WHEELER & BUSSELL
[2015] FCCA 1990
•1 July 2015
FEDERAL CIRCUIT COURT OF AUSTRALIA
WHEELER & BUSSELL [2015] FCCA 1990
Catchwords:
FAMILY LAW – Parenting – interim proceedings – mental health concerns – risk identification, assessment and management exercise – discussion of process – application to this case – role of incontestable facts – complex case – transfer to Family Court of Australia.
Legislation:
Family Law Act 1975, ss.60B, 60CA, 60CC, 61DA, 65DAA
Goode & Goode [2006] FamCA 1346
MRR v GR [2010] HCA 4
Applicant: MS WHEELER
Respondent: MR BUSSELL
File Number: WOC 222 of 2015
Judgment of: Judge Altobelli
Hearing date: 25 June 2015
Date of Last Submission: 25 June 2015
Delivered at: Wollongong
Delivered on: 1 July 2015 REPRESENTATION
Counsel for the Applicant: Ms Humphreys
Solicitors for the Applicant: Family Legal
Counsel for the Respondent: Mr Keller
Solicitors for the Respondent: Hansons Lawyers
Solicitors for the Independent Children’s Lawyer: Johnson Horsley Lawyers ORDERS PENDING FURTHER ORDER
(1)The Child, X (“the Child”), born (omitted) 2009 shall live with the Mother.
(2)Forthwith each party must:
(a)contact Catholic Care at (omitted); (“the Contact Centre”) within 7 days and arrange an appointment for assessment for suitability for supervision of (the time the child spend with the Father.
(b)attend the assessment;
(c)comply with any appointments made by the Contact Centre for supervised time;
(d)comply with all reasonable rules of the Contact Centre; and
(e)comply with all reasonable requests or directions of the staff of the Contact Centre including to participate in a program or programs.
(3)If after the assessment intake procedure the Contact Centre is unable or unwilling to provide supervision as set out in order 5, then each party and the Independent Children’s Lawyer has leave to restore the matter to the list on 7 days written notice to the other party and to the Court.
(4)The Contact Centre may recommend the parties or either of them to participate in a program or programs. Each party must comply with any such reasonable request. In the event of a dispute arising about participation in a program, either party or the Independent Children’s Lawyer may re-list the matter for mention on 7 days notice.
(5)If after assessment the parties are accepted by the Contact Centre as suitable for supervised time, the Father is to have contact with the Child once each week for 3 hours at times nominated by the Contact Centre and at any other time as agreed between the Mother and Father in writing provided that the Contact Centre can accommodate their request for time, and such contact is to occur at the Contact Centre.
(6)The Mother must deliver the Child to and collect the Child from the Contact Centre at the times specified by the Contact Centre and on each occasion promptly leave the building and the vicinity.
(7)In the event that the Contact Centre offers supervised time only at times which are less regular than specified in order 5, then, contact shall occur at the times that are offered by the Contact Centre.
(8)The time the Child spend with the Father under order 5 is to be supervised by the Contact Centre and each of the parents must pay one half of any reasonable fees for the supervision on each occasion of supervision.
(9)The Father must not attend the Contact Centre or its vicinity before the time with the child is to start and must promptly leave the Contact Centre and the vicinity at the time the time with the child is to end.
(10)If the Contact Centre during the currency of these orders declines or is unable to continue to provide its services, or the Director of the Contact Centre recommends in writing to the parties a variation of these orders, then either party or the Independent Children’s Lawyer may on 7 days written notice to the other party and the Court restore the matter to the list.
(11)If during the currency of these orders the parties and the child’s representative agree in writing to vary these orders the parties have leave to list the proceedings in chambers urgently for consent orders to be made.
(12)The period of contact provided in these orders may vary by reason of the closure of the Contact Centre’s services during school and public holiday periods, and in such event, contact shall occur at times when the services can be provided by the Contact Centre.
(13)The parties shall each undertake (by provision of urine screen in accordance with the Australian/NZ Standard 4308:2008 or any subsequent approved standard) urinalysis for drug screening at their own cost within 48 hours of receipt of a request to do so by the Independent Children’s Lawyer. For the purposes of this order, any unrepresented party is to inform and keep the Independent Children’s Lawyer informed of their mobile phone number, email address and facsimile number (if available) within 24 hours of any changes to these details.
(14)The Independent Children’s Lawyer is to limit the frequency of the request for urinalysis for drug screening to one request in each calendar month.
(15)The parties shall provide a copy of any urinalysis for drug screening report obtained within 24 hours of receipt of the report.
(16)The Father shall forthwith do all acts and things to engage with his treating psychologist Ms C and thereafter shall remain engaged with Ms C for as long as she considers necessary, and the father shall comply with all directions of Ms C in relation to his medication.
(17)The Father shall forthwith provide an authority to Ms C to provide ongoing reports to the Independent Children’s Lawyer as may be requested by the Independent Children’s Lawyer from time to time, in relation to his compliance, progress and treatment.
(18)Leave is granted to the Father to provide copies of all affidavits, applications, and the Father’s medical records produced under subpoena to Ms C for the purposes of Ms C providing the Father with ongoing treatment, and the Father shall provide Ms C with copies of such documents within 14 days.
(19)The Mother is restrained by injunction from leaving the Child in the unsupervised care of the maternal grandparents.
(20)Each party is restrained by injunction from:-
(a)Speaking or permitting another person to speak to or about the other party, their partner, or other members of the other party’s family in a derogatory, negative, offensive or unpleasant fashion in the presence and/or hearing of the child.
(b)Discussing any proceedings between the parties or the parental relationship in the presence or hearing of the child or permitting any other person to do so.
(c)Consuming or being under the influence of any illicit substance when caring for the child or for 24 hours before any contact periods with the child.
(d)Using any form of physical discipline on the children or permitting any other person to do so.
(e)Changing the child’s school without the express written consent of the other party or an order of the Court.
THE COURT NOTES THAT:
(A)These orders do not bind the Contact Centre (as it is not a party to this case) but requests it provide a service to assist the parties and their child.
IT IS NOTED that publication of this judgment under the pseudonym Wheeler & Bussell is approved pursuant to s.121(9)(g) of the Family Law Act 1975 (Cth).
FEDERAL CIRCUIT COURT OF AUSTRALIA
AT WOLLONGONG
WOC 222 of 2015
MS WHEELER Applicant
And
MR BUSSELL Respondent
ORAL REASONS FOR JUDGMENT
Background
1.I provide the following reasons in a matter that came before me on 25 June, and where it was necessary to reserve in order to consider the considerable volume of subpoenaed documents that came before the Court. At the outset, I think it is very important to explain to the parents that the order that I am making is a temporary order. It is an order that can and indeed in my opinion should, be reviewed as further evidence becomes available before the Court.
2.This case is about X, who was born on (omitted) 2009. X is 5, nearly 6. The Applicant Mother is 31. The Respondent Father is 37. The issue for the Court is what time X should spend with his father and the conditions of that time.
3.When the matter first came before the Court on 13 March this year, Judge Kemp made an order for X to be returned by the Father into his mother’s care. He also made a number of procedural orders. A few days later, on 16 March, Judge Henderson made a recovery order. Then on 19 March, Judge Henderson made consent orders between the parties that provided for equal shared parental responsibility, for X to live with his mother and spend time with the Father, together with a few discrete issues orders.
4.The matter came before me on 2 June this year. I suspended the orders for the Father to spend time with X, appointed an Independent Children’s Lawyer, made a number of directions and listed the matter for interim hearing on 25 June. As I have indicated, I did hear the matter on 25 June and reserved my judgment.
5.To be more precise about the issue before the Court, as the case evolved before me on 25 June it became more apparent that the issue was whether there are concerns about the Father’s mental health and, if so, how was that to inform an order that is in the best interests for X. This case, like so many others in this Registry of the Court, is essentially a risk identification, assessment and management exercise. Does the evidence of the Father’s mental health create a risk to X? If so, what is that risk? And then how can that risk be managed?
6.If a risk to X is established, assessing that risk becomes very important. Relevant questions here include: What is the likelihood of things happening to X, for example, on a continuum? Is it rare, unlikely, possible, likely or almost certain? What is the potential consequence for X? For example, on a continuum, is it insignificant, minor, moderate, major or critical?
7.Once the risk to X is assessed, responding to, managing or controlling the risk becomes the focus. Here again there is a possible continuum from, for example, completely eliminating the risk to mitigating the risk or somehow reconceptualising the risk. All of this occurs in a statutory framework where the clear intent of the law reflected in ss.60CC(2) and 60CC(2A), is to prioritise safety whilst also seeking to preserve meaningful relationships.
The Applicable Law
8.In determining parenting matters under Part VII of the Family Law Act 1975 the Court must regard the best interests of the child as the paramount consideration: s.60CA.
9.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.
10.At the very core of Part VII of the Family Law 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.
11.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.
12.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.
13.In MRR v GR [2010] HCA 4 the High Court said
8. Sub-section (1) of s 65DAA is headed "Equal time" and provides:
"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." (emphasis added)
Sub-section (2) makes provision for where a parenting order provides that a child's parents are to have equal shared parental responsibility for the child (par (a)) but the Court does not make an order for the child to spend equal time with each of the parents (par (b)). In such a circumstance the Court is obliged to:
"(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."
Sub-section (3) explains what is meant by the phrase "substantial and significant time".
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".
14.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.
15.The Full Court’s decision in Goode & Goode [2006] FamCA 1346 provides some guidance about the interpretation of the Act and the way to proceed and I will incorporate into these reasons a number of paragraphs from the Full Court’s judgment.
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.
The Evidence
16.The evidence before the Court was considerable.
17.The following documents were relied upon by the Mother:
·Application in a case filed 29 May 2015;
·Affidavit of Ms Wheeler filed 29 May 2015;
·Affidavit of Ms Wheeler filed 6 May 2015; and
·Affidavit of Ms Wheeler filed 13 March 2015.
18.The following documents were relied upon by the Father:
·Response to an Application in a Case filed 16 June 2015;
·Affidavit of Mr Bussell filed 18 March 2015;
·Affidavit of Ms T filed 18 March 2015;
·Affidavit of Ms T filed 16 June 2015;
·Affidavit of Ms C filed 16 June 2015; and
·Affidavit of Mr Bussell filed 17 June 2015.
19.The following documents were tendered on 25 June 2015 as evidence:
·Exhibit A1 - documents produced pursuant to subpoena to (omitted) Long Day Care Centre;
·Exhibit A1 - documents produced pursuant to subpoena to (omitted) Hospital.
·Exhibit A2 - documents produced pursuant to subpoena to (omitted) Local Health District;
·Exhibit A3 - documents produced pursuant to subpoena to New South Wales Police;
·Exhibit A4 - documents produced pursuant to subpoena to (omitted) Local Health District;
·Exhibit A5 - documents produced pursuant to subpoena to the Department of Family and Community Services subpoena bundle;
·Exhibit A6 - documents produced pursuant to subpoena to (omitted) Clinic, the treating psychologist of the Father;
·Exhibit A7 - documents produced pursuant to subpoena to (omitted) Family Practice;
·Exhibit A8 - Fathers Apprehended Violence Order Application as against the Mother;
·Exhibit R1 – two Apprehended Violence Orders (final).
·Exhibit ICL1- a tender bundle consisting of documents produced pursuant to subpoena to Fox Sports.
20.I would like to acknowledge the considerable assistance rendered to the Court by each of the lawyers’ case outlines and single out the Independent Children’s Lawyer, who hasn’t been in the matter very long, but provided a very comprehensive analysis of the evidence.
21.The Mother was represented by her Counsel, Ms Humphreys. The Father by his Counsel, Mr Keller. Mr Horsley appeared as the Independent Children’s Lawyer.
22.The Case Outline prepared by the Independent Children’s Lawyer contains a very useful chronology which I will incorporate it at Schedule one of these reasons. The benefit of this chronology is that it draws from the evidence of both the Mother and the Father.
The Competing Proposals
23.When the matter came before me on 25 June, the competing proposals appeared to be as follows. The orders sought by the Father are contained in his Outline of Case document. His primary application is that X should live with him and spend time with his mother supervised. The alternative application was that X live with his mother but spends time with his father as substantial and significant time. I will include the Father’s proposal as schedule two to these, my reasons. In relation to the Father’s main proposal, I note that there were no submissions actually made in support of that. The submissions went to the alternative proposal.
24.The proposal advanced by the Mother is contained in the Application in the Case filed on 29 May 2015. In effect, it provides for the Father to have supervised time at CatholicCare or another supervision organisation. I will include the Mother’s proposal as schedule three to these, my reasons.
25.The Independent Children’s Lawyer’s proposal is contained at page 4 and 5 of the Case Outline. He too submits that the order that is in the best interest of X is for supervised time with his father. I will include the Independent Children’s Lawyer’s proposal as schedule four to these, my reasons.
26.The cases can be briefly summarised as follows, though I acknowledge that this does not do justice to the cases that were presented to me last week.
27.The Mother and the Independent Children’s Lawyer’s case, briefly summarised, is that the Father has a long record of mental instability that remains unresolved and which presents a risk of harm to X that can only be managed by supervised time at a supervised contact centre.
28.The Father’s case is that there is no risk of harm to X, that his mental health is being adequately treated and that the Mother is seeking to exclude X from his life. Indeed, he questions the genuineness of the Mother’s concerns in circumstances where on 19 March 2015 she consented to an order for unsupervised substantial and significant time though she was well aware of his past mental health problems.
Discussion
29.The Full Court in Goode v Goode [2006] FamCA 1346 says that in an application like this, the Court should consider uncontested facts, the less contentious matters and agreed facts. There may be some utility in doing this, even though there is not much common ground as such. And, in any event, in a highly contentious case such as this, the uncontested facts probably don’t inform the final decision very much at all.
30.Indeed, whilst the Full Court does not use the term “incontestable fact”, it is perhaps a more useful way of describing those facts that are apparent to a trial judge at an interim hearing from all the material before him or her. These facts are incontestable in the sense that it is the best evidence available at an interim hearing on the papers without the benefit of cross-examination. These facts are derived from business records prepared by persons who have no direct interest in the outcome of the litigation. Incontestable facts might also be drawn from what the parties have said themselves in their own evidence; in other words, admissions.
31.The uncontested or incontestable facts in this case appear to be as follows. Firstly, the parents do not trust each other and they have a history of high conflict. Secondly, the parents are not able to constructively communicate about X. Nextly, the Father’s own psychologist, Ms C, says in her report of 6 June 2015, a report that was relied on quite heavily in the Father’s case, that there was evidence of compulsive personality disorder traits and narcissistic traits. She says it is possible that these pervasive and maladaptive personality traits present as manic-like symptoms. The context of this report was to question the earlier diagnosis of the Father as suffering from borderline personality disorder. In the same report, Ms C reports:
The father acknowledges periods of erratic behaviour and manic-like symptoms but he attributes them to obstructive sleep apnoea, for which he was treated at (omitted) Hospital.
32.She records that the Father denied the presence of manic symptoms since then. However, Ms C records that the information the Father provides:
…is incongruent with medical records.
33.Ms C reported that the Father did not present with signs consistent with psychopathology. She noted the Father’s diagnosis of bipolar disorder had been confirmed by a number of psychiatrists. Thus, this material I would characterise as an uncontested fact by the Father.
34.Another uncontested fact is that the Father is taking lithium regularly at this stage. However, his past admission records suggest that he has not been consistently medication compliant.
35.The next uncontested fact relates to the Father’s perspective on his own mental health. This is evident from his Affidavits. For example, his Affidavit of 15 March 2015 at paragraph 9 where he says that his admission in 2011 was as a result of bipolar episode:
…which was brought on by sleep apnoea.
36.He says this was treated with surgery. At paragraph 12 he says:
I have been in perfect health since then. I’ve had no bipolar episodes since the surgery.
37.I interpose here to make the observation that the evidence in fact indicates at least two mental health admissions since the 2011 admission that the Father refers to and one of which postdates his Affidavit of 15 March. At paragraph 6 of his Affidavit of 17 June, he says that he is of the view that the Mother uses and continues to use his diagnosis of bipolar affective disorder to gain an improper advantage in these proceedings and to deflect attention away from the genuine concerns that he has with respect to her and her parenting. At paragraph 17 he admits to being scheduled and spending time in hospital and refers to his most recent scheduling as not having been the result of mental health but rather reports made by the Applicant.
38.I further interpose here to make the observation that the Father refers to his most recent mental health admission in May. In any event, it should be apparent that the Father’s perception of his mental health problems is in effect that there is little or indeed, nothing for the Mother or the Court to be worried about.
39.The next uncontested fact is that the independent medical records before the Court show mental health admissions relating to the Father in September 2011, April 2012, January 2015 and May 2015. The consistent thread between all of these admissions is a diagnosis that the Father suffers from bipolar disorder.
40.The final uncontested fact appears from documents that are produced by the New South Wales Police, the New South Wales Department of Community Services, the Father’s previous employer, X’s preschool and X’s current school records. These documents are all consistent in the sense of demonstrating or recording what the observer has regarded to be the Father’s erratic and sometimes aggressive behaviour as recently as earlier this year.
41.When one has regard to what the Court has described as uncontested or incontestable facts, the following seems to emerge. Firstly, the Court adopts and incorporates into these reasons at schedule five of this judgment the Independent Children’s Lawyer’s written submissions in relation to s.60CC factors and the conclusions thereto. In short, the Court agrees with the Independent Children’s Lawyer that there is a plethora of objective evidence which supports the Mother’s contention that the Father is currently suffering or has recently suffered ill mental health which probably impairs on his ability to care for X on an unsupervised basis.
42.What the Court finds additionally disturbing is the Father’s lack of insight into his own mental health issues and the potential impact of this on X. He does not communicate through his evidence any understanding about this. Indeed, his primary application to the Court, although not the subject of submissions by his Counsel, was that X should live with him. His case indeed was that the real risk of harm was with the Mother. But the evidence before the Court does not support this contention.
43.As the Independent Children’s Lawyer recognises, there are issues about the Mother. But they are issues that can be managed by appropriate orders. Her lack of insight for example, is manifested by agreeing to consent orders in March that were, at least with the benefit of hindsight, clearly inappropriate. The Court is not bound by whatever she agreed to do at that time. At a final hearing, for example, there may well be evidence led that gives some context to her decision.
44.In any event, returning to the risk identification assessment and management framework foreshadowed earlier in these reasons, what should be apparent by now is that the evidence shows that there are concerns about the Father’s mental health, that there is a diagnosis of bipolar affective disorder, that the Father lacks insight about his own mental health issues either in the sense of denying or minimising the same and that there is recent evidence of erratic and aggressive behaviour.
Conclusion
45.What can the Court deduce from that? Firstly, there is a clear risk to X. For example, the triage conducted on the Father on 26 May 2015, his most recent mental health admission, assesses his risk status as follows:
Suicide: Low.
Harm to self: High.
Harm to others: Medium.
Harm from others: Low
Absconding: High.
46.As if the objective evidence before the Court was not already clear enough, this confirms the Court’s assessment of the Father’s risk to his own son. Whilst it is unlikely that he would deliberately harm X, the risk of inadvertent or consequential harm is in this Court’s view quite unacceptable. The Court assesses the likelihood of the risk of harm to be likely, especially in circumstances where the Father shows such little insight into his behaviour and there is a demonstrated recent track record of aggressive and erratic behaviour. The consequences for X could well be major.
47.Nextly, how is this risk to be managed? No contact is not an option because X clearly has a good relationship with his father. In any event, a no contact order is not advanced, either by the Mother or the Independent Children’s Lawyer. Supervised contact by an independent and professional service in a secure facility established for that purpose is adequately protective of X whilst ensuring that he continues his relationship with his father.
48.The risk of course, could also be managed if the Father were able to be rehabilitated of his mental health problems or if proper compliance with medication resulted in a better regulation of his behaviour. Until more is known about the Father’s diagnosis and prognosis, supervised time at a supervised contact centre is really the only option for the Court. As the Court has already observed in its opening comments, however, these are temporary orders that are designed to be revisited as further and better evidence emerges particularly in relation to the Father’s mental health.
49.The issue of parental responsibility is in this Court’s view, an issue that ought to be left to a final hearing. There are too many other matters of concern that make making a decision about parental responsibility unnecessary. It does not appear to have come up as an issue though.
50.The orders that the Court will make will be in accordance with the minutes sought by the Independent Children’s Lawyer, with this exception: supervised time must take place at a supervised contact centre. The services provided by a private external agency are not in this Court’s view, adequately protective. This means that an order will be made for both parents to undertake the intake for supervised contact at CatholicCare. I note that the orders sought by the Independent Children’s Lawyer are largely consented to by the Mother.
51.This case has all the hallmarks of a complex case. Whilst it was not raised by the parties, the Court of its own motion transfers this case to the Family Court of Australia in Sydney. There are already three witnesses in the Father’s case including the Father. In the Mother’s case, I would expect her to have evidence from her parents as well as herself so that takes us up to six witnesses. The Father’s treating psychologist would need to give evidence. A part 15 expert is clearly needed in a case like this. It is quite possible that other members of the Father’s family who have been referred to in the Affidavits of both the Mother and the Father would also need to be called. Quite apart from the complexity of this case and security issues, the number of witnesses alone would take this matter beyond five days.
52.Accordingly, the Court makes as a further order that the matter be transferred to the Family Court of Australia in Sydney; that it be listed on 9 November at 10 am for Mention before that Court. In the circumstances, I will have these reasons for judgment taken out as quickly as possible so that the parties and any other judicial officer who takes over this case will have the benefit of the observations that I have made.
53.Again, though I wish to emphasise to the parents that this is a temporary order and it may well be that once there is expert evidence about matters relating to the Father’s mental health that it will be entirely appropriate to revisit what is the order that is in the best interests of X.
I certify that the preceding fifty-three (53) paragraphs are a true copy of the reasons for judgment of Judge Altobelli
Associate:
Date: 19 August 2015
Schedule One
Chronology prepared by the Independent Children’s lawyer
| Date | Event | Reference |
| (omitted) 1978 | Father was born (now aged 37) | |
| (omitted) 1984 | Mother was born (now aged 31) | |
| Nov 2007 | Parties commence relationship | M’s affd filed 13.3.15 para 3 |
| 2007 - 2010 | Mother says that father was in good health Father admits this | M’s affd filed 13.3.15 para 4 F’s affd filed 18.3.15 para (4) pg 2 |
| (omitted) 2009 | Child X was born (now aged 5) Mother alleges she was sole carer for X and father had very little input as he was working full time Father alleges mother had caesarean and he cares for X exclusively during her recuperation period (6 weeks), and then continues to assist after returning to work | M’s affd filed 13.3.15 para 5 F’s affd filed 18.3.15 para (5) pg 2 |
| Nov 2010 | Mother alleges father had severe depression and was admitted to (omitted) Hospital for approximately one month Mother alleges that following his release, “things were up and down for a few months” as he was having negative reactions to a number of medications Father admits that he was hospitalised with severe depression and things were then up and down Mother alleges father became withdrawn in regards to looking after X and said he did not feel “safe” around him as he was not “thinking clearly and worried what might happen” Father denies that he says the words attributed to him by the mother | M’s affd filed 13.3.15 para 4 M’s affd filed 13.3.15 para 4 F’s affd filed 18.3.15 para (4) pg 2 M’s affd filed 13.3.15 para 5 F’s affd filed 18.3.15 para (5) pg 2 |
| Sept 2011 | Father again admitted to hospital, mother alleges due to thoughts of self-harm and suicide, and spends 6 weeks in (omitted) Hospital before going to a retreat in (omitted) to assist with depression Father alleges he admitted himself to (omitted) hospital voluntarily for about 2 weeks | M’s affd filed 13.3.15 para 6 F’s affd filed 18.3.15 para (6) pg 2 |
| Apr 2012 | Parties separate Mother alleges father was suffering manic episode and believed he had millions in the bank and spent lots of money Father denies spending lots of money or defaulting on his credit cards Mother alleges after she moved out with X, father broke the front and back doors, chain sawed a doorway and used the barbeque fire pit inside Father denies breaking the doors, admits using a chainsaw but alleges this was the most efficient way to open a doorway between the rooms and alleges he used the barbeque (4 gas burner with hood and side burner) on a few occasions in a room with only 2 walls and exposed to the outside About this time, mother alleges father was scheduled and diagnosed with bi-polar. Father petitioned Mental Health Tribunal to be released and was refused and required to stay for further 8 weeks Father alleges he was admitted for about 5 weeks due to a bipolar episode brought on by sleep apnoea, and his sleep apnoea was effectively treated Once released, father lived with paternal grandfather for one year and would often watch X while the mother worked Father admits that he lived with paternal grandfather and watched X while mother worked | M’s affd filed 13.3.15 para 3 M’s affd filed 13.3.15 para 7 F’s affd filed 18.3.15 para (7) pg 2 M’s affd filed 13.3.15 para 8 F’s affd filed 18.3.15 para (8) pg 2 M’s affd filed 13.3.15 para 9 F’s affd filed 18.3.15 para (9) pg 2 M’s affd filed 13.3.15 para 10 F’s affd filed 18.3.15 para (10) pg 2 |
| Apr 2013 | Mother alleges father moves to (omitted) for about 18 months, spends a little less time with X Father alleges he lives with his brother Mr M and sister-in-law Ms T, spends time with X every weekend and speaks to him each night | M’s affd filed 13.3.15 para 11 F’s affd filed 18.3.15 para (11) pg 3 |
| Oct 2014 | Mother alleges father again started to show sign of poor mental health. Father moves into his own “shack” with no kitchen Father denies this and alleges the property is a fully self-contained granny flat Father alleges mother begins to refuse him time with X and does not give a reason, then changes her mind and lets him see her. Father arranges mediation, to take place in January 2015 | M’s affd filed 13.3.15 para 12 F’s affd filed 18.3.15 para (12) pg 3 F’s affd filed 18.3.15 para 3 pg 6 |
| Nov 2014 | Mother collects X from father’s home and observes plugged in power tools, broken plates, empty beer bottles, fishing hooks and general waste and rubbish with clothes everywhere Father denies this and alleges there was one broken plate and one beer bottle in the bin and the flat was neat and tidy, father denies there were any hazards in the flat Father calls mother and asks to see X, mother jokes “I hope you are going to clean up a bit” and father gets offended Father admits he calls but denies conversation and that he was being offensive | M’s affd filed 13.3.15 para 12 F’s affd filed 18.3.15 para (12) pg 3 M’s affd filed 13.3.15 para 13 F’s affd filed 18.3.15 para (13) pg 3 |
| Dec 2014 | Father alleges he attends event at X’s day care with mother, and “things appeared to be fine” Father alleges he then attends maternal grandparents home to collect belongings and mother’s brother throws him to the ground and threatens him. Father reports matter to police Father fractures his leg in late December 2014 and is then unable to attend mediation to due medical appointments | F’s affd filed 18.3.15 para 4 pg 6 F’s affd filed 18.3.15 para 5 pg 6 F’s affd filed 18.3.15 para 6 pg 6 |
| 31.12.2014 | Father collects X and spends two days with him | F’s affd filed 18.3.15 para 7 pg 6 |
| 01.01.2015 | Father alleges X says to him “I need you to kick drunk poppy’s ass…because he eats the beers and is mean to me”. Father does not continue conversation | F’s affd filed 18.3.15 para 7 pg 6 |
| 02.01.2015 | Father asserts that during changeover, he raises issue about maternal grandfather with mother and mother becomes defensive and aggressive. Father asserts the mother then refuses him time with X for 2 months and only allows him 3 short telephone calls Father asserts mother and paternal grandfather begin to say he is mentally unwell Father starts a petition on charge.org to “bring X home” Father admits this, but alleges he regrets it and removed it about 3 days later | F’s affd filed 18.3.15 para 8 pg 7 F’s affd filed 18.3.15 para 9 pg 7 M’s affd filed 13.3.15 para 14 F’s affd filed 18.3.15 para (14) pg 3 |
| Early Jan 2015 | Father’s partner alleges she receives Facebook message from father’s brother Mr P alleging father is unwell and suffering manic episode, father’s partner alleges she then has telephone conversation with father’s brother Mr P about concerns Father’s partner continues to converse privately with father’s brother over Facebook about concerns for father’s mental health. Father’s partner also speaks with paternal grandfather and alleges he advises her the father will be hospitalised whether he likes it or not Father’s partner alleges she speaks to father about his brother and father’s concerns and asks father to see a doctor | TR’s affd filed 18.3.15 para 10 TR’s affd filed 18.3.15 paras 11-12 TR’s affd filed 18.3.15 para 14 |
| 08.01.2015 | Father alleges he sees previous psychiatrist Dr I and there are no concerns for his mental health (annexed letter by Dr I asserts that she last saw him in May 2013 and he was in remission at that stage, but does not comment on current mental health) Father’s partner alleges father’s brother Mr P continues to contact her and assert father is unwell | F’s affd filed 18.3.15 para 11 pg 7 TR’s affd filed 18.3.15 para 15 |
| 25.01.2015 | Father attends (omitted) for mental health assessment and no concerns are identified Father alleges that he provides letter to mother and his father, but continues to receive calls from (omitted) Mental Health Unit Father’s partner asserts she attended hospital with father | F’s affd filed 18.3.15 para 12 pg 7 F’s affd filed 18.3.15 para 13 pg 7 TR’s affd filed 18.3.15 para 16 |
| 26.01.2015 | Father’s partner asserts she becomes aware of father’s charge.org petition, discusses inappropriateness with father and father then removes petition | TR’s affd filed 18.3.15 para 17 |
| 27.01.2015 | Father alleges he attends (omitted) Hospital to submit to mental health assessment and is involuntarily detained after the hospital receives a schedule from (omitted) Mental Health Unit stating he is having delusions | F’s affd filed 18.3.15 para 14 pg 7 |
| 28.01.2015 | Mother alleges father admitted to (omitted) Mental Health Unit for 10 days and released as an outpatient on 6 February 2015 Father alleges he is transferred to (omitted) Hospital in early hours of the morning Father alleges he was discharged on 6 February 2015 with only one follow up and not as an outpatient Father’s partner alleges she visits father every day and only other visitors are his mother and brother Mr M, father’s partner alleges father is upset X’s school is changed and he misses X’s first day of school | M’s affd filed 13.3.15 para 15 F’s affd filed 18.3.15 para 15 pg 8 F’s affd filed 18.3.15 para (15) pg 3 TR’s affd filed 18.3.15 para 22 TR’s affd filed 18.3.15 para 26 |
| 19.02.2015 | Father’s partner alleges she receives further disparaging Facebook message from father’s brother Mr P and asks him to stop contacting her, then blocks him | TR’s affd filed 18.3.15 para 27 |
| 20.02.2015 | Father’s partner alleges paternal grandfather sends her texts threatening legal action due to father requesting the return of his car, and becomes defensive and aggressive | TR’s affd filed 18.3.15 para 28 |
| 23.02.2015 | Father’s partner alleges she received texts from father’s brother threatening litigation and she asks him to stop contacting her | TR’s affd filed 18.3.15 para 29 |
| 25.02.2015 | Father asserts he attends follow up appointment at (omitted) Hospital and there are no concerns however mother continues to deny him access to X | F’s affd filed 18.3.15 para 19 pg 8 |
| 01.03.2015 | Father’s partner alleges paternal grandmother tells her father’s brother Mr P has again contacted Mental Health Access Line | TR’s affd filed 18.3.15 para 31 |
| 04.03.2015 | Father alleges mother texts him advising that she is happy to organise visitation on her terms until orders are in place | F’s affd filed 18.3.15 para 18 pg 8 |
| 06.03.2015 | Paternal grandmother alleges that father’s brother tells her that mother had shared father’s personal hospital records with him and paternal grandfather, and that they had used these to have father admitted to hospital. Brother and paternal grandfather ask paternal grandmother to assist them and grandmother declines and tells them to leave father alone | PGM’s affd filed 16.6.15 para 7 |
| 08.09.2015 | Father’s partner alleges Mental Health Crisis Team approaches her home and she asks them to leave | TR’s affd filed 18.3.15 para 33 |
| 09.03.2015 | Father texts mother asking if everything is ok and telling her he loves her and always will Father’s partner alleges father’s brother Mr P texts her and admits that drugs found in father’s car belonged to him, and father’s partner informs paternal grandfather | F’s affd filed 18.3.15 Ann “H” TR’s affd filed 18.3.15 paras 34-35 |
| 10.03.2015 | Father’s partner reports harassment of herself, her family and father by paternal grandfather and father’s brother Mr P to police | TR’s affd filed 18.3.15 para63 |
| 11.03.2015 | Paternal grandmother alleges she tries to explain to father’s brother and paternal grandfather that father was taking his medication as she had observed him doing so Father alleges he attends maternal grandparents home with police to check on X, that both maternal grandparents run towards him yelling abuse at him, that he is informed that drug cultivation and illicit drugs were discovered at the property Father’s partner alleges she receives text message and father receives voicemail from paternal grandfather advising the father to get treatment or he will take action Father’s partner alleges that (omitted) Mental Health Team again attends her home and she has long discussion with them, they advise father will need to submit to mental health assessment | PGM’s affd filed 16.6.15 para 8 F’s affd filed 18.3.15 para (17) pg 4 TR’s affd filed 18.3.15 para 38 TR’s affd filed 18.3.15 para 39 |
| 12.03.2015 | Mother alleges father sends her a message telling her she will never see X again Father alleges he sent message in response to mother messaging him threatening to use X to hurt him Mother contacts X’s school after receiving the message and discovers father had removed X from school at 2pm Mother contacts police and an alert is put out to (omitted) police to return X to the mother Mother alleges she makes contact with father’s mother, father and brother, as do police, and is told that there are concerns X is at significant risk in father’s care due to his irrational behaviour Paternal grandmother alleges that paternal grandfather makes a false report to 000 that father is holding her and her mother hostage, both were confused and angry when police checked on them Paternal grandmother alleges father’s brother and paternal grandfather admit that they used father’s medical information (that they did not have permission to have or use) in order to have father scheduled at (omitted) hospital Father admits he withheld X from mother’s care but alleges he did so because he had concerns about exposure to illicit drug use and cultivation (at maternal grandparents’ home) Father alleges he receives text messages from the mother demonstrating a “blasé” attitude towards her parents drug use Father alleges Mental Health Unit attend his home at 7pm and police attend his home at 8pm and neither have any concerns for the father or X. Father’s partner supports this | M’s affd filed 13.3.15 para 17 F’s affd filed 18.3.15 para (17) pg 4 M’s affd filed 13.3.15 para 17 F’s affd filed 18.3.15 para (17) pg 4 M’s affd filed 13.3.15 para 19 M’s affd filed 13.3.15 para 21 PGM’s affd filed 16.6.15 para 9 PGM’s affd filed 16.6.15 para 10 F’s affd filed 17.6.15 para (5) pg 2 F’s affd filed 18.3.15 para (17) pg 5 F’s affd filed 18.3.15 para (21) pg 5 |
| 13.03.2015 | Mother files urgent application seeking recovery order for X Orders made on an ex parte basis for X to be returned to the mother’s care within 48 hours at (omitted) Police Station or a recovery order will issue Father flees to (omitted) with X Father’s partner alleges that X accidentally hurts her dog and becomes upset and thinks he is in trouble, father and father’s partner concerned by X’s reaction | Initiating Application filed 13.3.15 Orders dated 13.3.15 Mother’s Case Outline TR’s affd filed 18.3.15 para 50 |
| 14.03.2015 | Father alleges that X discloses that “poppy hits him when he gets drunk”, father makes report to police. Father’s partner supports this allegation and confirms father calls paternal grandmother to advise her Father alleges he told mother about X’s disclosure and mother accuses him of being unwell Paternal grandmother receives call from father who is upset and advises X had disclosed maternal grandfather had been hitting him Father’s partner alleges that police attend her home and speak to X alone, and then tell father and his partner that the police were satisfied the matter requires further investigation | F’s affd filed 18.3.15 para 20 pg 8 F’s affd filed 18.3.15 para 21 pg 8 PGM’s affd filed 16.6.15 para 11 TR’s affd filed 18.3.15 para 52 |
| 17.03.2015 | X is recovered into mother’s care at (omitted) Police Station Mother alleges X has a rash around his mouth when collected Father denies that X had a rash around his mouth Father alleges that X told police officers he did not want to go home because “she lets poppy hit me” | M’s affd filed 7.5.15 para 5 M’s affd filed 7.5.15 para 5 F’s affd filed 17.6.15 para (5) pg 2 F’s affd filed 18.3.15 para 22 pg 8 |
| 18.03.2015 | Father files Response that seeks sole parental responsibility, X live with him and X spend supervised time with the mother | Response filed 18.3.15 |
| 19.03.2015 | Matter comes before Judge Henderson. Orders made by consent for X to live with mother and spend time with father each alternate weekend plus special occasions Mother alleges she was provided with medical records at Court (attached to father’s affidavit) indicating father was taking his medication Father denies that any medical records were provided to the mother at Court, denies being mentally unwell and states he always takes his medication and complies with doctor advice Mother is invited out to dinner with father’s brothers, X informs father over Facetime during the drive to dinner and mother alleges father screams out “Fucking slut, stay away from my family, I’m going to get full custody over this stunt”. Mother disconnects call Father denies that he screamed at mother as alleged by her Father’s partner alleges X immediately told father to take his medicine to get better and mother disconnected the call. Father called back and father’s partner alleges X sounded upset and told father he wanted to see “nanna (omitted)” and that “mum doesn’t tell fibs” Father’s partner alleges father called back at about 8.30pm and reminded mother not to discuss proceedings with X and after brief conversation mother disconnects the call | Orders dated 19.3.15 M’s affd filed 7.5.15 para 5 F’s affd filed 17.6.15 para (6) pg 2 M’s affd filed 7.5.15 para 6 F’s affd filed 17.6.15 para (8) pg 2 TR’s affd filed 16.6.15 para 6 TR’s affd filed 16.6.15 para 7 |
| 20.03.2015 | Mother alleges she sends father an email informing him X has soccer on 28 March and following exchange occurs: Father denies the exchange occurred and alleges the mother and her solicitor were aware that his email account had been compromised and he had created a new account (father annexes an email from his solicitors dated 14.4.15) | M’s affd filed 7.5.15 para 7 F’s affd filed 17.6.15 para (20) pg 4 |
| 21.03.2015 | Mother alleges father sends her an email accusing her of “hacking” into his Gmail account Father denies that he sent mother the email and asserts his account had been compromised Father alleges he discovers his brothers were having dinner with the mother, and tells one brother (Mr M) he was disappointed and that brother replies that he was unaware the mother was attending or he would have refused to attend. This is supported by father’s partner Father’s partner alleges mother facilitates call between X and father early and tells father she was driving to (omitted) to have dinner with Mr Bussell’s family in (omitted) and father tells mother to stop interfering | M’s affd filed 7.5.15 para 8 F’s affd filed 17.6.15 para (21) pg 4 F’s affd filed 17.6.15 para (8) pg 2 TR’s affd filed 16.6.15 para 9 TR’s affd filed 16.6.15 para 8 |
| 22.03.2015 | Mother alleges father posts Facebook status saying “Finally managed to lock the bitch out of my old (omitted) apple ID, good luck trying to track me and steal my personal information now you muppets” Father denies he posted status and alleges the security of his old Facebook account was compromised due to the mother’s possession of his iPad | M’s affd filed 7.5.15 para 9 F’s affd filed 17.6.15 para (9) pg 3 |
| 23.03.2015 | Mother alleges she received a call from her friend Ms B who tells mother that father had called and introduced himself before hanging up. Mother then receives call from X’s old pre-school teacher who tells mother that father had called and asked her to pass his contact details to Ms B. Father admits to making a phone call, but alleges he dialled the wrong number and then ended the call. Father admits to calling X’s old pre-school teacher, but denies the contents of the conversation as deposed by the mother Father sends mother an email and states that if she and her mum “tell the truth” about the maternal grandfather “hitting X” the maternal grandmother will “get her access to X back”. Father also states “Yea well you know what they are going to state soon stay away from them pull this stunt again and see what happens”. Mother believes this is a reference to having dinner with father’s family Father denies sending an email to the mother as alleged | M’s affd filed 7.5.15 paras 10-11 F’s affd filed 17.6.15 para (23) pg 4 M’s affd filed 7.5.15 para 12 F’s affd filed 17.6.15 para (24) pg 4 |
| 24.03.2015 | Mother’s phone stops working and she instructs her solicitor to write to father’s solicitor advising that X would not be able to call that evening. Mother alleges father then sends mother an email and mother alleges this email caused her concerns that the father had caused her phone to stop working Father asserts that mother could have facilitated communication via Skype, and notes that the mother has no difficulty contacting her legal representatives Father denies sending mother an email as alleged by her Father’s partner confirms that father did not speak to X in accordance with the Orders | M’s affd filed 7.5.15 paras 13-14 F’s affd filed 17.6.15 para (25) pg 4 F’s affd filed 17.6.15 para (26) pg 5 TR’s affd filed 16.6.15 para 11 |
| 27.03.2015 | Mother alleges she received separate calls from father’s brother and father requesting that she not send X for access with the father on the weekend as his moods were not stable enough. Mother alleges she told them her hands were tied and she wanted to send X and see how it went Father asserts that he has difficult relationships with his father and his brother, who live in (omitted) and Canberra, and alleges they would not have had knowledge of his moods or mental state Mother delivers X to father’s care in accordance with the orders | M’s affd filed 7.5.15 para 18 F’s affd filed 17.6.15 para (30) pg 5 M’s affd filed 7.5.15 para 19 |
| 28.03.2015 | Father’s partner alleges they drive to (omitted) for X’s soccer game, return to (omitted) to have lunch at a café and then return to her home. Father’s partner alleges father takes X to the doctor in the afternoon due to a persistent cough and then they make dinner together before X goes to bed Father’s partner alleges mother sends her 3 Facebook messages asking to be friends and telling her she is drunk. Father’s partner does not respond and blocks mother from further contact | TR’s affd filed 16.6.15 paras 13-14 TR’s affd filed 16.6.15 para 18 |
| 29.03.2015 | Father’s partner alleges they attend (omitted) and purchase X a ninja turtle costume, and then X and father watch a ninja turtle movie at home before X returns to the mother. Father’s partner alleges X is excited to come back the following week Father returns X in accordance with the orders, mother asks X if he had fun and X replies “No, Daddy told me I have to look at people when I talk to them so they know if I am lying” Father denies saying the words attributed to him | TR’s affd filed 16.6.15 paras 15-16 M’s affd filed 7.5.15 para 20 F’s affd filed 17.6.15 para (31) pg 5 |
| 31.03.2015 | Mother alleges father calls X and asks to speak to her and accuses her of causing his brother and sister-in-law’s marriage issues Father denies that allegations of the mother that he accused her of causing problems in his brother’s marriage Mother receives Facebook message from father’s sister-in-law alleging father showed up to her house and took a photo with her child and posted it online, sister-in-law says she doesn’t trust father with “the kids” when he is unwell and things became heated when she asked him to stay out of their lives | M’s affd filed 7.5.15 para 21 F’s affd filed 17.6.15 para (10) pg 3 M’s affd filed 7.5.15 para 22 M’s affd filed 7.5.15 para 23 |
| 04.04.2015 | Mother alleges she received text message from police officer advising there were no issues with the allegations made and he had told the father the investigation was complete and no further police action Mother instructs solicitor to send confirmation to father and father replies that he has not received the information and would not agree to maternal grandfather spending time with X | M’s affd filed 7.5.15 para 25 M’s affd filed 7.5.15 para 25 |
| 05.04.2015 | Mother alleges she received call from paternal grandmother urging her not to send X with father as she was concerned he was not taking his medication and was paranoid and convinced X was being abused by maternal grandfather Paternal grandmother denies making any calls to the mother, or that she has any concerns about X in the father’s care Mother maintains that call occurred and annexes a copy of her phone log showing the call occurred on 5 April 2015 at 4:19pm for 6 minutes and 15 seconds Mother advises father X would not be coming for weekend visit. Father replies “I strongly suggest you start abiding by the court orders” Mother alleges she receives call from father’s brother saying father is “off his head” and not to send X, father’s brother does not think father is taking medication | M’s affd filed 7.5.15 para 26 PGM’s affd filed 16.6.15 para 5 M’s affd filed 22.6.15 para 5, Ann “A” M’s affd filed 7.5.15 para 27 M’s affd filed 7.5.15 para 28 |
| 07.04.2015 | Mother alleges father sends her an email saying “Run rabbit run” Father denies that he sent an email to the mother as alleged by her Father sends police to conduct welfare check on X at mother’s home, police officer advises mother that father sounded “quite erratic” on the phone Father’s partner alleges X is not made available in accordance with the orders and father’s requests welfare check due to threats the mother had made against X in the past Father’s partner alleges she has overheard father speak to (omitted) police on several occasions and that they have not been helpful and make inappropriate comments about father’s mental health Father speaks to X on the phone and tells him “You will be coming tomorrow, the Judge is going to organise it, I spoke to him today”, X tells mother “I don’t want to go” Father denies that he had a conversation with X about the proceedings as alleged by mother | M’s affd filed 7.5.15 para 29 F’s affd filed 17.6.15 para (38) pg 6 M’s affd filed 7.5.15 para 30 TR’s affd filed 16.6.15 para 19 TR’s affd filed 16.6.15 para 20 M’s affd filed 7.5.15 para 31 F’s affd filed 17.6.15 para (11) pg 3 |
| 09.04.2015 | Mother alleges father calls her and says “Crack whore, drug dealing, child abusing slut. You are just lucky my lawyer has been in Court the past two days otherwise I would have gotten recovery orders issued” Police attend mother’s home after father reports that mother has been self-harming Father denies verbally abusing the mother on the phone or reporting to the police that the mother was self-harming Mother alleges that father calls her and verbally abuses her for 9 minutes The father denies that he calls the mother and verbally abuses her for 9 minutes Father calls later and asks to speak to X, X refuses to come to the phone Father calls back an hour later and tells mother he has been to see a psychologist and she should get her solicitor to subpoena the records, then asks to see X Father denies calling the mother back as alleged by her Father’s partner confirms that father attended an appointment with his psychologist and alleges that a further appointment was made for 30 April 2015 to conduct a full mental health assessment. Father’s partner alleges this assessment was rescheduled as the psychologist did not receive all of the medical records in time | M’s affd filed 7.5.15 para 32 M’s affd filed 7.5.15 para 33 F’s affd filed 17.6.15 para (12) pg 3 M’s affd filed 7.5.15 para 34 F’s affd filed 17.6.15 para (13) pg 3 M’s affd filed 7.5.15 para 35 M’s affd filed 7.5.15 para 36 F’s affd filed 17.6.15 para (40) pg 6 TR’s affd filed 16.6.15 para 21 |
| 10.04.2015 | Mother alleges father speaks to X on the phone and tells him he can “see the dog when I pick you up from McDonalds tonight” and X then tells mother “I don’t want to go to daddy’s” Mother alleges father speaks to X again later and discusses court proceedings with him and tells him the maternal grandmother is dealing drugs. Mother tells father she is recording the conversation and father rants at mother before telling X the police will be coming to check on him Police attend mother’s home for welfare check At 11:30pm, mother receives call from police asking her to stop harassing father, mother advises police of father’s recent actions and police apologise | M’s affd filed 7.5.15 para 37 M’s affd filed 7.5.15 para 38 F’s affd filed 17.6.15 para (14) pg 3 M’s affd filed 7.5.15 para 39 M’s affd filed 7.5.15 para 40 |
| 12.04.2015 | Father posts Facebook status alleging that mother threatened to run with X and harm him rather than comply with Court orders and the police are unable to make contact with mother and X Father denies posting status as alleged by the mother and asserts that his old Facebook account has been compromised by the mother’s possession of his iPad Mother calls police and asks if they are looking for her, police tell mother father reported that she grabbed the phone off X and said she would hurt X if she had to go back to court. Mother denies this and police perform another welfare check Mother later realises father had sent message to X’s phone asking her to take X to (omitted) police station and accusing her of being on the run with X. Mother alleges she was at work at the time. Mother alleges she is concerned as the father has been scheduled for paranoid delusions in the past Father admits to sending text message and alleges he is concerned for X’s safety due to the mother’s threats. Father admits to being scheduled but alleges that his recent scheduling occurred as a result of reports made by the mother and his estranged brother and father | M’s affd filed 7.5.15 para 41 F’s affd filed 17.6.15 para (15) pg 3 M’s affd filed 7.5.15 para 42 M’s affd filed 7.5.15 paras 43-44 F’s affd filed 17.6.15 para (17) pg 3 |
| 15.04.2015 | Father’s partner alleges father changes his mobile number to stop harassment received from his brother Mr P, and provides number to mother’s solicitors for X’s exclusive use. Father’s partner asserts harassing calls and texts from Mr P stopped for about 2 weeks, and then recommenced on the new number. Father’s partner alleges Mr P could only have received the number from the mother | TR’s affd filed 16.6.15 para 24 |
| 20.04.2015 | Father’s partner alleges there is a problem with mother’s urinalysis and that a significant period of time elapsed between the request and the test being taken | TR’s affd filed 16.6.15 para 25 |
| 21.04.2015 | Mother alleges she receives call from father’s brother who advises her not to send X to school as father has opened a new Facebook page and brother suspects he will run off with X again | M’s affd filed 7.5.15 para 45 |
| 24.04.2015 | Mother alleges father calls numerous times to speak with X, but X refuses. X eventually talks to father and father informs X he is going to be working in school canteen. X tells mother he doesn’t want to go to school anymore Father denies the contents of his conversation with X as alleged by the mother | M’s affd filed 7.5.15 para 46 F’s affd filed 17.6.15 para (43) pg 6 |
| 26.04.2015 | Police perform another welfare check on X at father’s request | M’s affd filed 7.5.15 para 47 |
| 27.04.2015 | Mother alleges that she receives a text from officer at (omitted) police station, and when she returns call is told that the officer has gone home | M’s affd filed 7.5.15 para 48 |
| 30.04.2015 | Mother is advised by school that X had wet himself twice in 20 minutes Father calls to speak to X and mother alleges he abuses her when she answers the phone. Father calls back and tells X mother is a “bitch” and then tells him he will be coming to the school to teach children how to read and give music lessons. X ends the call Father denies the contents of his conversation with X as alleged by the mother Paternal grandmother alleges she hears mother screaming and swearing loudly at father on the phone | M’s affd filed 7.5.15 para 49 M’s affd filed 7.5.15 paras 50-51 F’s affd filed 17.6.15 para (47) pg 6 PGM’s affd filed 16.6.15 para 12 |
| 01.05.2015 | Mother alleges she receives call from paternal grandfather telling her to stay strong and the entire paternal family supports her | M’s affd filed 7.5.15 para 52 |
| 02.05.2015 | Father’s partner alleges that father calls X and tells mother she cannot record conversation, to which mother replies “Fuck off you wanker” and passes phone to X | TR’s affd filed 16.6.15 para 27 |
| 04.05.2015 | Mother attends school to collect X and alleges father walks out of classroom holding X and states he wants to take X to the park. Mother agrees and attends with them. Father asks X if he is coming to his house on the weekend, mother says no and father tells mother he will make sure she goes to jail. Mother alleges X then asks to go home Father denies entering classroom and alleges he waited outside until the bell rang, gave X a hug while he was on his hip, and X asked to go to the park. Father denies making the comments attributed by the mother | M’s affd filed 7.5.15 para 53 |
| 06.05.2015 | Father’s partner alleges she receives several texts from Mr P and asks him not to contact her | TR’s affd filed 16.6.15 para 28 |
| 08.05.2015 | Mother alleges that father calls her sister and brother-in-law and leaves 2 voicemails to each of them advising that he will get a recovery order issued if they do not bring X to the changeover venue Father admits to making two telephone calls to the mother’s sister, but denies the contents of the voicemails as alleged by the mother | M’s affd filed 29.5.15 para 49 F’s affd filed 17.6.15 para (49) pg 7 |
| 09.05.2015 | Father’s partner alleges she and father drive to (omitted) to watch X play soccer, but X is not at the game Mother alleges that father attends her home, screaming in the front yard and banging on the front door. Mother calls police and her brother, her brother arrives first and mother hears father say “You’re dead, you will be going to jail for assisting Ms Wheeler in withholding X” and then push her brother Father denies being in the front yard screaming or banging on the door. Father alleges he called 000 as he was not confident the mother would comply with changeover arrangements. The father alleges the mother’s brother “aggressively rushed towards” him with a crowbar and has now been charged with intimidation and harassment. The father denies pushing the mother’s brother Father’s partner alleges father sees mother’s car at a block of units when driving back from X’s soccer game and they called to police to assist with changeover. Father’s partner alleges they saw X at the window with the mother on the phone, and then got out of the car to wait on the footpath for police. Mother’s brother arrives and comes towards father and partner with a crowbar, but puts crowbar away when mother tells him father’s partner is recording the incident, then continues to threaten and intimidate father. Father’s partner alleges mother’s brother has been charged over the incident and is due to appear at Port Kembla Court on 23 June 2015 Father’s partner denies that father approaches mother, bangs on her door or screams obscenities Father’s partner alleges maternal grandfather then drives past and threatens father, and father applies for AVO’s against mother, mother’s brother and maternal grandfather for the protection of father, his partner and X | TR’s affd filed 16.6.15 para 30 M’s affd filed 29.5.15 para 50 F’s affd filed 17.6.15 para (50) pg 7 TR’s affd filed 16.6.15 paras 32-33 TR’s affd filed 16.6.15 para 34 TR’s affd filed 16.6.15 paras 35-36 |
| 10.05.2015 | Mother’s brother advises that he received a visit from the mental health team who indicated that they were responding to a call from the mother’s brother and father about the mother, mother‘s brother denies making the call. Mother calls mental health team and is told that the caller stated the mother had been accessing his personal accounts and would be going to jail unless she got help Paternal grandmother alleges that she tells father’s brother and paternal grandfather that she had been spending time with father and his new partner, that father was fine, that what they were doing was not rights and asks them to “back off”. Paternal grandmother alleges when they didn’t it was “clear” that they “would do whatever it would take” to have the father “admitted to a mental hospital again” | M’s affd filed 29.5.15 para 51 PGM’s affd filed 16.6.15 para 13 |
| 14.05.2015 | Father’s partner alleges she receives further text from father’s brother Mr P and does not reply Father’s partner alleges that father calls his brother Mr P’s employer to report his brother making repeated harassing telephone calls from their phone | TR’s affd filed 16.6.15 para 28 TR’s affd filed 16.6.15 para 37 |
| 19.05.2015 | Father’s partner alleges she receives further text from father’s brother Mr P and does not reply | TR’s affd filed 16.6.15 para 28 |
| 21.05.2015 | Mother is advised by father’s brother that father has been scheduled into mental health unit at (omitted) hospital Father alleges the police showed him and his partner the referral which listed the mother, his brother and his father as the referrers and the mother as his next of kin. Father alleges he was discharged after 4 days. Father’s partner supports this and alleges she has difficulties speaking with the hospital about father’s admission and treatment due to mother being listed as next of kin. Father nominates his partner as his primary carer Paternal grandmother alleges that father’s brother and paternal grandfather tell her that they had told (omitted) hospital that the mother was the father’s next of kin, and had also told (omitted) hospital this. Paternal grandmother alleges she did not agree with the mother, father’s brother and paternal grandfather “scheming” to have father scheduled and that they told her they were “trying all the hospitals they could” | M’s affd filed 29.5.15 para 52 F’s affd filed 17.6.15 para (52) pg 7 TR’s affd filed 16.6.15 paras 38-40 PGM’s affd filed 16.6.15 paras 14-15 |
| 22.05.2015 | Father’s partner alleges she writes to medical superintendent as father’s primary carer to request his discharge and receives no response | TR’s affd filed 16.6.15 para 42 |
| 23.05.2015 | Father’s partner alleges that paternal grandmother tells her that father’s brother Mr P had made requests to both Sydney hospitals and had threatened to make a complaint to HCCC if (omitted) Mental Health Unit did not take the referral | TR’s affd filed 16.6.15 para 43 |
| 25.05.2015 | Father’s partner alleges she receives a call from Dr G, psychiatrist, who expresses concern that father was detained involuntarily, confirms father’s blood test after admission showed appropriate lithium levels (which suggests father was taking medication) and advises father would be discharged that morning and he has no concerns for father’s mental health | TR’s affd filed 16.6.15 para 45 |
| 29.05.2015 | Mother files Contravention Application and Application in a Case seeking to discharge previous orders, for X to live with mother, and for X to spend time with father supervised by CatholicCare | Contravention Application and Application in a Case filed 29.5.15 |
| 30.05.2015 | Father’s partner alleges that father calls X in accordance with the Orders and mother disconnects call when she discovers this, then switches phone off | TR’s affd filed 16.6.15 para 47 |
| 02.06.2015 | Matter comes before Judge Altobelli, Orders made suspending the father’s time, urgently appointing an ICL and listing the matter for interim hearing | Orders dated 2.6.15 |
| 16.06.2015 | Father files Response to Application in a Case seeking family report orders, for X to live with him and spend supervised time with the mother | Response to Application in a Case filed 16.6.15 |
| 25.06.2015 | Interim hearing |
Schedule Two
Orders sought by the Father
1.THAT pursuant to Section 62G(2) of the Family Law Act 1975 (Cth), the parties and the child of the relationship attend upon a Family Consultant nominated by the Dispute Resolution Coordinator of the Federal Circuit Court of Australia, Wollongong Registry on a date and at time(s) to be advised for the purposes of the preparation of a Family Report to be given to the Court.
2.THAT the Family Report to deal with the following matters:
a.The nature of the relationships of the child with each of the child’s parents and with significant other persons;
b.The willingness and ability of each of the child’s parents to facilitate and encourage a close and continuing relationship between the child and the other parent;
c.The likely effect of any changes in the child’s circumstances, including the likely effect on the child of any separation from either of the parents, or any other child or significant person with whom the child has been living;
d.The capacity of each parent, or other person, to provide for the needs of the child including emotional and intellectual needs;
e.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 reporter thinks are relevant;
f.Each parent’s attitude to the child and to the responsibilities of parenthood;
g.Any family violence involving the child or a member of the child’s family;
h.Any illicit drug use and drug related criminal activity; and
i.Such other issues, as the Family Consultant considers relevant.
3.THAT the parties attend all appointments with the Family Consultant, and ensure the child attend all appointments with the Family Consultant, as requested by the Family Consultant.
4.THAT the Mother shall cause the child to be delivered to the Father by 6pm on the date of these Orders.
5.THAT for the purposes of Order 4 herein, the Mother shall cause the child to be delivered to the Father at the reception desk inside (omitted) Police Station located at the corner of (omitted).
6.THAT the child lives with the Father.
7.THAT the child spend supervised time with the Mother at the Interrelate Family Centre, (omitted) (“the Contact Service”) for the maximum period as offered by the Contact Service on each alternate weekend and at such times as are nominated by the Contact Service.
8.THAT in the event that the Contact Service is unable to continue facilitating supervised time between the Mother and the child, then the child shall spend supervised time with the Mother at Phoenix Rising for Children, or if they are not available, such other service as nominated by the Father.
9.THAT the child’s supervised time with the Mother under these Orders shall commence on the first weekend on which the Contact Service is able to provide such supervision.
10.THAT each party shall forthwith do all acts and things necessary to apply to use the services of the Contact Service, including completing and signing all necessary documents, and attending all such intake or other interviews as may be notified to them by the Contact Service.
11.THAT each party inform and keep the Contact Service informed as to their respective contact details for the purpose of notification of appointments.
12.THAT the Father shall provide a copy of these Orders to the Contact Service within seven (7) days of the date of these Orders.
13.THAT the Mother shall comply with all lawful directions of the Contact Service and its supervising staff, and by the terms of her agreement with the Contact Service, and in the event that the Mother fails, or otherwise refuses, to comply with any lawful direction or term of her agreement with the Contact Service, then the child’s time with the Mother under these Orders shall, at the discretion of the Contact Service, be suspended.
14.THAT the Mother shall pay all fees as nominated by the Contact Service (or such other nominated service) as and when they fall due.
15.THAT for the purpose of changeovers, the Father shall deliver the child to the Contact Service at the commencement of the child’s time with the Mother under these Orders, and collect the child from the Contact Service at the conclusion of such time.
16.THAT the child’s time with the Mother under these Orders shall be suspended forthwith if the Mother is noticeably affected by alcohol or drugs of abuse at the commencement of the child’s time with her, or the Mother conducts herself in a manner that is deemed to be unacceptable by the Contact Service’s supervising staff.
17.THAT for a period of twelve (12) months from the date of these Orders, and provided that no more than one (1) request is made in any calendar month, the Father shall be entitled to require the Mother to submit to random testing by urinalysis (“the testing”) with a testing facility of the Father’s nomination within twenty four (24) hours of such request being received, with such testing to be conducted under supervision and chain of custody in accordance with the Australia / New Zealand Standard (AS/NZS) 4308:2008 Procedures for specimen collection and the detection and quantitation of drugs of abuse in urine (“the AS/NZS standards”), and for this purpose the Mother shall:
a.Prior to using the testing facility, undertake all reasonable enquiries to ensure that the testing facility’s testing procedures are in accordance with the AS/NZS standards;
b.Identify herself to the testing facility by providing her NSW driver licence or an Australian passport, and request that such identification be noted on any test results which issue;
c.Provide a urine specimen supervised in accordance with the specimen collection procedures as set out in the AS/NZS standards;
d.Authorise and direct any relevant medical practitioner or testing facility to provide to Father, a copy of the test results which issue immediately upon such results becoming available, including any analysis, memorandum, or written comments made by any medical practitioner or pathologist with respect to the testing; and
e.Pay all costs associated with the testing, including any confirmatory testing of the test if required.
18.THAT in the event that the Mother fails, or otherwise refuses, to comply with Order 17 herein, or fails to provide clear test results for drugs of abuse, the Mother shall as soon as practicable, enrol in and complete a program of drug rehabilitation as an outpatient.
19.THAT the Mother be at liberty to communicate with the child by telephone each Monday and Wednesday between the hours of 6pm and 7pm, and at such other times as agreed between the parties, and for the purposes of this Order, the Mother shall initiate such communication by calling the Father’s mobile telephone (which the Father shall ensure is operational at all relevant times), and the Father shall ensure that the child is available to receive the Mother’s call, and provided that both the Father and the Mother have the appropriate technology, the Mother be at liberty to communicate with the child otherwise by FaceTime, Skype or such other similar audio-visual communication medium at such times.
20.THAT the Father shall:
a.Inform and keep the Mother informed at all times of the names, contact telephone numbers and addresses of all treating medical, therapeutic or allied health care professionals attended upon by the child;
b.Inform and keep the Mother informed at all times of the child’s health and health related issues, and in the event that the child is required to undertake a medical procedure, notify the Mother as soon as is practicable;
c.Inform the Mother in writing as soon as is practicable of any specialist medical appointments, including appointments with any dentist, optometrist, psychologist, psychiatrist, counsellor or therapist (“specialist medical consultant”) in relation to the child;
d.Ensure that the Mother is provided with a copy of any report prepared by any such specialist medical consultants in relation to the child within seven (7) days of receipt of same; and
e.In the event that the child is involved in a medical emergency, notify the Mother immediately and provide details of the health care professional or medical facility upon which the child attends.
21.THAT the Mother be entitled to communicate with the children’s treating medical, therapeutic or allied health care professionals for the purpose of obtaining information as to matters relevant to the child’s health and welfare, including information regarding any treatment recommended or undertaken.
22.THAT within fourteen (14) days of the child’s enrolment at any school, the Father shall do all acts and things and sign all documents necessary to authorise any school attended by the child to provide to the Mother, copies of any material ordinarily provided to parents, including but not limited to, school reports, reports on school progress and behavioural issues, school photograph order forms, circulars and school bulletins, invitations, and notices of parent and teacher meetings and sporting events, and in the event that the child’s school refuses or is unable to provide copies of same to both the Father and the Mother individually, then the Father shall provide copies to the Mother as soon as is practicable upon receipt.
23.THAT each party shall inform and keep the other informed at all times of their respective residential addresses, telephone contact numbers, and email and Skype or FaceTime addresses, and each party shall notify the other of any changes thereto within forty-eight (48) hours of the date of such change occurring.
24.THAT the Mother be and is hereby restrained by injunction from consuming alcohol, or using, ingesting or administering to herself any illicit or non-prescribed drug (other than over the counter medication) during the period commencing twenty four (24) hours prior to spending time with the child pursuant to these Orders.
25.THAT pursuant to Section 68B of the Family Law Act 1975 (Cth) for the personal protection of the Father, the Mother be and is hereby restrained by injunction, whether by herself, her servants or agents or whosoever otherwise, from:
a.Assaulting, harassing, threatening or otherwise interfering with the Father or a person with whom the Father has a domestic relationship;
b.Engaging in any other conduct that intimidates the Father or a person with whom the Father has a domestic relationship;
c.Stalking the Father or a person with whom the Father has a domestic relationship; and
d.Approaching, entering, or remaining in the premises at which the Father may from time to time reside or work.
26.And for this purpose, the Father is a protected person.
27.THAT pursuant to Section 68B of the Family Law Act 1975 (Cth) for the personal protection of the child, the Mother be and is hereby restrained by injunction, whether by herself, her servants or agents or whosoever otherwise, from:
a.Approaching the child (other than as provided for pursuant to these Orders); removing, taking possession, or attempting to remove or take possession of the child; or causing the child to be removed from the Father’s care; and
b.Approaching, entering, or remaining in:
i.The premises at which the child may from time to time reside or frequent; and
ii.Any school or other premises at which the child may from time to time attend or be enrolled in for the purposes of education or child care.
28.And for this purpose, the child is a protected person.
Schedule Three
Orders sought by the Mother
1.That the Orders made on 19 March 2015 be discharged.
2.That the child, X, born (omitted) 2009 live with the Mother.
3.That pending the preparation of a Chapter 15 Expert Family Report the child shall spend time with the father for two hours each Saturday supervised by Catholic Care or any other such private contact centre which is appropriately qualified or at any other times as can be accommodated by that organisation.
4.That each of the parties do all acts and things necessary to undergo random screening by urinalysis for drugs of abuse (“the test”) upon request by the other party within forty eight (48) hours of such request on no more than one (1) occasion per month, and for this purpose each party must:
5.Undertaking all reasonable enquiries to ensure that the procedures for the test are in accordance with the Australian/New Zealand Standard (AS/NZS) 4308:2008 Procedure for specimen collection and detection and quantitation of drugs of abuse in urine (“the AS/NZS testing standards”) prior to using any organisation for the test;
6.Identify themselves to the testing facility,
7.Provide a urine specimen supervised in accordance with the specimen collection procedures as set out in the AS/NZS testing standards;
8.Provide to the other, all reports from the test within twenty four (24) hours of receipt of each such reports;
9.Pay all costs associated with their respective tests, including the costs associated with any confirmatory testing of the test if required.
10.That the parents are restrained from contacting one another via any means and in the event of an emergency involving the child the mother will call a third party to contact the father and advise him of any serious or immediate issues regarding the child’s health, safety and welfare.
11.That the Father is to continue attending upon his psychologist, Ms C, on all occasions he is required to attend and follow all directions of that psychologist including taking of any medications which are prescribed.
12.The Father is to instruct Ms C to provide ongoing reports to the ICL in relation to his progress and treatment from time to time.
13.The Court grants leave to the parties to provide copies of all affidavit’s and applications filed in this matter including photocopy access to the subpoena documents for the Father’s solicitor to provide medical records obtained by subpoena to Ms C for the purposes of her ongoing treatment of the father.
14.On a without admissions basis and pending further Order the Mother shall not permit the child to be left alone with the maternal grandparents at any time.
Schedule Four
Orders sought by ICL
1.That pending further Order the child X born (omitted) 2009 shall live with the mother.
2.That the child shall spend time with the father as follows:-
(a)For a minimum period of 3 hours each week, supervised by an agency such as the (omitted) Contact Service, on such days and times as nominated by that agency, with the costs of such supervision to be shared equally by the parties.
(b)At such other times as agreed between the parties in writing.
3.That the parties shall each undertake (by provision of urine screen in accordance with the Australian/NZ Standard 4308:2008 or any subsequent approved standard) urinalysis for drug screening at their own cost within 48 hours of receipt of a request to do so by the Independent Children’s Lawyer. For the purposes of this order, any unrepresented party is to inform and keep the Independent Children’s Lawyer informed of their mobile phone number, email address and facsimile number (if available) within 24 hours of any changes to these details.
4.That the Independent Children’s Lawyer is to limit the frequency of the request for urinalysis for drug screening to one request in each calendar month.
5.That the parties shall provide a copy of any urinalysis for drug screening report obtained within 24 hours of receipt of the report.
6.That the father shall forthwith do all acts and things to engage with his treating psychologist Ms C and thereafter shall remain engaged with Ms C for as long as she considers necessary, and the father shall comply with all directions of Ms C in relation to his medication.
7.That the father shall forthwith provide an authority to Ms C to provide ongoing reports to the ICL, as may be requested by the ICL from time to time, in relation to his compliance, progress and treatment.
8.That leave is granted to the father to provide copies of all affidavits, applications, and the father’s medical records produced under subpoena to Ms C for the purposes of Ms C providing the father with ongoing treatment, and the father shall provide Ms C with copies of such documents within 14 days.
9.That the mother is restrained by injunction from leaving the child in the unsupervised care of the maternal grandparents.
7.That each party is restrained by injunction from:-
(f)Speaking or permitting another person to speak to or about the other party, their partner, or other members of the other party’s family in a derogatory, negative, offensive or unpleasant fashion in the presence and/or hearing of the child.
(g)Discussing any proceedings between the parties or the parental relationship in the presence or hearing of the child or permitting any other person to do so.
(h)Consuming or being under the influence of any illicit substance when caring for the child or for 24 hours before any contact periods with the child.
(i)Using any form of physical discipline on the children or permitting any other person to do so.
(j)Changing the child’s school without the express written consent of the other party or an order of the Court.
Schedule five
The Independent Children’s Lawyer’s written submissions in relation to section 60CC factors
Section 60CC factors
Section 60CC(2)(a) - Child’s Right to have a Meaningful Relationship with Each of their Parents
• The evidence supports the contention that the mother has been X‘s primary carer since birth, which has continued post-separation, and it is therefore expected that X has a meaningful relationship with the mother.
• The mother’s proposal is for X to live with her and spend supervised only time with the father.
• The father is seeking for X to live with him and spend supervised only time with the mother.
• The ICL supports X living in the care of one parent and spending time with the other parent in a manner enables him to maintain a meaningful relationship whilst ensuring that he is not exposed to an unacceptable risk of harm. Unfortunately, at this current time and having regard to the evidence holistically, there are concerns about X’s safety if he were to spend unsupervised time with the father.
Section 60CC(2)(b) - Need to Protect the Child from Harm
• Each parent makes a number of allegations about X’s welfare in the care of the other parent.
• The father makes a number of allegations about the mother’s drug use, her inability to facilitate a meaningful relationship between X and himself, and the risk that her parents and brother pose to X due to drug cultivation and physical abuse.
• The mother’s material makes a number of allegations about the father’s current mental health, and her proposal provides for the father’s time with X to occur on a supervised basis only. A number of the mother’s concerns are supported by the subpoena material, and as such, the mother’s proposal reduces the risk of harm to X. The risks identified by the mother as to the father’s capacity would not be mitigated by protective injunctive orders.
• The ICL has now had the opportunity to inspect the subpoena material, and that objective evidence (when considered holistically) demonstrates that the father’s recent behaviour has been erratic, aggressive and on some occasions delusional when dealing with a number of third parties (such as hospital staff, the police, his former employer and work colleagues, school staff and X’s former pre-school teacher). As such, the ICL has real concerns about the father’s current mental health and the effect that this has on his parenting capacity.
• It is the ICL’s position that X’s time with the father on an interim basis ought to be supervised by an external contact agency. The ICL has considered family members as possible supervisors, however, the father’s recent erratic behaviour raises concerns about his ability to comply with the directions of a family member supervisor.
Section 60CC(3)(a) - Wishes of the Child
• X is only 5 years old, is not of an age or maturity where his wishes would carry much weight (if any).
Section 60CC(3)(b) – Nature of Relationships
• Each of the parents appear to suggest that X shares close and loving relationships with them.
• The mother‘s material suggests that X is currently experiencing difficulties in his relationship with his father; the father‘s material is somewhat silent about his interpretation of X‘s relationship with his mother, although he does assert that X is unsafe in the mother’s care.
• X, when speaking with the ICL, implied that he shares a close bond with his mother, and has a level of ambivalence towards his father at this time.
Section 60CC(3)(c) – Extent to which Each of the Child’s Parent’s has Taken the Opportunity to Participate in Making Decisions, Spend Time with the Child and Communicate with the Child
• The mother alleges that she has been X’s primary carer since birth, which appears to be supported by the evidence, and it is therefore expected that she has taken the opportunity to participate in making decisions about X, communicate with him and spend time with him.
• The father alleges a close and loving relationship with X, and asserts he has spent as much time with him as possible, but that this has been somewhat thwarted by the mother.
• The mother suggests that the father’s unstable mental health led to him being somewhat withdrawn from X’s care at times.
Section 60CC(3)(ca) – Extent to which Each Parent Fulfilled their Obligation to Maintain the Child
• The evidence is unclear in relation to this consideration.
• It is unknown whether the father pays child support to the mother and to what extent he otherwise assists in maintaining X.
• It is expected that the mother has financially maintained X since the parties’ separation, but it is unknown whether she did so without assistance.
• In any event, it is the ICL’s submission that this will not be determinative in the interim hearing, and little weight is likely to be given this consideration.
Section 60CC(3)(d) – Effect of Change on Child
• The parties have been separated for more than 3 years, and X has been living with the mother (and spending time with the father) for all of that time.
• The mother seeks Orders which will maintain the status quo of X living with her, but will institute a change in the arrangements for X to spend time with his father by introducing supervision. However, given the current concerns, it is submitted that such changes (the imposition of supervision) are necessary to safeguard X’s well-being and in any event it is expected that X would be able to cope with such a change, provided he is still able to spend time with the father.
• The father is seeking Orders which would see X’s residence reversed on an interim basis, and reduce his time with the mother to supervised, day only time. Such a change would likely be extremely difficult for X to cope with, and would involve him not only moving away from his primary carer, but moving away from his local community and current school to a virtually unknown community and school. The father is untested as a residence parent.
• It is difficult to see how such a drastic change could be in the best interests of X at this time, without solid evidence that the mother’s parenting capacity is severely lacking.
Section 60CC(3)(e) – Practicality
• The mother resides in (omitted) and the father resides in (omitted). These towns are some 67 kilometres (or about 1 hour and 10 minutes) apart.
• Should orders be made for X to live with the father, the father would be unable to facilitate X attending his current school.
• Should orders be made for X to spend supervised time with the father, it is the ICL’s position that such time ought to take place in the (omitted) region in order to reduce the burden of travel on X.
Section 60CC(3)(f) – Capacity to Provide for Child’s Needs
• The current evidence raises some questions about each parent’s capacity to meet X’s physical, emotional and psychological needs.
• Generally, the mother appears able to meet X’s physical needs well, but her conduct in exposing X to conflict between is likely to have cause X emotional and psychological harm.
• Likewise, the father’s conduct post-separation and his inability to shield X from conflict raises concerns about his ability to meet X’s emotional and psychological needs.
• The evidence also suggests that the father’s current mental health issues are impacting on his parenting capacity and his ability to meet all of X’s needs, and an Expert Report would assist all parties and the Court in this regard.
Section 60CC(3)(g) – Maturity, Sex, Lifestyle and Background of Parents and Child
• There are some question marks raised about drug use.
• Regular random urinalysis testing will assist the Court in this regard.
• The father’s attendance at the child’s school to physically remove X over the protests of the school authorities and his subsequent absconding to (omitted) suggests some stubbornness and immaturity on the father’s behalf.
Section 60CC(3)(i) – Attitude to Child and Responsibilities to Parenthood
• The mother alleges that the father has engaged in inappropriate conversations with the child, which appears to be supported by the DVD evidence submitted by the mother.
• However, criticism could also be levelled at the mother for allowing the conversation to continue in X’s presence so that she could record it, rather than ending the conversation altogether.
Section 60CC(3)(k) – Any Family Violence Involving the Child or a Member of the Child’s Family
• Neither party alleges physical violence throughout the relationship or post separation.
• Both parents allege that the other parent has recently subjected them to ongoing verbal abuse during phone calls.
• The father alleges that the mother’s father and brother have intimidated and assaulted him, and he has now obtained final AVOs (dated 23 June 2015) for his protection.
• The father also accuses the mother of ongoing harassment, and has obtained an interim AVO (dated 23 June 2015) for his protection.
• In addition, the father has made an application for AVOs against his own father and brother due to alleged ongoing harassment.
Section 60CC(3)(m) – Any other Fact or Circumstance the Court thinks is Relevant
• An Expert Report would assist the Court in determining what weight to attach to each parent’s allegations.
• At an interim level, the dominant consideration in this matter would appear to be containing the risk of harm to X, in light of the numerous concerns raised.
• In the ICL’s view, when approaching the evidence before the Court holistically, the risk is mitigated somewhat by X continuing to live with the mother and spending supervised time with the father.
• At this stage, the father has not made out a case to support a change in X’s residence, and it remains to be seen whether there is substance to the father’s allegations that the mother is deliberately plotting and scheming against him, so that he is involuntarily scheduled.
• The father last spent time scheduled under the Mental Health Act on an involuntary basis on 21 May 2015, for a period of 4 days, and whatever the means used to have the father hospitalised, it is relevant that medical authorities saw fit to detain the father for 4 days.
• It is also relevant that the father’s own father and brother appear to be raising concerns and fears with the mother about the father’s state of mental health. It would be unusual for the father’s own relatives to advocate against the father, on behalf of the child, unless their concerns were valid or some other plausible explanation can be provided to explain such unexpected loyalty.
Conclusion
This is a troubling and complex matter; it is clear that both parents love X dearly and want the best for their son. However, there is a plethora of objective evidence which supports the mother’s contention that the father is currently suffering (or has recently suffered) ill mental health, which probably impacts upon his ability to care for X on an unsupervised basis.
Although the father seeks orders for X to live with him, it is submitted that unless the Court makes a positive finding that X is at risk of unacceptable harm in the mother’s care, the safest and most appropriate course in this matter is to make the Orders as sought by the ICL; that is, maintain the status quo of X living with the mother and institute supervised time between X and his father. X is only 5 years old and has lived with his mother for his entire life, including three years since the parties’ separation.
Changing his residence at an interim hearing would be a risk, particularly when much of the evidence is yet to be properly tested. It is probably beyond doubt that it would be traumatic and distressing for X to be removed from the mother’s primary care, particularly since such a change would separate him from not only the mother (who is likely to be his primary attachment figure) but also his maternal relatives and his peers. The father appears to lack insight into the likely effect that such action would have on X.
It is submitted that on the objective evidence available, the Court would have serious concerns about the father’s current parenting capacity, as a result of his mental health. Although the father argues that his recent hospitalisations occurred as a result of mischievous and vexatious complaints by the mother and his own father and brother, the fact remains that the independent medical assessments conducted by health care professional at the hospitals the father was held at considered it necessary to detain the father for a number of days due to his presentation and state of mental health. The father has had numerous admissions to hospital, both on a voluntary and involuntary basis, before 2015.
It is especially troubling that the father’s most recent admission to a psychiatric unit occurred only last month (May 2015) and before that, in January this year. The Court could safely approach the matter on the basis that the father has recently demonstrated symptoms consistent with him having poor mental health.
Even though the father now maintains that his own father and brother are acting contrary to his best interests and (it is inferred) with a lack of bona fides, the subpoenaed material demonstrates that historically they were advocates for the father; for example they supported him throughout his hospitalisation in 2011 (tabbed and marked ICL4 and ICL5). The father’s evidence does not explain why or how he became estranged from his father and brother, and the evidence filed by the father’s partner Ms T (in the form of a text message sent by the paternal grandfather – Annexure D of her Affidavit filed 18 March 2015) provides support for the submission that the paternal grandfather in particular still has an interest in the father obtaining appropriate treatment and that he seek appropriate medical advice. It is submitted that the grandfather would not have sent such a message if he did not still care about his son’s well-being.
There is other objective evidence, whilst although untested, adds weight to the view that the father’s recent behaviour is erratic, aggressive, unpredictable and, at times, delusional. That evidence includes records produced by the NSW Police, X’s school (tabbed and marked ICL12 – ICL 22), various medical professionals, the father’s former employer (tabbed and marked ICL28) and X’s former day care teacher (tabbed and marked ICL36 – ICL37).
For example, the father’s behaviour at X’s school in mid to late February 2015 paints a picture of escalating concerns about the father’s conduct and mental health. The records describe “escalating”, “harassing” and “intimidating” behaviours requiring police attendance, culminating a report being made to Safety and Security and a Notice bring issued to the father which prohibited the father from entering school grounds pursuant to the Inclosed Lands Protection Act for the remainder of Term 1 2015, with the prohibited period to be reviewed thereafter. Notwithstanding that Notice, the father still attended the school grounds on 12 March 2015 (tabbed and marked ICL20) and physically removed X from his classroom, and the school grounds, despite objections from the staff. This resulted in the staff dialling 000 and a subsequent police search.
The police evidence suggests that the father attempted to avoid apprehension by travelling to (omitted) in the following days, and the child was not returned to the mother until a recovery was executed by the Police. This raises concerns about the father’s level of insight about the impact of such behaviours on X.
It is submitted that having regard to the evidence globally, and acknowledging the limitations of an interim hearing where the evidence cannot be properly tested, the Court ought to make an order for X’s time with the father to be supervised by an external contact agency. Although the idea of supervision by a family member has been considered, the ICL is of the view that the father’s recent behaviours and his demonstrated attitude to authority figures such as the police and the school principal, would raise doubts as to whether the father would accept supervision by a family member or comply with any order to return X to the mother without the safety net external supervision provides. The father’s recent attempts to avoid apprehension by travelling to (omitted) suggests an elevated flight risk. This is not to say that the father will always require supervision or that it must always be provided by an agency, but for today’s purposes, the ICL invites the Court to adopt a more cautious approach than it would otherwise take but for the unique features of this case as set out above. The father states in his Case Outline that the mother should have supervised contact, and that an external agency should be involved, and he cannot really argue that it is unreasonable to apply his own standard, to his own contact.
The mother’s case is not without its difficulties either, but the main concerns that appear in the father’s material are
·the question of drug use by the mother,
·the use and supply of illicit drugs by the maternal grandparents and maternal uncle,
·aggressive behaviour by the maternal grandfather and maternal uncle towards the father, and
·physical abuse of X by the maternal grandfather.
Whilst concerning, all of these issues can be contained through the making of interim injunctive orders, which the mother appears to be proposing. It does not help the father’s case today when his version of events surrounding the assault on X as described in the father’s and his partner’s Affidavits filed 18 March 2015 tells a different account to what is reported in the FACS material (tabbed and marked ICL30). In fact, the record at ICL30 documents that X denied the claims when initially interviewed by the police.
It is also noted that the material produced by FACS refers to X having been “coached into saying he was assaulted by the maternal grandfather” (tabbed and marked ICL31).
Given the allegations of domestic violence, mental health, child abuse, drug dealing and drug use, the Court would undoubtedly be assisted by an Expert opinion. The ICL is not confident that a family consultant would necessarily have the expertise needed to formulate an expert opinion or assessment in this matter and a Chapter 15 Expert is probably required. This however, would likely need to be funded by the parties themselves and it is not known whether the parties have the means or the willingness to do so.
No doubt when the opportunity arises for the evidence to be tested at a final hearing both parties will be in a better position to make appropriate submissions on the facts that Your Honour should find in the case. It might be worth considering making interim orders for a fixed period and that the Court revisit the question of contact at a later time, perhaps after the Expert report is available.
Key Legal Topics
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Civil Procedure
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Administrative Law
Legal Concepts
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Judicial Review
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Standing
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Procedural Fairness
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Natural Justice
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