WILEY & WOMACK
[2020] FCCA 1021
•7 May 2020
FEDERAL CIRCUIT COURT OF AUSTRALIA
| WILEY & WOMACK | [2020] FCCA 1021 |
| Catchwords: FAMILY LAW – Interim parenting – where father violent and struggled with past mental health and drug abuse issues – where mother likewise struggled with past mental health and drug abuse issues – risk of harm assessment. |
| Legislation: Family Law Act 1975 (Cth), ss.60B, 60CA, 60CC, 61DA, 65DAA. |
| Cases cited: Goode & Goode [2006] FamCA 1346 |
| Applicant: | MR WILEY |
| Respondent: | MS WOMACK |
| File Number: | WOC 1066 of 2019 |
| Judgment of: | Judge Altobelli |
| Hearing date: | 3 April 2020 |
| Date of Last Submission: | 3 April 2020 |
| Delivered at: | Wollongong |
| Delivered on: | 7 May 2020 |
REPRESENTATION
| Solicitors for the Applicant: | Carter Ferguson |
| Solicitors for the Respondent: | MDV Family Lawyers |
| Solicitors for the Independent Children's Lawyer: | Walkden Law & Mediation |
ORDERS PENDING FURTHER ORDER
The Children X born … 2014 and Y born … 2017 (“the Children”) live with the Mother.
Subject to the Father’s compliance with Order 19 below and provided that he provides a normal drug screen report, the Children spend time with the Father as agreed in writing between the parties and failing agreement as follows:
(a)Each Tuesday from 3.30pm to 6.30pm;
(b)Each alternate Saturday from 10.00am to 2.00pm;
(c)On Father’s Day from 10.00am to 2.00pm;
(d)On Boxing Day from 10.00am to 2.00pm.
The Father’s time in Order 2 above is to be supervised by the paternal aunt Ms A Wiley.
Prior to the Father spending time with the Children the Father’s legal representatives will file undertakings signed by the paternal aunt approved by the Independent Children Lawyers setting out the supervisors’ obligations when supervising the Children.
The Father’s supervised time is only to occur at the supervisor’s residential address and the Children are to remain at the supervisor’s residential address whilst they are spending time with the Father.
Only the supervisor is permitted to the collect the Children from the Mother’s residence address at the commencement of the Father’s time and the supervisor will return the Children to the Mother’s residence address at the conclusion of the Father’s time.
The Father is restrained under Section 68B from the following:
(a)Approaching the Mother’s premises;
(b)Approaching the Children or the Mother when not spending time with the Children in accordance with these orders;
(c)The Father is to do his best endeavours to remove himself from the Mother or the Children’s presence if he is not spending time with the Children;
(d)Approach the Children’s pre-school or school or an address that the Father suspects the Children may be attending from time to time unless it is accordance with these orders.
The Mother shall ensure that the Father is kept informed of:
(a)any medical problems or illnesses suffered by the Children while in the Mother’s care;
(b)any medication that has been prescribed for the Children;
(c)the residential address of the Mother and particulars of the others who may reside with the Children;
(d)any other matter relevant to the Children’s welfare.
For the purposes of communicating information between the parties the Mother will communicate with the Father using the assistance of one of the supervisors and the Father will communicate with the Mother using the assistance of one of the supervisors’ and shall:
(a)communicate by telephone matters of an urgent nature and otherwise;
(b)communicate by email about day to day matters including arrangements for each party to spend time with the Children.
Each party refrain from making critical or derogatory remarks in relation to the other parent or their family in the presence or hearing of the Children and that each party do all things necessary to ensure that no third party makes critical comments about the other party or their family in the presence or hearing of the Children.
Each party advise the other party and keep the other party advised of their current address and contact telephone numbers (including both landline and mobile phone number if applicable) and advised the other party of any changes to these details within seven days of such change occurring.
The Mother is to inform the Father in writing as soon as practical of any specialist medical appointments with any specialist medical practitioner, psychologist, psychiatrist, counsellor or therapist (hereinafter referred to as “consultant’) in relation to the Children.
The Mother is do all acts and things to ensure that the Father is provided with all reports by any such consultant.
Within 14 days of these orders and within 14 days of the Children’s subsequent enrolment at any pre-school or school the Mother do all acts and things and give all irrevocable authorities necessary to ensure that whichever school the Children may attend from time to time, that pre-school or school forward directly to the Father copies of all of each Child’s school reports and merit cards, any written material pertaining to each Child’s academic and extra-curricular activities.
During any period referred to in these orders, in the event of the Children being hospitalised or receiving medical attention, the parent spending time with the Children shall notify the other parent as soon as practicable after the first contact with either the medical practitioner, medical centre or hospital.
Either parent notify the other parent and the Independent Children’s Lawyer in the event that he/she is incapable of caring for the Children, whether due to hospitalisation or other reason.
For a period of 12 months from the date of these Orders:
(a)The Mother and Father are to submit themselves to urine analysis on request of the Independent Children’s lawyers under supervision;
(b)Such urine analysis is conducted in accordance with the Australian/New Zealand Standard 4308:2001: Procedure for the collection, detection and quantitation of drugs of abuse in urine;
(c)The parties will do all things necessary to authorise their medical practitioner to immediately provide to the other party’s nominated legal representative or if they are unrepresented direct to the party and a copy to the Independent Children’s Lawyer;
(d)If the Father’s copy of the urine report has a positive or abnormal drug screening report then the Father’s time will be suspended until the Father can provide the Independent Children’s Lawyer will a normal drug screening report;
(e)If the Mother provides two consecutive copies of urine reports which have a positive or abnormal drug screening the Independent Children’s Lawyer has liberty to relist the matter with 7 days’ notice.
The Father forthwith enrols in and complete a course designed to promote drug abstinence and provide written evidence of the enrolment and successful completion of such course to the Mother within 14 days of such enrolment and/or completion.
THE COURT FURTHER ORDERS THAT:
Within 72 hours, The Father undertake (by provision of urine screen in accordance with the Australian/NZ standard 4308:2008 or any subsequent approved standard) chain of custody urinalysis for drug screening and provide copies of the results of the tests to the other party within 48 hours of receipt of same.
Liberty is granted to the Independent Children’s Lawyer to re-list the matter on 7 days notice by application to the Court in Chambers in appropriate circumstances.
Pursuant to section 62G(2) of the Family Law Act 1975 the parties and the child of the relationship attend upon a Family Consultant nominated by the Manager, Child Dispute Services on a date and at times to be advised for the purposes of the preparation of a Family Report and in particular:
(a)to consider the factors in sections 60CC and 65DAA of the Family Law Act1975;
(b)to consider issues raised in the Family Consultant’s Memorandum to Court;
(c)to profile the parents (and other significant adults);
(d)to assess the parents interactions (and those of other significant adults);
(e)to assess the children’s developmental and emotional state;
(f)to assess the relationship of the children to the parents (and other significant persons);
(g)to ascertain the wishes of the children unless inappropriate by reason of age or other special circumstance;
(h)to assess the proposed and actual home environments; and
(i)to assess the proposals of each party as to the children’s future.
The Family Consultant is granted leave to inspect all documents produced in response to Subpoena.
If the Family Consultant is unable to inspect documents produced in response to Subpoena at the Wollongong Registry of the Commonwealth Law Courts, the Registry Manager upon receiving a request from the Family Consultant, is to forward such documents to the Registry nominated by such consultant to permit such inspection.
The report be released by 14 May 2021, if practicable, and unless otherwise arranged with Chambers.
Upon the Report being provided to the Court, the Court will provide a copy to each party (or if represented the party’s lawyer) and to any Independent Children’s Lawyer in the proceedings.
Unless a party objects, in writing, within 14 days of the date of releasing the Report, copies of the Report may further be provided to the following, if the Court is requested to do so for a purpose related to the care, welfare or development of the Child/ren to whom these proceedings relate:
(a)a Children’s Court;
(b)a child protection authority;
(c)a State or Territory legal aid authority; and
(d)a convener of any legal dispute resolution conference.
Unless otherwise ordered, no person shall release the Report, or provide access to the Report to any other person.
Following release of the Family Report and prior to the adjourned date, the parties file and serve a minute of final order sought by each of them as to parenting.
The matter be adjourned to 28 May 2021 at 9:30am for Mention. The parties must attend Court in person with their legal representatives if the Report is available prior to the adjourned date.
IT IS NOTED that publication of this judgment under the pseudonym Wiley & Womack is approved pursuant to s.121(9)(g) of the Family Law Act 1975 (Cth).
| FEDERAL CIRCUIT COURT OF AUSTRALIA AT WOLLONGONG |
WOC 1066 of 2019
| MR WILEY |
Applicant
And
| MS WOMACK |
Respondent
REASONS FOR JUDGMENT
Introduction
This case is about two children, X, who is nearly 6, and his sister, Y, who is nearly 3 ½ years old. The children currently live with their mother and are not spending time with their father. These Reasons for Judgment explain the orders that the Court has made for the children to spend time with their father, pending further order.
Background
The Case Outline filed on 1 April 2020, on behalf of the Independent Children’s Lawyer contains a very useful chronology that draws from the evidence of both the parents, as well as documents that were subsequently tendered by the Independent Children’s Lawyer. The chronology is reproduced in the first schedule to these reasons. The matters of background set out below are largely drawn from this chronology.
The children’s father is 28 years old, describes himself as a labourer, and lives in Region B of New South Wales. The Mother is 24 years old. She describes herself as a support worker, and also lives in Region B area of New South Wales. The parents formed a relationship in 2013, commenced cohabitation in about 2016 and separated for the last time in 2017. Nothing turns on the dates referred to. Before the parents formed a relationship, and certainly afterwards, they both had tumultuous and difficult lives. The Mother struggled with her mental health, and the Father used drugs, became involved in the drug culture which led to criminal activity, was charged and convicted of multiple offences, and served a custodial sentence.
During the parents relationship an ADVO was made against the Father, which he contravened and which resulted to his conviction, and another period of incarceration. The Father began to struggle with his own mental health, and drank heavily.
After separation the Mother became concerned about the Father’s ability to look after the children. This created further tension in the relationship between the parents. The Father wanted to spend time with the children. The Mother resisted this, or placed conditions on it, and this antagonised the Father.
After the final separation there were periods when the Father spent time with the children, mainly X, initially unsupervised, but later supervised. There was a period when the paternal grandmother was supervising the Father’s time, but this ceased partly because of her own decision, but partly because the Mother seems to have lost confidence in her.
There was an incident in October 2019 during the Father’s supervised time with the children at Family Centre C. Whilst the Father’s time with the children appears to have proceeded relatively satisfactorily, the parents argued, and the evidence makes clear that the Mother kicked him in the shin.
For all practical purposes, there has been no contact or communication between the Father and the children since October 2019. In December 2019 the Mother’s mental health deteriorated, and she spent some time in hospital. During this period the maternal grandmother cared for the children.
As mentioned above, the matters of background set out in these reasons so far are drawn from the Independent Children’s Lawyer’s chronology. There is, however, other background which the Court believes it can safely rely on because of the source of the information. For example, in the Independent Children’s Lawyer’s tender bundle (tendered without objection) there is a wealth of reliable material found in the business records of various professionals and the New South Wales Police. By way of summary a study of these documents enables the Court to conclude as follows.
The Mother has, indeed, suffered from mental health issues since she was a teenager. She has been on medication for many years. She has consulted doctors, psychiatrists, psychologists and counsellors. Her diagnoses include major depression, obsessive compulsive disorder, anxiety and possible bipolar disorder. As recently as last year there were concerns about the Mother self-harming and the maternal grandmother reported the Mother to say irrational things.
It is clear from the Mother’s own medical records that she was a heavy user of marijuana before her mental health admission in December 2019, which is in strong contrast to her disclosed marijuana use in her Affidavit. Notwithstanding the Mother’s mental health concerns, more recently she appears well supported, is taking her medication, and is in regular contact with her treating doctors. The Mother’s vulnerability, due to her mental health issues, as well as the risk of relapse, are issues for the Court to consider as part of its risk assessment.
The documents produced by New South Wales Police confirms why his own solicitor described the Father’s criminal history in submissions as appalling. Many of his convictions seem to be related to drug use, but there are also quite serious charges in relation to firearms and theft. There is ample basis for the Court to form the preliminary impression that the Mother’s allegations of family violence have some substance.
The clinical notes, in relation to the Father, confirm his own struggle with mental health over the years, much of which seems to have been related to, or certainly exacerbated by, heavy drug use.
The Father’s evidence hints at, but does not properly disclose, his criminal history and drug abuse, as well as his struggle with mental health. To his credit, however, his contention that since his last release from jail he has improved his life is consistent with the objective material before the Court. He has managed to hold down what would appear to be a responsible job for a number of years.
There are two significant concerns from the Court’s perspective, however. The first is that there is objective reason to be concerned about the Father’s ongoing drug use, probably marijuana. He himself admitted usage in 2019, and then in 2020. He then failed to comply with orders for drug testing. He provides explanations for this in his affidavit, but they are, with respect, hollow. The other significant concern, from the Court’s perspective, is that the Father seems to struggle at times controlling his own emotions. For example, when he last saw the children at Family Centre C, in the presence of the Mother and his sister, he became angry and lost control of his emotions. To use language that the Father will himself understand, he “lost it”. To his credit, he took himself away from the children. He seems to have regained his composure quite quickly. The Court hopes that he can understand why the Court will be concerned about this. If he “loses it” every time he doesn’t agree with what is happening between the Mother and himself, he will find increasing limitations on his time with his children, not less. It doesn’t matter whose fault it is. Parents are expected to control themselves, in front of their children.
Nonetheless, the Father presents as someone who very much wants to have a relationship with his children, who he dearly loves.
Further useful background can be gleaned from the Mother’s own evidence. It is clear, for example, that she stood by the Father, knowing of his drug abuse, and criminal activities. She was well aware that the Father had what she described as “…serious issues with controlling his anger”. She was aware of his heavy drinking. Much to the Mother’s credit, and despite the Father’s incarcerations, and subsequent Apprehended Violence Orders, she facilitated the children spending time with him, often going to the great trouble of varying the Apprehended Violence Orders, so that this could take place. She persisted, for a long time, because she felt that it was important for the children to have a relationship with their father. She insisted on separation, when her concerns about the Father became increasingly serious. She had experienced difficulties with the paternal grandmother supervising. She was willing to include the paternal aunt, Ms A Wiley, to supervise. From her perspective, and again to use language that the Court hopes she will understand, the “straw that broke the camel’s back” took place at Family Centre C. The parents argued. The Father became enraged, according to her. She kicked him in the shins. He left. It was deeply distressing for both parents, on any account of this incident. The Court has been critical of the Father for not being able to contain his emotion, but the Mother’s actions in assaulting the Father, in a public place, does nothing to reassure the Court about her ability to manage her emotions.
With this background, the Court will now consider the competing proposals.
Competing Proposals
The Father initially proposed that the children would live with their mother, and spend time with him on the following basis. For one month his time would be supervised by the paternal grandmother, and it would be Tuesdays and Thursdays from 3:30pm to 6:30pm, and alternate Saturdays 9:00am to 4:00pm. After one month, at which time it would be unsupervised, it would be Wednesdays 3:30pm to 6:30pm, and alternate Saturday 9:00am to Sunday 500pm. Thereafter, and in effect this means from two months after the making of the order, the children would spend time with him each Wednesday from 3:30pm to 6:30pm, and alternate weekends from Friday to Sunday. With great respect to the Father, and perhaps even those representing him, his proposal was ambitious to say the least. This is particularly the case in relation to Y who has spent far less time with her father than her brother X. It was unsurprising, therefore, that during submissions his solicitor indicated to the Court that as an alternative, the Father would accept the Independent Children’s Lawyer’s proposal, which will be discussed below. Having regard to the matters of background set out above, what the Court will consider as the inevitable abandonment of the Father’s initial proposal to be entirely appropriate.
The Mother proposed that the children live with her, and spend time with the Father at a supervised contact centre at Town D. She made this proposal knowing that the current Covid-19 pandemic meant that this service was not taking new clients and was, at best, providing a limited supervised contact service using video conference. No evidence was led in this regard, except through the maternal. The Mother also sought a number of injunctions and an order for hair and CDT testing.
The Independent Children’s Lawyer proposed that the children live with their mother, and spend time with their father on Tuesdays 3:30pm to 6:30pm, and alternate Saturdays 10:00am to 2:00pm, all supervised by the paternal grandmother or the paternal aunt.
The Evidence Before The Court
The Father relied on the following documents:
a)Initiating Application filed 20 September 2019;
b)Affidavit of Mr Wiley filed 1 April 2020;
c)Affidavit of Mr Wiley filed 3 April 2020;
d)Affidavit of Ms E Wiley filed 1 April 2020;
e)Affidavit of Ms A Wiley filed 1 April 2020; and
f)Case Outline Document filed 1 April 2020.
The Mother relied on the following documents:
a)Response to Initiating Application filed 16 January 2020;
b)Affidavit of Ms Womack filed 16 January 2020; and
c)Case Outline Document filed 1 April 2020.
The Independent Children’s Lawyer relied his Case Outline Document filed 1 April 2020.
The following material was tendered as evidence during the course of the proceedings:
a)The Independent Children’s Lawyer’s Tender Bundle; and
b)The Child Dispute Conference Memorandum dated 30 January 2020.
The Applicable Law
The applicable law is found in Part VII of the Family Law Act 1975 (Cth) (hereafter referred to as ‘the Act’). In determining parenting matters under Part VII of the Act the Court must regard the best interests of the child as the paramount consideration: s.60CA.
The objects and principles of Part VII are set out at s.60B:
60B Objects of Part and principles underlying it
(1) The objects of this Part are to ensure that the best interests of children are met by:
(a) ensuring that children have the benefit of both of their parents having a meaningful involvement in their lives, to the maximum extent consistent with the best interests of the child; and
(b) protecting children from physical or psychological harm from being subjected to, or exposed to, abuse, neglect or family violence; and
(c) ensuring that children receive adequate and proper parenting to help them achieve their full potential; and
(d) ensuring that parents fulfil their duties, and meet their responsibilities, concerning the care, welfare and development of their children.
(2) The principles underlying these objects are that (except when it is or would be contrary to a child’s best interests):
(a) children have the right to know and be cared for by both their parents, regardless of whether their parents are married, separated, have never married or have never lived together; and
(b) children have a right to spend time on a regular basis with, and communicate on a regular basis with, both their parents and other people significant to their care, welfare and development (such as grandparents and other relatives); and
(c) parents jointly share duties and responsibilities concerning the care, welfare and development of their children; and
(d) parents should agree about the future parenting of their children; and
(e) children have a right to enjoy their culture (including the right to enjoy that culture with other people who share that culture).
(3) For the purposes of subparagraph (2)(e), an Aboriginal child’s or Torres Strait Islander child’s right to enjoy his or her Aboriginal or Torres Strait Islander culture includes the right:
(a) to maintain a connection with that culture; and
(b) to have the support, opportunity and encouragement necessary:
(i) to explore the full extent of that culture, consistent with the child’s age and developmental level and the child’s views; and
(ii) to develop a positive appreciation of that culture.
At the very core of Part VII of the Act is the creation of a presumption of equal shared parental responsibility in s.61DA. Section 61DA provides:
61DA Presumption of equal shared parental responsibility when making parenting orders
(1) When making a parenting order in relation to a child, the court must apply a presumption that it is in the best interests of the child for the child’s parents to have equal shared parental responsibility for the child.
(2) The presumption does not apply if there are reasonable grounds to believe that a parent of the child (or a person who lives with a parent of the child) has engaged in:
(a) abuse of the child or another child who, at the time, was a member of the parent’s family (or that other person’s family); or
(b) family violence.
(3) When the court is making an interim order, the presumption applies unless the court considers that it would not be appropriate in the circumstances for the presumption to be applied when making that order.
(4) The presumption may be rebutted by evidence that satisfies the court that it would not be in the best interests of the child for the child’s parents to have equal shared parental responsibility for the child.
If the presumption applies, the Court is required to consider certain things:
65DAA Court to consider child spending equal time or substantial and significant time with each parent in certain circumstances
Equal time
(1) If a parenting order provides (or is to provide) that a child’s parents are to have equal shared parental responsibility for the child, the court must:
(a) consider whether the child spending equal time with each of the parents would be in the best interests of the child; and
(b) consider whether the child spending equal time with each of the parents is reasonably practicable; and
(c) if it is, consider making an order to provide (or including a provision in the order) for the child to spend equal time with each of the parents.
Substantial and significant time
(2) If:
(a) a parenting order provides (or is to provide) that a child’s parents are to have equal shared parental responsibility for the child; and
(b) the court does not make an order (or include a provision in the order) for the child to spend equal time with each of the parents; and
the court must:
(c) consider whether the child spending substantial and significant time with each of the parents would be in the best interests of the child; and
(d) consider whether the child spending substantial and significant time with each of the parents is reasonably practicable; and
(e) if it is, consider making an order to provide (or including a provision in the order) for the child to spend substantial and significant time with each of the parents.
(3) will be taken to spend substantial and significant time with a parent only if:
(a) the time the child spends with the parent includes both:
(i) days that fall on weekends and holidays; and
(ii) days that do not fall on weekends or holidays; and
(b) the time the child spends with the parent allows the parent to be involved in:
(i) the child’s daily routine; and
(ii) occasions and events that are of particular significance to the child; and
(c) the time the child spends with the parent allows the child to be involved in occasions and events that are of special significance to the parent.
(4) Subsection (3) does not limit the other matters to which a court can have regard in determining whether the time a child spends with a parent would be substantial and significant.
Reasonable practicality
(5) In determining for the purposes of subsections (1) and (2) whether it is reasonably practicable for a child to spend equal time, or substantial and significant time, with each of the child’s parents, the court must have regard to:
(a) how far apart the parents live from each other; and
(b) the parents’ current and future capacity to implement an arrangement for the child spending equal time, or substantial and significant time, with each of the parents; and
(c) the parents’ current and future capacity to communicate with each other and resolve difficulties that might arise in implementing an arrangement of that kind; and
(d) the impact that an arrangement of that kind would have on the child; and
(e) such other matters as the court considers relevant.
Because s.65DAA refers to the best interests of the child the Court must then go back to consider s.60CC which specifies how the Court must determine what is in a child’s best interests.
Determining child's best interests
(1) Subject to subsection (5), in determining what is in the child's best interests, the court must consider the matters set out in subsections (2) and (3).
Primary considerations
(2) The primary considerations are:
(a) the benefit to the child of having a meaningful relationship with both of the child's parents; and
(b) the need to protect the child from physical or psychological harm from being subjected to, or exposed to, abuse, neglect or family violence.
Note: Making these considerations the primary ones is consistent with the objects of this Part set out in paragraphs 60B(1)(a) and (b).
(2A) In applying the considerations set out in subsection (2), the court is to give greater weight to the consideration set out in paragraph (2)(b).
Additional considerations
(3) Additional considerations are:
(a) any views expressed by the child and any factors (such as the child's maturity or level of understanding) that the court thinks are relevant to the weight it should give to the child's views;
(b) the nature of the relationship of the child with:
(i) each of the child's parents; and
(ii) other persons (including any grandparent or other relative of the child);
(c) the extent to which each of the child's parents has taken, or failed to take, the opportunity:
(i) to participate in making decisions about major long-term issues in relation to the child; and
(ii) to spend time with the child; and
(iii) to communicate with the child;
(ca) the extent to which each of the child's parents has fulfilled, or failed to fulfil, the parent's obligations to maintain the child;
(d) the likely effect of any changes in the child's circumstances, including the likely effect on the child of any separation from:
(i) either of his or her parents; or
(ii) any other child, or other person (including any grandparent or other relative of the child), with whom he or she has been living;
(e) the practical difficulty and expense of a child spending time with and communicating with a parent and whether that difficulty or expense will substantially affect the child's right to maintain personal relations and direct contact with both parents on a regular basis;
(f) the capacity of:
(i) each of the child's parents; and
(ii) any other person (including any grandparent or other relative of the child);
to provide for the needs of the child, including emotional and intellectual needs;
(g) the maturity, sex, lifestyle and background (including lifestyle, culture and traditions) of the child and of either of the child's parents, and any other characteristics of the child that the court thinks are relevant;
(h) if the child is an Aboriginal child or a Torres Strait Islander child:
(i) the child's right to enjoy his or her Aboriginal or Torres Strait Islander culture (including the right to enjoy that culture with other people who share that culture); and
(ii) the likely impact any proposed parenting order under this Part will have on that right;
(i) the attitude to the child, and to the responsibilities of parenthood, demonstrated by each of the child's parents;
(j) any family violence involving the child or a member of the child's family;
(k) if a family violence order applies, or has applied, to the child or a member of the child's family--any relevant inferences that can be drawn from the order, taking into account the following:
(i) the nature of the order;
(ii) the circumstances in which the order was made;
(iii) any evidence admitted in proceedings for the order;
(iv) any findings made by the court in, or in proceedings for, the order;
(v) any other relevant matter;
(l) whether it would be preferable to make the order that would be least likely to lead to the institution of further proceedings in relation to the child;
(m) any other fact or circumstance that the court thinks is relevant.
The Case Law
In MRR v GR [2010] HCA 4, the High Court referred to s.65DAA(1) and said
9. Each of sub-ss (1)(b) and (2)(d) of s 65DAA require the Court to consider whether it is reasonably practicable for the child to spend equal time or substantial and significant time with each of the parents. It is clearly intended that the Court determine that question. Sub-section (5) provides in that respect that the Court "must have regard" to certain matters, such as how far apart the parents live from each other and their capacity to implement the arrangement in question, and "such other matters as the court considers relevant", "[i]n determining for the purposes of subsections (1) and (2) whether it is reasonably practicable for a child to spend equal time, or substantial and significant time, with each of the child's parents".
A little later in the judgment the High Court said:
13. Section 65DAA(1) is expressed in imperative terms. It obliges the Court to consider both the question whether it is in the best interests of the child to spend equal time with each of the parents (par (a)) and the question whether it is reasonably practicable that the child spend equal time with each of them (par (b)). It is only where both questions are answered in the affirmative that consideration may be given, under par (c), to the making of an order.
At [15] the High Court emphasised the need for a practical approach:
15. Section 65DAA(1) is concerned with the reality of the situation of the parents and the child, not whether it is desirable that there be equal time spent by the child with each parent. The presumption in s 61DA(1) is not determinative of the questions arising under s 65DAA(1). Section 65DAA(1)(b) requires a practical assessment of whether equal time parenting is feasible.
The Full Court’s decision in Goode & Goode [2006] FamCA 1346 provides some guidance about the interpretation of Part VII and the way to proceed in interim hearings.
68. In our view some of the comments of the Full Court in paragraph 18 are still apposite. For example, the procedure for making interim parenting orders will continue to be an abridged process where the scope of the enquiry is “significantly curtailed”. Where the Court cannot make findings of fact it should not be drawn into issues of fact or matters relating to the merits of the substantive case where findings are not possible. The Court also looks to the less contentious matters, such as the agreed facts and issues not in dispute and would have regard to the care arrangements prior to separation, the current circumstances of the parties and their children, and the parties’ respective proposals for the future.
…
72. In our view, it can be fairly said there is a legislative intent evinced in favour of substantial involvement of both parents in their children’s lives, both as to parental responsibility and as to time spent with children, subject to the need to protect children from harm, from abuse and family violence and provided it is in their best interests and reasonably practicable. This means where there is a status quo or well settled environment, instead of simply preserving it, unless there are protective or other significant best interests concerns for the child, the Court must follow the structure of the Act and consider accepting, where applicable, equal or significant involvement by both parents in the care arrangements for the child.
…
82. In an interim case that would involve the following:
(a) identifying the competing proposals of the parties;
(b) identifying the issues in dispute in the interim hearing;
(c) identifying any agreed or uncontested relevant facts;
(d) considering the matters in s 60CC that are relevant and, if possible, making findings about them (in interim proceedings there may be little uncontested evidence to enable more than a limited consideration of these matters to take place);
(e) deciding whether the presumption in s 61DA that equal shared parental responsibility is in the best interests of the child applies or does not apply because there are reasonable grounds to believe there has been abuse of the child or family violence or, in an interim matter, the Court does not consider it appropriate to apply the presumption;
(f) if the presumption does apply, deciding whether it is rebutted because application of it would not be in the child’s best interests;
(g) if the presumption applies and is not rebutted, considering making an order that the child spend equal time with the parents unless it is contrary to the child’s best interests as a result of consideration of one or more of the matters in s 60CC, or impracticable;
(h) if equal time is found not to be in the child’s best interests, considering making an order that the child spend substantial and significant time as defined in s 65DAA(3) with the parents, unless contrary to the child’s best interests as a result of consideration of one or more of the matters in s 60CC, or impracticable;
(i) if neither equal time nor substantial and significant time is considered to be in the best interests of the child, then making such orders in the discretion of the Court that are in the best interests of the child, as a result of consideration of one or more of the matters in s 60CC;
(j) if the presumption is not applied or is rebutted, then making such order as is in the best interests of the child, as a result of consideration of one or more of the matters in s 60CC; and
(k) even then the Court may need to consider equal time or substantial and significant time, especially if one of the parties has sought it or, even if neither has sought it, if the Court considers after affording procedural fairness to the parties it to be in the best interests of the child.
The Child Dispute Conference Memorandum
The parents attended a Child Dispute Conference on 30 January 2020. The Family Consultant noted at paragraph 9 the time between the children and their father has been intermittent and sporadic. The Father was frustrated that there had been a pattern of his time with the children breaking down, principally because of parental disagreement. The Mother explained that she wanted the children to know, and have an involvement with their father, and supported supervised time with a view to this becoming extended and unsupervised, provided there was reassurance about the Father’s health and behaviour. Curiously, having regard to the Interim Hearing, at paragraph 15, under the heading Agreements Reached, the Family Consultant stated:
Both parents seem to have similar ideas long term regarding arrangements and to varying degrees, support that time between Mr Wiley and the children needs to be gradually re-established. Ms Womack, however, would like reassurance regarding Mr Wiley’s mental health before she is comfortable with arrangements.
Discussion
At one level, and if one were to allow the background of both parents to fade into the background, the Child Dispute Conference Memorandum, and the purported agreement reached, all bid well for the parents. Clearly something happened between the Child Dispute Conference, and the time of the Interim Hearing. The Father’s original ambit claim, to call a “spade a spade”, was hardly the gradual re‑establishment of his time with the children, which is how his case was presented. Equally troubling, was the Mother seeming intransigence about anything except supervised professional contact, which is somewhat inconsistent with what she told the Family Consultant. Both parents retreated into their metaphorical “corners”. Only the Independent Children’s Lawyer was the voice of reason.
The problem in the Father’s case, as foreshadowed above, is that the suggestion of only one month’s supervision and then a rapid progression to overnight time, was plainly implausible on the evidence before the Court. Even if the Court is prepared to accept that his mental health concerns are under control, his own admissions about recent drug use, his failure to provide drug tests, and what seems to be his ongoing struggle with maintaining his own emotions, all strongly contraindicate a progression to unsupervised time.
The problem with the Mother’s case, which seemed to insist on supervised contact at a centre whose services have been drastically curtailed as a result of the COVID‑19 pandemic, is that it does not explain why she was willing to allow the Father to spend supervised time, including where the supervision was provided by the paternal aunt, and the paternal grandmother. What has happened, the Court asks itself, since the children’s last supervised visit with their father, which would justify the imposition of a professional supervised contact service, which would not in any event be available for the foreseeable future? The answer seems to be nothing. On any objective view of the evidence, the risk of the harm considerations pertaining to the Father since his time with the children ceased have not changed. Curiously, if anything, the risk profile to the children from the Mother’s mental health has changed, but there was no issue that the children would remain living with her. The Court accepts that part of the Mother’s case is that X’s wellbeing has improved since he has ceased spending time with his father. The Court cannot place reliance on the evidence that she relied on in this regard. For example, the Court does not know what information the Mother placed before Dr F or Dr G. Moreover, the Court does not know the impact on X and Y of their mother’s own mental health struggles, including the period of her hospitalisation.
The real issue seems to be the Mother’s belief that the Father’s family are not suitable supervisors because they have shown, in accordance with the Mother’s Case Outline, that they are unable to prioritise the needs of the children over the Father, or are unable to control the Father’s erratic behaviour. When that submission is subjected to critical scrutiny by reference to the evidence, the cessation of the Father’s time with the children occurred because of the parents’ behaviour, and not because of anything the supervisor did or did not do. The parents argued. The Father was unable to control his emotions. The Mother assaulted the Father. All of this took place in the presence of supervisors and, moreover, in a public place where not only were the children in the vicinity, but so were many other children. For the Mother to assert that, for example, the paternal aunt Ms A Wiley is not suitable as a supervisor is untenable, with great respect. The Court accepts the Independent Children’s Lawyer’s submission that, when all of the evidence is considered about what happened on that fateful day, it was the paternal aunt Ms A Wiley who was the most child‑focused, and both parents who were least child‑focused. What happened on that day is that Ms A Wiley prioritised the needs of the children over both the Father’s and the Mother’s, and neither parent was able to control their own erratic behaviour. What is clear is that these parents must not be allowed to come into contact with each other.
The Mother’s case for not trusting the paternal grandmother is a stronger one, than that relating to the paternal aunt. The Mother’s concerns are based on more than one incident, and in any event the absence of any evidence from the paternal grandmother makes it hard to assess her suitability as a supervisor. Accordingly, the Court can see no reason for the unsuitability of Ms A Wiley, the paternal aunt, as supervisor of the Father’s time with the children. The Independent Children’s Lawyer will, no doubt, require her to enter into a rigorous undertaking in relation to supervision as a precondition of time taking place.
The Court does not accept the somewhat belated proposal made on behalf of the Mother, perhaps on the initiative of the maternal grandmother, that the latter would supervise videoconference time between the children and their father. Firstly, this proposal was formulated late in the piece, without supporting evidence, and could be characterised as having a somewhat unofficial flavour. In any event, the need for the Father’s time with the children to be supervised and to only take place by videoconference is not established on the evidence.
Orders in the Best Interests of the Children
The Court will use as its template the orders proposed by the Independent Children’s Lawyer. In Order 3, the Father’s time is to be supervised by the paternal aunt only, not the paternal grandmother. The Court appreciates that these orders impose a substantial burden on the paternal aunt, but her evidence suggests that she is willing to take this on.
The Court notes that the Independent Children’s Lawyer’s orders provide for random urine testing, of both parents. The need for both parents to be tested is plainly apparent from the evidence, as both parents have used cannabis in recent months. In the Mother’s case, in the period before her admission, her cannabis use was extremely heavy. The Court accepts the need for the Father’s time to be suspended if his drug test is positive. However, the Court is concerned about the Father’s failure to provide drug tests pursuant to existing orders. The Court finds it curious, for example, that at paragraph 44 of the Father’s Affidavit filed 1 April 2020, he deposes to his ability to work flexible hours so that he can spend time with the children, but apparently this flexibility has not extended in the past to being able to do drug tests when ordered. What that suggests to the Court is that the Father prioritises his work, over obtaining a drug test. The Orders will therefore provide that until the Father provides a clear drug test, his time with the children does not commence. One of the Orders that the Court will make is that the Father provides a sample for drug‑testing purposes within 72 hours. Assuming that is clear, the Father’s time with the children can commence immediately afterwards. The onus is on him.
The Court duly notes that the Mother sought orders for CDT testing. The Court declines to make this order in circumstances where there is no recent evidence of excessive alcohol use. The Court has no doubt that one of the conditions of supervision that will be required by the Independent Children’s Lawyer is that the paternal aunt not allow the time to take place if the Father seems to be under the influence of either drugs or alcohol. The Court notes that the Mother also sought an Order for hair testing. The Court does not see the benefit of this, in circumstances where an order for ongoing urinalysis has been made.
In terms of the future conduct of this matter, a Family Report will be ordered to take into account the matters raised in the Child Dispute Conference Memorandum of 30 January 2020 and the usual matters under the Act. The Independent Children’s Lawyer will have leave to relist on seven days’ notice.
The Court will be particularly concerned if the Father is unable to consistently comply with these Orders. No doubt the Independent Children’s Lawyer will be vigilant in this regard.
I certify that the preceding forty-six (46) paragraphs are a true copy of the reasons for judgment of Judge Altobelli
Associate:
Date: 7 May 2020
Schedule One
Chronology prepared by the Independent Children’s Lawyer
| Date | Event | Evidence |
| ICL = ICL Tender Bundle | ||
| … 1991 | The father is born. | F1 |
| … 1996 | The mother is born. | F2 |
| 2006 | The father makes admissions he started using drugs and has taken cocaine, ecstasy, cannabis and ICE. | F20, ICL page 61 |
| 2011 | The mother was diagnosed with PSTD and take medication. | M132-133, ICL page 6 |
| 2013 | The parties formed a relationship. | F3 |
| … 2014 | The child X was born. | M6 |
| The mother alleges the father was very absent from the child’s life. | M7 | |
| The mother alleges found a small bag at her front gate which she believes was ICE. | M8 | |
| 2014 | The mother alleges the father was stopped by police and charge with firearm offences. | M 9, ICL page 59 |
| Police executed a search warrant on the father’s premises and the father was charged with multiple offences. | M10, ICL page 59, 48 | |
| 2015 | The father served a custodial sentence. | M13, F21-22, ICL Page 39 |
| Feb 2016 | Upon the father’s release the mother alleges that they moved into together. | M15 |
| The father makes admissions in relating to breach the AVDO. | F32, ICL 46 | |
| Mid 2016 | The mother alleges the father was taking prescription medical for diagnosed schizophrenia. | M17, ICL 85 |
| The father makes admissions in relation to medical conditions. ` | F25 | |
| The mother alleges the father was unable to control his tempter. | M18-19 | |
| The mother alleges the father would block her from leaving the room. | M20 | |
| The mother alleges the father would arguing with her about the child X treatment. | M21 | |
| The mother alleges the father drank heavily. | M22 | |
| 4 Sept 2016 | The mother alleges the father was using a metho candle to get high. | M23 |
| 29 Sept 2016 | The mother alleges the father smoked cannabis. | M4 |
| The mother alleges the relationship broke down. | M25-27 | |
| … 2017 | The child Y was born. | |
| 9 March 2017 | The mother alleges the father hit the child X on the leg during a nappy change. | M28 |
| 18 Aug 2017 | The mother alleges the parties separated for the final time. The mother alleges she asked the father to move out of the home but he refused. | M29 |
| 5 Sept 2017 | The mother alleges she sent a text message to the father stating that he would have to find someone else to live. | M30 |
| The mother alleges that after she told the father he left work and followed to the mother around. | M31-34 | |
| The mother alleges that the father then made threats to take the child X from pre-school and was following her and driving in a dangerous matter. | M35-37 | |
| The mother alleges she arrived at the pre-school together and incident occurred at the centre. Police called. | M37-39 | |
| The police took out an interim AVDO for the protection of the mother and children. COPS …. | M40, ICL page 44 & 55 | |
| The mother alleges the father called her over 150 times during the next 3 days. | M41 | |
| 8 Sept 2017 | The mother alleges the father attended the mother’s address. The police arrived a short time later and served them AVDO on the father. | M43-46 |
| The father makes admissions in relation to breaching the AVDO. | F33 | |
| The mother alleges she maintain a relation with the paternal family. | M47 | |
| 15 Sept | The mother alleges the father and her came to arrangement where he was able to communicate with the children each day between 4.00pm and 7.00pm and X to attend the father’s farm each Sunday from 11.30am to 3.00pm. | M49 |
| Annexure to the father’s affidavit is a copy of the parenting plan. | ||
| The father alleges he spent time with the child X at the farm on Saturday. | F6 | |
| The father alleges he spent time with the child X overnight but the mother would regularly stop time. | F8 | |
| The mother alleges the arrangements only worked for short period of time due the father continuous contacting her. | M50 | |
| The father alleges the mother just stopped time without warning. | F11 | |
| 25 Nov 2017 | The mother alleges the father made a telephone call out the front her home. | M52 |
| The mother alleges the father was speaking to the child X inappropriately and so the mother stopped communication. | M53-55 | |
| 2 Dec 2017 | The mother alleges the father threat to come to her place and she notified the police. The father over the next few days made hundreds of telephone call to her mobile. | M56-57 |
| 3 Dec 2017 | The mother alleges she left the premises due to fear. | M58 |
| The father was arrested. | F24 | |
| 8 Dec 2017 | The mother returned home after the father was in custody. | M59 |
| 15 Dec 2017 | The father was released on bail. | M59 |
| The father alleges the last time he seen the children was late in December 2017. | F12 | |
| 3 Jan 2018 | The mother had to have surgery and left the children with her mother. | M60 |
| Feb 2018 | The mother alleges she offered the father supervised time with the children. | M62 |
| April 2018 | The mother alleges the father started having communication with the children facilitated by the mother’s brother. | M63 |
| 7 June 2018 | The mother agreed to father spending time with X from 11.30am to 3.00pm. | M64 |
| The child X started seeing Dr G a psychologist. | M127 | |
| 12 June 2018 | The child X started seeing a Dr F in relation to his behaviour. | M126 |
| 16 June 2018 | The father spent supervised time with the child X. | M65 |
| The mother alleges the child Y did not spend time with the father because he did not have a relationship with the child. | M 66-67 | |
| July 2018 | The time had increased with X but very slowly with Y. | M68 |
| Mid July 2018 | The mother offered to take children and the father to see the paternal family and the mother alleges the father’s behaviour was inappropriate. | M69-71 |
| 30 July 2018 | The mother alleges the child X burnt his hand in the company of the father. | M72-73 |
| The mother alleges she was concerned about the father ringing the child X continuously, manner in which he spoke to the child and his health. | M74-76 | |
| 7 Oct 2018 | The mother alleges that the father contacted her about a friend called H. The mother alleges she then went to collect the child X. The father had concerns the child was trying to make himself vomit. | M 80-83 |
| The mother alleges after the telephone call from the father about the friend H she stopped unsupervised time. | M84-85 | |
| 9 Oct 2018 | The mother made arrangement for the child to be supervised by the paternal grandmother. | M86 |
| The mother was concerned that the paternal grandmother was not supervising the father’s time. | M87-92 | |
| The father alleges the paternal grandmother took the children over to the farm to play with her other grandchildren. | F12 | |
| 7 Jan 2019 | The mother alleges she had argument with the paternal grandmother and the supervised time with stopped. | M94 |
| 15 Feb 2019 | The mother alleges she was approached by the father at the shopping centre to recommence time. | M99-100 |
| March 2019 | The mother alleges she invited the paternal grandmother to talk about her spending time with the children. | M102 |
| April 2019 | The mother alleges she received an invitation to mediation. | M103 |
| The father alleges the mediation did not go ahead. | F15 | |
| 24 May 2019 | The father alleges he attempted to contact the mother about spending time with X on his birthday with a negative result. | F18 |
| 25 May 2019 | The paternal grandmother spent time with the children. | M107 |
| 14 June 2019 | The father makes admissions in relation to providing a positive drug sample for cannabis. | F27 |
| 1 July 2019 | Parties attend mediation. | M105-106 |
| 31 Aug 2019 | The paternal grandmother spent time with the children. | M108 |
| 14 Sept 2019 | The father’s AVDO expired. | M109 |
| 5 Oct2019 | The father spend time with the children without incident. | M111 |
| This time was followed by agreement for more time at Family Centre C. | M112 | |
| The mother alleges that the father spoke to her about parenting plan. This led to the mother kicking the father in the shin. The father was locked out of the premises. | M113-123 | |
| 14 Oct 2019 | The mother alleges the father attempted to contact her. | |
| 27 Oct 2019 | The mother has no contact with the father. | |
| The mother alleges that the child X has stopped having nightmares and terrors since the father’s time has stopped. | M128-130 | |
| Dec 2019 | The mother consulted her Dr I in relation to her health | M134-136 |
| 6 Dec 2019 | The mother self-admitted to hospital and the children were left with her mother. | 137-139 |
| 16 Dec 2019 | The mother was discharged from hospital. The admission was to try different medication and part of mental health plan. | M140-143 |
| 20 Dec 2019 | The children came back into the mother’s care. | M144-146 |
Key Legal Topics
Areas of Law
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Family Law
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Evidence
Legal Concepts
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Expert Evidence
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Procedural Fairness
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