WYRICK & VENCEL

[2018] FCCA 731

FEDERAL CIRCUIT COURT OF AUSTRALIA

WYRICK & VENCEL [2018] FCCA 731

Catchwords:
FAMILY LAW – Interim parenting – Risk assessment exercise – Role of grandparents in managing risks.

Legislation:

Family Law Act 1975, ss.60B, 60CC, 60CG, 61DA and 65DAA.

Mental Health (Forensic Provisions) Act 1990, s.32.

Cases cited:

Goode & Goode [2006] FamCA 1346
MRR v GR [2010] HCA 4

Applicant: MS WYRICK

Respondent: MR VENCEL

File Number: WOC 61 of 2018

Judgment of: Judge Altobelli

Hearing date: 15 March 2018

Date of Last Submission: 15 March 2018

Delivered at: Wollongong

Delivered on: 3 May 2018

REPRESENTATION

Solicitors for the Applicant: MDV Family Lawyers

Counsel for the Respondent: Mr Richards

Solicitors for the Respondent: Micheal Conley Lawyers

THE COURT ORDERS PENDING FURTHER ORDER THAT:

(1)The child, [X] born on … 2017 live with the Mother at the Maternal Grandparents residence at A Street, Suburb B.

(2)The child spend time with the Father as follows:

(a)Each week from 8:00am to 6:00pm each Tuesday in the presence of the paternal grandmother or paternal grandfather.

(b)Each week from 8:00am to 6:00pm on Wednesday in the presence of the paternal grandmother or paternal grandfather;

(c)By Skype or Facetime between 5:30pm and 6:00pm on Friday and Sunday, with the mother to contact the father only;

(d)On Easter Sunday from 9:00am until 4:00pm;

(e)On Orthodox Easter from 9:00am until 4:00pm;

(f)At all other times as agreed between the parties in writing.

(3)For the purposes of changeover, the parties will collect and deliver the child to Location C. Either party may ask a family friend or a grandparent to be present.

(4)Each of the parents shall provide the other with information as soon as possible upon the happening of the following:

(a)Any medical emergency involving the child including but not limited to serious illness, accident or hospitalisation;

(b)Events related to the general health of the child including but not limited to medical appointments, test results, progress reports (notice of appointments to be provided as soon as practicable following the making of such appointment;

(c)Each parent is to keep the other informed of their contact residential telephone and/or mobile numbers and are to advise of any changes to their contact number within 24 hours.

(5)Each party will not denigrate the other parent in the presence of the child and to the child.

(6)Each party is hereby restrained (without admission) from:

(a)Physically disciplining the child;

(b)Assaulting, molesting, harassing, threatening or otherwise interfering with the other parent of the child;

(c)Engaging in conduct that intimidates the other parent or the child;

(d)Stalking the other parent;

(e)Entering or remaining at the other parent’s residence;

(f)Removing or taking the child contrary to these orders;

(g)Contacting the other parent other than for the purpose of implementing these orders.

THE COURT FURTHER ORDERS THAT:

(7)Pursuant to section 68L of the Family Law Act 1975 an Independent Children’s Lawyer be appointed for the child [X] born on 22 January 2017 and the Legal Aid Commission of New South Wales is requested to provide such representation.

(8)The parties are to provide to the Legal Aid Commission at PO Box K847, HAYMARKET NSW 1238 or DX 5 SYDNEY forthwith all documents thus far filed by them in these proceedings together with all existing orders and copies of any relevant reports.

(9)Leave be granted to the Independent Children’s Lawyer to issue such additional subpoena as they consider relevant to the issues before the Court.

(10)Leave be granted to the Independent Children’s Lawyer to inspect and photocopy any documents produced on subpoena in these proceedings. 

(11)Leave be granted to the Independent Children’s Lawyer to relist the matter on short notice by communication with Chambers in appropriate circumstances.

(12)The matter be adjourned to 13 July 2018 at 9:30am for Mention.

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

FEDERAL CIRCUIT COURT
OF AUSTRALIA
AT Wollongong

WOC 61 of 2018

MS WYRICK

Applicant

And

MR VENCEL

Respondent

REASONS FOR JUDGMENT

Introduction

1.This case is about a child, [X], born … 2017.  [X] is one year old.  These reasons for judgment explain why the Court has decided, pending further order, that [X] should continue to live with his Mother, but at the home of the Maternal Grandparents.

Background

2.[X]’s Mother is 27 years old, and his Father 28 years old.  The parents lived together for about two years, between about October 2015 and October 2017.  Both the Paternal and Maternal Grandparents have been involved in [X]’s life, particularly after separation when, for periods of time, they shared his care.  Both of [X]’s parents appear to have struggled with difficulties in their lives, most of which existed before they commenced their relationship, but some of which were exacerbated by the relationship and the subsequent birth of [X].  The parents primarily lived in the Town D region.  The Paternal Grandparents also live there, and the Maternal Grandparents live in Sydney, but not a considerable distance away.

3.The overall impression formed from the totality of the evidence before the Court is that whilst there were happy periods during the parental relationship, there were also many unhappy periods.  Indeed, at times, and perhaps more so from the date of separation, the parental relationship was a tumultuous one.

4.The Mother’s application to this Court was filed on 22 January 2018, and first came before the Court on 30 January 2018.  The main issue at the time was that [X] had been retained by his Father.  Thus, the interim order she sought included a recovery order.  [X] appears to have been returned to his Mother’s care by 30 January.  On 13 March 2018, the matter was listed for interim hearing and consent orders were entered into that provided for the Father to spend time with [X], in the presence of the Paternal Grandparents.

The Competing Proposals

5.By the time the interim hearing on 15 March 2018, the Mother’s proposal was that [X] continue to live with her, but at the home of the Maternal Grandparents.  [X] would spend time with the Father, on Tuesdays and Wednesdays, weekly, between 8am to 6pm, but in the presence of the Paternal Grandmother or Paternal Grandfather.  In addition, the Father would have Skype or Facetime with [X].  The interim order also provided for time on special days.  The precise orders sought by the Applicant Mother are reproduced in the first schedule to these reasons.

6.The Father’s proposal was contained in his Amended Response filed 14 March 2018.  In short, he proposed that [X] live with the Paternal Grandparents, and that each parent spend time with [X] in accordance with the detailed proposal that he made.  It is significant to record that he was proposing that [X] spend time with him, between 9am Tuesday and 9am Thursday each week, with the paternal grandparents to supervise.  The Court notes, however, that at all relevant times, the Father has been living with his parents.  Conversely, the Father proposed that the Mother’s time with the children be limited to daytime only, and take place in the presence of the paternal Grandparents, or another person agreed to or a qualified professional supervisor.

7.By way of an Application in a Case filed 14 March 2018, the Paternal Grandparents sought orders in relation to [X].  In effect, the proposal was identical to that of the Father’s.

8.Thus the Mother proposed that [X] continue to live with her, albeit with her at the home of the Maternal Grandparents, whereas both the Father, and the Paternal Grandparents, proposed that [X] live with the Paternal Grandparents.

9.Because of the haste in which the proceedings came before the Court for an interim hearing, no Independent Children’s Lawyer had been appointed for [X] as yet.  It was common ground between all parties that one was required in this case, and that is one of the orders that the Court will be making.

Issues

10.Mr Richards, of Counsel, appeared on behalf of the Father and the Paternal Grandparents.  He submitted, quite correctly the Court notes, that the main issue in this case was about managing the risk of harm that [X] faces, whether in the care of his Father or his Mother.  He submitted that the interim hearing was, in effect, a risk assessment exercise.  The focus of the submissions, therefore, was on risk assessment and management.  Ms Oliver, who appeared for the Mother, did not cavil with the proposition that the main issue was risk, but she submitted there was no risk in the Mother’s care, provided the Mother lived with the Maternal Grandparents.

11.The Court records its appreciation to the parties’ lawyers for their realistic approach to this case.  The Mother accepted that there was a measure of risk to [X] in her care, and that is why she proposed that [X] live with her, but at the home of, and therefore with, the Maternal Grandparents.  Likewise, the Father accepted that there were risk of harm considerations if [X] were to be in his care, and that is why he proposed that, in fact, [X] live with the Paternal Grandparents.  In many respects, the task for the Court was to find an order that is in the best interests of [X], but which represents the scenario where there is the least risk to him.

12.At the conclusion of the interim hearing, and fearing that there might be a delay in producing the present reasons for judgment, and whilst also conscious of the fact that there were no continuing arrangements for [X] to spend time with his Father and/or the Paternal Grandparents, the Court made interim orders.  The Court was satisfied that, pending the making of further interim orders and delivery of these reason for judgment, the orders were in [X]’s best interests, and adequately managed the risk issues that clearly were found to exist.

The Evidence

13.The Mother relied on the following material:

a)Initiating Application filed 22 January 2018;

b)Affidavit of Ms Wyrick affirmed 18 January 2018;

c)Affidavit of Ms Wyrick affirmed 9 March 2018;

d)Affidavit of Ms Wyrick affirmed 15 March 2018;

e)Affidavit of Ms A Wyrick affirmed 15 March 2018; and

f)Affidavit of Mr B Wyrick affirmed 15 March 2018.

14.The Father relied on the following material:

a)Amended Response filed 14 March 2018;

b)The Paternal Grandparent’s Application in a Case filed 14 March 2018;

c)Affidavit of Mr Vencel filed 14 March 2018;

d)Affidavit of Mr A Vencel filed 14 March 2018; and

e)Affidavit of Ms B Vencel filed 9 March 2018

15.The following documents were tendered:

Date	Exhibit No.	Tendered by (eg. A/W, R/H)	Description of Exhibit/MFI
15.3.18	R1	R/F	Email from Applicant solicitor
A1	A/M	NSW police
R2	R/F	Medical Centre E
R3	R/F	Town F Hospital

The Applicable Law

16.The applicable law is, of course, Part VII of the Family Law Act (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.

17.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.

18.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.

19.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.

20.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

21.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".

22.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.

23.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.

24.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 Cases Outlined

25.The case advanced on the behalf of the Paternal Grandparents and the Father was, in essence, that both the Father and Mother in their own right presented risk issues for [X] but the Paternal Grandparents offered absolutely no risk to him.  It is significant that the risk presented by the Father was acknowledged.  Even the joint proposal reflected that the Father’s time with [X] needed to be in the presence of his parents, at least for a period of three months.  The precise risk that the Father presented to [X] was assumed, rather than articulated.  It was a judicious assumption to make.  The evidence before the Court is replete with documents that raise concerns about the Father’s mental stability, and which strongly suggests that he has been violent towards the Mother, sometimes in the presence of [X].  This, it should be noted, was in fact the Mother’s case about the Father.  Suffice it to say that there are objective concerns for the Father’s mental health, and that a strong impression is formed about the violence he perpetrated to the Mother.  In the circumstances, greater significance will be placed on the extent to which the Paternal Grandparents understand the risk that their own son presents to [X]’s safety and well-being.

26.The Mother’s case, shortly stated, is that whilst there have been past concerns about the Mother’s health which impacted on her ability to adequately provide for [X].  The mental health issues she was confronting in the past have now dissipated, implicitly because of the end of the relationship with the Father. In any event, the Mother’s proposal that she live with the Maternal grandparents adequately provides a safety net in terms of [X]’s welfare.  The Mother submits she has been [X]’s main carer for most of his life, and thus the order that she proposes will provide the continuity of care that he has experienced so far in his life.

Risk of Harm in the Mother’s Care?

27.The Father and Paternal Grandparents’ case emphasised the instability of the Mother’s mental health.  Extensive medical and psychological records were available to the Court that related to this issue.  Objectively, the Mother has struggled with her mental health in the past.  The year 2013 was probably the nadir of this.  She continued to struggle in the years thereafter, but a study of the notes and records draw an increasingly stronger link between her struggles, and the tumultuous relationship that she was experiencing with the Father, which included family violence.  The more recent records, however, paint a different picture.  In 2017, there are entries which suggest that the Mother was struggling with parenting.  The Mother’s psychologist’s file suggests, for example, that by the second half of 2017, the Mother was increasingly relying on her parents to assist her with the care of [X].  How it could be contended that that is not an appropriate way to deal with her health struggles is hard to understand.  The Mother’s actions suggest a sufficient insight into her own need to draw on an appropriate resource.

28.The most recent records, however, present a positive picture of the Mother’s mental health.  Her last recorded attendance with her psychologist was 14 February 2018.  The record records:  “Nil risk evident”.  The document contains the following relevant records, presumably of what the Mother told her psychologist:

“Ms Wyrick reported that her mood had been largely stable; she felt that she was appropriately sad or worried about specific situations and stressors, and this did not feel like depressive or anxiety disorder.

Ms Wyrick reported that [X] is currently being primarily cared for by her parents, as she works to find long-term stable accommodation for herself.

Noted increase in confidence, increase in stability of mood, improved ability to trust others..  Ms Wyrick reported feeling a sense of ‘power’ and ability to affect change, which she previously has not felt.

…She was proud of how she had handled recent stressors, felt confident that she could handle stressors in the future, felt she was coping with life.”

29.Even the preceding record of her attendance with her psychologist, 14 November 2017, creates the impression of a mother who was aware of the issues she was facing.  She is recorded as having reported “that she has asked her parents to care for [X] while the situation at home is volatile.”  Further, “Ms Wyrick reported that, at present, she feels that she needs substantial support in caring for [X], and is utilising her family for this.”

30.A common feature of the preceding records is the psychologist’s observation that  “Nil risk evident.”

31.The overall impression formed by these records is that whatever the Mother’s mental health might have been in 2013, the crisis was well and truly over by 2017, and while she continued to suffer stressors, by early 2018, she seemed to be in a much better place mentally.  By late 2017, the Mother was, appropriately in the view of this Court, using the assistance of the Maternal Grandparents in caring for [X].

32.On the evidence before it, the Court is of the view that there is actually no risk of harm in the Mother’s care.  The fact that both the Mother and [X] are now living with the Maternal grandparents is an additional safety net for both of them, and confirms the Court’s view that, pending further hearing, there is no risk of harm if [X] continues to live with his Mother.

Risk of Harm in the Father’s Care?

33.The Court has taken the view that the proposals made by the Paternal Grandparents and the Father himself, implicitly recognise that there are risk issues associated with [X] spending unsupervised time with his Father.  Concerns about the Father’s mental health, and violence, have already been noted.

34.The Court considers it significant that when one of the Father’s breach AVO proceedings came before the Court G, the Court made an order, under section 32 of the Mental Health (Forensic Provisions) Act 1990, which relates to persons suffering from mental illness or condition or cognitive impairment.  Moreover, there is a police record, dated 11 November 2017, recording an attendance by the police at the home of the parents, on 10 November 2017 which, referring to the Father, states as follows:  

“The POI was very manic at the time and paranoid about police in his yard….  The POI has then told police that whilst police were knocking on the front door, he was sitting on his bed contemplating suicide by either stabbing himself or walking out towards police with the knife and be shot by police.  As a result, police called ambulance to attend the location, as the POI was mentally unwell.”

35.There is a clear risk of harm to [X] in the Father’s care.  Is this risk mitigated by him spending time with [X], in the presence of the Paternal Grandparents?  For the Court to be reassured about this, it would expect to see evidence from the Paternal Grandparents demonstrating their awareness of the risk issues.  In the Paternal Grandfather’s affidavit of 9 March 2018, he states at paragraph 16: 

“I’m prepared to assist and supervise Mr Vencel and [X] if necessary, as I have always made myself available, not only to Mr Vencel but to Ms Wyrick as well.  However, I do not believe that Mr Vencel needs any supervision, as he has cared for [X] on his own…”

36.When the Paternal Grandfather made that affidavit, he had not yet brought his own application to the Court for [X] to live with him.

37.The Paternal Grandfather’s affidavit of 14 March 2018, at paragraph 28, contains a similar statement:

“… However, I do not believe that the Father needs any assistance, as he has cared for [X] on his own…”

38.Curiously, the Paternal Grandfather’s affidavit really does not explain why the application is brought by the Paternal Grandparents, rather than adopting a supporting role for their son, the Father in the proceeding.  It is also curious that, at paragraph 26 of the Paternal Grandfather’s affidavit, he acknowledges being aware of what is contained in the documents produced on subpoena, from which he deduces:  “.. I have grave concerns for the Mother’s ability to care for [X]…”  Perhaps he did not see the subpoenaed documents that point so clearly to his son’s own mental health struggles, as well as his record of violence.

39.The Paternal Grandmother’s affidavit of 9 March 2018 contains a statement at paragraph 30:  “I believe that Mr Vencel is very capable of looking after [X] on his own.”

40.It is of concern to the Court that the Paternal Grandparents show such little insight to the risk that their own son poses to [X].  Nonetheless, the Mother’s own proposal is that [X] should spend time with his Father, in the presence of the Paternal Grandparents.  She thus signals a confidence that they will always look after [X].  The Court will go along with this for the time being.  The Independent Children’s Lawyer is free to express independent concerns about this, and to raise it with the Court at a future date.  Putting aside the Paternal Grandparents’ own blindness to the risk posed by their own son, they do present in their evidence as being very committed and caring grandparents.  Indeed, the totality of the evidence leads the Court to conclude that [X] is very lucky to have two sets of grandparents who are so focused on his wellbeing.

The Order in the Best Interests of [X]?

41.This is a risk assessment case.  The assessment of risk set out above points, quite strongly the Court believes, to an order that enables [X] to continue to live with his Mother, albeit with the added protective safety net of living in the Maternal grandparents’ home.  The Father’s proposal is unwarranted, and is a disproportionate response to the risk, as found by this Court.

42.The Court is satisfied that on the Mother’s proposal, which is the one adequately protective of [X], [X] will be able to continue to have a meaningful relationship with his Father, as well as the Paternal Grandparents.

43.There are no issues of practical difficulty and expense in this case.

44.There are issues about parental capacity that will need to be explored further at a final hearing.  The Mother’s capacity to care for [X], supported by her parents, is deemed more than adequate, in the circumstances.

45.The Mother’s proposal is the proposal which, this Court believes, will lead to the least change in [X]’s life.

46.The Mother did not seek an order for sole parental responsibility, and thus one will not be made.  The Paternal Grandparents’ proposal for sole parental responsibility, limited to day to day decisions, is not warranted on the evidence.

47.The Court concludes, having regard to all the evidence, that the interim order it made, after completion of the submissions on 15 March 2018 are, in fact, the orders that are in the best interests of [X], for the time being.

48.An Independent Children’s Lawyer will be appointed. The Independent Children’s Lawyer, together with the parties, are urged to obtain the most appropriate expert evidence in this matter, at the earliest possible time.

49.The Court had considered the possibility of transferring this matter to the Family Court of Australia, but has decided against it, on the basis that the matter should be comfortably contained for four days, and this Registry can offer the certainty of a hearing date in 2019.

I certify that the preceding forty-nine (49) paragraphs are a true copy of the reasons for judgment of Judge Altobelli

Associate: 

Date: 3 May 2018

Schedule 1

The Mother’s Proposed Minute of Order

1.That the child, [X] born on … 2017 live with the Mother at the Maternal Grandparents residence at A Street, Suburb B.

2.That the child spend time with the Father as follows:

a.    Each week from 8:00am to 6:00pm each Tuesday in the presence of     the paternal grandmother or paternal grandfather.

b.    Each week from 8:00am to 6:00pm on Wednesday in the presence of    the paternal grandmother or paternal grandfather;

c.    By Skype or Facetime between 5:30pm and 6:00pm on Friday and   Sunday, with the mother to contact the father only;

d.    On Easter Sunday from 9:00am until 4:00pm;

e.    On Orthodox Easter from 9:00am until 4:00pm;

f.    At all other times as agreed between the parties in writing.

3.For the purposes of changeover, the parties will collect and deliver the child to Location C. Either party may ask a family friend or a grandparent to be present.

4.Each of the parents shall provide the other with information as soon as possible upon the happening of the following:

a.   Any medical emergency involving the child including but not limited to serious illness, accident or hospitalisation;

b.   Events related to the general health of the child including but not limited to medical appointments, test results, progress reports (notice of appointments to be provided as soon as practicable following the making of such appointment;

c.   Each parent is to keep the other informed of their contact residential telephone and/or mobile numbers and are to advise of any changes to their contact number within 24 hours.

5.That each party will not denigrate the other parent in the presence of the child and to the child.

6.Each party is hereby restrained (without admission) from:

a.   Physically disciplining the child;

b.   Assaulting, molesting, harassing, threatening or otherwise interfering with the other parent of the child;

c.   Engaging in conduct that intimidates the other parent or the child;

d.   Stalking the other parent;

e.   Entering or remaining at the other parent’s residence;

f.   Removing or taking the child contrary to these orders;

g.   Contacting the other parent other than for the purpose of implementing these orders.

Schedule 2

The Father’s Proposed Minute of Order

1. Pursuant to Section 68L of the Family Law Act 1975 the Court appoint an Independent Children’s Lawyer to independently represent the interest of the child, [X] born … 2017 (“[X]”).

2. That a Family Consultant be appointed by the Court to inquire into and report in relation to matters relating to the welfare of the child. For the purpose of this report the expert shall consider the following matters in addition to the matters set out at section 60CC (2) and (3) of the Family Law Act 1975:

2.1.If there is any evidence that there has been family violence or abuse by either the Father or Mother and whether the child has been exposed to the family violence;

2.2.   If there is any risk of any further family violence of abuse;

2.3.   The effect of the family violence or abuse on the child;

2.4.   The mental health of both the Mother and the Father;

2.5.Form an independent view, based on the evidence available (including affidavit material), of what is in the best interests of a child, and articulate in a report to the court suggesting the best course of action;

1. That the paternal grandparents will have the sole parental responsibility for making day-to-day decisions concerning the child, which are not major issues, when the child is in their respective care.

2. That the child shall live with the Paternal Grandparents.

   FOR A PERIOD OF THREE MONTHS COMMENCING 13 March 2018 UNTIL 12 JUNE 2018

3. That the child shall spend time with both parents in the presence of the paternal grandparents for a period of three months as follows:

4. With the Father:

   6.1.Each week from 9.00am on Tuesday until 9.00am on Thursday;

   6.2.On Easter Sunday from 9.00am until 5.00pm;

   6.3.By Skype or Face Time on Monday, Friday and Sunday at 5.30pm;

   6.4.On Christmas Day from 9.00am until 1.00pm;

   6.5.At all other times as agreed between the parties in writing.

5. With the Mother in the presence of the paternal grandparents, or other person agreed in writing or any other qualified professional supervisor such as Family Contact Service H:

   7.1.Each week on Saturday from 9.00am until 5.00pm;

   7.2.Each week on Thursday from 9.00am until 5.00pm;

   7.3.On Easter Saturday from 9.00am until 5.00pm;

   7.4.By Skype or Face Time on Tuesday, Wednesday, and Friday at 5.30pm;

   7.5.At all other times as agreed between the parties in writing.

   7.6.On Christmas Day from 1.00pm to 5.00pm;

6. The paternal grandparents shall provide to each parent information as soon as practicable upon the happening of the following:

   8.1.Any medical emergency involving the child including but not limited to serious illness, accident or hospitalisation;

   8.2.Events related to the general health of the child including but not limited to medical appointments, tests results, progress reports (notice of appointments to be provided as soon as practicable following the making of such appointment);

   8.3 Each parent is to keep the paternal grandparents informed of their residential address and contact residential telephone and/or mobile numbers, and provide then with at least twenty one (21) days’ notice of any intention to change their residential address providing particulars of the proposed address. 

7. For the purposes of handover pursuant to Orders 6 and 7 herein the paternal grandparents will collect and deliver the child to Location I. 

8. Neither parent or paternal and maternal grandparents shall remove the child from the Commonwealth of Australia

9. That neither party shall enrol the child in day care until they have obtained the written consent of the other party. The amount of days and times in day care is to be agreed between the parties and the paternal grandparents in writing and the paternal grandparents are to be the only signatories at the day care for the purpose of collection and delivery to day care.

10. That each party (without admission) will not denigrate the other parent in the presence of the child and to the child.

11. Each party is hereby restrained (without admission) from

    13.1.Physically disciplining the child;

    13.2.Engaging in conduct that intimidates the other parent or the child;

    13.3.Stalking the other parent;

    13.4.Entering or remaining in the other parent’s residence;

    13.5.Removing or taking possession of the child contrary to these Orders;

    13.6.Contacting the other parent other than for the purpose of implementing these Orders.

12. That the Mother pay the costs of and incidental to this application.