TULLY & TONER

Case •

[2019] FCCA 2918

•

14 October 2019

FEDERAL CIRCUIT COURT OF AUSTRALIA

TULLY & TONER [2019] FCCA 2918
Catchwords:
FAMILY LAW – Parenting – interim – where the child has lived primarily with the mother since the parties separation in 2015 – where the father collected the child aged 9 from school in Suburb A to live with him in Suburb C – where father has concerns as to the mother’s mental health and family violence and drug use in her household – where there have been arguments between the mother and her partner requiring police attendances – held that the child remain in the care of the father.

Legislation:

Family Law Act 1975, ss.60B(1)(b), 60CC(2)(b), Pt VII

Cases cites:

Goode & Goode (2006) FLC 93-286
Applicant: MS TULLY
Respondent: MR TONER
File Number: NCC 262 of 2019
Judgment of: Judge Costigan
Hearing date: 9 October 2019
Date of Last Submission: 9 October 2019
Delivered at: Newcastle
Delivered on: 14 October 2019

REPRESENTATION

Solicitors for the Applicant: Nash Allen Williams & Wotton
Solicitors for the Respondent: Craney Family Solicitors
Solicitors for the Independent Children's Lawyer: Legal Aid NSW (Mr A Scally)

ORDERS PENDING FURTHER ORDER

  1. All previous parenting orders in relation to the child X born … 2009 (‘X’) are suspended.

  2. X is to live with the father.

  3. X is to spend time with the mother as follows:

    (a)In school terms, commencing the 1st weekend after the start of each new school term, each alternate weekend from after school Friday until 5.00pm Sunday; with the mother to collect X from Suburb B Public School at the commencement of time and the mother to return X to the father at the McDonalds Restaurant Suburb D at the conclusion of time;

    (b)In the term 1, 2 and 3 school holidays from 10.00am the 1st Saturday of the holidays until 5.00pm on the mid Saturday of the holidays, with the mother to collect X from the McDonalds Restaurant at Suburb E at the commencement of time and the mother to return X to the father at the McDonalds Restaurant Suburb D at the conclusion of time;

    (c)In the term 4 school holidays:

    (i)from 10.00am the 1st Saturday of the holidays until 5.00pm the 2nd Saturday of the holidays; and

    (ii)from 10.00am the 2nd last Saturday of the holidays until 5.00pm the last Saturday of the holidays;

    with the mother to collect X from McDonalds Suburb E at the commencement of time and the mother to return X to the father at a McDonalds Suburb D at the conclusion of time, or as otherwise agreed between the parties in writing (which may be way of letter, email or sms text message).

  4. The mother is restrained by injunction from allowing X to be brought into contact with Mr F when X is in her care.

  5. X is to have telephone communication with the mother each Tuesday and Thursday between 5.00pm and 5.30pm; with the father to initiate the telephone call to the mother on her mobile telephone number … and to allow X privacy in which to have the call.

  6. The parties are restrained by injunction from:

    (a)Consuming alcohol in excess of the legal limit for driving a motor vehicle when X is in their care;

    (b)Consuming illegal drugs;

    (c)Denigrating the other party or the other party’s family to, or in the hearing of X and from allowing X to remain in the presence or hearing of other people denigrating the other party or the other party’s family; and

    (d)Physically disciplining X.

  7. The parties are to undertake hair strand testing for illegal drugs and alcohol use as follows:

    (a)Within 2 days either side of 20 January 2020, the mother and the father (at their cost) are to undertake hair strand testing for illegal drugs and alcohol use at an authorised testing service and are to provide a copy of the result of their tests to the other party’s lawyer and the Independent Children’s Lawyer.

    (b)For the purpose of the testing, the parties are restrained by injunction from cutting their hair to a length of less than 3.5cms, altering, dyeing or otherwise treating their hair.

  8. The matter is adjourned to 16 March 2019 at 11.30am for a directions hearing in the Federal Circuit Court sittings at Newcastle.

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

FEDERAL CIRCUIT COURT
OF AUSTRALIA
AT NEWCASTLE

NCC 262 of 2019

MS TULLY

Applicant

And

MR TONER

Respondent

REASONS FOR JUDGMENT

Introduction

  1. This matter concerns parenting arrangements for the child, X born … 2009 (‘the child or X’). She is currently aged 9 years, 10 months. 

Background

  1. The parents, Ms Tully (‘the mother) and Mr Toner (‘the father’), were in a relationship between 2009 and 2015. 

  2. The child lived with the mother post separation and according to the mother, spent time with the father inconsistently.

  3. In December 2017 the mother relocated with the child from Western Sydney to the NSW Region J and commenced a relationship with her current partner Mr F.

  4. On 14 December 2018, the mother alleges that the father collected the child from school and retained her in his care.  She says that the father refused to allow the child to spend time with her.

  5. The mother filed an initiating application on 31 January 2019 seeking a recovery order.

  6. The matter came before the Court on 7 February 2019 at which time I declined to make the recovery order and instead made interim orders for the child to live with the father and spend time with the mother on alternate weekends from after school Friday until 5pm Sunday, and telephone communication between the mother and child.  The father was directed to file his response material by 22 February 2019.

  7. On 10 April 2019 the parties and child attended upon family consultant Ms K for the purposes of a Child Inclusive Conference.  Ms K

    ‘suggested that the current parenting arrangements are in the best interest of the child, while the court further examines the risk issues.’

  8. On 1 May 2019 interim orders were made, inter alia, for the child to live with the father, for the appointment of an Independent Children’s Lawyer and for the parents to undertake urinalysis for illicit drugs. Further, the Court made an order pursuant to s91B of the Family Law Act 1975 inviting the Department of Family and Community Services to intervene in the proceedings and listed the matter for interim hearing on 11 July 2019.

  9. On 11 July 2019 the mother was represented by Mr Wotton.  Mr Craney appeared on behalf of the father but advised the Court that he had only received notification of the grant of aid earlier that day. Mr Scally appeared as the Independent Children’s Lawyer and advised the Court that the matter was not ready to proceed.  This was the first occasion that the father had been represented by someone other than a duty lawyer and needed additional time to file material.   The parties jointly proposed that the matter be adjourned so that the Independent Children’s Lawyer could issue subpoenas, the father could file some material and the mother could file further, more fulsome affidavits. The Court then made orders extending time for the father to file his response material to 9 August 2019, for the mother to return X to the care of the father by 5pm on 14 July 2019 and the matter was listed for interim hearing on 9 October 2019 at 9.00am.

  10. On 9 October 2019 the interim hearing proceeded by way of submissions.  Both parties were represented by their solicitors:  the mother by Mr Wotton and the father by Mr Craney.  Mr Scally appeared as the Independent Children’s Lawyer.

Proposals

  1. The mother seeks that the child be returned to her care in Suburb L on the NSW Region J and proposes that the child spend time with the father:

    ‘as may be agreed from time to time between the mother and the father by way of exchange of text messages.’[1]

    [1] Exhibit A

  2. The father seeks that the child live with him in Suburb C in Sydney and wants any time the mother spends with the child to be supervised by the maternal uncle Mr H or the maternal aunt Ms G.  He suggests that such time occur on alternate weekends from 5pm on Friday until 5pm on Sunday. 

  3. The Independent Children’s Lawyer tendered a minute of proposed interim orders[2] in the following terms:

    [2] Exhibit K

    1.All previous parenting orders in relation to the child X born … 2009 (‘X’) are suspended.

    2.X is to live with the father.

    3.X is to spend time with the mother as follows:

    a.  In school terms, commencing the 1st weekend after the start of each new school term. Each alternate weekend from after school Friday to 5.00pm Sunday; with the mother to collect X from Suburb B Public School at the commencement of time and the mother to return X to the father at McDonalds Restaurant nearest the mother’s residence at Suburb L NSW at the conclusion of time.;

    b.  In the term 1, 2 and 3 school holidays from 10.00am the 1st Saturday of the holidays to 5.00pm the mid Saturday of the holidays, with the mother to collect X from a McDonalds Restaurant nearest the father’s residence at Suburb C NSW at the commencement of time and the other to return X to the father at a McDonalds Restaurant nearest the mother’s residence at Suburb L NSW at the conclusion of time;

    c.  In the term 4 school holidays, from 10.00am the 1st Saturday of the holidays to 5.00pm the 2nd Saturday of the holidays and from 10.00am the 2nd last Saturday of the holidays to 5.00pm the last Saturday of the holidays; with the mother to collect X from a McDonalds Restaurant nearest the father’s residence at Suburb C NSW at the commencement of time and the mother to return X to the father at a McDonalds Restaurant nearest the mother’s residence at Suburb L at the conclusion of time.

    d.  As otherwise agreed between the parties in writing (which may be way of letter, email or sms text message).

    4.The mother is restrained by injunction from allowing X to be brought into contact with Mr F when X is in her care.

    5.X is to have telephone communication with the mother each Tuesday and Thursday between 5.00pm and 5.30pm; with the father to initiate the telephone call to the mother on her mobile telephone number … and to allow X privacy in which to have the call.

    6.The parties are restrained by injunction from:

    a.  Consuming alcohol in excess of the legal limit for driving a motor vehicle when X is in their care;

    b.  Consuming illegal drugs;

    c.  Denigrating the other party or the other party’s family to, or in the hearing of X and from allowing X to remain in the presence or hearing of other people denigrating the other party or the other party’s family.

    d.  Physically disciplining X.

    7.The parties are to undertake hair strand testing for illegal drugs and alcohol use as follows:

    a.  With 2 days either side of 20 January 2020, the mother and the father (at their cost) are to undertake hair strand testing for illegal drugs and alcohol use at an authorised testing service and are to provide a copy of the result of their tests to the other party’s lawyer and the Independent Children’s Lawyer.

    b.  For the purpose of the testing, the parties are restrained by injunction from cutting their hair to a length of less than 3.5cms, altering, dyeing or otherwise treating their hair.

  4. The mother’s solicitor indicated that the mother consented to orders 4, 6 and 7 of the Independent Children’s Lawyer’s minute.

Issue

  1. The issue that requires determination on an interim basis is whether the child should remain with the father or be returned to the mother.

Evidence

  1. The mother relied on the following documents:

    a)Her affidavits filed 31 January 2019, 5 July 2019 and 26 September 2019;

    b)Affidavit of Ms M filed 2 October 2019;

    c)Her Case Outline and Chronology dated 8 October 2019 (Exhibit A);

    d)Urinalysis results dated 28 September 2019 (Exhibit B);

    e)Documents produced under subpoena by the Department of Family and Community Services – contained in subpoena packet #2 – orange tab M1 (Exhibit C);

    f)Documents produced under subpoena by Suburb B Public School – contained in subpoena packet #4 – pink tab M1 (Exhibit D); and

    g)Documents produced under subpoena by Suburb B Public School – contained in subpoena packet #5 – pink tab M5 (Exhibit E).

  2. The father relied on the following documents:

    a)His response filed 7 August 2019;

    b)His affidavit filed 7 August 2019;

    c)Bundle of drug screens (3) undertaken at the request of the Independent Children’s Lawyer (Exhibit F);

    d)Documents produced under subpoena by NSW Police – contained in subpoena packet #6 – tab F1- F6 inclusive (Exhibit G);

    e)Documents produced under subpoena by Medical Centre– contained in subpoena packet #7 – tab F1, F3-F9 inclusive (Exhibit H); and

    f)Documents produced under subpoena by Psychology Centre – contained in subpoena packet #10 – tab F3-F9 inclusive (Exhibit I).

  3. The Independent Children’s Lawyer relied on the following documents:

    a)Documents produced under subpoena by Dr N – contained in subpoena packet #8 – tab 1CL 1- ICL 3 inclusive (Exhibit J); and

    b)Minute of proposed interim orders (Exhibit K).

X’s removal from school on 14 December 2018

  1. The initial question for the Court is why did the father remove X from school on 14 December 2018?  The parties’ version of events are very different. The mother deposes:-

    16.    On or about Friday 14 December I dropped X to school, I went to the school at 2.55pm to collect X but she was not there.  After some frantic running around enquiries [sic] I was told by the ladies in the school office that Mr Toner had picked her up from school that day. This was not what we had agreed and I rang Mr Toner to find out what he was doing. He would not speak to me and put X on the phone.  X then told me she was fine and that “Dad had to pick me up early”. She sounded happy on the phone.[3]

    [3] Mother’s affidavit filed 31 January 2019 at [16]

    17.    I was expecting X home in the second week of January 2019.

  2. The father in his affidavit filed 7 August 2019 deposes:-

    30.    On 14 December 2018, the school called me at around 4pm and told me that X had not been collected and they were unable to get hold of Ms Tully. The staff member needed X collected and wanted to go home. I told the school I would call the back.  I then called my brother-in-law who lives at Suburb O. I then called the school back and let them know my brother-in-law would be attending to collect X. My brother-in-law collected X on my behalf and took her back to his home and she had dinner with him.

    31.    Later than night I travelled to Suburb O to collect X and brought her back home with me to Sydney.

    32.    I did not have any contact with Ms Tully until Christmas Day. Ms Tully called to speak to X on Christmas Day and they did so for about 10 minutes. Ms Tully called a few times to speak to X and this occurred. I never stopped X spending time with Ms Tully.

  3. No documents were available from Suburb A Public School and it was not an issue canvassed with the parents at the Child Inclusive Conference on 10 April 2019.

  4. The mother’s evidence is that the parties had agreed that X would spend three or four weeks with the father for the Christmas school holidays from 19 December 2018 and so was not particularly concerned that the father had collected X five days early.  It was not until he failed to return her in the second week of the January 2019 that she became worried. 

  5. In any event, X has been in the father’s care now for ten months.  She appears settled back in her former school at Suburb C and linked in with medical practitioners and providers of ancillary services to support her learning needs.

Concerns of the father

  1. The father maintains that it is in the child’s best interests that she remain with him.

  2. The father submits that the child is at risk in the mother’s household and the potential harm falls into three categories:-

    a)The mother’s drug use;

    b)The mother’s mental health; and

    c)The family violence in the mother’s household. 

  3. Pursuant to section 60B(1)(b) Family Law Act 1975, it is an object of the Act to ensure that the best interests of child are met by protecting the child from physical or psychological harm from being subject to, or exposed to, abuse, neglect or family violence.

  4. In determining a child’s best interests, pursuant to section 60CC(2)(b), one of the primary considerations which must be taken into account is the need to protect the child from physical or psychological harm from being subjected to, or exposed to, abuse, neglect or family violence.

  5. I will now consider each of the risk factors that the father maintains the child are subjected to in the mother’s household.

The mother’s drug use

  1. The mother in the past has suffered from drug addiction. In 2005 the mother says she was abducted and assaulted by a Mr P. She suffered serious injuries and was diagnosed with Post Traumatic Stress Disorder.  She began to self-medicate with cannabis and other drugs including ICE. In 2007 she completed a 12 week rehabilitation program at City Q Centre and then entered City Q House for a further 3 month rehabilitation course.

  2. The parties commenced their relationship in 2009 and the mother says that they both used marijuana during the relationship and that the father also used ICE. 

  3. In the Child Inclusive Conference Memorandum the family consultant reports:

    ‘The mother concedes regular marijuana use prior to the court proceedings. She stated her use was a couple of cones or joints a day. The mother said that she participated in urinalysis as requested by the court and the results were consistent with ‘low use’.

  4. Documents produced under subpoena by NSW Police provide some more recent information:

    (a)     On 3 November 2019 the mother’s partner Mr F came to attention of police as a result of manner in which he was driving his motor vehicle. The mother was sitting in the passenger seat.  Mr F submitted to a random breath test which produced a positive result for methylamphetamine and cannabis.  Police conducted a search of the motor vehicle ‘and located a clear plastic container containing cannabis, to which the passenger of the vehicle MS TULLY took ownership of. Police also located two small clear resealable plastic bags containing a white substance which the accused [Mr F] confessed to be being ICE, and it was his. Mr F was charged.[4]

    [4] Exhibit G(F2)

  5. The parties have undertaken urinalysis at the request of the Independent Children’s Lawyer.  The mother provided two results, the first of which was positive for cannabis and the second which was clean. 

  6. At paragraph 49 of her affidavit filed 26 September 2019 the mother deposed:

    ‘I have been self-medicating with cannabis smoking it almost every night before I go to bed to help me sleep. I have kept Dr R[5] advised of my cannabis use.  Dr R referred me to the Government Medicinal Cannabis Trial Programme and I am presently on the waiting list for Cannabis medication under that Programme’.

    [5] The mother’s treating general practitioner at Suburb T

  7. As the solicitor for the father points out it is odd that the mother should depose on 26 September 2019 to regular cannabis and two days later produce a urinalysis result which is clear of all illicit drugs.

  8. The Independent Children’s Lawyer submits that the parental drug use remains a significant issue in the matter and while the urinalysis results suggest it does not currently pose a risk to the child, he proposes a further order for hair testing in three months’ time.

Family violence in the mother’s household

  1. The mother has been in a relationship with Mr F since 2017.  Between them they have 9 children from previous relationships but it appears that only the subject child X and the mother’s adult daughter Ms M have ever lived with them.

  2. Initially Mr F moved in with the maternal uncle at Suburb L but when the mother moved into that residence, Mr F went to live with his sister at Suburb T.  The mother and Mr F rented a caravan at Suburb U and for a period of four months they lived together, along with X on weekends. At the conclusion of that period Mr F returned to live with his sister at Suburb S but the relationship continued ‘with them seeing each other several nights each week.’[6]

    [6] Exhibit A

  1. In the Child Inclusive Conference Memorandum under the hearing Risk Factors – Family Violence the family consultant reports:

    ‘The father alleges that there is physical violence between the mother and her current partner, Mr F. The child states that she has witnessed conflict between the mother and Mr F and has been taken to stay with other people as a result. She says that she has intervened and said that she would film the argument if they did not stop.’

  2. The mother makes no mention in any of her affidavits of there being domestic violence in her household or in her relationship with Mr F.

  3. The police records provide some detailed history of the mother and Mr F’s domestic violence situation:-

    a)On 5 March 2018 the police were called by the mother to the mother and Mr F’s residence due to a ‘loud argument’ over ‘living conditions.’ The police observed no injuries and no one expressed any fears.[7]

    b)On 16 March 2018 the police were called to the residence of Mr F following a report by neighbours of a ‘male and female yelling’.  On arrival Mr F told police to ‘fuck off.’  Police noted that while the house was disorderly there was no apparent offence.[8]

    c)On 8 June 2018 the police were called by neighbours to the mother and Mr F’s residence due to ‘fighting’ about not putting washing away. Police noted that the mother’s daughter was present at the time.[9]

    d)On 20 July 2018 the police were called by Mr F to his residence in relation to an argument with the mother about ‘dirty spoons in the sink.’  Mr F reported that he had asked the mother to leave, which she did.[10]

    e)On 4 September 2018 the police were called to an incident at the home of Mr F’s sister where the police note Mr F, the mother and X live. The mother and Mr F’s sister had gone shopping but when Mr F could not raise the mother on her mobile phone he became angry.  The mother returned to the home and an argument ensued with each breaking the other’s mobile phone.  Police were called by neighbours and on arrival noted that ‘Mr F …appeared in a dishevelled stated, with stains down his shirt and wearing his shorts inside out Mr F was in a highly agitated state, swearing and yelling and talking extremely quickly’.  Police went to speak with the mother who was ‘displaying signs of mental health issues, talking in tangents, speaking quickly and displaying mood swings.  Mr H stated that she had not taken her prescribed mental health medication for three days’.  Police advised the parties that they were under arrest and ‘Mr F started becoming verbally hostile towards police.  Police handcuffed Mr F for their safety. Mr F continued his verbal tirade at Mr H, who urinated her pants in a physical response to this’. They were both taken to Town V Police Station and charged with malicious damage.  There was no information before the Court as to the outcome of those criminal proceedings.  [11]

    [7] Exhibit G (F1)

    [8] Exhibit G (F6)

    [9] Exhibit G (F5)

    [10] Exhibit G (F4)

    [11] Exhibit G (F3)

  4. I am satisfied that the risk is of such that it warrants a change of residence for X on an interim basis for the following reasons:

    a)It is clear both from subpoenaed material and from X’s report to the Family Consultant that she has been exposed to family violence in the mother’s household;

    b)The family consultant reports that X has sought to intervene and ‘film’ the arguments between the mother and Mr F;

    c)The violence between the mother and Mr F appears to have escalated over the course of 2018;

    d)Though the subpoenaed material mentions the police applying for a provisional apprehended violence order against Mr F for the protection of the mother there was no evidence before the Court of any apprehended violence orders being in place;

    e)Both Mr F and the mother are reported in the subpoenaed material to have current mental health and drug issues which increased the risk of family violence and the child being exposed to further verbal and physical arguments; and

    f)The father told the Court that X reported that she continues to see Mr F when she spends time with the mother. This raises concerns for this Court as to the mother’s insight in relation to the impact of family violence on the child.

The mother’s mental health

  1. The mother told the family consultant that she had been diagnosed with bipolar and currently takes Seroquel 50mg daily which is monitored by her general practitioner.  She also told the family consultant that Mr F had been diagnosed with depression and takes antidepressants.

  2. The father makes no reference to the mother’s alleged mental health in his affidavit but he told the family consultant that

    ‘the mother’s behaviour has always been aggressive and unpredictable’.

    He also told the family consultant that

    ‘Mr F has more significant mental health issues but is unsure of what.’

  3. The mother says that her mental health is well-managed and her treating psychologist ‘has not seen any need for me to see him since 2015.’[12]  However, the police records from the incident on 4 September 2018 and referred above, suggest that there may be occasions when the mother is non-compliant with her medication impacting on the stability of her mental health.

    [12] Mother’s affidavit filed 26 September 2019 at [50]

Concerns of the mother

  1. The mother maintains that it is in the child’s best interests that she return to her care. The mother’s main criticisms of the father are:

    a)The father took and retained the child from school on 14 December 2018 without her consent and then made serious but unfounded allegations to the Department of Family and Community Services that she was ‘using heroin and ice, neglecting the child and that she was pregnant and her unformed child was at risk’;

    b)The father has failed to comply with orders of this Court in relation to filing of response material; and

    c)The child is at risk in the father’s household because of the father’s illicit drug use.

Father’s unfounded complaints to the Department of Family and Community Services

  1. Documents produced under subpoena by the Department contain the following entry:

    ‘’1/12/208 ASM – 3426652 Screened out for risk of neglect for X (8). The information in regards to the mother’s alleged heroin and methamphetamine is vague and general in nature. There is no other information to indicate how the mother’s alleged drug use is impacting on her ability to provide care and protection to X.  It is also alleged that X has missed a substantial amount of schooling. There is however no prior reports from any school to corroborate this information.  Further, the reported concerns has recently been reported in report in engagement number … dated 7 November 2018.’[13]

    [13] Exhibit C (M1)

  2. The subpoena records indicate that the family have had a long history of involvement with the Department dating back to 2005 including care proceedings in relation to maternal drug use and issue of neglect.  However, as at November 2018 those issues were ‘screened out’ and no further action taken by the Department.

The father’s drug use

  1. In the Child Inclusive Conference Memorandum the family consultant wrote:

    ‘The father concedes regularly smoking marijuana during the relationship, however states that he ceased regular use when the parties separated. He concedes smoking marijuana approximately two weeks ago at a party. The mother alleges that the father previously smoked ice. The father denies other drug use.’

  2. As previously stated, the parties have undertaken urinalysis at the request of the Independent Children’s Lawyer.  The father has provided three results which were negative for illicit drugs. 

The Child

  1. X is 9 years old and currently attends Suburb B Public School where she is Year 4.

  2. In June 2016 X was referred by her general practitioner to see consultant paediatrician Dr N.  It appears from documents produced under subpoena[14] that Dr N has diagnosed X with ADHD hyperactivity, oppositional defiant disorder and learning problems (her reading level is below her expected level for age). Dr N was of the view that X’s

    ‘learning difficulty is secondary to ADHD symptoms as well as lack of routine and stable home environment.’

    On 16 August 2019 Dr N recommended that X continue with her behavioural therapy and speech therapy.

    [14] Exhibit J

  3. In the Child Inclusive Conference Memorandum to Court under the heading ‘The Children’ the family consultant wrote:

    ·       ………..She presented as a very polite, bubbly and engaging child.

    ·       X is reported to play sports outside of school and discussed her enjoyment of arts and crafts. She demonstrated some very creative drawing during the assessment.

    ·       X is reported to be struggling significantly at school by both parents. She said that she liked school, however offered that she finds schoolwork difficult and appeared embarrassed by this.

    ·       When asked, X said that she liked attending both Suburb B and Suburb A schools. She reported having good peer friendships at both.

    ·       The mother reported that X improved significantly once beginning Suburb A primary school and that she was participating in a special reading program there.

    ·       The mother stated that X had participated in funded speech and occupational therapy sessions, however did not have any diagnosis, other than the mother being told that she had a processing issue.

    ·       The father is concerned that the child may have a delay due to the mother’s drug use while she was in utero. The child has not been seen by a paediatrician with either parent.

    ·       It was observed during this brief assessment that the child appears to have a mild speech delay and may have some developmental and/or learning issues.

    ·       The child reported being aware of the parental conflict and each parent’s view of the other, including blame for the relationship breakdown. The child said that she wanted the Court to know that she just wanted each parent to be honest with her.

    ·       The child stated that she wanted to live with and spend time with each parent and could not make any further assertions about her desired living arrangements.

  4. Both parents gave evidence of X making complaints critical of the other parent.  The family consultant suggested that X might have a mild speech delay and some developmental and/or learning issues which for the Court raises some concerns around the reliability of X’s complaints if accurately reported by the parents.

  5. Documents produced under subpoena by X’s treating psychologist from Psychology Centre contain the following notable entries :

    a)   ‘………at times at her mother’s house there is fighting and police get involved.’[15]

    b)   In relation to going to her mother’s house: ‘sometimes I don’t feel safe but mostly I do feel safe.’[16]

    c)    ‘she always feels safe with her dad, me [psychologist] and her solicitor’[17]

    d)   ‘She retold that recently when she was asked by her solicitor who she like to live with and she at first said her mother, but X now says she regrets that choice and would like to live with her dad.’[18]

    e)   ‘X relayed that often her mother will hit her when she does something wrong such as not share her toys. When I asked her to show or tell me where her mother hits her she indicated her face and stomach.’[19]

    f)     ‘Dad has asked me to address the subject of honesty with X, as he has mentioned to me she has the tendency to lie about things.’[20]

    g)   Accordingly to X, she sometimes will lie to her mother and although doesn’t want to go to her mother’s house to sleep, will says she does because she is scared her mother will get angry at her. X also mentioned that her mother says to her that her dad takes “Stuff’. We discussed if she understand what the stuff is and she whispered in my ears “Drugs.” She said she does not like to say the word so she chooses to call them stuff. She said her mother also says that he “sleeps with a lot of people”. X says she knows this is not true and her mother is lying to her. She said that her dad says that he helped her mother get a job and helped her to get her kids back’[21].

    h)   She said that her dad showed her a video of how people act when they are taking “stuff’. [22]

    i)     X complained of a sore back and said ‘in the beginning of the year her mother was living in a caravan and X accidentally walked in on her mother and a man and her mother became angry and pushed X into a glass table.’[23]

    [15] Exhibit I (F3)

    [16] Exhibit I (F3)

    [17] Exhibit I (F3)

    [18] Exhibit I (F3)

    [19] Exhibit I (F4)

    [20] Exhibit I (F4)

    [21] Exhibit I (F6)

    [22] Exhibit I (F6)

    [23] Exhibit I (F6)

  6. The material from X’s psychologist raises a number of concerns for the Court: the parties’ readiness to involve X in the parental dispute; her exposure to family violence and inappropriate adult behaviour. 

  7. The father concedes that X may lie from time to time and requested the psychologist to address the subject of honesty with X.  In view of her age, her diagnosis and the issues around truth and honesty for X, at this interim stage the Court is cautious about placing too much weight on her expressed wishes or her critical reports of one parent to the other.  It is obvious that X is aware of the conflict between her parents, and there is always a risk in these situations that a child will say things to a parent which they know will find favour with the parent.

Determination

  1. Having regard to the available evidence and having heard the parties’ submissions, for the reasons outlined above, I am satisfied that it is in the best interest of X that she remain living with the father on an interim basis.

  2. I am satisfied that living with her father affords X a degree of stability and security in her life which has been distinctly lacking in recent times.  While the Court accepts the submission of the Independent Children’s Lawyer that the father’s household is not entirely free of risk, X has:

    ·been living with the father since December 2018; and

    ·enjoys the school she attends and while there have been issues with her attendance (absences and late arrivals) they are identical problems to those experienced by the mother when X was in her primary care.

  3. Based on the investigations conducted to date, the identified risks in the father’s household appear less than the identified risks of drug use, mental health and family violence associated with the mother’s household.

  4. The father arranged for X to be assessed by paediatrician and engaged in therapeutic counselling with a psychologist. X is now linked in with a number of services and overall has a higher visibility in the community.

  5. Turning then to the time that the child should spend with the mother, the father proposes that the mother’s time be supervised by either the maternal uncle or the maternal aunt and says that supervision is necessary to ameliorate the risk posed by Mr F.

  6. The Independent Children’s Lawyer disagrees and submits that the risk can be addressed by way of injunction restraining the mother from bringing the child into contact with Mr F.  The mother says that she is prepared to consent to the restraint proposed by the Independent Children’s Lawyer and it would cause her no hardship as she and Mr F do not live together on a full-time basis.

  7. The Independent Children’s Lawyer proposes a continuing regime of drug testing which is not opposed by either party but compliance be subject to funding being made available by Legal Aid NSW. 

  8. The Independent Children’s Lawyer also proposes a number of restraints relating to drug and alcohol use, denigration and physical discipline of the child, which again are not opposed by the parties and are supported by the available evidence.

  9. The parties and Independent Children’s Lawyer agree that the next logical step in the substantive proceedings is the preparation of a family report.

  10. The matter will return to Court on 16 March 2020, after the release of a family report. 

I certify that the preceding sixty eight (68) paragraphs are a true copy of the reasons for judgment of Judge Costigan

Date:  14 October 2019


Key Legal Topics

Areas of Law

  • Civil Procedure

  • Administrative Law

Legal Concepts

  • Judicial Review

  • Jurisdiction

  • Procedural Fairness

  • Standing

  • Natural Justice

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