the children to know and be cared for by their parents, against the risk to the children if they are cared for by their parents.

Conclusion

1. In all of the circumstances and for all of the reasons set out above, it is in the children’s best for orders to be made as set out at the forefront of these Reasons.

I certify that the preceding ninety-eight (98) paragraphs are a true copy of the reasons for judgment of Judge Obradovic

Date:  23 December 2016