Yusupov & Roth
[2024] FedCFamC1F 768
•15 November 2024
FEDERAL CIRCUIT AND FAMILY COURT OF AUSTRALIA
(DIVISION 1)
Yusupov & Roth [2024] FedCFamC1F 768
File number(s): ADC 4166 of 2024 Judgment of: BERMAN J Date of judgment: 15 November 2024 Catchwords: FAMILY LAW – CHILDREN – Interim proceedings – Where the child lived with the mother and spent no time with the father – Where the Department removed the child from the mother’s care – Where the child currently lives with the father and spends limited supervised time with the mother – Where the mother seeks primary care – Consideration of risk – Where the Department highlight significant concerns with respect to both parents – Where the father lives with his mother – Where the Department considers the paternal grandmother to be a protective person – Where evidence cannot be tested on an interim basis – Orders made for the child to remain in the father’s primary care – Consideration of time spending – Consideration of best interests – Where the father concedes the requirement for supervision – Orders made for unsupervised time. Legislation: Family Law Act 1975 (Cth) ss 60B, 60CA, 60CC, 67ZBD
Children and Young People (Safety) Act 2017 (SA) s 41
Cases cited: Deiter & Deiter [2011] FamCAFC 82
Marvel & Marvel (2010) 240 FLR 367
Division: Division 1 First Instance Number of paragraphs: 60 Date of hearing: 11 November 2024 Place: Adelaide Counsel for the Applicant: Mr Janson Solicitor for the Applicant: Janson Lawyers Counsel for the Respondent: Mr Fryer Solicitor for the Respondent: Port Adelaide Lawyers Counsel for the Independent Children's Lawyer: Ms Rieniets Solicitor for the Independent Children's Lawyer: Denise M Rieniets & Associates ORDERS
ADC 4166 of 2024 FEDERAL CIRCUIT AND FAMILY COURT OF AUSTRALIA (DIVISION 1)
BETWEEN: MS YUSUPOV
Applicant
AND: MR ROTH
Respondent
INDEPENDENT CHILDREN'S LAWYER
ORDER MADE BY:
BERMAN J
DATE OF ORDER:
15 NOVEMBER 2024
UNTIL FURTHER ORDER THE COURT ORDERS THAT:
1.X born 2023 (“the child”) live with Mr Roth (“the father”).
2.The child spend time with Ms Yusupov (“the mother”) each Monday, Wednesday and Saturday between the hours of 9.00 am and 5.00 pm.
3.The parties share the decision-making authority with respect to the child’s long-term care, welfare and development.
4.The parties communicate with each other via AppClose or such other method of communication as the parties may agree.
5.Handover take place at such venue as may be agreed between the parties but in default of agreement at the Suburb B Police Station.
6.The parties are restrained and an injunction granted restraining each of them from consuming any illicit drug or substance whilst the child is in their separate care or for a period of twenty four (24) hours prior to the child coming into their separate care.
7.The father forthwith give notice to the mother of any intention to leave the home of Ms C or in circumstances where the father is required to leave the said premises within twelve (12) hours of doing so.
8.Pursuant to s 62G(2) of the Family Law Act 1975 (Cth), the parties and the child attend upon a Court Child Expert nominated and appointed by the Director of Court Children’s Services of the Adelaide Registry for the purposes of the preparation of an expedited Family Assessment Report, at the direction of a Court Child Expert .
9.The proceedings be placed in the list of cases awaiting a First Day Hearing with consideration to be given to the proceedings being expedited.
Note: The form of the order is subject to the entry in the Court’s records.
Note: This copy of the Court’s Reasons for judgment may be subject to review to remedy minor typographical or grammatical errors (r 10.14(b) Federal Circuit and Family Court of Australia (Family Law) Rules 2021 (Cth)), or to record a variation to the order pursuant to r 10.13 Federal Circuit and Family Court of Australia (Family Law) Rules 2021 (Cth).
Part XIVB of the Family Law Act 1975 (Cth) makes it an offence, except in very limited circumstances, to publish an account of proceedings that identify persons, associated persons, or witnesses involved in family law proceedings.
IT IS NOTED that publication of this judgment by this Court under a pseudonym has been approved pursuant to subsection 114Q(2) of the Family Law Act 1975 (Cth).
REASONS FOR JUDGMENT
BERMAN J
INTRODUCTION
Ms Yusupov (“the mother”) and Mr Roth (“the father”) are the parents of X born in 2023 (“the child”). The parties are unable to reach agreement as to the future parenting arrangements for the child.
By Initiating Application filed 28 August 2024, the mother sought an urgent recovery order pursuant to s 67Q of the Family Law Act 1975 (Cth) (“the Act”) for the delivery up of the child in circumstances where following agreement that the child would spend time with the father on 24 August 2024, he advised that as a result of his observation that the child was covered in injuries, he would not be returning the child.
Interlocutory proceedings came before me on 5 September 2024 and following submissions by the mother’s solicitor noting that the father appeared as a self-represented litigant the following orders were made:
1.The proceedings are listed for further hearing at 10.00 am on 6 September 2024.
2.Until further order [the child] do live with the mother.
3.The father forthwith deliver up the child to the mother inside the [Suburb B] Police Station by 2.00 pm on 5 September 2024.
4.That pursuant to s 91B of the Act, the Department for Child Protection (“DCP”) is invited to intervene in this matter and to provide a Report to the Court of any involvement the Department has had with the parties to the proceedings.
On 6 September 2024 the Court was assisted by the appearance of Ms D, the Court’s co-located officer appearing for and on behalf of the Department for Child Protection (“DCP”). Orders were made adjourning the proceedings to 4 October 2024 to enable the Court to be assisted by the appointment of an Independent Children’s Lawyer (“ICL”) given the circumstances of the matter and in particular, as the father was self‑represented and uncertain about when he may obtain and/ or receive a grant from the Legal Services Commission.
On 4 October 2024, the Court received a report prepared by DCP and co-authored by Ms D advising that:
During the period of the adjournment the department has assessed [the child] as safe in the care of the paternal grandmother [Ms C] and the father. At this time the department have concerns regarding [the mother]’s ability to provide safe and attuned care to [the child]. The department understands that [Ms C] intends to become party to the Federal Court proceedings, to formalise her support to the care arrangements.
The report provided a departmental history of involvement with the parties, the subject child and the mother’s four children from previous relationships.
Without attempting to be comprehensive, the mother has had extensive engagement with DCP since 2002. Departmental records indicate a history of injuries to the mother’s other, allegations that she was unable to manage the care of the children and ongoing illicit drug use which at times was excessive.
The mother does not currently have any of her four other children in her care.
The historical concerns include the children being sick, possibly as a result of the state of the mother’s home, at times there was a lack of food and each of the other children are recorded as having substantial school absenteeism.
DCP does not suggest that the mother is overtly abusive and whilst it is likely that she is well meaning, it appears that she lacks insight as to what is required for the ongoing care of her children and at times, it is a concern that she has prioritised personal relationships to the detriment of the children’s needs.
As a result of departmental involvement in 2024, E and the subject child were assessed at being at risk in the mother’s home resulting in a safety plan being put in place which removed E and the subject child from the mother’s care until home supports could be properly engaged.
Even though the mother had the assistance of a community-based organisation and was engaged in a recent Child Wellbeing Program, DCP still considered that the mother was not able to manage the children and keep a functioning household.
The mother sustained injuries as a result of a serious assault and has struggled with Post Traumatic Stress Disorder. Whilst it is acknowledged that the mother has experienced multiple traumatic events, there is the potential for the mother not to act protectively as indicated by the hospitalisation of the child in 2023.
As discussed, departmental workers removed E and the subject child on 2 October 2024 pursuant to s 41 of the Children and Young People (Safety) Act 2017 (SA) (“the CYPS Act”).
The departmental workers observed that whilst the mother was attempting to clean and organise her home, E appeared dysregulated and highly aroused. It was apparent that the mother was not able to control E and that given his hyperactivity, it was not uncommon for E to fall and bruise himself.
DCP considered whether the father was a viable parenting option for the subject child. At the time, the father lived with his mother, Ms C. The departmental workers appeared impressed with the father’s candour as to his history of illicit drug use and it appears that significant weight was given to a negative drug screen conducted in 2024. The departmental workers were also satisfied that Ms C’s home was entirely suitable.
For reasons that will be discussed, it is likely that the father’s continuing residence in the home of his mother was an important consideration in DCP making the decision to place the child in his care.
The father’s Response to Initiating Application filed 24 October 2024 seeks final orders that he have sole decision making responsibility, that the child live with him and spend time with the mother from 9.00 am until 5.00 pm each alternate Saturday.
By way of interim orders, the father seeks that the child remain in his primary care and that the child spend time with the mother for no less than six visits for a period of two hours duration, supervised at a Children’s Contact Service.
At the conclusion of the six supervised visits, the father seeks that the mother obtain an observational report. No other orders are sought, although it is assumed that further consideration might be given at a future court date.
The orders sought by the mother are set out in the Amended Initiating Application filed 3 October 2024. Whilst the mother seeks that the respondent undergo hair follicle drug analysis, a psychiatric assessment and that he enrol into a Men’s Behaviour Change Program, the interlocutory orders sought do not provide for the child to spend any time with the father.
The parties each rely on a Case Outline document. The mother considers that the father presents as a risk to the child and there are aspects in his history that would suggest the Court should take a cautious approach in considering his application for primary care. The mother emphasises that whilst the father’s continued residence in the home of Ms C was a significant factor in allaying the concerns of DCP, Ms C has now made it clear that whilst the father and the child are welcome to remain in her home, she does not intend to intervene in the proceedings nor to seek any parenting orders.
The mother relies upon her affidavit filed 3 October 2024 as representing a sufficient explanation and rebuttal of the concerns expressed by DCP.
For his part, the father asserts that the mother is an unsafe person and he does not accept her explanation as to how the subject child and E sustained multiple injuries to their bodies. The father highlights that when he collected the child in 2024, the house was in a neglected state, the children were without nappies and the subject child appeared lacking in appropriate emotional response.
The ICL places significant weight upon the involvement of DCP and appears persuaded that the removal of the child from the mother’s care was appropriate in all the circumstances with the further observation that the child was placed in the care of the paternal grandmother with the father being present in her home with his seven-year-old daughter, F.
Neither of the parties impress as being competent and caring parents able to provide a risk-free environment that would promote proper care, welfare and development of the child.
The ICL was persuaded by the understanding that the child would reside with the father in the home of Ms C as the determining factor in supporting that the child live with the father and spend time with the mother initially at a Children’s Contact Service.
DEPARTMENTAL INFORMATION
Each of the parties were confronted with serious allegations as to their conduct, behaviour and ability to provide appropriate care for the child. DCP prepared two s 91B reports in 2024 in addition to producing a report subject to an order made pursuant to s 67ZBD of the Act.
As to the father, the departmental information is as follows:[1]
Departmental records indicate that the father has two older children, aged 7-years-old and 5-years-old. The father’s 5-year-old child is under long term guardianship orders. There is child protection history for these children and other non-biological children in relation to the father, with allegations pertaining to: the father exposing children to domestic violence (2014; 2015; 2016; 2017; 2018; 2019; 2020; and 2023); the father misuses alcohol (2015; and 2022); that the father uses illicit substances (2015; 2017; 2018; 2019; 2020; 2022; and 2023); that the father tested positive to [an illicit substance] (2019); that the father tested positive to [another illicit substance] (2019; and 2021); the father had sexual intercourse with [a minor] (2022); the father assaulting a […] child with the child sustaining injuries […] (2022); that the father was emotionally, verbally, and physically abusive towards children (2015; 2017; 2018; 2019; 2020; and 2021; that there were concerns regarding the father not providing basic adequate care to a child (2017; 2018; 2019; and 2020); that there were concerns regarding the father’s residence (2019; and 2020); and that the father physically disciplined his 7-year-old child using [an object] (2024).
Departmental records indicate that the father was the defendant on a Domestic Abuse Intervention Order dated […] 2015, protecting a former partner. The order was revoked [later in] 2015.
Departmental records indicate that the father was the defendant on a Domestic Abuse Intervention Order dated […] 2020, protecting a former partner. The order was revoked [later in] 2020.
[1] Section 67ZBD report dated 2024, page 2.
The departmental information in respect of the mother is as follows:[2]
Departmental records indicate that the mother has four other children, aged 4-years-old, 7-years-old, 13-years-old, and an adult. There is child protection history for these children, pertaining to allegations: that the mother was using [an illicit substance] (2002; and 2023); that the mother had poor mental health (2002); that there were concerns regarding the mother’s parenting capacity (2002; 2003; 2019; 2021; 2022; 2023; and 2024); that the mother exposed the children to domestic violence (2016; 2017; 2021; and 2023); that the mother was verbally abusive towards a child (2015; 2019; and 2023); that the mother was physically abusive towards child (2019 and 2024); that there were concerns regarding the mother’s children’s poor school attendance (2021; 2022; and 2023); the mother not seeking medical treatment for child (2021; and 2022); that there were concerns regarding the mother not providing adequate food for child (2021; and 2022); and that there were concerns regarding the state of the mother’s residence (2021; 2023; and 2024).
[2] Section 67ZBD report dated 2024, page 2.
It is a relevant observation that the affidavit filed in support of the mother’s Application for a recovery order did not set out any of the departmental history that would have been well known to her and demonstrably relevant to enable the Court to have a comprehensive understanding of the family dynamics and the circumstances of each of the parties.
It is of concern that the consequence of the Court being given inadequate information as to the mother’s circumstances resulted in a recovery order being made with the Department then removing the child from the mother’s care.
The father relies upon his affidavit filed 24 October 2024. Whilst he admits that there are allegations made against him arising from the s 67ZBD material, it is his position that the allegations are false and that he was not aware of most of them until he saw the DCP and SAPOL documents.
The father denies the mother’s allegations and the more serious matters that comprise the DCP history.
For her part, the mother then relies upon her affidavit of 5 September 2024 which attempts to place into context her interaction with DCP but in particular, an emphasis that she has endeavoured to follow through in respect of all issues raised by the department. The mother specifically rejects any allegation that she caused or occasioned injury to E or the subject child. As discussed, the mother’s contention is that E is a child prone to hyperactivity such that at times he is not able to be controlled and often falls, takes a tumble or collides with furniture.
INTERIM PARENTING PROCEEDINGS
In Marvel & Marvel (2010) 240 FLR 367 the Full Court considered the manner in which interim parenting proceedings should be considered where there is contested evidence as follows:-
120.As has frequently been emphasised interim parenting proceedings, and orders made as a consequence, are a necessary but temporary measure until all the evidence can be tested, evaluated and weighed at a final hearing by the making of final parenting orders. Decisions judicial officers have to make in interim proceedings are difficult and, often for very good reason, a conservative approach, or one which is likely to avoid harm to a child is adopted. This is often to the understandable distress of a party who may not achieve the outcome he or she desires, or thinks to be in the best interests of their child or children. Interim parenting orders are frequently modified or changed after a final hearing, and any allocation of parental responsibility made at an interim hearing is disregarded at the final hearing: (s 61DB).
…
122.In SS v AH [2010] FamCAFC 13 the majority (Boland and Thackray JJ) discussed at paragraph 88 of their reasons the care necessary to be exercised in making findings in interim parenting proceedings. Their Honours said:
In our view, findings made at an interim hearing should be couched with great circumspection, no matter how firmly a judge’s intuition may suggest that the finding will be borne out after a full testing of the evidence.
123. Later, at paragraph 100 their Honours amplified their comments and said:
The intuition involved in decision-making concerning children is arguably of even greater importance when a judge is obliged to make interim decisions following a hearing at which time constraints prevent the evidence being tested. Apart from relying upon the uncontroversial or agreed facts, a judge will sometimes have little alternative than to weigh the probabilities of competing claims and the likely impact on children in the event that a controversial assertion is acted upon or rejected. It is not always feasible when dealing with the immediate welfare of children simply to ignore an assertion because its accuracy has been put in issue.
Where the contested facts relate to an assessment of risk, a greater level of caution should be exercised, however, in Deiter & Deiter [2011] FamCAFC 82 the Full Court said:-
61.… . In our view, the assessment of risk in cases involving the welfare of children cannot be postponed until the last piece of evidence is given and tested, and the last submission is made. We accept, however, that it is always a question of degree depending on the evidence that is before the Court.
THE LAW
I consider it necessary that I adopt an approach that brings to account the advantages and disadvantages to the child of the separate parenting proposals of the parties.
Section 60CA of the Act requires that I have the best interests of the child as the paramount consideration. The best interest test is to be considered by the application of the two objects of s 60B of the Act and to have regard to the provisions of s 60CC in order to determine in each case what is in the child’s best interests.
Subject to the parties seeking that a Consent Order be made, s 60CC(1) of the Act requires the Court to consider the general considerations as set out in s 60CC(2) and (2A) which places emphasis on any history of family violence, abuse or neglect and any family violence order if consideration is to be given to arrangements that would promote the safety of either a child or a party from family violence, abuse, neglect or other harm.
A consideration of the question of the child’s safety is intended to emphasise how the future may be informed by past events.
The focus of the relevant provisions of the Act are to ensure the best interests of the child, as opposed to the parties, is a pre-eminent consideration.
I consider that whilst the Act does not make specific mention of the importance of a child having a meaningful relationship with each of the parties, it is likely that the best interests of a child will be served if a relationship with a party, parent or another person who may be significant to the child is maintained providing it is in all the circumstances safe to do so and will be of advantage to the child.
PARENTING CONSIDERATIONS
When challenged, each of the parties and the ICL conceded that whilst the focus had been on the child’s safety and therefore a consideration as to the primary care arrangements, what was ignored was the extent to which the orders sought by each of the parties would potentially be to the disadvantage of the child given that she is a toddler.
At this stage, it is difficult to determine the extent to which the DCP concerns are justified in respect of each of the parties given the father’s denials and the mother’s partial acceptance albeit tempered by what she says is a change in her circumstances.
Given that neither of the parties nor the ICL had considered the potential impact on the child of, at best, spending time with the non-primary care parent for a mere few hours each fortnight, the parties reconsidered their position.
The father no longer presses for the mother’s time with the child to be supervised and proposes that she spend time with the child from 9.00 am to 5.00 pm on two occasions each week. The ICL appears to support the father’s altered position.
As far as the mother is concerned, there was also a concession that frequency, rather than duration, may well be better indicated for a young child.
It is not for the Court to bring to account a view or decision independent of the evidence. Neither party nor the ICL placed evidence before the Court that would assist in better understanding how the child’s interests could be better served by providing a protective environment but also, preserving and maintaining a relationship with the non-primary care parent.
The starting position of the ICL was that neither of the parties should retain the primary care of the child and that the best course of action would have been the continued intervention of DCP. It is the position of the Department, as confirmed by Ms D, that there is no present intention to intervene.
It is a glaring omission in the presentation of the father’s case that he did not secure evidence from Ms C as to her preparedness to accommodate him and the child. There is no circumstance where Ms C is obliged to supervise or even allow the father and the child to remain in her home. She is not and cannot be the subject of a court order. I am however satisfied that whilst Ms C does not seek to intervene in the proceedings, for as long as the father and the child reside in her home there is a reasonable basis to find that she will provide a protective environment for the child. It is also of importance that there is a regular check on the father and the child.
The same cannot be said for the mother’s circumstances. Whilst I accept that the mother presents with good intentions and that there is some evidence, although at this stage tinged with uncertainty, that she is actively trying to put her house in order, the reality is that her history of care in respect of her three other children (not ignoring the adult child) and the immediate decision of DCP to intervene by the removal of the subject child from her care, is an important consideration.
At this stage, the Court is obliged to adopt a cautious approach. I propose to order that the child remain in the primary care of the father which would be the subject of further consideration should he propose to take up residence other than in Ms C’s home.
Given the father’s concession as to the time that the child should spend with the mother, I am of the view that there is significant advantage to the child in making orders that would enable a relationship to be maintained.
I consider that the child should spend time with the mother on three occasions each week without the need for supervision.
Ms D indicated that if an order was made for the father to retain primary care but with the mother spending unsupervised time with the child, DCP would be unlikely seek to intervene or take action for the removal of the child from the mother’s care.
Neither party should feel comforted by the orders that I propose to make. For the avoidance of doubt, it is the passive involvement of Ms C that persuades the Court to leave the child in the father’s primary care.
I propose to order that the child live with the father and spend time with the mother on Monday, Wednesday and Saturday of each week between the hours of 9.00 am and 5.00 pm with handover to take place as may be agreed by the parties and in default of agreement at the Suburb B Police Station.
Doing the best that I can, I propose to order that there be a report prepared pursuant to s 62G(2) of the Act directed to final orders sought by each of the parties with the intention that all reasonable efforts will be made to expedite the proceedings.
I make orders as appear at the commencement of these reasons.
I certify that the preceding sixty (60) numbered paragraphs are a true copy of the Reasons for Judgment of the Honourable Justice Berman. Associate:
Dated: 15 November 2024
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