UNGAR & STILLMAN

[2017] FamCA 987

FAMILY COURT OF AUSTRALIA

UNGAR & STILLMAN [2017] FamCA 987

FAMILY LAW – Parenting – Interim application – Where the parties have been litigating for years over two children – where the children are already living in a split arrangement – where the Independent Children’s Lawyer and the father seek orders that the child living with the mother be removed to live with the father and the mother have only supervised time pending final hearing-where the mother fails to provide any material of substance-where there are significant concerns about the child in the mother’s care from such professionals as a psychiatrist and a psychologist who wrote the family report-where the case has been in the Federal Circuit Court and needs an urgent final hearing-final hearing set and directions accordingly

Evidence Act 1995 (Cth).
Family Law Act 1975 (Cth)

Goode and Goode (2006) FLC 93-286
In the Marriage of N and S (1995) 19 Fam LR 837; (1996) FLC 92-655
M v M [1988] HCA 68; (1988) 166 CLR 69

APPLICANT: Mr Ungar

RESPONDENT: Ms Stillman

INDEPENDENT CHILDREN’S LAWYER:

FILE NUMBER: MLC 8647 of 2008

DATE DELIVERED: 30 November 2017

PLACE DELIVERED: Melbourne

PLACE HEARD: Melbourne

JUDGMENT OF: Cronin J

HEARING DATE: 30 November 2017

REPRESENTATION

THE APPLICANT: In Person

THE RESPONDENT:	In Person
COUNSEL FOR THE INDEPENDENT CHILDREN’S LAWYER:	Ms Jenkinson

SOLICITOR FOR THE INDEPENDENT CHILDREN’S LAWYER: Sofra Solicitors

Orders

1. That all extant parenting orders are suspended.

2. That until further order, the children B born … 2005 and C born … 2007, live with the father.

3. That forthwith, both parents enrol at the D Contact Centre at E Town for the purposes of that service arranging supervised time on such days and hours as they can accommodate with a request that it be provided as soon as practicable.

4. That the mother spend time with C and B until further order, as may be arranged under supervision.

5. That until further order, the father have sole parental responsibility for major long term decisions relating to both children.

6. ALL APPLICATIONS ARE ADJOURNED AND FIXED FOR FINAL HEARING before the Honourable Justice Cronin at 10.00am on 27 February 2018 subject to any part heard case as a two day case.

7. The evidence in chief of all witnesses shall be given by affidavit.

TIMETABLE:

1. By 4 pm on 31 January 2018 the applicant file and serve upon all other parties:

   (a)an amended application setting out with precision the orders to be sought.

2. The applicant pay all required court fees by 4 pm on 31 January 2018.

3. That the applicant father have leave to rely upon his affidavit filed 4 November 2017 as his evidence in chief.

4. That by 31 January 2018, the father file an affidavit by the proposed counsellor Ms F.

5. By 4 pm on 2 February 2018 the respondent file and serve upon all other parties:

   (a)an amended response setting out with precision the orders to be sought; and

   (b)      all affidavits of evidence to be relied upon.

6. By 4 pm on 16 February 2018 the Independent Children’s Lawyer file and serve upon all other parties, any affidavits relied upon.

7. Without leave of the Court, any affidavit filed beyond the timetable set out in these orders may not be relied upon.

8. That to the extent that the Independent Children’s Lawyer intends to rely on psychologist Ms G and psychiatrist Dr H, any party requiring any of those witnesses for cross-examination shall give 14 days notice requiring their attendance failing which, the evidence of the witnesses will be restricted to that which is currently in their existing affidavits.

SUBPOENAE

1. All parties have leave to issue subpoenae for the production of documents. If a party is represented by a legal practitioner, the registrar shall, upon the certification of the legal practitioner, be satisfied as to relevance.

2. By 4 pm on 26 February 2018 all parties file electronically to … a case outline in one document setting out:

   (a)     the outline of the issues in dispute;

   (b)     the list of the affidavits to be read;

   (c)     a concise set of orders to be sought;

   (d)     the list of objections to evidence requiring a ruling.

3. That pursuant to s.65DA(2) and s.62B, 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 adjust to and comply with an order are set out in the Fact Sheet attached hereto and these particulars are included in these orders.

AND THE PARTIES SHOULD NOTE:

A.Upon non-compliance with the timetable under these orders or any amendments made by the registrar, the Court may relist the case for case management purposes requiring the parties to justify why it should not be removed from the trial list.

B.Affidavits relied upon for previous hearings cannot be relied upon as evidence in chief without leave of the Court.

Note: The form of the order is subject to the entry of the order in the Court’s records.

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

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 r 17.02 Family Law Rules 2004 (Cth).

FAMILY COURT OF AUSTRALIA AT MELBOURNE

FILE NUMBER: MLC 8647  of 2008

Mr Ungar

Applicant

And

Ms Stillman

Respondent

REASONS FOR JUDGMENT

1. Mr Ungar and Ms Stillman have two children who are the subject of the Court’s immediate attention. I made orders immediately after hearing from both parties and the Independent Children’s Lawyer because of the urgency of the situation and said I would give reasons for those orders.

2. I refer to Mr Ungar as “the father” and Ms Stillman as “the mother”. They had married in 2003 and separated in 2008. From that relationship, the two relevant children are B who is now aged almost 13 and C who is now 10 years of age. This is a troubled family.

3. Litigation commenced not long after the parties separated and culminated in orders being made that are now no longer relevant.

4. On 13 July 2015, the father filed an application seeking final orders that he have sole parental responsibility for the children, that they live with him and that any time by the mother with them be under supervision at a contact centre. This application was filed in the Federal Circuit Court with a specific listing in its E Town Circuit. The father was then represented by lawyers.

5. On 4 August 2015 and also represented by lawyers, the mother filed a responding document seeking orders (in my view inappropriately):

   That the Respondent Mother be excused from particularising the final orders sought by her at this time, pending a Family Report.

   I say inappropriately because family reports do not determine the parameters of disputes nor is it appropriate for the court to be left pondering what a parent who has had a significant role in a child’s life wants for the future of their child.

6. In fairness to the mother, she sought interim orders that the children live with her and that both parents have equal shared parental responsibility. She proposed that the children spend time with the father on alternate weekends and one night in the alternate week. If that was her interim position, why did she need the guidance (if that was what she was seeking) of a family report to determine her long-term position?

7. Extraordinarily, over the ensuing two years, this case remained on the circuit and was limped from one session to the next. As the father said, he was told by his lawyers that the court did not have time to hear the case. In the meantime, the parties’ respective sources of funding for their lawyers ran out and they ended up representing themselves.

8. With lack of sophistication apparent here, the parties filed what could perhaps best be described as pages of complaints about each other and a variety of accusations. The court has to deal with what it is provided but in a case where delays have been great, the father’s original position as I have described it in paragraph [4] above got further away from being given attention and precluded the children from getting on with their lives let alone the parties. The file is now in many volumes and much of the written material is of no assistance.

9. In May 2017, the Federal Circuit Court transferred the proceedings to this Court but relevantly made orders for B to live with the father and C to live with the mother. It is not clear whether those arrangements were consent orders and there are no reasons apparent on the court file.

10. The matter came before a registrar who put it before me in October. I was concerned about the absence of attention to detail about evidence that either party would want the court to rely upon. I made orders that the proceedings be adjourned to 30 November.

11. In anticipation of the October hearing, the Independent Children’s Lawyer filed an application. It clearly supported the father’s position. However, absent the evidence to justify making those orders and specifically how the father would care for C, I declined to remove C but ordered each party to file that evidence. In the case of the father, he was to file by 24 October and in the case of the mother, 31 October. The father sent his material to the Court and it arrived on time but there was some requisition raised which meant that when he eventually responded and sent it back again, it was not received until 4 November.

12. The father produced an email to show that he had sent the documents electronically to the mother such that they would have arrived on time. She said that she had not received them and, in any event, that she understood they were to be served personally. It seems that the 4 November filed documents were left at her front door.

13. The mother had not completed any affidavit. She had what she described as an incomplete one with her and wanted to rely upon it. When asked, she said she was not ready to proceed and wanted the case put off to some future date to enable her to dispute all of what she described as the allegations against her. I rejected her application (if that is what it was) for an adjournment on the basis that the case had been foreshadowed in October; had been wandering through the court system for over two years; and, there was now asserted to be a degree of urgency from the perspective of the Independent Children’s Lawyer.

14. The mother had 20 days to do something about the father’s material but in any event, many more months to prepare for what was a clear parenting dispute.

15. When the parties attended the October hearing, the mother had a document with her and a copy was given to the court and to the father. I have read that as part of her evidence for this determination and am assisted by the fact that the father responded to it.

16. To add to the urgency, the father has not seen C for some weeks and indeed when he last did, she ran away from his house during the night and returned to her mother. The situation needs attention and it is not simple.

17. Before dealing with the evidence, it is important to observe the degree of difficulty the court faces with the limited information available to it but also the aggressive and unrestrained behaviour of the mother. In the courtroom, the mother was argumentative, loud and made no secret of her disdain for the process. Her sister attended with her and although several times, the sister endeavoured to calm the mother and also to speak for her, the mother rejected her overtures and pushed her away demanding that she would speak for herself. At times, she left the courtroom and at other times, rocked back and forth at the bar table with her head in her hands talking to herself. She vociferously responded out of turn to assertions by counsel for the Independent Children’s Lawyer and the father. She is at times uncontrolled to the point that it establishes what the experts have said about her.

18. The mother’s sister also said she wanted to speak on her own behalf but absent some evidence, I could see no utility in that course because there is, according to the father, antipathy between he and the sister. That came to light when I contemplated what had happened in the past.  The sister had apparently been the supervisor of time with the children and the mother but the father accused her of not fulfilling her obligations.  If she desires to be involved, she should get advice and file an appropriate application. In the meantime, as this case has been going on for years, the children deserve to get on with their lives.

19. The court had the benefit of two independent experts. Dr H is a forensic psychiatrist who did a report for the Federal Circuit Court in 2016.  Psychologist Ms G has done two reports for that court. In the case of Ms G’s latest advice to the court, the report was lodged at the end of April 2017. Having looked at those reports, I am satisfied that the information is current in the context of the immediate problem. The Department of Health and Human Services has also had significant involvement here and I consider it is appropriate to draw some inferences from the material in their file produced under subpoena. At trial, absent agreement, that evidence might be better proved formally.

20. In addition to the welfare side of things, police have been involved although it is unclear what their interest is. It seems that the mother has two outstanding court appearances before the local magistrates’ court. One of those is very concerning in this case.

21. As will become apparent below, the mother was recently involved in a car accident. She struck a child. She was taken to the police station where she provided a saliva sample at police request. I know little more than that but the mother does not dispute that the sample tested positive for methamphetamines. Her explanation for that was that on the days around that time, she had a cold and had taken medication bought from a chemist which contained the drug that appeared in her system. No doubt that will become clearer when she provides evidence to this court to show more than that she just took some cold tablets but also why the police had been so interested in her. Drugs are said to be a problem in this case.

22. If there is the slightest suggestion from which an appropriate inference can be drawn that one or both of these children would be in the mother’s care, and she was affected by substances whether legal or illicit, this court must take a cautious approach. For that reason, I have removed C from the mother pending the comprehensive examination of all of the available evidence. This case must end.

23. Before turning to the evidence of the parties, (such as it is) I propose to examine what the two experts said. I must immediately acknowledge that there is criticism of both from the mother. I understand that she says Dr H did not do his assessment properly and that his work has been the subject of complaint. Another psychiatrist is now treating the mother but no evidence was provided by her to show what views that doctor has and whether his assessment disagrees with Dr H.

24. Her second complaint is that the family report assessment was done without dealing with her and that somehow, although she did not say precisely, the assessment is flawed. This issue becomes a little clearer from the psychologist’s assessment.  The mother was constrained by time because of her need to catch a train.  She complained she was not given an adequate opportunity to tell her story; the report of the psychologist says otherwise.  No doubt at trial, she can produce some other expert to show that from her personal psychological health point of view, that assessment is now very different. In the meantime, I have to deal with the evidence provided.

25. Dr H saw both the father and the mother. He found no psychiatrist issues with the father. Of the mother, he opined that she suffered from Borderline Personality Traits and had an untreated mood disorder.

26. Dr H described the mother as denying any personal history of psychiatric illness and no history of abuse. I am unsure whether that last observation relates to her earlier childhood or all of her life because in the courtroom, the mother accusations against the father could only be interpreted as family violence. No doubt that too will be clarified at trial.

27. Dr H found no perceptual abnormalities in the mother but her insight was limited. He said she was inclined to run off on tangents and provided an over-inclusive account. That said, he found no thought disorder or delusional beliefs. Dr H had the benefit of a report by Ms G and he adopted some of her views.

28. Dr H said that the mother continued to ring his rooms in “an unguarded and over-familiar and obsessive manner seeking to influence” his opinion. He considered she needed referral to a psychiatrist.

29. On 30 April 2017, Ms G provided a report to the Federal Circuit Court. In my view, having regard to the purpose for which that report was ordered, I should admit it into evidence on the present application.

30. Ms G had the benefit of not just interviews but also an observation of the mother and both children. She read voluminous affidavits.

31. B ran away from the mother in the summer holidays of 2016 and then refused to spend time with her. In talking to Ms G, B did not have much to say about his mother that was positive. He said that he wanted to decide when he would go to his mother’s home. As much as Ms G pressed for an explanation, its seems the best she received was that B was never going to live with his mother because “it’s so stressful she keeps yelling on me (sic)”  B described C and her mother yelling at each other. Ms G noted that in distracted play, B was fine with close physical proximity to his mother.

32. Arrangements about C were described by Ms G as “haphazard” and unlike B, C had complimentary things to say about her mother. Nothing apart from her mother’s grumpiness seemed to be an issue and it was not described in the same terms as B put it.

33. As for her father, C had positive and negative things to say but bearing in mind C was then almost 10 years old, the complaints seem innocuous. She said she was “a bit scared” of her father but he had not hurt her. Importantly, she said she would be very upset if she only saw her mother on weekends and had to live with her father. To be clear, she said she did not want to live with him.

34. Observations of the father and both children were uneventful. With the mother and B, the interactions were positive even if at first restrained.

35. Ms G opined that C had a warm and close relationship with both parents but it was difficult to assess B’s position. Having regard to the nature of the present application, my focus is largely on C and the mother.

36. That all led to an evaluation that the children had aligned themselves with the parent with whom they were then living. Ms G said at [95]:

    Given the high level of conflict between (the father and the mother) it is not surprising that [B] and [C] are being emotionally affected to the point where they now each have to align with the parent they live with and need to be seen rejecting their other parent. The difficulty at this stage is this conflict has become so entrenched with [B] and [C] being so involved for too many years to may be too late to bring about a change.

37. Orders were not being followed and accordingly, C did not have to do what she was required to do. But Ms G observed that the mother had little capacity to understand the dynamics of her relationship with B and how her behaviour has affected B but it also had an impact on C. She said:

    This also demonstrates (the mother) has little or no insight into [B’s] emotional well-being. This raises concerns as to how (the mother) understands her relationship with [C].

1. Ms G thought that the mother’s mental health may prevent her providing a stable environment for C without psychiatric assistance. It would seem that the mother has obtained assistance but the court was not informed of what was happening and, as I have already observed, whether there is any progress. If her reactions to the courtroom, her response to her sister, her angry and uncontained emotional outburst and her lack of organisation to get ready for this hearing are any indication, it would seem that the psychiatrist has not advanced far.

2. Ms G at [100] opined that unless that attendance occurred, “it may be” that C should live with the father. She was concerned that C was entering a vulnerable development stage of life and absent the mother obtaining assistance, C may become “seriously anxious” and “may even start to take responsibility for the mother’s welfare.

3. This report was released to the parties and was before the court in May so it is somewhat confusing as to the stage that everyone had reached about following (or challenging) the advice in the report. C remained in the mother’s care and orders were made as I have earlier described. They have not been successful.

4. The Independent Children’s Lawyer set out a long chronology of court events and disputes. She said she observed the mother to behave erratically and irrationally and she relied in part on some of the emails that she had received. Observations of difficulties in dealing with the mother were explained including with other professionals but that is not anything different to what occurred in the courtroom. The mother either cannot or will not restrain herself in such a way that others can put their views with clarity. Her forceful interjections are not acceptable in a courtroom and her disorganised state did not assist but they are being seen outside of the courtroom too. That being the case, the evidence supports the conclusions of concern by both Dr H and Ms G. In other words, the mother is proving the father’s argument about her incapacity to care properly for the emotional needs of these children.

5. In September 2017, C broke her arm and the Independent Children’s Lawyer sought details but they were not forthcoming from the mother. The lawyer then ascertained that the mother had lost her driving licence and questions were asked about getting C to school. These were unanswered.

6. On 15 September 2017, Ms F who was the appointed counsellor for C advised there had not been any attendance. B had told her he observed the mother pacing around the house. The counsellor reported the matter to Department of Health and Human Services. That precipitated the Independent Children’s Lawyer seeking orders herself for the removal of C.

7. The Department of Health and Human Services provided information in a s 67Z report in July 2015 saying that there were no concerns then because the mother was following direction but there was an intervention order against her.

8. In October 2017, the Department responded to a subpoena as to their involvement with the children. Here, the reference to the mother’s accident came to the fore. It may be that this report by the Department is inaccurate but assertions were made that the mother was driving whilst unlicensed and in an unregistered car. It was then said she tested positive to drugs. The mother’s response in the courtroom is as I have described it above but there was no indication that some of that assertion is incorrect. The Department’s concern was written as “risk of harm to C”. Then this:

   Further concerns were for mother’s associates who are known drug users.

9. The statement does not make sense but it seems directed more to concern about the mother than her associates.

10. Quite inappropriately, the Department went on to suggest that the father obtain C and not return her. I do not consider that appropriate even if there were concerns for C. The Department, if so concerned, should have stepped in and removed the child. They did not do so.

11. To the extent that C’s relationship with her father might be questionable in the light of what Ms G said as I have outlined above, the Department interviewed C in October 2017. She said she was happy at the home of her father. At her mother’s home “other guys come and smoke in her mother’s room”.  She described lots of people “coming and going” but then this:

    There are about five different people who come and go during the week.

    This annoys [C] and sometimes this makes [C] not feel safe.

12. Inquiries by the Department of Police who undertook a “welfare check” showed no concerns.

13. One aspect of concern here is that C has run away from the father (as has B from the mother). The most recent visit occurred where C left during the night unknown to the father until he awoke the next morning. The Department addressed this issue and said:

    The father believes that the mother influences [C] to run away during his contact time.

14. That view was also expressed by the father.  Counsel for the Independent Children’s Lawyer said there was no alternative explanation.

15. C has missed counselling which was ordered. She arrived late for school on occasions. Her mother is invariably late for court.

16. The Department’s view is that if the mother fails drug screens and fails to seek medical help for mental health assessment and treatment issues, concerns will rise. At October, the Department saw no immediate risk. However, it must be noted that the level of satisfaction and the tests to be considered for the protective issues compared to the best interests principles, are very different.

17. I have concerns that the various professionals are all troubled but unfortunately, the mother does little about it. The constant putting off of the hearings, the vague responses of the mother and the concerns expressed by professionals all mean that C is at risk. The level of that risk must be assessed at this interlocutory stage.

18. There is no interim application before the court by the mother about B. Her last endeavour to engage with the court was in 2015 but in October 2017, she handed up an affidavit that was not filed but it was certainly read and relied upon. In it, she said there was constant denigration by the father and she was denied proper involvement in meeting with professionals. Most of what she said about the interaction between C and the father is questionable because it could only have come from C and just what she told her mother and under what circumstances, is not readily apparent. She said C was “terrified” of her father but that runs counter to the October report of the Department. C was said by the mother to not want to go to the father’s home but that too did not appear to be objectively correct.  What the statement does raise, is the question of what the mother is saying to, and asking of, C.

19. C was said to have used expressions such as the father was “mean” to her and that she was not allowed to call her mother. Some of these things were said to have been mentioned in front of the mother’s supportive sister but corroborative evidence was not before the court. Such statements are not conceded by the father as is evident from his responding affidavit and therefore, not of much probative value.

20. The mother referred to a confrontation in August in which the father was in the netball change rooms. He was accused of violence and also verbal abuse of the mother. The mother said he stopped behaving like that when a woman intervened.  This woman was a Ms J.  The father later approached Ms J and asked what she saw. He said Ms J had heard the mother yelling and abusing someone and when he had asked C to come with him, the mother “pushed his hand away”.  He also said that Ms J told him the mother approached her to be a witness but had declined.  This is a good example of the difficulty a court has dealing with allegations of this nature on untested evidence. No doubt the father will obtain some specific evidence from Ms J for the forthcoming hearing.

21. The rest of the mother’s affidavit was not evidence at all but rather, a stream of consciousness. I appreciate, as do all courts, that self-represented litigants have to be given the opportunity to get their cases across but here, I am satisfied that the mother does little to organise herself. To the extent that the mother can understand, she should read ss 55 and 56 of the Evidence Act 1995 (Cth).

22. The father’s evidence was set out in a document he prepared himself and much of it was responding to the mother’s October material. He set out how he would care for C and the importance of the counselling with Ms F. Since C ran away some weeks ago, he has not been able to get time with her so even if there was some substance to the mother’s concerns about C in the father’s care, and I do not accept on the evidence that I could so find, she has done nothing about sorting out a continuation of the father’s relationship with C which Ms G and the Department seemed content to support.

23. The father’s evidence is unchallenged particularly by the Independent Children’s Lawyer.

24. Counsel for the Independent Children’s Lawyer submitted that things were not getting better and as the mother indicated that she wanted to put the hearing off to answer all of these allegations, there is no sign of change in the foreseeable future. The Independent Children’s Lawyer submitted that the only inference to be drawn was that C is influenced by her mother to run away.

25. I gave the mother an opportunity to say what she thought the orders should be albeit that her evidence was missing but her erratic thoughts did not take the matter any further.

26. The untested evidence relied upon to support a change here is very limited. That was why in October, I declined to make the orders then urged by the father and the Independent Children’s Lawyer. The mother too needed to support her proposals but I find she has failed to do so. At best, I can only rely on the affidavits of both parties and the experts to whom I have referred.

27. Because of the significance of removing C from the mother, I have seen the need to put this case on urgently particularly as it has been wandering through the court system.

28. Obviously, and I have mentioned an example above, it is hard to know what is reliable evidence until the parties are thoroughly examined. Thus this present hearing must be a determination on limited material.

29. Despite the truncated hearing and the paucity of evidence, the Court must still regard the best interests of the children as the paramount consideration in deciding what (if any) interim parenting orders should be made.  (Goode and Goode (2006) FLC 93-286). In Goode the Full Court indicated that the Court should:

    ·Identify the competing proposals;

    ·Identify the issues in dispute;

    ·Identify any agreed or uncontested relevant facts;

    ·Consider the matters in s 60CC that are relevant and if possible make findings.

30. The proposals of the parties and the issues have been identified. They are clear to the extent that at this stage, two issues are the focus. First, with whom should C live on an interim basis and secondly, if with the father, what time should the mother have and should it be under supervision?

31. With all of the limitations above, I gave each party an opportunity to put forward reasons why there should or should not be any change. Only the father puts forward a cogent argument. The mother’s response was about her “rights” and that she had been the parent of C since birth. Those matters are unhelpful because if I accept, as I do here, that the evidence points to a flaw in the child’s care, the focus must be on the interests of C not the mother.

32. The extant orders are not working and there is no available evidence or any proposal that would indicate how the arrangements could be fixed.

33. There are concerns about the mother’s drug use; her dismissal of the positive test based upon cold tablets is too simple. She can no doubt provide some evidence, not assertion, about all of that in the context of C’s statement about people coming and going in the mother’s household.

34. The mother’s position is that she is harassed by the father but the evidence in reply particularly about Ms J is also concerning. In his evidence, the father said that Ms J went to the Magistrates’ Court and was willing to give evidence and even though the mother had legal representation, she did not arrive and the magistrate struck out whatever it was that was before the court. No explanation is given as to why all of these things have occurred but they give a picture of a dysfunctional parent. How has C managed in all of this? Why was she late for school? Why was she not attending counselling? Why was the mother so dismissive in court of her sister’s offer to help? None of these things at this interim level have been answered but importantly they point to a household where C is not properly the focus of her parent’s attention. The drug issue, the car accident, the lack of counselling, the lack of explanation about the mother getting mental health treatment all give rise to a finding that there is a risk to the emotional welfare of C.

35. There is no doubt the parties have poor communication and cannot support each other or empathise with the other. That is not unusual but it means that in the case of C, the father does not know what is going on in his daughter’s life. If his opinion is right, why does the mother continue to influence C to run away? The mother does not explain the situation other than to say that C does not want to be there and finds her father mean. That flies in the face of the objective evidence that has now been around and available for months.

36. The issues set out in Part VII of the Act still have to be addressed.

37. Section 65D(1) provides that in proceedings for a parenting order, the Court has a discretion to make such order as it thinks proper.  The Court should only exercise that power if it is in the best interests of the children.  In determining best interests, the various considerations in s 60CC need to be taken into account. 

38. The views of the children are apparent but it is difficult to know how much weight should be given to C’s views where there is an assertion that she is being influenced by the mother. I do not know and cannot make any finding until the evidence is fully tested.

39. The nature of the relationship between the parents and the children is also difficult to assess. I rely upon what Ms G said above. I have concerns about just what role to mother sees she can provide and her “motherhood” statements about “rights” are unhelpful. The fulfilment of suggestions about needing mental health assistance would go a long way to alleviating my concerns.

40. The mother has not fulfilled her obligations to C to ensure that the relationship with the father is maintained. There is no indication that she has returned C to the father nor encouraged her. The fact that B who is older and more strident in his views about the mother does not have contact, does not assist. That leads into arguments about the attitude to the responsibilities of parenthood but nothing in the facts relating to the father’s behaviour would immediately suggest he is not genuine in wanting the children to have a relationship with their mother. He was carefully assessed by Dr H and it would seem that Ms G had no concerns about him in terms of parental responsibility.

41. Despite the assertions of the mother, I am not in a position to make findings about family violence and should not do so. There is apparently an intervention order in existence but it is against the mother.

42. It is also important to remember that s 60B sets the philosophical basis for the approach to parenting disputes. I find the father has the correct approach but I am uncertain about the position of the mother, absent her evidence.

43. In terms of meaningful relationships, the evidence of Ms G makes that clear that both children are aligned with one parent but C seems content to see her father.  

44. Section 61DA requires the Court to begin with the presumption of equal shared parental responsibility but I decline here to make any findings about the rebuttal or otherwise because the evidence in this interim hearing does not permit itself of sufficient clarity for me to do so.

45. I turn then to the risk issue. To be clear, usually, risk is the focus in cases of abuse but here, I am concerned about whether C is being cared for properly in her mother’s home and even if she is not, is there a risk of harm? I reiterate that the central task is to decide what orders best meet the interests of the particular child having regard to the circumstances which the court finds exist. Even where allegations of the nature made by the mother occur, it is timely to remember that in M v M [1988] HCA 68; (1988) 166 CLR 69, the High Court of Australia said that the resolution of an allegation (in that case of sexual abuse) is subservient and ancillary to the court’s determination of what is in the best interests of the child. The Family Court’s consideration of the paramount issue which it is enjoined to decide cannot be diverted by the supposed need to arrive at a definitive conclusion on the allegation.

46. Consistent with s 60B of the Act, the High Court went on to say that the court will give very great weight to the importance of maintaining parental ties, not so much because parents have a right to custody or access, but because it is prima facie in a child’s interests to maintain the filial relationship with both parents.

47. It is therefore important to recognise the role of the mother but unless she provides the court with information directed to C’s best interests, I cannot see how I can do more than make findings on the evidence which I have.

48. In respect of whether or not there is a risk, and an unacceptable one at that, In the Marriage of N and S (1995) 19 Fam LR 837; (1996) FLC 92-655 Fogarty J said (at 82,713-4):

    Thus, the essential importance of the unacceptable risk question as I see it is in its direction to judges to give real and substantial consideration to the facts of the case, and to decide whether or not, and why or why not, those facts could be said to raise an unacceptable risk of harm to the child. Thus, the value of the expression is not in a magical provision of an appropriate standard, but in its direction to judges to consider deeply where the facts of a particular case fall, and to explain adequately their findings in this regard.

49. What is the harmful outcome here? I rely on what Ms G opined. C could become the parent. What is the probability of that happening? It must be high as there is no objective monitoring of C and counselling, which was presumably addressing that issue is not happening. Is the risk short term? I do not know and can only speculate but as C grows more mature, she would be taking on an increasingly difficult mother whose parenting capacity is unknown in an environment where there is reference to drugs and people coming and going. Can the risk be ameliorated? No, because the mother will not assist. That all leads to an unacceptable risk of long term harm.

50. C should therefore be removed.

51. What time should C spend with her mother? In my view, the time has to be supervised and no options are open to me other than a contact centre. How will that work? That depends upon the mother being reasonable and not speaking about the issues that bedevil this case. C will be distraught at not being with her mother but that will mean the father has to be diligent.

52. As I expressed in the hearing, if C continues to run away, the risks increase and at that stage, the Department may have to step in and take C out of the care of both parents.

53. I am satisfied that when it is all balanced, on an interim basis, C should live with the father.

I certify that the preceding Ninety (90) paragraphs are a true copy of the reasons for judgment of the Honourable Justice Cronin delivered on 30 November 2017.

Associate: 

Date:  1 December 2017