WAGNER & OAKLEY
[2020] FCCA 316
•12 February 2020
FEDERAL CIRCUIT COURT OF AUSTRALIA
| WAGNER & OAKLEY | [2020] FCCA 316 |
| Catchwords: FAMILY LAW – Interim parenting – risk assessment – family violence – physical and mental capacity of father to care for children. |
| Legislation: Family Law Act 1975 (Cth), ss.60B, 60CA, 60CC, 61DA, 65DAA. |
| Cases cited: Goode & Goode [2006] FamCA 1346 |
| Applicant: | MS WAGNER |
| Respondent: | MR OAKLEY |
| File Number: | WOC 806 of 2019 |
| Judgment of: | Judge Altobelli |
| Hearing date: | 31 January 2020 |
| Date of Last Submission: | 31 January 2020 |
| Delivered at: | Wollongong |
| Delivered on: | 12 February 2020 |
REPRESENTATION
| Solicitors for the Applicant: | Hansons Lawyers |
| Counsel for the Respondent: | Mr Johnston |
| Solicitors for the Respondent: | Beazley Lawyers |
| Solicitors for the Independent Children's Lawyer: | Helen Volk Lawyers |
PENDING FURTHER ORDER:
[X] (born … 2011), [Y] (born … 2014) and [Z] born … 2015 (‘the Children’) live with the Mother.
The Father spend supervised time with the Children each alternate Sunday from 10:00am to 3.00pm supervised by the paternal grandmother or the paternal grandfather.
The Father’s time with the Children shall take place at a movie theatre, a bowling venue, at Venue A or other venue agreed between the parties in the Suburb C/Suburb D area.
72 hours prior to spending time with the Children the Father shall notify the Mother’s lawyer of the proposed venue for such time.
Changeover occur at the venue with the Mother or her agent delivering the Children to the venue at the commencement of each time and collecting them therefrom at the conclusion of each time with changeover to be effected on his behalf by the paternal grandmother or the paternal grandfather.
The Father shall be restrained from approaching the Mother at any changeovers.
The Father shall ensure that he remains at the changeover location for 10 minutes after the Mother leaves.
Each parent be restrained from making negative, derogatory or disparaging comments about the other parent or members of the other parent’s family or household in the presence or hearing of the Children.
Each parent be restrained from discussing the proceedings with the Children or in the presence of the Children including in relation to the spend time arrangements.
The upon the request of the ICL, the Father submit to a hair-strand testing (in accordance with the Australian Standards AS/NZS4308:2008 and AS4760:2006), in accordance with the following procedure:
(a)Within 7 days, the Father shall contact an Australian Workplace Drug Testing Services (AWDTS) Clinic or other agreed authorised provider consented to by the Independent Children's Lawyer to arrange for an appointment to submit to the collection of a hair sample, sufficient to allow testing for the previous 3 month period at the earliest appointment that the Australian Workplace Drug Testing Services (AWDTS) clinic has available;
(b)the Father shall attend the appointment referred to above and submit to the hairstrand collection;
(c)The Father is required to maintain his head hair at a length of not less than four (4) centimetres; neither head hair nor body hair is to be cut, bleached or dyed between the date of this order and the time of collection of hair;
(d)The Father is to attend at an Australian Workplace Drug Testing Services (AWDTS) clinic or other agreed authorised provider and submit to the supervised collection of a hair sample at the earliest available appointment time within seven (7) days of receiving written notice to undertake hair collection for hair drug testing purposes from the Independent Children's Lawyer;
(e)Written notice to undertake hair collection for hair drug testing purposes may be sent to the Father or his legal representative and shall be deemed to have been received by the Father at the date and time it is sent via email;
(f)That at the time of attending his appointment for hair-strand collection, the Father shall provide the person collecting the hair-strand sample with a copy of these Orders and photographic identification confirming their identity;
(g)The Father shall arrange for a copy of all documents completed for the purposes of facilitating hair strand testing to be given to them and provide a copy to the other party’s solicitor and to the Independent Children’s Lawyer;
(h)The hair drug test may screen for alcohol, EtG and drugs of abuse including amphetamine-type substances and metabolites, cannabis and metabolites, cocaine and metabolites, opioids and metabolites and any other drug specified in this order as required;
(i)the Father shall irrevocably authorise Australian Workplace Drug Testing Services (AWDTS) to send its report to each legal representative within seven days upon completion of such report(s);
(j)The costs of hair drug tests are to be met by the father.
In relation to the hair drug test pursuant to Order 10:
(a)The Father is only required to submit to hair drug testing not more frequently than once per three (3) calendar months;
In the event that:
(a)A hair drug test result of the Father detects a substance referred to in Order 10(h) above other than a lawfully obtained current prescription or over-the-counter medication; or
(b)The Father fails to provide a hair sample in accordance with these orders within the timeframe provided for in these Orders; or
(c)The Father's hair is not maintained as referred to in Order 10(c) above; then,
(d)The Father’s time shall be suspended until he provides a complying test in which there is no substance detected other than a lawfully obtained current prescription or over-the-counter medication.
In the alternate to Orders 10-12, the Father is to undertake (by provision of urine screen in accordance with the Australian/NZ Standard 4308:2001) urinalysis for drug screening within twenty four (24) hours of receiving a request for such screening from the Independent Children's Lawyer and is to provide copies of the results of the testing to the Independent Children's Lawyer and Mother’s solicitor within forty eight (48) hours of receipt of same.
In the event that:
(a)A urinalysis result of the Father detects a substance referred to in Order 10(h) above other than alcohol, a lawfully obtained current prescription or over-the-counter medication; or
(b)The Father fails to provide a urine sample in accordance with these orders within the timeframe provided for in these Orders; then
(c)The Father’s time shall be suspended until he provides a complying test in which there is no substance detected other than a lawfully obtained current prescription or over-the-counter medication.
THE COURT FURTHER ORDERS THAT:
The matter be adjourned to 8 April 2020 at 9:30am for Mention before Registrar E.
The parties are at liberty to file terms in Chambers for the purposes of orders being made in Chambers in relation to the appointment of a Single Expert Witness.
THE COURT NOTES THAT:
(A)The purpose of the Mention is to:
(a)Establish what expert evidence will need to be obtained; and
(b)Further case manage the matter.
IT IS NOTED that publication of this judgment under the pseudonym Wagner & Oakley is approved pursuant to s.121(9)(g) of the Family Law Act 1975 (Cth).
| FEDERAL CIRCUIT COURT OF AUSTRALIA AT WOLLONGONG |
WOC 806 of 2019
| MS WAGNER |
Applicant
And
| MR OAKLEY |
Respondent
ORAL REASONS FOR JUDGMENT
This case is about three children; [X], who is 8, [Y], who is 5 and [Z], who is 4 (‘the Children’). The Mother is the Applicant, the Father the Respondent. The Children have the benefit of an experienced Independent Children’s Lawyer. The Court has to decide what orders should be made for the Children to spend time with their Father and under what circumstances. These short reasons for judgment explain why the orders that the Court makes are considered to be in the best interests of the Children for the time being.
By way of background, the Mother is 30 years old, the Father 28 years old. They started living together in 2010, but separated in 2019. There is an ADVO in place, made 3 December 2019, which protects the Mother and the Children from the Father for a period of one year. There is a current interim order in place made 30 September 2019 providing for the Children to live with their Mother but spend time with their Father each alternate Sunday from 12:00pm until 3:00pm, supervised by the paternal grandparents at nominated venues. The overall impression created is that this albeit limited time has nonetheless proceeded satisfactorily.
A Child Dispute Conference took place on 13 January 2020. The Memorandum came into evidence and where relevant it will be discussed in these my reasons.
The orders proposed by the Mother were contained in a minute provided by her solicitor, Ms Mitchell during the Interim Hearing. In short, the minute proposes that the Children continue to live with their Mother and continue to spend supervised time with their Father each alternate Sunday from 12:00pm to 3:00pm, supervised by one of the paternal grandparents. The order describes where this contact can occur and a number of ancillary provisions.
The Mother sought a continuation of orders in relation to the Father’s drug testing, both by hair and urine. The Father consented to orders 1, 8 and 9 of that minute which deals with the Children continuing to live with the Mother and mutual non-denigration and non-discussion orders.
The order proposed by the Father was contained in a handwritten minute that became exhibit R2. He proposed that the Children spend time with him from after school on Friday to before school on Monday in week 1 and then from after school on Wednesday until 7.00 pm in week 2. He sought a number of ancillary orders on an interim basis consistent with a number of the final orders that he proposed.
The Independent Children’s Lawyer could not support, for the time being, any change to the existing interim orders. For all practical purposes, the Independent Children’s Lawyer supported the Mother’s proposal.
When the matter came before me for Interim Hearing, a number of financial matters were in dispute between the parties and the discrete issues were adjudicated at that time. It is important to recognise that the Mother sought an adjournment of the parenting proceedings, which the Father opposed. The Court’s impression is that the Independent Children’s Lawyer would have preferred an adjournment herself. In one sense, even the Father it seems might have preferred an adjournment. The fact is, however, that the only person who made the application for adjournment was the Mother and the Court declined this.
There is enormous pressure on the Court’s limited resources in this registry. Whilst this Court will never close its mind to revisiting any order that is made in a Child’s best interest when circumstances have changed, it is important to provide some stability for these children as well as to equitably manage the limited resources of the Court’s time.
I was informed this morning that an updated psychiatric report in relation to the Father has been obtained. The Mother’s solicitor has a copy. There was no application to adduce further evidence and to seek to tender this.
In determining the main issue of what orders to make for the children to spend time with their Father, there are a number of matters to consider. Based on the material before the Court, which I will refer to momentarily, and the submissions provided, these other matters included the Father’s physical and mental health, the Father’s alleged abuse of prescription and non-prescription drugs and the allegations of the Father’s violence.
Despite the intensity of this litigation, a matter within respect of which some comment is necessary, there do appear to be some agreed facts. Whether these matters are agreed to in a formal sense or not, the following certainly represents a strong impression formed from the totality of the material before the Court.
The Mother has been the Children’s primary caregiver throughout their lives. The Father suffered a very serious and debilitating work accident in 2016 which continues to have effects on him today and in respect of which he continues to receive treatment. Their Child, [Y], was diagnosed with F disease in March 2017, underwent extensive treatment, but has been considered to be in remission since March 2019.
The Father suffers from post-traumatic stress disorder, chronic pain, depression and anxiety as a result of his injuries. He has had admissions to mental health facilities. He has experienced suicidal ideation. This family has been in a very difficult place for a number of years. The Court infers that both the Father, the Mother and the Children are vulnerable in different ways. The Father has ongoing litigation arising out of the accident.
An extensive array of documents were made available to the Court. Each party, including the Independent Children’s Lawyer, provided a case outline and/or outline of submissions which refers to the documents provided on by them. In the Independent Children’s Lawyer’s case, the Child Dispute Conference memorandum came into evidence. In the Mother’s case, as well as the documents referred to in her case outline, she referred to an aide memoire which was agreed by the parties to be a fair summary of the subpoenaed documents referred to in the document.
The Mother’s solicitor also relied on supplementary submissions as to parenting. The Father’s case outline refers to the documents on which reliance was placed in his case, a number of documents were tendered including the Applicant’s tender bundle, documents produced by Dr H and the Father’s drug tests.
The Applicable Law
The applicable law is found in Part VII of the Family Law Act 1975 (Cth) (hereafter referred to as ‘the Act’). . The Full Court’s decision in Goode v Goode informs both an understanding of the relevant law, plus the procedure in these interim hearings. In determining parenting matters under Part VII of the Act the Court must regard the best interests of the child as the paramount consideration: s.60CA.
The objects and principles of Part VII are set out at s.60B:
60B Objects of Part and principles underlying it
(1) The objects of this Part are to ensure that the best interests of children are met by:
(a) ensuring that children have the benefit of both of their parents having a meaningful involvement in their lives, to the maximum extent consistent with the best interests of the child; and
(b) protecting children from physical or psychological harm from being subjected to, or exposed to, abuse, neglect or family violence; and
(c) ensuring that children receive adequate and proper parenting to help them achieve their full potential; and
(d) ensuring that parents fulfil their duties, and meet their responsibilities, concerning the care, welfare and development of their children.
(2) The principles underlying these objects are that (except when it is or would be contrary to a child’s best interests):
(a) children have the right to know and be cared for by both their parents, regardless of whether their parents are married, separated, have never married or have never lived together; and
(b) children have a right to spend time on a regular basis with, and communicate on a regular basis with, both their parents and other people significant to their care, welfare and development (such as grandparents and other relatives); and
(c) parents jointly share duties and responsibilities concerning the care, welfare and development of their children; and
(d) parents should agree about the future parenting of their children; and
(e) children have a right to enjoy their culture (including the right to enjoy that culture with other people who share that culture).
(3) For the purposes of subparagraph (2)(e), an Aboriginal child’s or Torres Strait Islander child’s right to enjoy his or her Aboriginal or Torres Strait Islander culture includes the right:
(a) to maintain a connection with that culture; and
(b) to have the support, opportunity and encouragement necessary:
(i) to explore the full extent of that culture, consistent with the child’s age and developmental level and the child’s views; and
(ii) to develop a positive appreciation of that culture.
At the very core of Part VII of the Act is the creation of a presumption of equal shared parental responsibility in s.61DA. Section 61DA provides:
61DA Presumption of equal shared parental responsibility when making parenting orders
(1) When making a parenting order in relation to a child, the court must apply a presumption that it is in the best interests of the child for the child’s parents to have equal shared parental responsibility for the child.
(2) The presumption does not apply if there are reasonable grounds to believe that a parent of the child (or a person who lives with a parent of the child) has engaged in:
(a) abuse of the child or another child who, at the time, was a member of the parent’s family (or that other person’s family); or
(b) family violence.
(3) When the court is making an interim order, the presumption applies unless the court considers that it would not be appropriate in the circumstances for the presumption to be applied when making that order.
(4) The presumption may be rebutted by evidence that satisfies the court that it would not be in the best interests of the child for the child’s parents to have equal shared parental responsibility for the child.
If the presumption applies, the Court is required to consider certain things:
65DAA Court to consider child spending equal time or substantial and significant time with each parent in certain circumstances
Equal time
(1) If a parenting order provides (or is to provide) that a child’s parents are to have equal shared parental responsibility for the child, the court must:
(a) consider whether the child spending equal time with each of the parents would be in the best interests of the child; and
(b) consider whether the child spending equal time with each of the parents is reasonably practicable; and
(c) if it is, consider making an order to provide (or including a provision in the order) for the child to spend equal time with each of the parents.
Substantial and significant time
(2) If:
(a) a parenting order provides (or is to provide) that a child’s parents are to have equal shared parental responsibility for the child; and
(b) the court does not make an order (or include a provision in the order) for the child to spend equal time with each of the parents; and
the court must:
(c) consider whether the child spending substantial and significant time with each of the parents would be in the best interests of the child; and
(d) consider whether the child spending substantial and significant time with each of the parents is reasonably practicable; and
(e) if it is, consider making an order to provide (or including a provision in the order) for the child to spend substantial and significant time with each of the parents.
(3) will be taken to spend substantial and significant time with a parent only if:
(a) the time the child spends with the parent includes both:
(i) days that fall on weekends and holidays; and
(ii) days that do not fall on weekends or holidays; and
(b) the time the child spends with the parent allows the parent to be involved in:
(i) the child’s daily routine; and
(ii) occasions and events that are of particular significance to the child; and
(c) the time the child spends with the parent allows the child to be involved in occasions and events that are of special significance to the parent.
(4) Subsection (3) does not limit the other matters to which a court can have regard in determining whether the time a child spends with a parent would be substantial and significant.
Reasonable practicality
(5) In determining for the purposes of subsections (1) and (2) whether it is reasonably practicable for a child to spend equal time, or substantial and significant time, with each of the child’s parents, the court must have regard to:
(a) how far apart the parents live from each other; and
(b) the parents’ current and future capacity to implement an arrangement for the child spending equal time, or substantial and significant time, with each of the parents; and
(c) the parents’ current and future capacity to communicate with each other and resolve difficulties that might arise in implementing an arrangement of that kind; and
(d) the impact that an arrangement of that kind would have on the child; and
(e) such other matters as the court considers relevant.
Because s.65DAA refers to the best interests of the child the Court must then go back to consider s.60CC which specifies how the Court must determine what is in a child’s best interests.
Determining child's best interests
(1) Subject to subsection (5), in determining what is in the child's best interests, the court must consider the matters set out in subsections (2) and (3).
Primary considerations
(2) The primary considerations are:
(a) the benefit to the child of having a meaningful relationship with both of the child's parents; and
(b) the need to protect the child from physical or psychological harm from being subjected to, or exposed to, abuse, neglect or family violence.
Note: Making these considerations the primary ones is consistent with the objects of this Part set out in paragraphs 60B(1)(a) and (b).
(2A) In applying the considerations set out in subsection (2), the court is to give greater weight to the consideration set out in paragraph (2)(b).
Additional considerations
(3) Additional considerations are:
(a) any views expressed by the child and any factors (such as the child's maturity or level of understanding) that the court thinks are relevant to the weight it should give to the child's views;
(b) the nature of the relationship of the child with:
(i) each of the child's parents; and
(ii) other persons (including any grandparent or other relative of the child);
(c) the extent to which each of the child's parents has taken, or failed to take, the opportunity:
(i) to participate in making decisions about major long-term issues in relation to the child; and
(ii) to spend time with the child; and
(iii) to communicate with the child;
(ca) the extent to which each of the child's parents has fulfilled, or failed to fulfil, the parent's obligations to maintain the child;
(d) the likely effect of any changes in the child's circumstances, including the likely effect on the child of any separation from:
(i) either of his or her parents; or
(ii) any other child, or other person (including any grandparent or other relative of the child), with whom he or she has been living;
(e) the practical difficulty and expense of a child spending time with and communicating with a parent and whether that difficulty or expense will substantially affect the child's right to maintain personal relations and direct contact with both parents on a regular basis;
(f) the capacity of:
(i) each of the child's parents; and
(ii) any other person (including any grandparent or other relative of the child);
to provide for the needs of the child, including emotional and intellectual needs;
(g) the maturity, sex, lifestyle and background (including lifestyle, culture and traditions) of the child and of either of the child's parents, and any other characteristics of the child that the court thinks are relevant;
(h) if the child is an Aboriginal child or a Torres Strait Islander child:
(i) the child's right to enjoy his or her Aboriginal or Torres Strait Islander culture (including the right to enjoy that culture with other people who share that culture); and
(ii) the likely impact any proposed parenting order under this Part will have on that right;
(i) the attitude to the child, and to the responsibilities of parenthood, demonstrated by each of the child's parents;
(j) any family violence involving the child or a member of the child's family;
(k) if a family violence order applies, or has applied, to the child or a member of the child's family--any relevant inferences that can be drawn from the order, taking into account the following:
(i) the nature of the order;
(ii) the circumstances in which the order was made;
(iii) any evidence admitted in proceedings for the order;
(iv) any findings made by the court in, or in proceedings for, the order;
(v) any other relevant matter;
(l) whether it would be preferable to make the order that would be least likely to lead to the institution of further proceedings in relation to the child;
(m) any other fact or circumstance that the court thinks is relevant.
The Case Law
In MRR v GR [2010] HCA 4, the High Court referred to s.65DAA(1) and said
9. Each of sub-ss (1)(b) and (2)(d) of s 65DAA require the Court to consider whether it is reasonably practicable for the child to spend equal time or substantial and significant time with each of the parents. It is clearly intended that the Court determine that question. Sub-section (5) provides in that respect that the Court "must have regard" to certain matters, such as how far apart the parents live from each other and their capacity to implement the arrangement in question, and "such other matters as the court considers relevant", "[i]n determining for the purposes of subsections (1) and (2) whether it is reasonably practicable for a child to spend equal time, or substantial and significant time, with each of the child's parents".
A little later in the judgment the High Court said:
13. Section 65DAA(1) is expressed in imperative terms. It obliges the Court to consider both the question whether it is in the best interests of the child to spend equal time with each of the parents (par (a)) and the question whether it is reasonably practicable that the child spend equal time with each of them (par (b)). It is only where both questions are answered in the affirmative that consideration may be given, under par (c), to the making of an order.
At [15] the High Court emphasised the need for a practical approach:
15. Section 65DAA(1) is concerned with the reality of the situation of the parents and the child, not whether it is desirable that there be equal time spent by the child with each parent. The presumption in s 61DA(1) is not determinative of the questions arising under s 65DAA(1). Section 65DAA(1)(b) requires a practical assessment of whether equal time parenting is feasible.
The Full Court’s decision in Goode & Goode [2006] FamCA 1346 provides some guidance about the interpretation of Part VII and the way to proceed in interim hearings.
68. In our view some of the comments of the Full Court in paragraph 18 are still apposite. For example, the procedure for making interim parenting orders will continue to be an abridged process where the scope of the enquiry is “significantly curtailed”. Where the Court cannot make findings of fact it should not be drawn into issues of fact or matters relating to the merits of the substantive case where findings are not possible. The Court also looks to the less contentious matters, such as the agreed facts and issues not in dispute and would have regard to the care arrangements prior to separation, the current circumstances of the parties and their children, and the parties’ respective proposals for the future.
…
72. In our view, it can be fairly said there is a legislative intent evinced in favour of substantial involvement of both parents in their children’s lives, both as to parental responsibility and as to time spent with children, subject to the need to protect children from harm, from abuse and family violence and provided it is in their best interests and reasonably practicable. This means where there is a status quo or well settled environment, instead of simply preserving it, unless there are protective or other significant best interests concerns for the child, the Court must follow the structure of the Act and consider accepting, where applicable, equal or significant involvement by both parents in the care arrangements for the child.
…
82. In an interim case that would involve the following:
(a) identifying the competing proposals of the parties;
(b) identifying the issues in dispute in the interim hearing;
(c) identifying any agreed or uncontested relevant facts;
(d) considering the matters in s 60CC that are relevant and, if possible, making findings about them (in interim proceedings there may be little uncontested evidence to enable more than a limited consideration of these matters to take place);
(e) deciding whether the presumption in s 61DA that equal shared parental responsibility is in the best interests of the child applies or does not apply because there are reasonable grounds to believe there has been abuse of the child or family violence or, in an interim matter, the Court does not consider it appropriate to apply the presumption;
(f) if the presumption does apply, deciding whether it is rebutted because application of it would not be in the child’s best interests;
(g) if the presumption applies and is not rebutted, considering making an order that the child spend equal time with the parents unless it is contrary to the child’s best interests as a result of consideration of one or more of the matters in s 60CC, or impracticable;
(h) if equal time is found not to be in the child’s best interests, considering making an order that the child spend substantial and significant time as defined in s 65DAA(3) with the parents, unless contrary to the child’s best interests as a result of consideration of one or more of the matters in s 60CC, or impracticable;
(i) if neither equal time nor substantial and significant time is considered to be in the best interests of the child, then making such orders in the discretion of the Court that are in the best interests of the child, as a result of consideration of one or more of the matters in s 60CC;
(j) if the presumption is not applied or is rebutted, then making such order as is in the best interests of the child, as a result of consideration of one or more of the matters in s 60CC; and
(k) even then the Court may need to consider equal time or substantial and significant time, especially if one of the parties has sought it or, even if neither has sought it, if the Court considers after affording procedural fairness to the parties it to be in the best interests of the child.
In addition, I will include a number of paragraphs from my own decision in a matter called Insley & Insley [2018] FCCA 438, where I discuss some of the authorities about decision making in interim cases:
The Challenge of Fact-Finding in this Case
[61] This Court is in a very difficult position. Whilst all the material before the Court can be closely scrutinised, the fact is that the evidence has not been tested and, in reality, cannot be tested for many months, simply because of the demands on the Court’s time from other cases. The Supplementary Written Submissions proposed by Mr Knox SC highlight the evidentiary issues and emphasise the importance of credit, even in an interim hearing.
[62] If the Court believes that there is substance to the Mother’s concerns, it is more likely to accept her proposal to remain in Melbourne, and to thus focus on what is the most appropriate arrangement for X to spend time with his Father and paternal family, but in Melbourne. If the Court accepts the Mother’s concerns about family violence and abuse, it is unlikely to accede to a proposal that involves the Mother and X to the (omitted), even if all the financial issues are satisfactorily addressed by the Father. The Court accepts that whether there is an objective basis for the Mother’s fear or not to bring her back to the (omitted) where she would be alone, and completely financially dependent on the Father, is merely likely to re-traumatise her, at least from her perspective.
[63] In Goode & Goode the Full Court warned against making findings of fact where findings are not possible. The Court did not rule out making findings of fact and, it must be remembered that findings can be made on the basis of uncontested matters, or admissions. To the extent, moreover, that findings may be differentiated from inferences, inferences may certainly be drawn from all of the material available before the Court.
[64] Senior Counsel for the Father quite properly referred the Court to the Full Court’s decision in Goode & Goode. Of course there have been later Full Court decisions that suggest in that, particularly in cases where there are allegations of family violence, a more nuanced approach is warranted. For example, the Full Court in SS & AH [2010] FamCA 13 at [100] noted that sometimes judges will have little alternative but to weigh the probabilities of competing claims and the likely impact on children in the event that a controversial assertion is acted upon or rejected. The Full Court stated that it is not always feasible when dealing with the immediate welfare of children simply to ignore an assertion because its accuracy has been put in issue. Nonetheless, the Full Court warned, findings must be couched with circumspection.
[65] The Full Court in Marvel & Marvel (No.2) [2010] FamCAFC 101, in referring to its earlier decision in SS &AH stated at [120] that decision-making in interim proceedings is difficult, and thus a conservative approach is warranted, or one which is likely to avoid harm to a child.
[66] In Reece & Reece [2011] FamCAFC 24, the Full Court warned at [76] about the consequences of failing to have regard to expert evidence simply because it was untested in cross-examination. In that case the evidence was a Family Report. In this case, of course, it is a Child Dispute Conference Memorandum.
[67] In Deiter & Deiter [2011] FamCAFC 82, at [54] the Full Court suggested that s.60K (now s.67ZBB) of the Act signalled a clear policy imperative of ensuring that allegations of family violence are treated seriously and dealt with expeditiously. In an ideal world, these allegations could be dealt with at a discreet issues hearing, or an expedited final hearing. In reality, in a registry of this court where almost all of the cases involve allegations of family violence, neglect, abuse, drugs or alcohol and mental health, neither a discreet issues hearing, nor expedition is possible. It is nonetheless imperative that allegations of family violence are treated seriously.
[68] At [61] in Deiter, the Full Court discussed risk analysis:
The assessment of risk is one of the many burdens placed on family law decision makers. Risk assessment comprises two elements – the first requires prediction of the likelihood of the occurrence of harmful events, and the second requires consideration of the severity of the impact caused by those events. In our view, the assessment of risk in cases involving the welfare of children cannot be postponed until the last piece of evidence is given and tested, and the last submission is made. We accept, however, that it is always a question of degree depending on the evidence that is before the Court.
[69] The Full Court at [77] noted that it is not open to a trial judge to simply ignore an allegation because it had not been tested.
[70] The Full Court in Enmore & Smoothe [2014] FamCAFC 131 at [39] explained that a finding of risk of abuse may be reached on the basis of evidence which falls short of that required for a finding that abuse has occurred. However, that is not to suggest that evidence aimed at establishing a possible risk of abuse should not be subject to careful scrutiny, since serious consequences can also flow from a finding that a child is at risk of abuse.
[71] In 2015, the Full Court in Eaby & Speelman [2015] FamCAFC 104 at [18] expressly stated that the comments of the Full Court at [68] in Goode did not mean that merely because the facts are in dispute the evidence on the topic must be disregarded and the case determined solely by reference to the agreed facts. Moreover, at [21] the Full Court recognised:
Much of what occurs in families takes place in private, as a consequence of which corroboration is often not available. It follows that the absence of corroborating evidence does not necessarily undermine a person’s evidence on that topic.
[72] In Salah & Salah [2016] FamCAFC 100 the Full Court in 2016 focused on s.60CG, which requires a Court when considering what parenting order to make, to ensure that whatever order is made, it does not expose a person to an unacceptable risk of family violence. Again, trial judges were reminded in that judgment that corroboration or objective support for allegations is not always necessary, especially because family violence often takes place in private in circumstances where no corroboration is available.
Discussion
I propose to deal with what I consider to be the main issues in this case individually, firstly the family violence allegations. Part of the Mother’s case as to why the Children’s time with their Father needs to be supervised and limited as to time was that the Father had perpetrated family violence on the Mother and that the children had been exposed to the same. The definition of family violence is found in s4AB of the Act. It is a very broad definition:
Family violence is defined in s.4AB of the Act:
(1) For the purposes of this Act, family violence means violent, threatening or other behaviour by a person that coerces or controls a member of the person's family (the family member ), or causes the family member to be fearful.
(2) Examples of behaviour that may constitute family violence include (but are not limited to):
(a) an assault; or
(b) a sexual assault or other sexually abusive behaviour; or
(c) stalking; or
(d) repeated derogatory taunts; or
(e) intentionally damaging or destroying property; or
(f) intentionally causing death or injury to an animal; or
(g) unreasonably denying the family member the financial autonomy that he or she would otherwise have had; or
(h) unreasonably withholding financial support needed to meet the reasonable living expenses of the family member, or his or her child, at a time when the family member is entirely or predominantly dependent on the person for financial support; or
(i) preventing the family member from making or keeping connections with his or her family, friends or culture; or
(j) unlawfully depriving the family member, or any member of the family member's family, of his or her liberty.
(3) For the purposes of this Act, a child is exposed to family violence if the child sees or hears family violence or otherwise experiences the effects of family violence.
(4) Examples of situations that may constitute a child being exposed to family violence include (but are not limited to) the child:
(a) overhearing threats of death or personal injury by a member of the child's family towards another member of the child's family; or
(b) seeing or hearing an assault of a member of the child's family by another member of the child's family; or
(c) comforting or providing assistance to a member of the child's family who has been assaulted by another member of the child's family; or
(d) cleaning up a site after a member of the child's family has intentionally damaged property of another member of the child's family; or
(e) being present when police or ambulance officers attend an incident involving the assault of a member of the child's family by another member of the child's family.
Counsel for the Father submitted that there was no evidence of violence towards the Children, but with respect, that greatly minimises the potential significance of violence that is directed to the children’s mother and to the potentially insidious impacts on the Children of either being present or in the vicinity when violence is perpetrated, let alone issues about the attitudes of a parent who perpetrates violence.
Whilst any sort of finding in an Interim Hearing should necessarily be both cautious and circumscribed, there is enough material before the Court to form a very strong impression that the Father has, in fact, perpetrated family violence. There is a final AVO in place protecting both the Mother and the Children. In the Father’s first Affidavit, filed 25 September, before the final hearing of the ADVO, at paragraph 57 he swore that the interim order procured by the Mother was on the basis of a falsehood, the aim of which was to prevent him from spending time with his children.
The matter went to a final hearing before a learned local court magistrate. The Father was represented. The final order was made. The Court is entitled to infer that the order was made on the basis of the complaint made by the Father. The Mother’s allegation included that the Father had made threats to her and to her property.
In addition to this, though, the Father actually makes a number of admissions in his evidence about family violence. For example, he acknowledges damaging property by flipping a bed. He acknowledges that he has been violent in the past in other contexts. During an incident at McDonald’s in 2011, he admitted that he head-butted, punched and kicked a person but denied stabbing them. The Father may well have intervened to either assist or protect the Mother, but what he demonstrated through this incident is a capacity to be violent. The Mother’s Affidavit contains detailed descriptions of the violence perpetrated by the Father to the Mother and in the Children’s presence.
It is curious, indeed, how selective the Father appears to have been in his most recent affidavit in responding to the Mother’s allegations. The person who assisted the Father with his Affidavit filed 30 January has used the rather curious device in paragraph 3 of the same Affidavit in attempting to explain why some but not all of the Mother’s allegations have not been responded to. In the final sentence of that paragraph, he declares in effect that if he has not addressed an issue, it should not be seen as an admission.
The Court does not accept this. The Father knew, or should have known, that the Mother’s allegations of violence were a central issue in her case and that he was obliged to deal with those allegations in a systematic way. He cannot choose which allegations to respond to and somehow avoid the consequences of not responding to other relevant allegations. For example, he has not responded to the Mother’s allegations of slamming doors, yelling in her face and telling her to go fuck herself. He has not responded to her allegation about locking her out of the house or following her closely in his car after a supervised visit.
There is, therefore, sufficient material before the Court for it to be concerned about the risk to the Mother and indeed to the Children via the Father’s violence or exposure to the myriad consequential attitudes and behaviours associated with that violence including the possibility of aggressive and unpredictable behaviour, attitudes of self-entitlement and lack of insight into the potential impact on others, including his children, of violence.
The next issue of concern is about the Father’s physical and mental health. Another important part of the Mother’s case for supervision relates to the Father’s physical and mental health. Once again, it is the Father’s own evidence that raises serious concerns from the Court’s perspective. Firstly, exhibit A1, the Mother’s tender bundle, raises concerns in the Court’s mind about why the Father was so lacking in diligence in disclosing to the Mother in a timely fashion and to the Court details about his physical and mental health.
Whilst part of the explanation may well be the rather aggressive approach the Father and his lawyers have adopted to this litigation, as shown by the correspondence, the Father was in the best position to tell the Court about his physical and mental health but in this case it seems the Mother was put to enormous effort to place this evidence before the Court.
The Court is concerned about what it considers to be a disturbing incident referred to at paragraph 40 of the Mother’s Affidavit filed 23 January, where the Father makes no reply in his Affidavit of the 30th of January probably seeking to hide behind paragraph 3 of his affidavit. At paragraph 40 of the Mother’s Affidavit, she describes an incident last year when the Children were at home with their father while she went out to get some milk. The child, [X], FaceTimed the maternal grandmother, saying, in effect, that the Father was unresponsive. The Mother raced home, finding the Father in such a state. He was breathing but not responding. The Children were unsettled and upset. The Mother messaged the Father’s friend with whom he had been the night before, who said, in effect, that it was just the Father’s sleeping pills. The Mother alleges that he slept for 16 hours.
This serious allegation is unaddressed by the Father, despite the event representing a clear example of the Mother’s concerns about how the Father’s physical and mental health presented potential risk to the children because of the possibility of inhibition of his capacity to physically and emotionally care for them. Thirdly, the documents produced by the Father’s own treating doctors present a disconcerting picture of his health and wellbeing. These documents are found in exhibit A1. Concerns arise from matters found at pages 38, 41, 42, 43, 47, 51, 57 and 58 of the bundle. These are the Father’s own treating doctors’ observations about him, probably in part but perhaps not exclusively based on his self-report. They present a disconcerting picture of both his physical and mental capacity to care for his children. The Mother raises concerns about the Father’s mental health and the risk of self-harm. There is not much in these documents that would provide reassurance to the Court in this regard.
To complicate matters somewhat, but certainly to add concerns from the Court’s perspective, there was evidence to suggest that the Father is consuming substantial quantities of what are probably prescribed medications but in respect of which he has provided no disclosure about the nature and purpose of this medication. Assessing risk in this case is difficult enough without what would seem to be the Father’s lack of diligence, perhaps even cooperation, in enabling the Court to form a clearer picture of the potential risk to these children arising out of his physical and mental health.
Having regard to the strong impressions created by the material before the Court discussed above, it becomes apparent that the Father’s proposal to spend time with the Children does not reflect or in any way address what the Court considers to be the reality of the risk to these children. Indeed, his proposal manifests a significant lack of insight on his part.
However, there is no magic in the Mother’s proposal about the Children only spending three hours with their Father, supervised by one of the paternal grandparents, each alternate Sunday. There seems no concerns about the adequacy of the supervision provided by the paternal grandparents. The Court could not discern any rationale for this time being limited to three hours. There is no reason apparent from the material, for example, why it could not be five hours which would include, for example, lunch. Subject to the availability of the paternal grandparents or one of them to supervise the Father’s time, there appears to be no reason why it could not be from 10:00am to 3:00pm each alternate Sunday.
The Court accepts that the Mother would be concerned about the Children spending time with the Father at his home. Certainly for the Mother and possibly even for the Children, the Father’s home might be associated with past traumatic events. In order 3 of the Mother’s minute, she proposes that the Father spend time with the Children in a number of what would seem to be child-focused and entertaining venues for the children. There is nothing wrong with this in principle but the Court would not like to see this become limiting in terms of the Children’s experience with their Father and grandparents.
There was some opposition to hair testing for the Father. The order proposed a frequency of not more than three months. That is not unreasonable. The evidence that supports the making of this order is primarily that indicating that the Father has been prescribed what would appear to be quite significant volumes of prescription medicine and his failure to disclose to the Court important matters relating to his physical and mental health. The risk of illicit or prescription drug abuse in this case is not far-fetched and thus both the hair and urine testing is a proportionate response to manage the risk.
Accordingly and pending further order, the Court will make orders 1 to 14 inclusive of the minute of orders sought on behalf of the Mother and supported by the Independent Children’s Lawyer. The one amendment will be that the time will be 10:00 to 3:00 than the time prescribed. Consideration will need to be given as to the future conduct of this matter, particularly in terms of what expert evidence will need to be obtained in the parenting case. There are also property proceedings that will need to be case managed. These are issues that I am prepared to discuss with the parties’ lawyers presently.
I certify that the preceding forty-four (44) paragraphs are a true copy of the reasons for judgment of Judge Altobelli
Associate:
Date: 19 February 2020
Key Legal Topics
Areas of Law
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Family Law
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Evidence
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