YAGIN & HARSTAD
[2020] FCCA 1149
•14 May 2020
FEDERAL CIRCUIT COURT OF AUSTRALIA
| YAGIN & HARSTAD | [2020] FCCA 1149 |
| Catchwords: FAMILY LAW – Interim parenting – where each parent makes serious allegations against the other about issues including mental health, family violence and drug use – order that exposes the children to the least risk. |
| Legislation: Family Law Act 1975 (Cth), ss.10E, 60B, 60CA, 60CC, 61DA, 65DAA, 69ZW. |
| Cases cited: Goode & Goode [2006] FamCA 1346 |
| Applicant: | MS YAGIN |
| Respondent: | MR HARSTAD |
| File Number: | WOC 15 of 2020 |
| Judgment of: | Judge Altobelli |
| Hearing date: | 4 May 2020 |
| Date of Last Submission: | 4 May 2020 |
| Delivered at: | Wollongong via AAPT Teleconference |
| Delivered on: | 14 May 2020 |
REPRESENTATION
| Solicitors for the Applicant: | Marriott Oliver Solicitors |
| Solicitors for the Respondent: | Hansons Lawyers |
| Solicitors for the Independent Children's Lawyer: | Bowral Legal |
ORDERS PENDING FURTHER ORDER
All previous parenting Orders be and are hereby discharged.
The Father have sole parental responsibility for the Children X (born in 2016) and Y (born in 2017) (‘the Children’) in relation to the major long term issues including the care, welfare and development of the Children of a long term nature.
The Mother is to deliver the Children or cause the Children to be delivered to the Father’s residence by no later than 5:00pm on the date of these Orders.
The Children live with the Father.
The Father is to reside with the Children at the home of his sister Ms A.
The Children shall spend supervised time with the Mother as follows:
(a)Each Sunday from 12:00pm – 3:00pm;
(b)On Christmas Day from 12:00pm – 3:00pm;
(c)On the Children’s birthdays from 12:00pm – 3:00pm;
(d)On Mother’s Day from 12:00pm – 3:00pm;
(e)On each of the Children’s siblings birthdays from 12:00pm – 3:00pm;
(f)With such time to occur no more than 30 minutes from the Father’s home; and
(g)Supervised by the maternal grandmother and/or maternal grandfather (“the supervisor/s”).
For the purposes of Order 6 above, changeover will occur as follows:-
(a)The supervisor/s shall undertake changeover at the Father’s home by collecting the Children from the Father and delivering the Children to the Father at the front door;
(b)The Mother shall wait in the vehicle and not exit the vehicle at any time;
(c)The Father and the Mother are restrained by injunction from approaching each other during changeover; and
(d)Each party including the supervisor/s will ensure that changeover is facilitated quickly and takes no longer than 5 minutes.
The time in Order 6 shall not commence until an Undertaking is filed (and served on the Father and the Independent Children’s Lawyer) by the maternal grandmother and the maternal grandfather stating that:
(a)They will supervise the time that the Mother spends with the Children in accordance with Order 6;
(b)They will be in attendance during all periods that the Mother spends with the Children and will observe all activities and monitor all discussions between the Mother and the Children and will not be absent during those periods (or they will ensure that the other supervisor is present);
(c)They will intervene as necessary and terminate the time the Mother spends with the Children if they form the view that the Children are at risk of harm in any way, or become distressed;
(d)In the event they terminate a visit they will notify the Father and advise the Father of the reason the visit was terminated; and
(e)They acknowledge that:-
(i)The nature and terms of the Undertaking have been explained to them;
(ii)They promise the Court that they will comply with the terms of the Undertaking;
(iii)The Undertaking has the same effect as an Order of the Court; and
(iv)If they breach the Undertaking, they may be guilty of contempt of Court and may be punished by a fine or imprisonment.
The Mother is restrained by way of injunction from:-
(a)Approaching or coming within 100 metres of any place where the Children might from time to time reside; and
(b)Approaching or coming within 100 metres of any school, after school care of extra-curricular activity which the Children might attend or at which the Children are enrolled.
The Mother and the Father, at the Independent Children’s Lawyer’s request, make an appointment and attend for hair collection at an Australian Workplace Drug Testing Services (“AWDTS”) Clinic or nominee for hair drug purposes. Collection is to be conducted by a qualified and certified collector. Chain-of-custody procedure is to be applied to the sample. Testing is to be conducted at an approved laboratory, accredited to conduct hair drug testing to the recognised International Standard ICO/IEC 17025:2005 by the relevant national accreditation body for that laboratory. Either head or body hair may be collected for testing. To give effect to this Order:
(a)The Father and the Mother are required to maintain their head hair at a length of not less than 4 centimetres. Neither head hair or body hair is to be cut, bleached or dyed between the date of the Order and the time of collection of hair;
(b)Within 72 hours of receiving the request by Independent Children’s Lawyer, the Mother and the Father are required to make an appointment with AWDTS by telephoning ... for the purpose of providing a hair sample for hair drug and/or testing purposes;
(c)Each party or their legal representative is at liberty to provide AWDTS with a copy of these Orders;
(d)The Mother and the Father are to attend an AWDTS Clinic or nominee and submit to the supervised collection of a hair sample at the earliest available appointment time within 7 days of receiving written notice to undertake hair collection for drug testing purposes from the Independent Children’s Lawyer;
(e)Written notice to undertake hair collection for hair drug testing purposes may be sent to the Mother and the Father care of email address and/or text and shall be deemed to have been received by the Mother and/or the Father at the date and time it was sent via email or text;
(f)The Mother and the Father are to provide the collector with photographic identification to be recorded before each hair collection and authority, with this order also hereby authorising AWDTS or nominee to provide the results of each test to both parties, the Father and the Mother and/or their legal representatives and the Independent Children’s Lawyer upon receipt of such test results;
(g)The hair drug and/or alcohol test may screen for alcohol ETG and/or drugs of abuse including amphetamine-type substances and metabolites, cannabis and metabolites, cocaine and metabolites, opioids and metabolites and any other drug specified in this Order as required;
(h)AWDTS is required to utilise the testing services of an appropriate laboratory accredited to conduct hair drug testing to the recognised International Standard ISO/IEC 17025:2005 by the relevant National Accreditation body; AWDTS selection is to be based on the type of test required, the specific drug to be tested, the laboratory’s compliance level with International Society of Hair Testing (“SOHT”) guidelines, cost and time required for results to be made available;
(i)The cost of the hair alcohol and/or drug tests is to be met by each of the parties in relation to their own test;
(j)The Mother and the Father are required to submit to hair alcohol and/or drug testing not more frequently than once per three calendar months from the commencement of these Orders.
In the event that:
(a)A hair alcohol and/or drug test or urine analysis of the Mother or the Father detects a substance referred to in these Orders other than a lawfully obtained current prescription or over the counter medication; or
(b)The Mother or the Father fails to provide a hair sample or urine sample in accordance with these Orders within the time frame provided in these Orders; or
(c)The Mother or the Father’s hair is not maintained as referred to in Order 10(a), then the matter is to be forthwith relisted by communication with Chambers.
The Mother and Father do all things necessary to authorise Laboratory collection worker to immediately provide to the other party or their nominated Legal Representative, a copy of all reports setting out the details of the attendance by the Mother and the Father for analysis, any failure to attend by the Mother or the Father or to submit to any test and an indication of whether the test provided a positive or abnormal alcohol and/or drug screening result.
The Father and the Mother each 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 on no more than one occasion each calendar month and within 48 hours of receipt of a request to do so from the Independent Children’s Lawyer with such request to be communicated by email, SMS communication or facsimile transmission to the Solicitor for the party or the party directly and provide copies of the results of the tests to the other party and the Independent Children’s Lawyer within 48 hours of receipt of same. For the purposes of this order each party if unrepresented shall within 24 hours provide to the Independent Children’s Lawyer details of their mobile phone number, email address if available and facsimile phone number if available.
For the purposes of Orders 10 and 13 above, if at any time the Mother does not comply with a hair drug testing or urinalysis request, provides a drug screen that does not meet the necessary integrity standards for testing or returns a result positive for illicit drugs, amphetamines, opioids and/or benzodiazepines, the Mother’s time with the Children is suspended until the Mother produces one clean relevant drug screen.
On a without admissions basis, the parents are restrained by injunction from:-
(a)Taking, consuming and/or being affected by any illicit substance, alcohol to excess and/or any prescribed substance in excess of the recommended dosage by the parents treating medical practitioner while the Children are in their care;
(b)Exposing the Children to any person who has taken, consumed and/or is affected by any illicit substance or alcohol to excess;
(c)Speaking or permitting any other person to speak to or about the other parent or members of their family in a negative, offensive, threatening or unpleasant fashion in the presence or hearing of the Children;
(d)Discussing any legal proceedings between or involving the parents in the presence or hearing of the Children;
(e)Discussing the parental relationship in the presence or hearing of the Children;
(f)Questioning the Children about their time with the other parent (beyond simple pleasantries when the Children return to their respective care);
(g)Using physical discipline on the Children or allowing any other person to do so;
(h)Verbally abusing the Children;
(i)Calling the Children unpleasant names; and/or
(j)Using the Children to pass messages to the other parent.
The Father is to keep the Mother advised of any general practitioner, medical practitioner and/or medical specialist that the Children attend upon including the reasons for any attendance.
Both parents are to strictly comply with the recommendations made to them by their treating doctors.
All parties have leave to view and inspect only the Court documents on the file held by the Family Court of Australia or Federal Circuit Court of Australia at the Parramatta Registry between the Mother and Mr B.
The matter be adjourned to 6 July 2020 at 9:30am for Mention.
The parties are at liberty to file terms in Chambers for the purposes of orders being made in Chambers in relation to the appointment of a Single Expert Witness.
Liberty is granted to the Independent Children’s Lawyer to re-list the matter on 72 hours’ notice by application to the Court in Chambers in appropriate circumstances.
NOTATIONS
(A)The purpose of the Mention is to explore the issue of expert evidence and to consider whether this Registry remains the most appropriate venue to determine this matter to finality.
IT IS NOTED that publication of this judgment under the pseudonym Yagin & Harstad is approved pursuant to s.121(9)(g) of the Family Law Act 1975 (Cth).
| FEDERAL CIRCUIT COURT OF AUSTRALIA AT WOLLONGONG |
WOC 15 of 2020
| MS YAGIN |
Applicant
And
| MR HARSTAD |
Respondent
REASONS FOR JUDGMENT
These written Reasons for Judgment explain the Orders that the Court has made in this case. It is a very difficult case. Normally the Court would take much longer to consider its decision, and deliver a more fulsome written judgment. In this case, however, after considering all the evidence, the Court decided that a decision needed to be made quickly, and thus these Reasons are being delivered in the present form.
Introduction
This case is about 2 children X who is 3 and his sister Y who is 2. The parents want the Court to make an urgent interim decision about which parent the children should live with, and what time the children should spend with the other parent. The children currently live with their mother and are not spending time with their father, despite an Order to that effect. Both parents lead evidence about, and express serious concerns about the safety of the children in the other parent’s care. There are significant factual differences between the accounts given by each parent and this has made the decision even harder.
The children’s mother is the Applicant. She is 31 years old and lives in the Region C area of New South Wales. The Father is 34 years old, and he lives in a suburb of western Sydney. The parents met in November 2013, but they probably did not start living together until several years later. Nothing turns on these dates. The Mother had previously been in a relationship with another man who will be described in these Reasons as Mr B. She had 4 children to Mr B, who presently live with her, and who are aged between 9 and 13. At the time the parents were forming their relationship it seems as if the Mother was having a difficult separation with Mr B and there were proceedings in the Family Law Courts. The Father, and an Independent Children’s Lawyer in this case are very interested to see the contents of that file as they believe it will assist the Court to form an impression about the risk issues confronting this family. The file was not available at the time of the Interim Hearing but will be made available in the near future. It follows, however, that whatever is in that file could not inform the present decision.
The Mother appears to have had a difficult life. Her childhood was challenging. It is possible that her relationship with Mr B was a difficult one. There is reason to believe that the Mother has struggled with her mental health for a good part of her life. The Mother’s relationship with the Father was also tumultuous. As will be seen they each make serious allegations against the other about family violence, drugs and alcohol, and mental health. It seems as if the Mother struggled with parenting at times.
In October 2019, as the relationship between the parents was heading towards separation, ADVOs were put in place protecting the Mother against the Father, and the Father against the Mother. No final orders have been made, and these are contested. In addition, the Father is facing criminal charges in relation to distributing images of a sexual nature of the Mother. Even after separation, the tumultuous relationship between the parents continued, with the focal point being arguments about the Father’s time with the two children. It is clear from the evidence of both parents that their children have been exposed to the conflict between the parents.
On or about 27 December 2019 the Father took the children away from the Mother, and moved them back in with him where he currently resides. The Mother commenced proceedings in this Court in January and on 28 January 2020 Judge Morley made the interim Orders that the children live with their mother, and spend time with their father on the first two weekends out of each three weekends commencing at 5:30pm on Friday and concluding at 5:00pm on Sunday. The Mother ceased allowing the Father to spend time with the children from about 9 February 2020.
The Interim Hearing in this matter was held on 4 May 2020. It should be noted that this was the first time that the parties had a fulsome opportunity to gather and present their evidence, and it was the first opportunity for the Court to allow proper time for such to be presented, and then considered.
Competing proposals
At the Interim Hearing the competing proposals were as follows. The Mother proposed that the Children continued to live with her, but spend time with their father each alternative weekend for two hours at the E supervised contact Centre in Town D. The precise orders sought by the Mother are set out in her amended Application in a Case filed 30 March 2020. The Father, supported by the Independent Children’s Lawyer, proposed that pending further order he have sole parental responsibility, the children live with him, and spend supervised time with their mother. The orders sought by the Father are set out in his amended case outline document filed 1 May 2020, commencing from page 18.
The evidence before the Court
In the Mother’s case, she relied on the following documents:
a)Amended Application in a Case filed 30 March 2020;
b)Affidavit of Ms Yagin filed 24 January 2020;
c)Affidavit of Ms Yagin filed 30 March 2020;
d)Affidavit of Ms Yagin filed 1 May 2020;
e)Affidavit of Ms F filed 30 March 2020; and
f)Case Outline document filed 1 May 2020.
In the Father’s case, he relied on the following documents:
a)Response to Application in a Case filed 27 April 2020;
b)Affidavit of Mr Harstad filed 27 April 2020;
c)Affidavit of Mr G filed 1 May 2020;
d)Affidavit of Ms H filed 1 May 2020;
e)Affidavit of Ms A filed 1 May 2020; and
f)Amended Case Outline document filed 1 May 2020.
The Independent Children’s Lawyer relied on the following documents:
a)Case Outline document filed 1 May 2020;
b)Summary of Department of Communities and Justice material filed 4 May 2020; and
c)Summary of section 69ZW material filed 31 March 2020.
The following material was tendered as evidence during the course of the proceedings:
a)Child Dispute Conference Memorandum dated 28 February 2020;
b)Tender bundle prepared by the Independent Children’s Lawyer; and
c)Tender bundle prepared on behalf of the Respondent Father.
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 cases summarised
The Mother’s case, shortly summarised, is that the Father presents a risk of harm to the children because of the family violence perpetrated by him towards her, and her children including the children from a previous relationship. She contends that she has been the primary caregiver of the children (a matter that is not seriously put in contention by the Father). The Mother contends that the Father’s violence and aggression continued after separation. The Mother believes that the Father uses illegal drugs. The Mother’s case seems to emphasise that the Father has never taken responsibility for his actions, lacks insight into his violent behaviours, and in fact blames her. The Mother’s case was that the Father’s violence was of a coercive and controlling nature.
The Father’s case, supported by the Independent Children’s Lawyer, shortly summarised, is that it is indeed the Mother who presents a risk of harm to the children because of her long-standing mental health issues, her aggression and family violence, both towards the Father and the children, and her unresolved drug abuse issues.
Each parent denies the others allegation, or inferentially asserts that the allegations are grossly exaggerated.
Discussion
From the Court’s perspective, having reviewed the extensive materials filed on behalf of the parties, and presented from more objective sources such as third-party business records, the strong impression formed is that there is substance to the allegations that each makes against the other.
Indeed, for the purposes of this interim Judgment, this Court will make the assumption that the Mother’s allegations about coercive and controlling violence against the Father are probably true. The Court wishes to emphasise that it is in no position to make this a formal finding. The Court acknowledges the strong arguments that can be made against this by the Father at a Final Hearing as outlined in his case. For present purposes, however, this is expressed as a strong impression and importantly, it is the assumption that the Court makes in framing its decision in this case. The Court has tentatively formed the view that, even if it is incorrect, the Orders that it will make are in the best interests of the children. In no way is the Court seeking to prejudge the final determination of this issue.
The Court has formed an impression from all the evidence that the Mother’s reasons for terminating the Father’s time in February 2020 contrary to the Orders made are groundless. There is no apparent substance to her concerns about the children being returned with bruising, thrush and a chipped tooth. There is an element of opportunism to her actions.
The dilemma for this Court, however, is that it believes that whether the children are living with their father, or with their mother, there is a risk of harm to them. The present exercise is one in risk minimisation, not risk elimination. The Court asks itself, where is the least risk for the children until an expert assessment is obtained and there can be a more rigorous assessment of the evidence at a Final Hearing? There are many other relevant considerations, of course. The impact of change on the children is a very significant one. But if the children are simply not safe where they are, these other considerations are subsumed to safety.
The Court has concluded, for reasons that it will expand on shortly, that there is less risk for the children in their father’s care, than in their mother’s care. The Court recognises upfront that in reaching this conclusion, the outcome for the children will be that they are taken away from their primary carer, subjected to a massive change in their lives, and placed in the care of the Father who does not enjoy the full, unfettered confidence of the Court in terms of his parenting capacity, attitudes, and responsibilities towards parenthood. In many ways, regrettably, the Court has concluded that there would be a greater risk to these children remaining in their mother’s care. The children will be physically and emotionally safe in their father’s care. This is particularly the case if he continues to live with his sister in her family home. The Court has, again regrettably, concluded that the risk to the children deriving from their mother’s mental health is greater than if they were cared for by their father.
In short, the evidence of this is found in the tender bundles advanced in the Father’s case, and in the Independent Children’s Lawyer’s case. This will be reviewed briefly, and then a comparison will be drawn between the Mother’s disclosures about these issues.
The evidence
The documents in the Independent Children’s Lawyer’s tender bundle make it clear that the Mother’s relationship with Mr B, the father of her four older children, was also a dysfunctional one which included family violence, drugs and alcohol. This is significant not just in itself, but because the Mother’s evidence makes it clear that she presented herself as a victim of that family violence, to which her children had been exposed, but which had been perpetrated by the Father in the present case. The manner in which the Mother presented this was to create the strong impression that the Father was exclusively the perpetrator of the violence. Another strong impression from the Mother’s case was the inference that her mental health problems were attributable to or exacerbated by, the family violence perpetrated by the Father in this case. Those impressions cannot, however, be supported by reference to the objective material.
The Mother appears to have had a long history of volatility and mental health issues. These issues clearly predated her relationship with the Father in this case.
In 2006 Police records show that the Mother was feeling suicidal and had cut her wrists with a Stanley knife. Minor lacerations were noted by ambulance officers who attended. She was conveyed to hospital. The record notes that the Mother had been suffering depression for 3 years before this incident and was prescribed Zoloft. There were no children at the time. The Mother makes no reference to this incident in her evidence.
In 2012 Police records indicate that there were at the very least verbal arguments between the Mother and Mr B to which the Police were called.
In 2013 there a Police record of family violence involving the Mother and her partner at the time, Mr B. Police noted that he was heavily intoxicated and admitted to being affected by illicit drugs.
In 2014 there are Police records relating to an incident at changeover between the Mother and Mr B in which the Mother alleges that Mr B made serious threats to her. Also in 2014 there was an incident between Mr B and the Father at the children’s soccer game. A strong impression is created that the separation of the Mother from Mr B was a conflictual one. There is an incident recorded on 16 June 2014 in which the Mother contacted Police seeking an ADVO against Mr B but when the Police declined to act, the records indicate that the Police were met with a barrage of verbal abuse from the Mother.
There is a gap of several years in the chronology between 2014 and early 2017. Of course the Court does not know whether this was a period of stability, or whether there is simply no records.
On 23 February 2017 the Mother’s general practitioner wrote a letter referring the Mother to counselling and noting her long history of depression, previous traumatic events and abuse, and suicide attempts. The context of this referral was the Mother’s experience of postnatal depression after X was born. The records produced by the Area Health District contains a notation, however, that the Mother declined to participate in the counselling offered by the service between February and April 2017. An issue for the Court, of course, is the willingness of the Mother to engage in services to assist her, and to remain consistently engaged.
The Mother’s aggression, which may or may not be related to her mental health issues, is well documented. The Mother has had extensive involvement with the Police. For example, on 13 November 2018 the Police became involved following a verbal altercation between the Mother and a public authority in which the Mother allegedly said: ‘Well I will kill myself and my kids’. When the Police attended the Mother’s house to do a welfare check the COPS records describe the Mother’s erratic, irrational and aggressive behaviour, which all took place whilst she was holding her baby, presumably Y. The Father was recorded as telling the Police that the Mother had not been taking her medication, and had not been to see a healthcare professional for some time.
The Mother sought appropriate mental health assistance this time. In November 2018 her doctor referred her for counselling to a service describing the Mother as having depression, low mood, suicidal thoughts, poor sleep, and previous domestic violence. There is reference to extreme physical abuse with a history of rape and childhood sexual assault. Specifically, in relation to suicidal thoughts, there is reference to thoughts of wanting to drive in front of a truck, although the Mother added she did not feel like she would act on it at present but she does have a will in place and these thoughts are in mind. The Mother makes no specific reference to this in her evidence.
The records indicate that the Mother had aggressive encounters at the school at which her children attended in December 2018 - February 2019. She was eventually excluded from the school grounds. This suggests that despite the referral and possible engagement with the service the Mother continued to be volatile and, indeed, aggressive.
On 3 June 2019 there is a reference in a mental health progress note to the Mother cutting herself last week, in the context of self-harm.
The Mother had a psychiatric review on 12 June 2019 in which the doctor noted that throughout the whole interview she was shouting and yelling. Amongst other things she said that she has a prescription but does not take the medication.
There was an incident at the home on 16 June 2019 in which the Police were called. The Mother claimed that she was the victim of family violence, and told the Police she was having trouble coping with the children and the relationship she was in, and wanted to end her life. The Police record that the Mother told them that she had previously attempted suicide and had been hospitalised for the same. The Mother was taken to Region C Hospital as a mental health patient.
On 25 June, the Mother’s own mental health counsellor made another referral for the Mother having regard to her suicidal ideations. She described her partner at the time, the Father in the present proceedings, as supportive. During the course of the mental health assessment the Mother referred to her domestic violence relationship between 2006 and 2010, in which she had been raped by her partner, broken bones and locked inside the house for four years.
A telephone record of 27 June 2019 noted that the Mother was still having suicidal thoughts, but with no plan or intent.
On 3 July 2019 the Mother attended a face-to-face mental health assessment in which she was observed to be clearly agitated when discussing past abuse, and had reported that her suicidal thoughts worsened since the birth of Y. She indicated that she had recently spent six days trying to research how she could get someone to kill her. She said that she thinks about this daily and feels that her suicidal thoughts will never end because she feels as though her situation is hopeless and she will never get the justice closure to move forward. She reported she was not sleeping, had ruminating thoughts, had no appetite, and had lost 20kg in a matter of weeks.
On 11 July the patient healthcare record of a home visit described the Mother as labile, quickly escalating to distressed and agitated, then would settle again, this cycle continued throughout the engagement, continue to talk about past drama, somewhat incongruent at times, ranting hostile. There is an element of paranoia present with the Mother being recorded as expressing a conspiracy/cover-up in relation to her reports to Police about her ex-husband having been lost, wiped, disappeared.
On 23 July the Mother had a psychiatric review with Dr J at the Region C mental health team. His recorded impression is chronic dysthymia and inability to cope with her life events due to BPD, underlying depression, acute and chronic risks to self-harm and suicide is medium to high due to personality vulnerabilities and difficulty dealing with her life stressors in a positive way.
On 30 July the Mother was reviewed by staff from the Region C mental health team. She reported ongoing suicidal ideation, flatly denied plan or intent, states she has hopes to find someone to “kill me” or to be killed by cancer. She states “I would never do anything to myself because I can’t let my children go to my abusive ex-husband”.
On 31 July during a mental health assessment for the Mother, the maternal grandmother is recorded as stating that she held no current concerns for the children and reported that the Mother is a “…fantastic mother, very attentive to her children’s needs.” This observation is of concern given the matters set out above. The Court is prepared to accept that the maternal grandmother would be protective of her grandchildren. The inference is that the Mother was adept at hiding her mental health struggles from those around her, even her mother.
On 31 July 2019 there is a record from Town D community mental health about a transfer of the Mother’s care back to her GP/VANS as the hospital involvement was worsening the client’s emotional distress and it was more appropriate care through a psychologist.
On 15 August there is a progress note in which she said “I may as well kill myself”. This detailed record is concerning in many respects. The Mother is noted as presenting as histrionic, hysterical and sarcastic. When asked about suicidality the Mother acknowledged ongoing thoughts of suicide, with a plan referring to nice bushwalks in the area at the edge of cliffs and all she has to do is slip. There is reference to the Mother’s inability to engage in meaningful conversation with the author of the record. The note records that the Mother had not engaged with the plan to follow up with her GP for a referral to psychology and psychiatry. She was unable to recognise the negative impact of reliving trauma on her mental health. When the Mother was asked about her engagement with VANS she said that she did not want to go back.
The next day, 16 August, there is a COPS entry of attendance to the family home in relation to a domestic violence incident. The Police discovered the Mother to be highly agitated, irrational and delusional. The ambulance medical notes corroborate that. The Mother was admitted as a mental health outpatient. She was reviewed by the mental health psychiatry registrar and released.
On 21 August 2019 the Region C Hospital records indicate: “limited insight into her own emotional reactions, understands what avenues of care and currently willing to pursue same.”
On 24 October 2019 the Mother was admitted to hospital for jaw pain and the progress notes state that the Mother smoked marijuana.
In November 2019 the Mother had further engagements with mental health professionals. On 6 November, for example, her doctor referred her to the emergency department of Region C hospital, describing the Mother as struggling with outpatient treatment, and as someone who would benefit from urgent mental health psychiatry assessment. The doctor said that the Mother showed symptoms of PTSD, borderline personality disorder and who was diagnosed with manic-depression at age 17.
A mental health assessment on 27 November noted that the children were exposed to emotional and psychological abuse due to the Mother’s volatile and histrionic outbursts, there is reference to suicidal ideation and cutting. When this record is carefully examined, however, it is a record of a communication from the Father, rather than from the Mother. Of concern to the Court, however, is that even though the Mother’s doctor made the referral on 6 November 2019, as referred to above, there is no evidence before the Court, despite the extensive medical records before the Court, that the Mother actually followed through.
In December there is a note of the Mother’s attendance on her doctor on 3 December referring to self-inflicted superficial cuts to the Mother’s wrists. The Father asserts that immediately before this he heard the Mother wailing from the garage, entered the garage to find the Mother covered in blood with a razor blade and blood drops on the ground.
On 27 December 2019 there was a domestic violence incident at the home. The Police records indicate that soon after arriving the Mother was placed under arrest, and she became enraged and had to be physically restrained by the Police.
By way of summary of the above evidence, a strong impression is formed that the Mother struggled with her mental health in 2019, and that at times it was an acute struggle.
Before examining the evidence adduced on these issues in the Mother’s case, the most recent record appears to be one dated 20 April 2020, a Local Health District progress note which was quite positive, and supportive. As will be seen this record of a positive observation needs to be seen in context.
The Court found it of interest that in the orders proposed by the Mother on an interim basis there is an order that the Father undertake a mental health assessment, but absolutely no reference to the Mother’s own mental health issues, the existence of which is palpably obvious, with respect, from the objective material before the Court. In many ways, this epitomises the Mother’s case about her mental health – there is no present issue, and in fact it is the Father who has the mental health issue. In fact, part of her case in support of the Father being controlling and coercive is the manner in which he sought to use mental health allegations against the Mother. In the Mother’s case outline, she contends that the mental health issues have been addressed in her evidence, by way of letters and documents of support from people and organisations with whom she has been involved.
Another interesting feature of the Mother’s affidavit evidence is her lack of consistency, and detail, in addressing and responding to the various factual allegations that the Father makes in relation to her mental health.
An annexure to the Mother’s Affidavit of 1 May 2020 is a letter from a psychologist and social worker dated 1 May 2020. The authors are clearly members of the Whole Family Team at the Region C Local Health District. The Mother’s current status is described as well engaged with clinicians, and still in the process of assessment. The Mother described a history of complex trauma throughout her life starting back at school, a period of severe domestic violence from relationships and an admission due to self-harm as a teenager. The clinicians had attended the Mother’s home and had not observed any signs of drug use in the house and any acute mental health concerns. She was reported as continuing to work with the team, and attending weekly appointments.
There are some obvious difficulties with this document. It is based on the Mother’s own report. There can be no obvious assurance that the clinicians were aware of the mental health history of the Mother as summarised earlier in these Reasons. There is only one reference to self-harm, and that is in the context of the Mother being a teenager.
In the same Affidavit the Mother does depose, however, that since the separation from the Father, the children and she are in a much better situation. She feels supported from the various organisations that she refers to, and has regular meetings with the Department of Communities and Justice. At paragraph 12 she refers to having “completed comprehensive mental health and drug and alcohol assessments” but the only corroborating evidence in this regard is the letter of 1 May 2020 summarised above.
In the Mother’s Affidavit of 18 March 2020 she deals with her mental health commencing from paragraph 34. At paragraph 35 she reiterates that when she has suffered mental anguish it was due to the domestic violence that she was exposed to by the Father. At paragraph 36 she refers to attending her doctor for a mental health care assessment and to the letter produced by her doctor 16 March 2020 which is annexed. That letter contains reference to a provisional diagnosis of Borderline Personality Disorder on 6 November 2019, and a provisional diagnosis of Post-Traumatic Stress Disorder on the same day. Both of these, the Court notes, are quite serious mental health diagnoses, and the Court finds it disconcerting that these diagnoses, from the Mother’s own doctor, receive such little attention in the Mother’s own case.
The Mother deals with her mental health issues in her Affidavit of 23 January 2020. Again she reiterates that she has at times suffered mental health anguish due to the domestic violence perpetrated against herself and the children by the Father, and that she is seeking counselling in that regard. She annexes a number of supporting documents. There is the letter from K Counsellors dated 20 January 2020. This is signed by the family referral worker. What is immediately apparent from this letter is that it is not provided by anyone with apparent mental health expertise, and is entirely based on the Mother’s own self reports. The letter provides little forensic assistance to the Court. There is a letter dated 22 January 2020 signed by a counsellor from the Region C Local Health District. This letter tells the Court that by January 2020 the Mother had attended 10 counselling sessions with the service. A referral was made to the service in early 2019 from her GP. The first appointment was an assessment in June 2019 in which the Mother shared that she had experienced childhood trauma and later on domestic violence as an adult. She refers to the violence perpetrated by the Father. There is a letter from the Mother’s treating doctor dated 22 January 2020 which sets out that the Mother has been attending the clinic for three years and has sought assistance during this time for mental health problems including postnatal depression, PTSD and borderline personality traits. The letter says that the Mother has been the victim of domestic violence and sexual abuse and has been seeking regular counselling. The letter emphasises that the diagnosis of PTSD and Borderline Personality Disorder are currently provisional diagnoses. The last letter comes from L dated 20 January 2020 but it is of little forensic assistance in the Mother’s case. Indeed the fundamental unreliability of this letter becomes apparent by reference to the subpoenaed documents. The intake with L took place on 9 January 2020. She disclosed mental illness, that she had had suicidal ideas or attempted suicide and that she had considered suicide or attempted suicide or self-harm. In relation to a question about self-harm, the Mother indicated “no”, which is clearly inconsistent with other business records. In response to a question about whether her partner had a problem with substance abuse such as alcohol or drugs, she answered “no”. When asked whether she believe that any children at the household risk of harm she said “no”.
Impressions formed from the evidence
The strong impression formed by the Court is that the Mother suffers from a range of mental health concerns in respect of which there is little reassurance that she is properly engaged with the professional services that are available to assist her. An outstanding feature of the Mother’s case in the present interim proceedings is her failure to engage with what the Court considers to be the overwhelming evidence about her mental health struggles over most of her life, but certainly in 2019. The records create the impression that she has not consistently engaged in services where referrals have been made. She is not consistently medication compliant. There is little assurance the Court can receive about the Mother’s willingness to properly and accurately disclose her mental health history to anyone who is there ostensibly to assist her. The Mother’s mental health history contains examples of relapse into poor mental health. Her stressors seem to include dysfunctional personal relationships. There is little basis to support the Mothers fundamental contention in her case that it was the relationship with the Father of the children whose case is before this Court that was the cause of her mental health problems. On any objective examination of the available records, the Mother’s mental health issues predated the relationship with the Father, and her previous relationship with Mr B, the father of her four older children.
The Mother presents as being an unreliable historian about her mental health history. Her unreliability probably extends to consumption of drugs as well. The evidence that she relies on to support her contention about her good mental health is unreliable, having regard to the totality of the evidence before the Court.
The history of the Mother’s mental health raises serious concerns in the Court’s mind about the risk of the Mother relapsing. She has the care of six children. Despite the Mother’s trenchant criticism of the Father, he was at least present to assist with the care of the children. She is now alone but she claims to be supported by Mr B, a previous partner and the father of her four older children, in respect of whom she has also been most critical in the records before the Court. The Mother’s contention that since her relationship with the Father of her two youngest children has ended, the children and herself are in a much better situation is an optimistic statement based on little objective evidence.
The Mother appears not to respect authority figures, even those in helping roles. She abused Police, teachers and her own psychologist. The aggression that she has shown to third parties is disconcerting and presents an obvious risk of harm to her own children.
In these very difficult circumstances, the Father’s proposal provides the greater chance of safety for the two younger children, at least pending further investigation. This safety will be enhanced by requiring him to continue to reside with his sister for the time being.
Conclusion
The Father and Independent Children’s Lawyer propose that the children spend time with their mother for up to 3 hours each week supervised by a contact provider in the Suburb M region of New South Wales at days and times nominated by that provider. As an alternative the proposed orders contemplate supervision by the maternal grandmother and maternal grandfather. From the Court’s perspective, and subject to the supervisors providing an appropriate undertaking, the Court believes this is an appropriate alternative.
Accordingly the Court will make the following Orders based on the Father’s minute of order: Orders 1, 2, 3, 5 - 17, but on the basis that the Orders for hair strand testing and urinalysis testing apply equally to the Father, with requests to be made by the Independent Children’s Lawyer. The Mother is to deliver, or cause the children to be delivered to the Father no later than 5:00pm on the day of making these Orders failing which a recovery order will issue.
The matter will be relisted before me in approximately 6 weeks’ time to review the implementation of these Orders, to explore the issue of expert evidence, and indeed to consider whether this Registry remains the most appropriate venue to determine this matter to finality.
Lastly, the Court provides the following brief reasons for making its rulings in relation to evidentiary objections. The Mother objected to the video and audio recordings contained in the Father’s Affidavit of 27 April 2020. The Court does not accept the Mother’s submissions in this regard, preferring the Father’s submissions as to admissibility. In many respects, the issue is moot because the Court has not relied on this evidence in making the present decision. The Father objected to the Mother’s reliance on records produced by a person who, prima facie, appears to have conducted couples counselling for both parents. Accordingly, this evidence is inadmissible under section 10E of the Act.
I certify that the preceding seventy-eight (78) paragraphs are a true copy of the reasons for judgment of Judge Altobelli
Associate:
Date: 14 May 2020
CORRECTIONS
Reasons for Judgment: Page 2, paragraph 3 amended to show the words “November 2013” in lieu of the words “late 2010”
Reasons for Judgment: Page 17, paragraph 35 amended to show the words “In 2013 there a Police record of family violence involving the Mother and her partner at the time, Mr B. Police noted that he was heavily intoxicated and admitted to being affected by illicit drugs.” In lieu of the words “In 2013 there is the first Police record of family violence between the Mother and the Father. Police noted that the Father was heavily intoxicated and that the Father admitted to being affected by illicit drugs.”
Key Legal Topics
Areas of Law
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Family Law
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Evidence
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Civil Procedure
Legal Concepts
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Natural Justice
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Procedural Fairness
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