Wardle and Ainslie

[2017] FCCA 1142

FEDERAL CIRCUIT COURT OF AUSTRALIA

WARDLE & AINSLIE [2017] FCCA 1142

Catchwords:
FAMILY LAW – Parenting orders – spend time – interim hearing.

Legislation:

Family Law Act 1975, s.60CC

Applicant: MS WARDLE

Respondent: MR AINSLIE

File Number: DNC 257 of 2015

Judgment of: Judge Young

Hearing date: 4 May 2017

Date of Last Submission: 4 May 2017

Delivered at: Darwin

Delivered on: 29 May 2017

REPRESENTATION

Solicitors for the Applicant: Ms Bolton of the Northern Territory Legal Aid Commission

Solicitors for the Respondent: Ms Hotham of Story & Associates

Solicitors for the Independent Children's Lawyer: Ms Terrill of Terrill & Associates

ORDERS

1. The independent children’s lawyer is directed to bring in draft orders reflecting these reasons within 14 days.

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

FEDERAL CIRCUIT COURT
OF AUSTRALIA
AT DARWIN

DNC 257 of 2015

MS WARDLE

Applicant

And

MR AINSLIE

Respondent

REASONS FOR JUDGMENT

1. This is an interim parenting application concerning a child X who is 26 months old. The parents separated when X was about two months old. The mother and father lived with the paternal grandparents and at separation the mother left the home to live with her mother. She asserts that the father and the paternal grandparents prevented her taking the child with her when she left. It seems to be uncontroverted that she was breastfeeding the child at the time. The father asserts that the mother voluntarily left the child with him and his parents.

2. The chronology of the matter is as follows. The father was born on (omitted) 1994 and is now 23 years old. The mother was born on (omitted) 1995 and is now 21 years old. In 2012, when she was 16 or 17 years old, the mother was involved in a car accident. It appears that she suffered a brain injury in this accident and spent some months in hospital. The extent to which this injury continues to affect her is a matter of conjecture. A psychiatrist, Dr F, who examined the parties, apparently by agreement, recommended that the mother have a further neurological assessment as she suspected the existence of a subtle cognitive impairment. Subsequently, the family consultant (a psychologist) who prepared a family report was of the view that a neurological assessment would be unlikely to be particularly productive.

3. The family consultant had made numerous enquiries of professional people who had dealt with the mother over the past year or so and, with the exception of one drug and alcohol counsellor, all were agreed that there was no evidence of any cognitive impairment of the mother. The drug and alcohol counsellor had thought that the mother was "slow to respond" at times and wondered whether the injury might be an explanation.

4. On 5 June 2015, slightly less than a month after separation, the mother applied to the court for parenting orders. On 11 June 2015 an order was made that the child live with the father until further order, spending two nights a week and from 9 AM to 5 PM each day with the mother. There were also orders that the parties not consume alcohol while the child was in their care or 24 hours beforehand. On 3 July 2015 a family consultant interviewed the parties and a child dispute conference memorandum was prepared. Both parties admitted to family violence. The father admitted pushing the mother when she was intoxicated. He denied calling her offensive names.

5. In the course of 2015 the mother ceased residing at her mother's home and obtained public housing. On 19 December 2015 the mother alleged that the father assaulted her when he saw her on the street in the entertainment strip of Darwin at 4 AM. She asserts he was a passenger in a car that drove past her. She says that he stuck his head out of the window of a car and called to her something to the effect of "You whore. You will not be picking X up tomorrow." She says the car stopped, the father got out of the car and walked over to her and punched her in the face, knocking her to the ground and then punched her a number of times while she was on the ground. The mother reported the matter to police and made a statement to police on that day. Her police statement refers to a cut on the inside of her lip and some swelling on her cheek. She was subsequently examined by a general practitioner at (omitted) and referred to the emergency Department at (omitted) Hospital. The notes of the hospital examination are attached to an affidavit. They do not describe any signs of physical injury.

6. The father denies assaulting the mother but admits calling out to her "You can't come and pick up X tomorrow, you drunken slut." The father also filed an affidavit from the driver of the car supporting his version of events. It is noteworthy that despite the father admitting his presence in the nightclub strip of Darwin at 4 AM he says nothing about whether or not he had been drinking. As the child was supposed to be in his care at the time I consider that a significant omission. On 19 February 2016, following allegations of violence and abuse, particularly at changeovers of the child, I made orders with the effect of reducing the number of changeovers in each week. The orders provided that the child live with the father and spend time with the mother from Sunday 9 AM to Tuesday 4:30 PM with all changeovers to take place Catholic Care. The effect of the orders was to leave the number of nights the child spent with the mother unchanged but to reduce the number of hours the child spent with her.

7. The mother says that from February 2016, following a course of counselling about the effect of alcohol, she ceased drinking alcohol.

8. On 20 May 2016 orders were made by consent for mutual restraining orders, that the father complete a parenting course (the mother having completed hers), that the parties use a communication book and for a family report. On 21 November 2016 orders were made setting the matter down for trial on 3 and 4 May 2017. On 3 May 2017 the father sought to vacate the trial dates because he had retained new lawyers after a period of being unrepresented. The mother and the independent children's lawyer did not oppose that course provided that an interim hearing could be held. The mother and the independent children’s lawyer sought interim orders that the child spend, according to the mother's case, three nights a fortnight with the father and, according to the independent children’s lawyer’s case, three nights a week with the father. In each case the effect of such orders would be to reduce the time the child spends with his father and increase the time he spends with his mother.

9. Both parents are Indigenous people. The mother is a Torres Strait Islander and the father is an Aboriginal man. The father has made serious allegations against the mother. He asserts that she has a problem with alcohol, that she is incapable of properly caring for the child and that her mother, with whom she was living for a period, inhabits a house where there is heavy drinking, drug use and violence. He opposed any change in the child’s circumstances. He said that he no longer lived with his parents and that he had moved into a home of his own with his present girlfriend. He is employed full-time and places the child in childcare for three days a week: Wednesday, Thursday and Friday.

10. The mother asserts that the allegations against her are false. She asserts that she is a competent mother capable of adequately caring for the child and that the time the child spends with her ought to be increased rather than the child spending time in childcare. The mother has recently had a baby and the mother asserts that the child X should live with her and his sibling. The mother admits that she had a drinking problem but in 2015 she attended a program at (omitted), a drug and alcohol counselling service. She says that as a result of the support and counselling she received she has remained sober since February 2016. The author of the family report interviewed an (omitted) counsellor who confirmed that the mother had completed her counselling program and, in the opinion of a counsellor, she did not require further counselling or support at this stage. She believed the mother was sober and abstaining from alcohol. This appeared to be supported by other service providers interviewed by the author of the family report. Workers at the YWCA, who supported the mother in various programs, also confirmed to the author of the family report that there was no sign that the mother was continuing to use alcohol. On home visits there was no sign of alcohol in the house and the house and surrounds appeared to be of an adequate standard. The support workers confirmed that the mother and child had a warm and loving relationship and there were no concerns about the mother’s competence. They did say that the mother, as an Indigenous woman, was very shy and lacking in assertiveness. They believed the mother showed signs of recovering from a situation of family violence where she was dominated and controlled by the father.

11. The author of the family report was concerned, at the time of her assessment, that the father was living with his parents and the paternal grandparents appeared to be assuming a great deal of the responsibility for care of the child. There appear to be indications that that may be the case, for example, the presence of the father in the nightclub strip of Darwin at 4 AM when the child was in his care. I assume the child was at home with the father's parents. There is also evidence from the father that he trained for football up to 3 nights a week and the child was cared for by his parents during that time at the football ground.

12. The family report writer was concerned that if the father remained the primary carer then the likely consequence is that the child will be cared for significantly by the paternal grandparents with the possibility of the mother being "sidelined". As mentioned, the author of the family report did not accept that the father's assertions of the mother’s incapacity to be a good and safe parent were supported by her investigations and assessment. She believed that if the child lived primarily with his mother it increased the likelihood of the child being cared for by one of his parents and living with a sibling close in age. She also considered that such an outcome would be more likely to lead to the mother having the confidence to negotiate with the father, with positive outcomes for the child.

13. When the matter came on for interim argument on 4 May 2017 the father relied on an affidavit by him prepared at short notice by his new solicitor. The affidavit repeated previous allegations but raised a new allegation that he had "recently" noticed the child had a sore on his right harm after returning from the mother's care. The father said that a doctor had told him the sore was a result of a cigarette burn. This allegation is, of course, of great concern. There was no material from the doctor to substantiate the claim. I asked the father's counsel when this event had occurred and I was told about one month earlier. The Northern Territory has a mandatory reporting system for child abuse and any medical practitioner who suspects a child to be at risk of harm must report to the child welfare authorities. There was no evidence that the child welfare authorities had received a report or undertaken any investigation. In the circumstances, I think there is some reason to doubt the father's claim. However, I would expect an application from the father or the independent children’s lawyer should there be any evidence that there is substance to the allegation.

14. The independent children's lawyer submitted that the independent information, particularly that from the investigations by the author of the family report, were inconsistent with the father's allegations that the mother was incapable of properly caring for the child. On the contrary, the evidence appeared to be that the mother is a capable and loving parent. Her problem with abuse of alcohol is of concern but present indications are that she is abstaining. I accept the submissions of the independent children’s lawyer to that effect. In my view, there are many indications pointing to the father's contemptuous and hostile attitude to the mother and indications that that attitude may be shared by his parents. I am concerned that unless the child's time with the mother is substantially increased her relationship with this very young child may be undermined.

15. Having regard to the matters in section 60CC(2) of the Family Law Act, I am concerned that without an increase in time with the mother the benefit to the child of having a meaningful relationship with both of the child's parents will be compromised. Notwithstanding the father’s serious allegations, I am not satisfied that there is such substance in them as to pose an unacceptable risk should the child's time with the mother be increased.

16. In relation to the matters in section 60CC(3), the nature of the relationship of the child with each of his parents is good and, according to the observations of the author of the family report, nothing exceptional was noted. It appears the child is likely to have an important relationship with the paternal grandparents and the orders I propose to make should not diminish that. The father asserted that at separation the mother voluntarily left the child in his care. Having regard to the family report, I am not satisfied that the matter is as straightforward as that. There appear to be indications of controlling behaviour by the father and his family which may indicate the reason for the mother's conduct was an inability to assert herself in the situation. There will be a change in the child’s circumstances so that he spends an increased time with his mother and younger sibling. This increase in time will substantially come with a reduction in the time the child spends in childcare. The father asserted that it was important that the child remain in childcare for his social and other development, particularly given that the child has relatives in the childcare centre. While taking account of that matter, I consider it of greater importance that the child's relationship with his mother and sibling be reinforced. There is nothing to suggest that the capacity of each of the child's parents is not equal to properly caring for the child or to provide for the needs of the child, including his emotional and intellectual needs. The child is the child of an Aboriginal father and a Torres Strait Islander mother. Both have alluded to the importance of the child's Indigenous heritage. I take those matters into account. The orders I propose to make should not diminish that. In relation to family violence there is, I understand, a domestic violence order in place. That was entered into voluntarily by the father. I make no findings about the existence of family violence given that this is an interim hearing. However, I am satisfied that there are real issues of family violence to be resolved which must await a trial.

17. I propose to make orders reflecting the submissions of the independent children's lawyer so that, until further order, the child is to live with the mother on Monday, Tuesday, Wednesday and Thursday nights until 5 PM Friday and with the father for the balance of the time. The changeover time on Monday morning is a matter of some concern. The father said that he was unable to have the child delivered to Catholic Care because he starts work early on Monday morning. I propose to make an order at this stage that changeover occur at the earliest time that can be accommodated by Catholic Care. However, I will hear a further submission about this from the parties if necessary. The independent children's lawyer is directed to bring in a draft order reflecting these reasons. There will also be an order that the mother continue to engage with the YWCA to the extent advised by the YWCA. The presumption of equal shared parental responsibility is not appropriate, in my view, given the unresolved allegations of family violence in this interim hearing.

18. I will relist the matter if agreement cannot be reached about the Monday morning changeover.

I certify that the preceding eighteen (18) paragraphs are a true copy of the reasons for judgment of Judge Young

Date: 29 May 2017