VINSON & CLIVE

[2017] FCCA 3368

FEDERAL CIRCUIT COURT OF AUSTRALIA

VINSON & CLIVE [2017] FCCA 3368

Catchwords:
FAMILY LAW – Interim parenting orders – best interests of children.

Legislation:

Family Law Act 1975, ss.60B, 60CA, 60CC, 61DA, 65D, 65DAA

Cases cited:

Goode & Goode (2006) FLC 93-286

Marvel & Marvel (2010) 43 Fam LR 348

Banks & Banks [2015] FamCAFC 36

Applicant: MR VINSON

Respondent: MS CLIVE

File Number: PAC 6364 of 2017

Judgment of: Judge Newbrun

Hearing date: 22 December 2017

Date of Last Submission: 22 December 2017

Delivered at: Parramatta

Delivered on: 22 December 2017

REPRESENTATION

Counsel for the Applicant: Mr Rosic

Solicitors for the Applicant: Ghobrial Legal

Solicitors for the Respondent: Mahony Family Lawyers on an amicus basis

Solicitors for the Independent Children's Lawyer: Phillip A Wilkins & Associates

ORDERS PENDING FURTHER ORDER

1. Pursuant to section 248 of the Children and Young Persons (Care and Protection) Act 1998, the Director General of the Department of Family and Community Services (Community Services) is requested to provide to this Court within 2 hours after receipt of them by this request, a personal history summary of the children W born (omitted) 2004, X born (omitted) 2008, Y born (omitted) 2009, and Z born (omitted) 2011 (“the children”).

2. The children shall live with the father Mr Vinson.

3. The mother Ms Clive shall cause the child Y to be delivered to the father Mr Vinson at 7pm today at the (omitted) McDonalds Restaurant.

4. Should the mother fail to comply with the above order, then a Recovery Order shall issue for the child Y born (omitted) 2009 pursuant to section 67Q of the Family Law Act 1975.

   (a)That the Marshall, the Deputy Marshall, all officers of the Australian Federal Police and all officers of the State and Territory Police be authorised and directed with such assistance as they require and if necessary by force to:

   (i)Stop and search any vehicle, vessel or aircraft and search premises or place for the purpose of finding the child;

   (ii)Recover the child;

   (iii)Deliver the child to the father Mr Vinson.

5. The mother is prohibited from again removing or taking possession of the child except as in compliance with an order of this Court.

6. Both parents shall not be affected by any illicit drugs whilst caring for any of the children.

7. Both parents shall not exercise physical chastisement of the children.

8. Both parents shall not discuss the contents of these proceedings with any of the children at any time.

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

   (a)On Christmas Day 2017 from 12pm to 4pm;

   (b)On 28 December 2017 from 12pm to 4pm;

   (c)Commencing 2 January 2018, and until the commencement of Term 1 2018:

   (i)Each Tuesday, Thursday, and alternate Saturdays from 10am to 2pm;

   (d)From Term 1 2018:

   (i)On Tuesdays from 3.30pm to 6pm; and

   (ii)On Saturdays from 10am to 2pm.

10. Changeovers for the purpose of the children’s time with the mother shall occur at (omitted) McDonalds Restaurant.

11. The mother shall have telephone contact with the children on Wednesdays and Sundays from 6pm to 7pm, with the mother to instigate the said telephone contact by ringing the father’s mobile telephone number (omitted).

12. Pursuant to Section 68L of the Family Law Act 1975 the children W born (omitted) 2004, X born (omitted) 2008, Y born (omitted) 2009, and Z born (omitted) 2011 shall be independently represented and request that the Legal Aid Commission provide that representation.

13. The solicitors for the parties are to forward copies of all applications, responses, affidavits and any other relevant documents to Legal Aid NSW for the attention and use of the Independent Children’s Lawyer when appointed.  

14. Leave to parties and the Independent Children’s Lawyer to issue more than five Subpoenas for production of documents.

15. On or before 15 January 2018, the Respondent mother shall file and serve her Response, Affidavit and Notice of Risk.

16. Proceedings are adjourned for mention to 2 February 2018 at 9.30am.

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

FEDERAL CIRCUIT COURT
OF AUSTRALIA
AT PARRAMATTA

PAC 6364 of 2017

MR VINSON

Applicant

And

MS CLIVE

Respondent

REASONS FOR JUDGMENT

1. In this matter of Vinson & Clive, the Applicant father moves the Court today, represented by Counsel, Mr Rosic, seeking, inter alia, a recovery order in relation to the child Y, date of birth (omitted) 2009. The mother opposes the making of any recovery order in relation to that child. She appears with her amicus solicitor Ms Neuhaus today. There are three other children of the relationship aged 13, 10 and 6 years, and they presently reside with the father. The parties’ relationship commenced in about (omitted) 2004 and they finally separated in about October 2017.

2. It appears the children remained living with the father after the final separation, but then, on 14 December 2017, the mother retained the child Y in her care and has declined to return her to the father’s care since that time. 

3. The father asserts that on 14 December 2017 the mother attended the (omitted) School and tried to collect the youngest three daughters, including the children X, Y and Z, telling them that she was going to take them to a pool party. He then states that of the three children, the mother only took Y on this occasion. This having occurred, that is, the mother having taken Y and not having returned her to the father, the father has sought an urgent recovery order in relation to that child.

4. The father’s concerns, as outlined in his Affidavit filed 20 December last, in relation to the child Y remaining in the mother’s primary care is stated to be, firstly, the mother is alleged to be a frequent user of the illicit drug ice (and in this context he asserts that the Department of Family and Community Services are said to be aware of the mother’s prolonged use of ice); secondly, he is concerned that psychological trauma will be visited upon the child Y should she remain in the mother’s primary care; and thirdly, he contends that the child Y, being separated from her three sisters will have a negative impact upon her.  

5. Today the mother, through Ms Neuhaus, seeks an adjournment of this urgent hearing relating to the father’s application for a recovery order, she only having been served with the father’s material on 21 December 2017 at 1pm and she has not yet had an opportunity to file and serve her material. 

6. The Court is not prepared to adjourn the father’s application, and it refers to its reasons below. It is not without relevance that today is the last day of the Court’s term, 22 December 2017, and the proceedings, if an adjournment was granted to the mother, would not likely be heard again until about mid-January 2018. 

7. The mother makes no application today herself for a recovery order relating to the three children presently living with the father. Her amicus solicitor Ms Neuhaus has informed the Court this morning that the mother proposes to do so, but following the processing of her Legal Aid application.

Material Relied Upon

1. The father relies upon his Affidavit filed 20 December 2017. He relies upon his Notice of Risk filed the same date. He relies upon his Initiating Application filed 20 December 2017. 

2. There are documentary Exhibits in evidence at this urgent hearing. They comprise:

   a)Exhibit A, FACS Person Histories in relation to all children, and a letter from FACS dated 1 November 2017 addressed ‘To whom it may concern’ relating to a Housing New South Wales application of the mother and signed by the child protection caseworker at (omitted) Community Service Centre, Ms S;

   b)Exhibit B, being a copy of pathology reports relating to chain of custody urine drug tests in relation to the mother, some four tests from 2 November 2017 to 17 November 2017;

   c)Exhibit C, the father’s handwritten proposed Minute of Order (but in relation to the children living with the father, the father not injecting or using prohibited drugs, and the children spending time with the mother);

   d)Exhibit D, the mother’s proposed Minute of Order should the Court make the recovery order sought by the father; and

   e)Exhibit E, copy final order Apprehended Domestic Violence Order dated 10 November  2017. 

3. It was common ground at the urgent interim hearing today that:

   a)The mother had experienced a psychotic episode around about 21 June 2017 and was admitted to the (omitted) Hospital's Mental Health Care Unit where she remained for about a week;

   b)The Department of Family Community Services have been involved with both parents in relation to this family for a considerable time; and

   c)The case worker Ms S sent an email to the father recently stating that she was the case worker for the subject family, and on 19 December 2017 she had visited the respective residences of the mother and father and had spoken to all children in the father’s household. 

Parties’ proposals

1. The father seeks a recovery order of the child Y, as set out in his Initiating Application filed 20 December last. He seeks further interim orders as set out in Exhibit C. Further, at this urgent interim hearing, the father proposed, should the Court make a recovery order in relation to the child Y, that after 4 January 2018, the children should spend each Tuesday and Thursday with the mother from 2pm to 4pm. 

2. The mother’s primary proposal was to oppose the recovery order; that is her primary position. As stated, the mother prepared an alternate set of proposed orders in the event that the Court made the recovery order, as set out in Exhibit D.

3. The Court should state that it sought submissions from the father’s Counsel as to the mother’s proposed order (2) in Exhibit D, and Counsel for the father stated that he would not oppose the making of proposed interim orders (2a), (2b).

4. In relation to proposed order (2c) the father would alternatively propose that commencing 2 January 2018 and until the commencement of term 1 2018 that the children spend time with the mother each Tuesday, Thursday and alternate Saturday’s from 10am to 2pm.  Again, addressing the mother’s proposed alternate order 2 in Exhibit D, Counsel for the father stated that the father would propose in relation to proposed alternate order (2d) that from term 1 2018, the children spend time with the mother only on Tuesdays from 3.30pm to 6pm and on Saturdays from 10am to 2pm. 

Legal principles

1. The Court refers to section 60D of the Family Law Act 1975 (the Act). The Court refers to section 60CC of the Act. The Court refers to the decision of Goode & Goode (2006) FLC 93-286 in relation to interim hearings. The Court refers to the Full Court of the Family Court in Marvel v Marvel [2010] FamCAFC 101; (2010) 43 Fam LR 348 and Banks v Banks (2015) FamCAFC 36 relating to the conduct of interim hearings and in relation to section 60CC of the Act. In relation to recovery orders, the Court refers to section 67V of the Act which provides that in deciding whether to make a recovery order in relation to a child, a Court must regard the best interests of the child as the paramount consideration.

Best interests considerations

Meaningful relationship – primary consideration

1. The children appear to have meaningful relationships with both parents and would benefit from the continuance of those relationships. 

2. Should the Court make the father’s proposed recovery order in relation to the child Y, and order the children to spend time with the mother during limited periods during the daytime but on a regular basis, the children’s meaningful relationship with the mother should not be detrimentally affected. 

Need to protect – primary consideration

1. The Court presently has concerns in relation to the child Y remaining in the primary care of the mother.

2. The Court’s predominant concern in this context relates to the mother’s mental health and perhaps to a lesser extent her arguable use of illicit drugs, in particular the drug methamphetamine known as “ice”. 

3. Again, it is common ground at this urgent interim hearing that the mother experienced a psychotic episode in about late June 2017 and was admitted to the (omitted) Hospital Mental Health Care Unit for about a week.

4. It is strongly arguable that the FACS personal history entries (Exhibit A) for this period in late June 2017 is referrable to the mother’s adverse mental health at this time. The FACS records or entries at this time, inter alia, refer to the emotional state of the carer, risk level: high and also refer to drug abuse of a carer. 

5. The Notice of Risk document filed by the father on 20 December last, inter alia, refers to the mother being a frequent methamphetamine user and has been for the past two and a half years. It refers to a police event number created by the New South Wales Police without a date being given, but stating that the mother called both the father and the New South Wales Police and asked that the father collect the children from the mother. It is asserted that upon arrival, the father viewed the mother’s erratic behaviour – including, but not limited to, allegations of people hiding under her house and trying to get to her.  It is asserted that the father also called New South Police at this time; it is asserted that the mother released two children to the father but refused to release one child and that this child was returned to the Applicant father the following day. The Notice of Risk also asserts on page 5 that the mother has suffered with mental health issues for the past five years and has used methamphetamine frequently for the past two and a half years. 

6. The Notice of Risk also asserts that FACS have been involved with the mother. They have a file open in matters concerning the mother’s parenting deficiencies. In the father’s Affidavit he alleges in this context that, inter alia, he is worried about the welfare of the child Y whilst in the care of the mother as the mother is a frequent user of the drug ice. He alleges in paragraph 18 that he notes that the Department of Family and Community Services has been advised of the mother’s prolonged use of the drug ice. He states in paragraph 19 that he is very concerned about the longstanding psychological trauma that the child Y may be subject to in the care of the mother. 

7. It is not clear from the FACS personal history entries in Exhibit A whether the mother’s psychotic episode relates to any drug use by her at about this time.

8. There is no material presently before the Court as to what, if any, mental health treatment the mother has had since that psychotic episode in about late June 2017 to date. There is some force to the father’s Counsel’s submission that there is simply no material before the Court as to the level of risk of the mother experiencing a repeat psychotic episode, noting that the child Y is presently in her primary care. 

9. The Court notes there is reference in the FACS letter of 1 November 2017 to a hospital admission by the mother in 2016 but the reason for that admission is not stated.

10. Whilst the Court has before it four apparent negative urine drug tests (chain of custody) of the mother (apart from a decreasing use of cannabis) for at least the illicit drugs – methamphetamines, from 2 November  2017 to 17 November 2017, they do not remove the Court’s concerns as to the mother’s mental health position. And, in any event, it is not presently clear on the material before the Court whether the mother’s mental health relates to her drug use or otherwise. Further, the drug test results in Exhibit B only cover a two week period with the last apparent clear test over four weeks ago, and noting that the mother is alleged by the father to have been a user of the drug ice over the last two and a half years.

11. The Court should state in this context that it has not overlooked the fact that the caseworker visited not only the father’s residence but the mother’s residence on 19 December 2017. Nevertheless, and in light of the above matters, in the view of the Court at this interim stage, there is a need to protect Y from the risk of being subjected to or exposed to abuse, neglect or family violence in remaining in the primary care of the mother. 

12. Should the children spend limited daytime time with the mother and the Court makes an interim protective order that both parties not be affected by illicit drugs while spending time with the children, the children should not be exposed to any significant risk of harm. 

13. The mother, for her part, contends that there is a significant risk that if the child Y is returned to the father, then she will be placed at significant risk of harm, and the Court infers that the mother submits an unacceptable risk of harm. The mother relies in particular on the letter from FACS dated 1 November 2017 stating, inter alia:

    i)The father has been physically, emotionally and verbally abusive to the mother (and that FACS was told by the two eldest daughters that physical violence had been perpetrated by the father to the mother);

    ii)The father has been emotionally and psychologically abusive to the children (the Court interpolates here that this is not particularised in any manner);

    iii)The father smokes ice and cannabis (again, the Court interpolates that the extent of such consumption is not particularised);  and

    iv)The Department of Family and Community Services “preference” is for the children to reside with the mother, as while they reside with the father “there is a high risk of abuse and neglect” (and again the Court interpolates here that this assertion is not particularised to any extent).

14. The mother also refers to the final ADVO order made against the father recently; in this context it is not without relevance that the children are not stated to be protected persons. 

15. The Court has given these contentions made by the mother against the father serious consideration, however it is of the view that the child Y should not be exposed to any significant risk of harm by presently being returned to the father’s primary care provided:

    i)The Court makes an interim protective order that neither party be affected by illicit drugs whilst caring for the children;  and 

    ii)That neither party shall exercise physical chastisement of the children whilst they are in their respective care.

16. The Court has formed this view above, taking into account:

    i)There is no material before the Court that the Department of Family and Community services have, at least in recent times, actively sought to remove the children from the father’s care, and noting the caseworker’s visit to the father’s home on 19 December 2017 and had apparently spoken to the children.

    ii)The mother’s return of the nine year old child X to the father in about September 2017 so as to “have a stable home”.  (See the letter - FACS letter of 1 November 2017) (whilst the Court does not overlook the mother’s apparent parlous housing position at this time).

    iii)The mother today makes no application for a recovery order for the other three children now in the father’s care.

    iv)On 14 December 2017, only one child, Y, went with the mother, the other three children apparently, arguably declining the mother’s invitation to take them all to a pool party.

17. The Court gives significant weight to this need to protect primary consideration.

18. The current material before the Court does not enable the Court to meaningfully consider most of the other additional considerations under section 60CC of the Act. As to subsection (3)(c) of section 60CC of the Act, there is very little material presently before the Court. However, the Court does note paragraph 11 of the father’s Affidavit where he alleges that the mother left the home on several occasions for extended periods of time. He alleges that the mother sometimes would take the children and at other times she would leave them with the father. He asserts that during these periods, the children felt as if they were not wanted by the mother.

1. Again, in relation to subsection (3)(f) of section 60CC of the Act, there is very little material in relation to the capacity of the parties to provide for the needs of the children, including emotional and intellectual needs. But, again, the Court refers to its discussion above under the meaningful relationship primary consideration. As to family violence, the Court notes and has not overlooked the assertion in the FACS letter of 1 November 2017, being the assertion of the child protection case worker that the parties’ relationship has been characterised with violence for the past 13 years. The Court has already referred to the final ADVO made on 10 November 2017. However, there is no underlying factual material presently before the Court relating to that ADVO made on 10 November 2017.

2. Evaluating the above discussed relevant considerations under section 60CC of the Act, the Court is of the view, at this very early interim stage, that it will be in the best interests of the children – in particular, the child Y – to make interim orders as follows.

   1. The children shall live with the father Mr Vinson.

   2.  The mother Ms Clive shall cause the child Y to be delivered to the father Mr Vinson at 7pm today at the (omitted) McDonalds Restaurant.

   3. Should the mother fail to comply with the above order, then a Recovery Order shall issue for the child Y born (omitted) 2009 pursuant to section 67Q of the Family Law Act 1975.

   a.  That the Marshall, the Deputy Marshall, all officers of the Australian Federal Police and all officers of the State and Territory Police be authorised and directed with such assistance as they require and if necessary by force to:

   i. Stop and search any vehicle, vessel or aircraft and search premises or place for the purpose of finding the child;

   ii. Recover the child;

   iii. Deliver the child to the father Mr Vinson.

   4.  The mother is prohibited from again removing or taking possession of the child except as in compliance with an order of this Court.

   5. Both parents shall not be affected by any illicit drugs whilst caring for any of the children.

   6.  Both parents shall not exercise physical chastisement of the children.

   7.  Both parents shall not discuss the contents of these proceedings with any of the children at any time.

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

   a.    On Christmas Day 2017 from 12pm to 4pm;

   b.    On 28 December 2017 from 12pm to 4pm;

   c.     Commencing 2 January 2018, and until the commencement of Term 1 2018:

   i. Each Tuesday, Thursday, and alternate Saturdays from 10am to 2pm;

   d.  From Term 1 2018:

   i.On Tuesdays from 3.30pm to 6pm; and

   ii.On Saturdays from 10am to 2pm.

   9. Changeovers for the purpose of the children’s time with the mother shall occur at (omitted) McDonalds Restaurant.

   10.    The mother shall have telephone contact with the children on Wednesdays and Sundays from 6pm to 7pm, with the mother to instigate the said telephone contact by ringing the father’s mobile telephone number (omitted).

   11. Pursuant to Section 68L of the Family Law Act 1975 the children W born (omitted) 2004, X born (omitted) 2008, Y born (omitted) 2009, and Z born (omitted) 2011 shall be independently represented and request that the Legal Aid Commission provide that representation.

   12.    The solicitors for the parties are to forward copies of all applications, responses, affidavits and any other relevant documents to Legal Aid NSW for the attention and use of the Independent Children’s Lawyer when appointed.  

   13.    Leave to parties and the Independent Children’s Lawyer to issue more than five Subpoenas for production of documents.

   14.    On or before 15 January 2018, the Respondent mother shall file and serve her Response, Affidavit and Notice of Risk.

   15.    Proceedings are adjourned for mention to 2 February 2018 at 9.30am.

I certify that the preceding thirty-seven (37) paragraphs are a true copy of the reasons for judgment of Judge Newbrun

Date:  15 February 2018