Warren & Barrow (No 2)
[2024] FedCFamC2F 126
•22 January 2024
FEDERAL CIRCUIT AND FAMILY COURT OF AUSTRALIA
(DIVISION 2)
Warren & Barrow (No 2) [2024] FedCFamC2F 126
File number(s): ADC 3534 of 2022 Judgment of: JUDGE JENKINS Date of judgment: 22 January 2024 Catchwords: FAMILY LAW – parenting – application for review – application allowed – child lives with maternal grandparents – determination as to time with father – unacceptable risk – risk to child if supervised at a contact service – views of the child – importance of sibling relationship – supervised time ordered Legislation: Family Law Act 1975 (Cth) ss 60CA, 60CC, 69ZL
Federal Circuit and Family Court of Australia (Family Law) Rules 2021 (Cth) r 14.07(2)(b), r 8.15
Cases cited: Franklyn & Franklyn [2019] FAMCAFC 246
Goode & Goode [2006] FamCA 1346
Masson v Parsons (2019) 266 CLR 554
Division: Division 2 Family Law Number of paragraphs: 82 Date of last submission/s: 22 January 2024 Date of hearing: 17 January 2024 Place: Melbourne Counsel for the Applicant: Mr McQuade Solicitor for the Applicant: Dixon Gallasch Pty Ltd First Respondent: No appearance Counsel for the Second Respondents: Ms Betro Solicitor for the Second Respondents: Ms Treloar of Clelands Lawyers Adelaide Pty Ltd Counsel for the Independent Children's Lawyer: Ms Harris Solicitor for the Independent Children's Lawyer: Legal Services Commission of South Australia ORDERS
ADC 3534 of 2022 FEDERAL CIRCUIT AND FAMILY COURT OF AUSTRALIA (DIVISION 2)
BETWEEN: MR WARREN
Applicant
AND: MS BARROW
First Respondent
MS C BARROW AND MR D BARROW
Second Respondents
INDEPENDENT CHILDREN'S LAWYER
ORDER MADE BY:
JUDGE JENKINS
DATE OF ORDER:
22 JANUARY 2024
THE COURT ORDERS THAT:
1.Order 1 of the Orders of 13 December 2023 be discharged.
2.The father shall spend time on a supervised basis with X born in 2016 (“the child”) at the E Contact Service (“the contact service”) for 6 sessions on dates and at times mandated by the contact service and that he be permitted to bring with him X’s half sibling F.
3.The father and maternal grandparents shall within 72 hours hereof do all acts and things necessary to register and/or enrol at the contact service for supervised time between the child and father provided that each party shall bear their own costs.
4.Upon the conclusion of 6 supervised visits the father shall obtain, file and service an observational report at his own cost.
5.The father do undertake one Carbohydrate-Deficient Transferrin (CDT) test within 7 days of a request from the Independent Children’s Lawyer at his sole cost.
6.The father do file the results of the CDT test undercover of an affidavit within 48 hours of receiving same.
7.The father have liberty to file an Application in a Proceeding to be listed before a Senior Judicial Registrar upon obtaining an observational report from the contact service and the CDT test results.
8.All interim applications be otherwise dismissed.
Note: The form of the order is subject to the entry in the Court’s records.
Note: This copy of the Court’s Reasons for judgment may be subject to review to remedy minor typographical or grammatical errors (r 10.14(b) Federal Circuit and Family Court of Australia (Family Law) Rules 2021 (Cth)), or to record a variation to the order pursuant to r 10.13 Federal Circuit and Family Court of Australia (Family Law) Rules 2021 (Cth).
Section 121 of the Family Law Act 1975 (Cth) makes it an offence, except in very limited circumstances, to publish proceedings that identify persons, associated persons, or witnesses involved in family law proceedings.
IT IS NOTED that publication of this judgment by this Court under a pseudonym has been approved pursuant to s 121(9)(g) of the Family Law Act 1975 (Cth).
REASONS FOR JUDGMENT
(EX TEMPORE)JUDGE JENKINS
ISSUES TO BE DETERMINED
This is a parenting matter which concerns one child X who is aged seven.
X currently lives in the home of the maternal grandparents, and with his mother when she is staying in their home, but currently spends no time with the father.
The application before me is a review of a decision of the Senior Judicial Registrar on 13 December 2023.
The application was filed by the father on 4 January 2024. Pursuant to Rule 15.06 of the Federal Circuit and Family Court of Australia Rules 2021 (Cth) (“the rules”) I have exercised the Court’s discretion to extend the time for filing of the father’s review application to 4 January 2024.
The respondents to the application are the maternal grandparents (“the grandparents”). Although the mother has filed a response to the initiating application, she did not file any evidence or take part in the hearing before the Senior Judicial Registrar. I was informed that the applicant father had made her aware of the review hearing, and counsel for the grandparents confirmed she was aware but would not be taking part. She had also been warned on the last occasion of the potential consequences of not participating. In addition, my associate tried to contact her by mobile without success.
Various orders were made by the Senior Judicial Registrar on 13 December 2023, however, the only order which is the subject of the review is the order to dismiss all interim applications without making any orders for the father to spend time with X.
The evidence
Pursuant to Rule 14.07(2)(b) of the rules, the father was granted leave by consent to rely upon an affidavit which was filed since the original hearing.
However the grandparents objected to the father relying upon his affidavit filed on 13 June 2023 as it was not signed by the father or otherwise in compliance with Rule 8.15 of the rules. Nonetheless, I note in their outline of case the grandparents sought to rely on parts of that affidavit as well as on numerous reports which are not filed on affidavit by their authors. In such circumstances, I propose to exercise my discretion to dispense with that Rule and have also allowed the father to rely on his 13 June 2023 affidavit in this interim review hearing.
The grandparents rely on the evidence of the maternal grandmother, who I shall refer to as the grandmother for ease of reference.
Being an application for review, it is a hearing de novo.
BRIEF BACKGROUND
The mother became pregnant with X when she was only 18 and the father was 29 years old.
The relationship ended in 2017 when X was about 1 and the mother moved to Town G with X to live with the maternal grandparents.
The grandmother’s evidence is the mother has poor mental health which manifests as depression and self-harm ideation. Nonetheless, the grandmother says the mother has been able to care for X with their support.
After separation, the father spent time with X each weekend. The father initially lived in the suburbs of Adelaide. In or about early 2019, after being convicted of drink driving, he moved to Town H, and in mid-2021 to Suburb J. I understand he now lives in temporary accommodation in Town K.
The father has re-partnered with his partner Ms L and they have a child F, who is now about two years of age.
The father continued to spend time with X each weekend until about November 2021. It is understood during this period the mother divided her time between the grandparent’s home in Town G and an apartment they owned in Adelaide.
Not long after separation, however, X began demonstrating disturbing behaviours including anger, swearing and violence which became progressively worse. Examples of this behaviour included throwing things, having meltdowns, slamming into doors and walls, hitting himself in the head and urinating on the floor.
The grandmother attributed this behaviour to X spending time with the father and ceased his time in or about November 2021.
The grandmother subsequently took X to the local General Practitioner (“GP”), who referred him to a paediatrician Dr M who in turn referred him to Child and Adolescent Mental Health Services (“CAMHS”).
CAMHS worked with X and the grandmother between early 2022 and late 2022. They ceased their involvement, I understand it came to a natural conclusion, and X commenced therapy in early 2023 with provisional psychologist Ms N.
In the meanwhile, the grandparents offered the father supervised time subject to various other requirements which he did not agree to. He consequently initiated these proceedings in August 2022.
In May 2023, the father and grandparents and X attended upon Court Child Expert (“CCE”) Ms O for a Child Impact Report. The mother did not attend that assessment.
LEGISLATIVE PATHWAY
As this is an interim hearing, I must follow the pathway set out by the Full Court in Goode & Goode [2006] FamCA 1346 (“Goode & Goode”). I am permitted to provide short form reasons pursuant to s 69ZL of the Family Law Act 1975 (Cth) (“the Act”).
The proposals
Following that pathway, I must identify the proposals of the parties.
Paraphrasing those proposals, the father is conceding that, having not seen X for two years, his time should commence at a contact service. He proposes the E Contact Service which I am informed is about halfway between the grandparents and the father.
The Independent Children’s Lawyer (“ICL”) supports this proposal but seeks an additional order for the father to undergo a Carbohydrate Deficient Transferrin (“CDT”) test within seven days of a request. The father did not ultimately oppose that order being made.
The grandparents seek the application for review be dismissed and the father continue to spend no time with X.
In terms of agreed facts and matters in dispute, I will deal with those in the course of my reasons.
Parental responsibility
I am not being asked to make orders in regard to parental responsibility. The grandparents are not pressing their application for sole parental responsibility at this point. On all of the evidence, I would find it difficult to find it appropriate to make any such orders at this stage of the proceedings, given the number of matters that are in dispute.
As I am not specifically making an order for equal shared parental responsibility, I am not obliged to consider orders for equal time or substantial and significant time. I am at large to make orders that are in the best interests of X.
Best interests
Section 60CA of the Act sets out that a child’s best interests are the paramount consideration.
Section 60CC of the Act sets out the matters to be taken into consideration including the two primary considerations, the second of which, being the need to protect a child from harm, will have greater weight in the event those are in conflict.
Meaningful relationship
The High Court has set out in the decision of Masson v Parsons (2019) 266 CLR 554 at [8] the Court has the responsibility of:
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.
However, it is the grandparents’ case that X would be at risk of unacceptable harm if he were to spend any time with the father, even time supervised at a contact service, and that that risk outweighs any benefit to him of having a meaningful relationship with his father.
Unacceptable risk
In terms of risk to X, the case of the grandparents is that his dysregulated behaviours are a consequence of trauma suffered by X in the care of the father due to being exposed to the father’s excessive alcohol use and family violence.
The grandmother sets out with precision in her evidence the allegations she makes in support of this position, including:
·The father’s drink driving, not only on the day that he was convicted but she asserts that at other times he has been alcohol-affected when attending to collect X;
·He is alcohol-affected when caring generally for X, whether he’s driving or not;
·He has taken X to licenced premises;
·He yells, swears and is so angry it scares X;
·He has thrown things;
·He has hit X, and his partner Ms L, and has thrown F on the bed; and
·X has said he is so scared and does not want to spend time with the father.
The grandmother has also annexed a number of reports and case notes from X’s paediatrician, his occupational therapist from CAMHS, and his psychologist. I will address each of those in turn.
Dr M - Paediatrician
Dr M’s evidence is quite short but in essence she states that X has significant behavioural and emotional problems following exposure to domestic violence in the father’s care. She goes into detail about those issues:
[X] is a 5 y.o boy who has significant behavioural and emotional problems following exposure to domestic violence at father's place … He has problems with anger management which usually leading to physical aggression towards himself and other people at home and at kindy. There is lots of swearing from him as well. I have seen him already and he has not got any features of ASD, ADHD or other developmental problems. I believed his behaviours is related to the trauma from exposure to domestic Violence, copying inappropriate adult behaviours.
(as per the original)
CAMHS
The grandmother has annexed various progress notes prepared by CAMHS during their involvement with X.
In those case notes the grandmother provides ongoing information to CAMHS about X including about his behaviour and matters that he is telling her.
In addition, the notes evidence that X has made direct disclosures in the presence of the clinician. A progress note dated 22 August 2022 summarises two appointments on 15 August and 28 July where X details his experiences including that:
his [father] used to hit him (nil details where he was hit/how hard)
his [father] used to yell at him
his [father] would go to bed at night and leave him alone in the dark to put himself to bed
[X] spoke of being in the car with [father] driving really fast and was not listening if [X] asked him to slow down. [X] felt really scared
[X] has spoken often of feeling scared when in his [father’s] care.
Furthermore the notes also record that the grandmother had reported that X’s behaviour had settled since not spending time with the father.
Ms N - Provisional Psychologist
In terms of Ms N, she provided a detailed report dated 5 August 2023 which included the following:
[X] presents with a high number of mental health problems and behaviours of concern which are consistent with exposure to a significant about of early trauma.
[X]'s posttraumatic stress symptoms relating to arousal are clinically significant and in the 99th percentile for his age group, indicating that it is likely that his neurodevelopment has been affected.
[X] has extremely high levels of anxiety compared to other children of the same age and has difficulty regulating his emotions.
From the information provided regarding [the father’s] behaviour and [X]'s reactions the relevant literature suggest that contact with [the father] at this stage is likely to be detrimental to [X]'s mental wellbeing and may hinder progress of him healing from his past trauma. Re-traumatision is highly likely to occur with longer term risk for mental health and behavioural problems increasing.
The Courts approach at interim hearings
It was argued in this case, and I accept, that the Court should err on the side of caution at an interim hearing where such serious allegations cannot be tested, and the Court cannot make findings of fact.
However, I also note that remaining astute to potential risk is not the same thing as assuming the truth of and reacting impulsively to everything alleged without regard for other evidence and wider context.
In this case I have read each of the reports relied upon by the grandmother, and the case notes, and the following is evident:
·In each case, the professionals engaged by the grandmother appear to have commenced their assessment based on a history provided by the grandmother without speaking with either the father or the mother.
·It is evident that the grandmother is of the firm view that X has suffered trauma from spending time with the father.
·The CCE observes that the grandmother’s views were fixed and rigid.
·There is some reason to tread carefully when relying upon the grandmother’s reporting, given in this case her outline asserts, for example, the father has a criminal history involving violence when the police records show no such thing. There were no charges or reports of any incidents involving violence either with the mother or the father’s current partner.
·It is also evident the professionals are either unaware or make no comment about the lack of police involvement or that the Department for Child Protection (“DCP”) have had no investigative response despite receiving six notifications including during the period X was spending with the father.
·The professionals are either unaware or do not appear to take into consideration the impact on X of the mother’s self-harm ideation or about the mother being subject to domestic violence by another partner, including that partner being charged with assault, and the possibility that these matters have contributed to X’s behaviours, whether or not he was present.
·The grandmother appears to have either been present during sessions with the professionals or nearby when X has been spoken to.
Specifically in regard to Dr M, her report is extremely short and provides no details of her assessment process including how long she spent with X or on what basis she concludes that X’s behaviours are related to trauma from exposure to domestic violence. I can therefore place little weight on Dr M’s opinion.
In regard to CAMHS, the progress notes show the following:
28 July 2022
[X] was engaged in play whilst [the grandmother], Clinician and [X] all spoke to share stories. [the grandmother] introduced the idea that [X] has witnessed scary things by his [father], [X] then willingly shared that [father] has hit him, yelled at him, would go to bed and leave [X] in the dark to put himself to sleep.
[X] commented that he never wanted to go to the father’s house, and the clinician aided the development of a narrative.
[the grandmother] had a tendency to provide lots of information regarding the timeline of events with the clinician attempting to slow [the grandmother] down to come back and refocus on [X]'s experience of events she had raised. [X] played throughout and offered his comments or thoughts, experiences to the story.
20 October 2022
[X] engaged in craft activities with the clinician while [the grandmother] and clinician spoke to continue [X]'s story with a focus today, on the storyline of how [X] may have been feeling around the time the visits to his father stopped. [X] did not offer much in this discussion.
These case notes clearly show the ongoing involvement of the grandmother and the clinician in the development of X’s narrative, and in such circumstances, I can place little weight on what X is said to have reported in these sessions. It also would directly influence what he has reported to other persons including his school. Furthermore, it would have infiltrated his assessment with the occupational therapist, and also his sessions with Ms N, the psychologist. By the time X attended upon Ms N, he had been attending CAMHS for the better part of the year. As I’ve already noted, even when X is having sessions with Ms N on his own, the grandmother is often nearby with the door left unlatched and he opens it so he can check she is there. Furthermore, she is only a provisional psychologist.
Having taken all this into consideration, I am of the opinion the only independent evidence upon which I can place any significant weight is the Child Impact Report prepared by CCE Ms O.
Although like the other evidence it is untested, pursuant to the Full Court decision of Franklyn & Franklyn [2019] FAMCAFC 246, I am not required to treat all untested evidence as bearing the same weight. To be clear, I place greater weight on Ms O’s observations because of the following:
·She is a CCE employed by the Court due to her expertise in assessing families in these situations;
·She has had the benefit of reading the affidavits filed prior to her assessment;
·She had information from the police and the DCP;
·She interviewed both the grandmother and the father, although the mother did not attend; and
·She was able to speak to X on his own.
In her assessment, Ms O made the following observations:
·X interacted with her easily and appeared comfortable;
·He was comfortable remaining while the grandparents left the childcare centre;
·He did not show any signs of discomfort or emotional dysregulation;
·He was articulate and confident;
·He spoke freely about family members; and
·He was not emotionally dysregulated during his interview.
In that context, it is notable that he did not report any physical violence by the father, although he described him as angry at times and scary. Furthermore Ms O made the following observations:
[X] then asked the CCE “do you know my dad”. [X]'s question appeared to be from a place of curiosity and wanting to gather information as he told the CCE it had been a long time since he had seen him. [X] could remember going to his father’s home, and he reported that it was “boring he was on the phone” and that at times he “yelled at me” and “he got angry.” When this is further explored, [X] told the CCE he did not want to talk about it anymore. When asked if he wanted to see his father [X] responded, “Yes, I would like to see him again.” He stated it made him feel “sad” that he is not seeing him anymore. [X] was not aware of the reason why he does not see his father anymore.
Ultimately, Ms O’s view, was as follows:.
Children exposed to family violence can display emotionally dysregulated behaviour, angry outbursts, regression in their behaviour and be vulnerable to mental health issues in the future. It is possible, that [X]'s past and/or current behaviour, particularly in relation to his emotional dysregulation, may in part be related to exposure to alleged family violence in the formative years of his development. It is also possible that [X]'s past or current behaviour is a result of the conflict between the parties, the abrupt nature of his time spending ending with his father and/or his reported sadness and confusion about not spending time with his father.
I am aware that Ms O did not have the benefit of the CAMHS notes or the report from Ms N, and that she suggests the Court would benefit from this material. However, having reviewed that material, I do not agree that it has greatly assisted. In addition, although Ms O did not have the parties’ latest affidavits, they are largely consolidated material and historical.
Ms O also raises further concerns about the influence the grandparents may have had over X. She observes that they:
…attributed all of [X]'s psychological, cognitive and emotional difficulties to his experiences in his father’s care and their narrative was fixed and rigid around the only way to protect the child was to deny this relationship in its entirety.
She furthermore reports things X has said about his mum.:
…he was told by his mum, “Daddy was mean to all of us.” … [X] then looked down as he told the writer his grandparents talk about his father sometimes say his “daddy is rude.” [X] was clearly upset by the thought of his father being characterised in this manner and appeared to be questioning the validity of these opinions in the context of his own views.
In this regard I note that X sometimes refers to his grandmother as his mum. It is unclear exactly who is saying what in the former paragraph, but it nonetheless appears that he has been exposed to those comments.
These observations of what X has said, and the grandparent’s views, confirm my assessment that I can only place limited weight on the professionals who began conducting their work with X given they commenced their assessment based on information provided by the grandmother and otherwise largely in her presence.
Ultimately, Ms O assessed that X may benefit from supervised time. Having reviewed all of the material carefully, I agree with that assessment. I am unable find on the evidence before me that X would be at an unacceptable risk of harm if he spends time with the father in a supervised setting.
Indeed, I note Ms O’s observations that he may suffer harm if he does not spend time with the father. In this regard I note Ms O says as follows:
Children grow, develop and thrive best when they have access to both parents if this is a physically and psychologically safe environment. Parents provide them with the building blocks from which they build their identity, sense of self and belonging. When not provided with these fundamental foundations children are at risk of their own mental health issues. They can blame themselves for the fractured relationship and experience a sense of loss that they attribute to their own behaviour all resulting in the possibility of childhood trauma. [X]’s interview would suggest he has not been given a narrative regarding his extended absence from his father’s and siblings life and this may lead him to question his own behaviour and cause feelings of abandonment as he internalises the reasons. These all have significant consequences on a young child’s emotional development and may impact his relationships as an adult in the future.
ADDITIONAL CONSIDERATIONS
I have also taken into account in this matter the additional considerations. I am not required to go through each of them specifically, noting that where some are determinative it is unnecessary to explore the balance of considerations.
Any views expressed by the child
I have already outlined what X has had to say in the Child Impact Report. I note this is different from what the grandmother reports he is saying to her in their home or in other circumstances. I note in particular that in the Child Impact Report X says:
[X] told the CCE again he was not sure about why he did not see his father anymore, expressing “I don’t know my dad” and giving a sense of missing that relationship stating he wished to see him “a lot more”. While he described living with his grandparents as “not that good but ok” and seemed somewhat resigned to this arrangement, he then went on to say, “I kinda want a dad”. He would like his father to “be nice to me and show that he loves me”.
I do, however, note that, and it’s concerning that the grandmother, despite critiquing the Child Impact Report, makes no reference to this part of the report. Nor is there any evidence she has informed X’s psychologist of that information.
However, X is only seven and as his expressed views are likely to have been heavily impacted by a number of factors they must be treated with some caution.
The nature of the relationship of the child with parents/others
X is residing with his grandparents. I understand he currently spends time with the mother twice each week and on FaceTime each day.
In the Child Impact Report, it was reported as follows:
[X] identified his mum ([Ms Barrow]) and grandma as the most important people in his life and he said he talks to them about things that upset him.
X clearly has little memory of the father but, according to Ms O, was curious about him. In terms of the father’s partner Ms L, he says she was “’ok’ and spoke fondly about his sister.” In this regard, it was apparent in the Child Impact Report that:
When [X] was interviewed, he spoke about his young sister [F] with a sense of responsibility and fondness, while it is not known whether the sense of responsibility comes from a place of wanting to protect her or a feeling of having abandoned her it was noted to have caused a sense of loss for him. Sibling relationships are some of the most strong and enduring a child can have, they are life long and unconditional, it would be important that [X] is not denied from experiencing this relationship.
Extent to which a parent has taken the opportunity to spend time/make decisions
The mother’s counsel criticised the father for not taking up the opportunity to see him when a proposal was made in November 2021. However, I accept the father did bring an application shortly after that.
Extent to which the parent has fulfilled their obligation to maintain the child
I understand from the material that the father may not be paying child support but I was not addressed about this in submissions.
The likely effect on the child of a change of circumstances/separation
In terms of the likely impact on X of the orders if he were to spend time in a contact centre, given the observations of X in the family report, namely his willingness to separate from his grandparents and to talk about his family and express views to see his father, it would appear he would be able to cope with limited time at a contact centre. However if I am wrong, it is likely the contact centre will cease the time. Furthermore the time would be for a limited duration every fortnight to enable X to adjust.
Practical difficulty and expense.
Although the parties live 180 kilometres apart, the proposed centre is midway and does not seem to be onerous in terms of travel. In any event I was not addressed on that issue.
Capacity of a parent to meet the child’s needs
In terms of the capacity to meet needs, the time is proposed to be limited. If the father is unable to meet the needs, there will be observational reports from the supervised visits.
The maturity, sex, lifestyle and background
X’s mother is from Country P and his grandparents have spent substantial time there and still own property there; that is something that will be of greater significance in the final hearing.
If the child is an Aboriginal child or Torres Strait Islander Child
The father is Aboriginal. Although the grandmother says – and I have no reason to doubt – that X is exposed to indigenous culture both at school and in the community.
However, such resources and interactions could not substitute for learning his culture from his family.
Any family violence
I have dealt with family violence at length in these reasons. It is central to the grandmother’s concerns.
ANALYSIS
In the end, taking all these matters into consideration, I find that it is in X’s best interest to commence spending time at the supervised contact service. It is also important his half-sibling, F, is in attendance.
For completion, I’m not persuaded on the evidence as it currently stands that a Court is likely to order no time at a final hearing such that X would commence time only to have it cease yet again.
The ICL proposes the father undergo a further CDT test. That is not opposed. That should take place, but it need not occur prior to supervised time commencing.
There is no doubt the report from the centre and the CDT test will likely inform any further progression of time.
For all of the foregoing reasons, I make the orders as set out at the commencement of this judgment.
I certify that the preceding eighty-two (82) numbered paragraphs are a true copy of the ex tempore Reasons for Judgment of Judge Jenkins. Associate:
Dated: 9 February 2024
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