ZAFIRIS & DOUGLAS

[2017] FCCA 528

FEDERAL CIRCUIT COURT OF AUSTRALIA

ZAFIRIS & DOUGLAS [2017] FCCA 528

Catchwords:
FAMILY LAW – Recovery order application by mother – best interests of children – recovery order made with protective and other orders.

Legislation:

Family Law Act 1975, ss.60B, 60CA, 60CC, 61DA, 65DAA, 65D, 67Q - 67Y, 91B

Children and Young Persons (Care and Protection) Act 1998, s.248

Cases cited:

Goode & Goode (2006) FLC 93-286
Marvel v Marvel [2010] FamCAFC 101; (2010) 43 Fam LR 348
SS & AH [2010] FamCAFC 13
Eaby & Speelman (2015) FLC 93-654

Banks v Banks (2015) FamCAFC 36

Applicant: MS ZAFIRIS

Respondent: MR DOUGLAS

File Number: PAC 253 of 2017

Judgment of: Judge Newbrun

Hearing date: 17 March 2017

Date of Last Submission: 17 March 2017

Delivered at: Parramatta

Delivered on: 21 March 2017

REPRESENTATION

Solicitors for the Applicant: Forshaw Lawyers

Solicitors for the Respondent: Watson Law Pty Ltd

ORDERS PENDING FURTHER ORDER

1. The father forthwith return the children X born (omitted) 2008 and Y born (omitted) 2009 (the children) to the mother, by facilitating the mother collecting the children from (omitted) Public School at the conclusion of school at 3 PM on 22 March 2017. For this purpose, the father is restrained from attending the said school at this time.

2. Failing compliance with the above order, then pursuant to Section 67Q of the Family Law Act 1975, a Recovery Order issue authorising and directing the Marshal, all officers of the Australian Federal Police and all officers of the Police Forces of all the States and Territories of the Commonwealth of Australia to find and recover the children X born (omitted) 2008 and Y born (omitted) 2009 and return them to the care of the applicant Ms Zafiris.

3. The children live with the mother.

4. The children spend time with the father from after school Friday to the commencement of school on Monday each fortnight, with such time to commence on Friday 31 March 2017, and any other time as agreed between the parties. The father will collect the children at the commencement of his time with them from school and return the children to school at the completion of his time.

5. Commencing 24 March 2017, the children communicate by telephone with the party that they are not spending time with, as agreed between the parties, and in default of agreement each second day between the hours of 6PM to 7PM.

6. The parties shall not change the children’s present school ((omitted) Public School) unless otherwise agreed to by the parties in writing.  

7. The parties not consume alcohol, drugs or any illicit substances in the presence of the children or be in any way affected by them whilst the children are in that person’s care or control.

8. The parties ensure that no third person consumes alcohol, drugs or any illicit substances in the presence of the children, or be in any way affected by them in the presence of the children.

9. The mother is restrained from having sexual relations with any person in the presence of the children or whilst the children are in the mother’s care or control.

10. The parties are restrained from making critical or derogatory remarks about each other or members of their families in the presence of or within the hearing of any of the children.

11. The parties are restrained from physically chastising the children and shall take all reasonable steps to ensure that no third person physically chastises the children.

12. The mother shall forthwith re-engage with Brighter Futures, or any delegate of the Department of Family and Community Services, in relation to her care of the children and comply with their recommendations for such care.

13. The mother shall forthwith enrol in and complete in a timely fashion an Anger Management course and provide evidence of such enrolment and completion to the Independent Children’s Lawyer.

14. The mother be restrained from associating with any persons who have been charged or convicted of sexual assault or indecent assault offence involving a person under the age of 18 years.

15. The mother shall continue to attend upon counselling sessions with Dr E, psychologist, including the counselling session on 30 March 2017, and shall comply with treatment recommendations of the said Doctor.

16. The mother shall forthwith take all reasonable steps to obtain a mental health assessment from Dr N, Mental Health Care Centre, (omitted) Hospital, pursuant to the referral to such Doctor from Dr L dated 15 March 2017, and take part in all treatment programs and counselling recommended by Dr N.

17. The parties and the children of the relationship shall attend a Child Inclusive Conference, with the date of such conference to be advised by the court to the parties.

18. Pursuant to Section 68L of the Family Law Act 1975 the children, as well as the child Z born (omitted) 2004, shall be independently represented and request that the Legal Aid Commission provide that representation.

19. The solicitors for the parties are to forward copies of all applications, responses, affidavits and any other relevant documents to Legal Aid NSW for the attention and use of the Independent Children’s Lawyer when appointed. Liberty to the Independent Children’s Lawyer to relist the proceedings on 72 hours’ notice.

20. Pursuant to Section 91B of the Family Law Act1975 it is requested that the Department of Family and Community Services, NSW, intervene in these proceedings in relation to the children X born (omitted) 2008 and Y born (omitted) 2009.

21. The Court, at the request of the Department, is to provide to the Department of Family and Community Services forthwith all documents thus far filed in these proceedings by the parties together with all existing orders and copies of any relevant reports.

22. Pursuant to Section 248 of the Children and Young Persons (Care and Protection) Act 1998, the Director General of the Department of Family and Community Services (Community Services) is requested to provide to this Court within 24 hours after receipt by them of this request, a Personal History Summary relating to the following children:

    (a)X born (omitted) 2008

    (b)Y born (omitted) 2009

    or any of them.

23. The proceedings are adjourned for mention to 10 May 2017 at 11.30am.

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

FEDERAL CIRCUIT COURT
OF AUSTRALIA
AT PARRAMATTA

PAC 253 of 2017

MS ZAFIRIS

Applicant

And

MR DOUGLAS

Respondent

REASONS FOR JUDGMENT

Introduction

1. This was the hearing of firstly the mother’s application for a recovery order relating to the two youngest children of the relationship, X born (omitted) 2008 and Y born (omitted) 2009 (“the children”). The application was opposed by the father.

2. The mother, besides her application for a recovery order in relation to the children, also sought interim orders that the children then live with her, and that the children spend time with the father from after school Friday to the commencement of school Monday each fortnight (this proposed latter parenting order was ultimately sought by the mother at the hearing).

3. The father, besides opposing the mother’s application for a recovery order, proposed interim parenting orders, inter alia, that the children live with him; that the children spend daily supervised time with the mother at a children’s contact centre; that the mother undergo a psychological assessment; and other related and protective proposed orders. The father’s proposed orders, both in the event that the mother’s proposed recovery order is made or not made, are set out in a document sent to the court after the hearing was held, and has been marked Exhibit E.

4. The eldest child of the relationship, Z born (omitted) 2004, has been living with the paternal grandmother since the father was jailed for certain criminal offences in about late March 2016. When the father was released from jail on (omitted) 2016 he went to live with the paternal grandmother and the child Z.

5. The father submits that there is an unacceptable risk of harm posed to the children if they are returned to the primary care of the mother by reason of, inter alia, the mother’s alleged adverse mental health creating a risk of neglect of the children (in this context, mismanagement of the youngest child’s toilet training is asserted as a risk) and verbal abuse of the children by the mother. The father submits that the mother should, inter alia, undergo a psychological assessment, and comply with treatment recommendations arising out of such assessment, before spending unsupervised time with the children.

6. The mother submits, inter alia, that there is no unacceptable risk of harm posed to the children if they are returned to her primary care, particularly if the court makes appropriate protective orders, including continuing to engage and comply with the recommendations of Brighter Futures and her treating health professionals.

7. The mother further submits that should the children remain in the primary care of the father that he will not support a relationship between the children and herself.

8. The father is aged 35 years and the mother is aged almost 31 years.

9. The mother resides in rented premises at (omitted). The father resides at (omitted) in the residence of the paternal grandmother.

10. Following the father’s release from jail on (omitted) 2016 (his incarceration commenced on about (omitted) 2016 for, inter alia, breach of AVO conditions and assault of a third party), he spent time with the children at the paternal grandmother’s residence on the weekend following his release. The children were then returned to the mother’s care for about a week. The father, following the conclusion of the children’s schooling week ending 15 December 2016, then unilaterally retained the children and the children have not spent any significant time with the mother since that time to date. The children continue to reside with the father and the paternal grandmother at the latter’s residence.

11. Prior to the father unilaterally changing the children’s schooling to (omitted) Public School at the beginning of 2017, the children were attending (omitted) Public School, which is about a five minute walk from the mother’s residence at (omitted).

Material relied upon by the parties

1. The mother relied upon her Affidavits filed 20 January 2017 and 17 March 2007, Notice of Risk and Initiating Application filed 20 January 2017.

2. The father relied upon his Response, Affidavit and Notice of Risk filed 16 March 2017.

3. The following exhibits were in evidence being:

   a)Child Dispute Conference Memorandum to Court dated 14 March 2017, Exhibit A.

   b)Family Weekly Routine schedule prepared for the mother by (omitted) Personalised Care (being an organisation to which home-care programs are outsourced to by Brighter Futures) Exhibit B.

   c)NSW Police records (sleeve 3); entries on 4 and 27 December 2016, Exhibit C.

   d)Consent minute of order, relating to, inter-alia, section 91B intervention by Department of Family and Community Services, Exhibit D.

4. The court has considered all this material of the parties, including the subpoenaed material, and submissions.

Evidence

1. The father asserts that the parties commenced cohabitation around 2002 to 2003.

2. The mother asserts that neither party worked during the relationship.

3. The father asserts that periodically, throughout the course of the relationship, he worked for some of his friends doing (omitted) type work and working on (omitted).

4. The mother asserts that the parties separated in about March 2015 but remained living under one roof. This is disputed by the father; he asserts that in about June 2016, the parties separated, when he sent a letter from jail to the mother “breaking up with her”.

5. The father left the mother and children in about mid-2015 for about six months, having gone to (omitted) and returned to the family in December 2015.

6. The father was in jail from around (omitted) 2016 to (omitted) 2016. The father asserts that he was in jail for breach of an AVO, assault, and in relation to having burnt certain belongings of the mother. He states that he breached the AVO protecting the mother when he sent her text messages and was calling her asking where she was as the children wanted to talk to her and was asking for her to come home. He states that the assault charge was from an incident where he assaulted the landlord of the mother’s friend.

7. The Department of Family and Community Services (FACS) removed the children from the care of the mother at the time the father went to jail, and placed them in the care of the paternal grandmother. (The mother told the family consultant that this was because of the environment the children were in, and the father reported to the Family Consultant that this was due to FACS not deeming the mother to be a fit mother.)

8. The children were living with the paternal grandmother from about late March 2016 to about July 2016.

9. The parties informed the Family Consultant at the Child Dispute Conference that the children were returned to the care of the mother in July 2016 following the mother’s involvement with the Brighter Futures program. He states that the eldest child continued to live with the paternal grandmother as he did not want to go back to the mother.

10. The father told the Family Consultant at the Child Dispute Conference that the mother had a support worker in her house every weekday from 3PM to9 PM “because she could not manage on her own.” In the father’s Notice of Risk document, he states that, “A support worker has previously been engaged for the purpose of assisting the mother care for the children every weekday from 3PM to 9PM as she could not manage on her own.”

11. When the father was released from jail on (omitted) 2016 he went to live with the paternal grandmother. He asserts that the two youngest children then informed him that a friend of the mother’s had pulled the middle child’s hair and locked her in a room which caused her to be distressed. The father states that he is

    “aware that (the mother) struggled to discipline the children and sought assistance from her friends. I was also informed by the children that on occasions where (the mother) was engaging in sexual acts, her friends would encourage the children to open the door and “watch”.

12. The father states that the two youngest children were then returned to the mother for the week as they had school until 15 December 2016 when the school holidays commenced. He states that he then made a decision to keep the children in his care as he had serious concerns about their safety should they be returned to the mother.

13. The father states during the week around 15 December 2016, he made a report to FACS regarding his concerns in relation to the two youngest children’s safety. He states this was the second time that he had attempted to report his concerns. He states that the first time was in early March 2016 which resulted in Brighter Futures becoming involved. He states when he rang FACS to make a report the second time, FACS advised him that he had to report to the police. The father states that he then did this and the police advised that they would report his concern to FACS and make a report. The father states that he has not heard anything since from Police or FACS in relation to this issue.

14. The father alleges that the mother has previously been diagnosed with “mental illness” and has been prescribed medication and attended counselling “for this”. He states that he is “aware” that the mother has since ceased taking her medication and he believes this has contributed to her “mental instability” and her ability to care for the children.

15. The mother asserts that she has been the primary carer of the children since birth. This is disputed by the father; he states that the parties shared parental responsibility equally and were both involved in the care of the children.

16. The father asserts that the mother has only become involved in taking the children to school in the last 2 years. Prior to this time, the father asserts that he took all the children to school.

17. The father asserts that the mother has become more involved with the care of the children in the last year. The father asserts that prior to this involvement of the mother he was more involved in looking after the children and attending to their needs.

18. The father states that the parties used to argue all the time and scream profanities and call each other names. The mother stated that the parties had a lot of arguments and would call each other names. The father asserts that the mother verbally abused him in front of the children.

19. The mother has been attending a job placement on Tuesdays and Thursdays at Cabramatta between 10:15 AM and 11 AM for at least the last year.

Relevant legal principles

1. The relevant principles in relation to recovery proceedings are referred to in sub sections 67Q to 67Y of the Family Law Act 1975. In particular, section 67U of the Act provides that in proceedings for a recovery order, the court may, subject to section 67V, make such recovery order as it thinks proper. Section 67V of provides that in deciding whether to make a recovery order in relation to a child, a Court must regard the best interests of the child as the paramount consideration. As to best interests principles, the Court refers below to the relevant primary and additional considerations under section 60CC of the Act.

2. The relevant principles in relation to parenting proceedings, including interim proceedings, are well settled: see Goode & Goode (2006) FLC 93-286.

3. In Marvel v Marvel [2010] FamCAFC 101; (2010) 43 Fam LR 348 the Full Court (Faulks DCJ, Boland and Stevenson JJ), discussed the problems associated with making findings on disputed 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 & 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 [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.”

4. Of this, the Full Court in Eaby & Speelman (2015) FLC 93-654 said at 80, 332:

   [80] As would be immediately apparent, this approach enables the Court to appropriately and carefully deal with contentious issues relevant to the welfare of the child, and for those issues to not be ignored.

1. The Court also refers to the recent decision of the Full Court of the Family Court of Australia in Banks v Banks (2015) FamCAFC 36, especially at paragraph 46 to 52.

2. Section 60B of the Family Law Act 1975 (Cth) (“the Act”) sets out the objects of Part VII of the Act relating to children that inform the making of parenting orders.

3. In deciding whether to make a particular parenting order in relation to a child, a Court must regard the best interests of the child as the paramount consideration: section 60CA of the Act.

4. Section 60CC of the Act provides that in determining what is in the child’s best interests, the Court must consider the matters set out in subsections (2) and (3).

5. 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: section 61DA of the Act. 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: section 61DA (3).

6. If the presumption of equal shared parental responsibility in relation to the child applies, and is not rebutted, the Court must firstly consider whether the child spending equal time with each of the parents would be in the best interests of the child and reasonably practicable.

7. If equal time is found not to be in the child’s best interests, or impracticable, as a result of consideration of one or more of the matters in section 60CC, the Court must consider making an order that the child spends substantial and significant time (as defined in section 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 section 60CC, or impracticable.

8. If neither equal time nor substantial and significant time is considered to be in the best interests of the child, or impracticable, then the Court may make such orders in the discretion of the Court that it thinks proper, being orders that are in the best interests of the child, as a result of consideration of one or more of the matters in section 60CC: sections 60CA, 60CC, 65D.

The Best Interests of the Children

Section 60CC Considerations

Subsection (2a) - the benefit to the child of having a meaningful relationship with both of the child’s parents:  a primary consideration.

1. The children would appear to have a meaningful relationship with each parent and would benefit from a continuance of those relationships, subject to the children not being exposed to physical or psychological harm from being subjected to, or exposed to, abuse, neglect or family violence in their care.  

2. The mother asserts that she had been the primary carer of the children prior to the father unilaterally retaining them in mid-December 2016. The father asserts that prior to being jailed about the end of March 2016 the parties were equal carers of the children, and he refers to his primary care of the children since unilaterally retaining them to date.

3. The mother was the primary carer of the children when the father left the family for 6 months in the second half of 2015 when he we went to (omitted). And she was the primary carer of the children from about July 2016 when, through Brighter Futures, the children were placed back into the care of the mother from the paternal grandmother’s care, the children having been in the latter’s care from about April 2016 to July 2016.

4. In this context is not without relevance that the mother spent time with the children each Wednesday during the period that the children were in the care of the paternal grandmother, being accompanied by an employee of Brighter Futures. During this period the mother would also talk to the children on the telephone.

5. The mother states that following the children returning to her care in about July 2016 from the paternal grandmother, after a few months, the children began to have weekly contact with the paternal grandmother from Friday afternoon to Sunday. The mother states that after a few weekend contacts she noticed that the children would become disrespectful when they returned from the paternal grandmother and say such things as, “I don’t have to listen to you, you are not my mum, you are not the boss of me, you are a bitch.” The mother spoke to the paternal grandmother in this context who told the mother, “they don’t do it at my house.”

6. The mother refers to occasions when the paternal grandmother has made derogatory remarks about the mother in the presence of the children, including after the father unilaterally retained the children in about mid-December 2016.

7. The mother refers to the youngest child, following the children being returned to her care in about July 2016, being very clingy and wanting to sleep in the mother’s bed and following her around the house. The mother states that when it was bedtime should have to sit in the youngest child’s room until he went to sleep. The youngest child would take some time to go to sleep and would open and close his eyes to make sure the mother was there. In this context, the father states that up until March 2016, the youngest child always slept with the mother in her bed and the father would sleep on the lounge. The father states that this has been happening since the youngest child was born. This evidence suggests that the youngest child would appear to have a particularly close relationship with the mother.

8. The mother refers to the father and the paternal grandmother refusing to bring the children back to her on Christmas day as prearranged between the mother and the paternal grandmother on 17 December 2016.

9. The Family Consultant at the Child Dispute Conference noted that telephone contact between the children and the mother since the father unilaterally retained the children has been minimal. The father reported to the Family Consultant that he has allowed the children to be in contact with the mother but that they choose not to speak to her.

10. The mother asserts that when she has telephoned the residence of the paternal grandmother the father has answered the telephone on some occasions and he has said, “do you want to talk to your bloody mother.” Further, the mother states that on an occasion when she telephoned the residence of the paternal grandmother, she could hear the paternal grandmother in the background stating that the mother was a “slut” and the mother could hear the children’s voices in the background at this time.

11. The father told the Family Consultant that the children have stated that they do not want to return to the mother’s care.

12. The Court notes that the father enrolled the children in a new school without consulting the mother.

13. The mother states that she spoke to the father on 18 January 2017 regarding a letter that she caused the Family Law Early Intervention Unit to be sent to the paternal grandmother on 10 January 2017, and that the father said to the mother, “you are not talking to the kids ever again.”

14. The mother states that the child X has said to her over the telephone, since the children were unilaterally retained by the father, “why are you taking dad away from me.” The mother refers to this child referring to the mother as “a bitch” when speaking to her on the telephone.

15. In the mother’s affidavit filed 20 January 2017, she refers to having spoken to the child X a few times and who has said to the mother that she wants her Christmas presents and that she wants to live with the father. However, in the mother’s affidavit filed 17 March 2017, the mother refers to an event on or around 15 March 2017 when she was at (omitted) train station when she saw the children exiting the train. The mother ran over to the children and hugged them. The mother states she was allowed to spend some time with the children. She states that the children said to her words to the effect, “We don’t want to stay with grandma anymore, we want to come home.”

16. Without proceeding to make findings of fact, the aggregated material before the court creates an impression (yet to be tested by cross-examination) that since the children were unilaterally retained by the father in mid-December 2016, the father (and arguably supported by the paternal grandmother) has not facilitated the maintenance and enhancement of the children’s relationship with the mother, noting that the mother has spent no physical time with the children since the father’s unilateral retention of the children, apart from the recent encounter at (omitted) train station, and the mother’s telephone time with the children appears to have been sporadic since that time.

17. In the view of the Court, at this interim stage, there would appear to be a real risk that the children’s meaningful relationship with the mother will be detrimentally affected if they are not returned to her primary care and remain in the primary care of the father, who the Court notes remains living with the paternal grandmother. There would appear to be a real risk, if the children remain in the primary care of the father, that he will not facilitate the maintenance and enhancement of the children’s meaningful relationship with the mother.

18. Further, at this interim stage, the Court is of the view that to accede to the father’s proposed interim order that the children spend supervised time with the mother at a children’s Contact Centre would carry the real risk that the children’s meaningful relationship with the mother would be detrimentally affected.

19. At this interim stage, should the children be returned to the mother’s primary care, and spend fortnightly weekend time with the father, the children’s meaningful relationship with the father should not be detrimentally affected.

20. The Court refers to its discussions below under the need to protect primary consideration, relating to the Court’s view that there should be no unacceptable risk of harm to the children in returning to the mother’s primary care provided certain protective orders are made by the Court.

21. The Court gives significant weight to this meaningful relationship primary consideration.

Subsection (2b) - the need to protect the child from physical or psychological harm from being subjected to, or exposed to, abuse, neglect or family violence.

1. The father asserts that should the children be returned to the mother’s primary care that they will be neglected (for example, the mother will mismanage the youngest child’s toilet training), and also be exposed to a risk of abuse, in particular verbal if not physical abuse. In this context, the father submits that the mother’s present mental health related evidence indicates that she needs mental health treatment and that the children should not spend unsupervised time with the mother until a full mental health assessment indicates that the children would not be at risk of harm in spending such time with the mother.

2. The father also submits that the evidence indicates that there is an unacceptable risk of harm to the children should they be returned to the mothers primary care, by reason of the mother engaging in sexual activity in the presence of the children (denied by the mother), spending time with a paedophile (a man known as Mr T) and previously exercising physical chastisement of the children in an excessive manner.

3. The Court notes that following the children being returned to the mother’s primary care, from the paternal grandmother’s care, through Brighter Futures, in about July 2016, the mother cared for the children, with the assistance of a home care program facilitated through Brighter Futures (the organisation was (omitted) Personalised Care; see Exhibit B). That home care program was provided to the mother from about July 2016 through to the end of the children school term in December 2016.

4. There is no evidence presently before the Court (apart from the father’s assertions of alleged neglect of the children by the mother) that Brighter Futures, (omitted) Personalised Care, FACS, or the NSW police, or indeed the paternal grandmother regarded the mother’s care of the children from about July 2016 (when the children were placed into the mother’s care by Brighter Futures from the paternal grandmother’s care) up to the time in about mid-December 2016 when the father unilaterally retained the children as posing a risk of harm to the children.

5. Whilst the father alleges that following his release from jail the children provided him with certain information suggesting their neglect whilst in the care of the mother, it is not without relevance that the father did not object to the mother caring for the children in the week leading up to the end of term on about 15 December 2016, having returned them to the mother’s care following spending time with them on the weekend following his release from jail on (omitted) 2016.

6. The Court notes that the home care program’s family weekly routine for the mother’s assistance in caring for the children provides for the mother’s care of the youngest child’s toileting (Exhibit B).

7. The Court notes the evidence, including subpoenaed material relating to the mother’s dealings with the man known as Mr T. In the mother’s Affidavit filed 20 January 2017, she frankly states that she did not know that Mr T was an alleged paedophile when she started dating him. She states that she was told by FACS that Mr T was not to have contact with her but that she did have contact with him however she did not allow the children to have contact with him. She states that she has ceased to have a relationship with Mr T. The mother has also made a statement against Mr T with the police as he was harassing the mother. The mother frankly acknowledges that she made a mistake in having a relationship with Mr T and states that this relationship has ceased indefinitely.

8. The Court refers to the mother’s Affidavit filed 17 March 2017, relating to her health professional treatment, including steps taken to address her mental health issues. The mother has begun to engage in counselling with a psychologist, Dr E. She has enrolled herself in an anger management program in July 2017 for 8 weeks, and frankly acknowledges that she may have an anger management problem. She refers to having the support of the maternal grandfather who is a (occupation omitted).

9. The mother has attended upon Dr L on 15 March 2017 who referred the mother to another doctor for a mental status assessment, and who noted no current medications. The mother attended upon a clinical psychologist on 16 March 2017 who referred the mother to Dr E, psychologist, for counselling (see above).

10. The mother attended upon Dr D on 3 March 2017 for a Mental Health Care Plan, which was completed at that time, and that doctor also conducted a mental state examination of the mother. The first page of the Mental Health Care Plan addressed to the mother’s psychologist, refers to a history taken from the mother, including the mother failing to recover the children from the father and not even being allowed to speak to her children on the telephone after the father unilaterally retained the children in December 2016. The mental state examination refers to the mother being very upset, angry and frustrated. The mother looked sad but was not thought disordered.

11. The risk assessment of the GP stated the mother was not suicidal but possibly homicidal. (It is noted that the father’s solicitor placed significant weight on this last statement by the doctor.) In the view of the Court, this last comment by the GP needs to be contextualised, in particular by reference to the whole content of the Mental Health Care Plan. In this context, the Court notes that the GP conducted the usual K10 questionnaire of the mother and the Court notes the mother’s responses. The Court refers to the GP’s Initial Action Plan including skills training for anger management and stress management. In particular, the Court notes the GP’s mental state examination of the mother which, inter alia, stated that the mother did not have thought disorder, hallucinations or delusions, and she had an anxious affect. Under the heading “Risk assessment”, the GP stated, “Low risk. She has no suicidal ideations or a history of self harm or causing harm to others. She does not abuse alcohol or drugs.” Under the heading “Diagnosis/Formulation”, the GP stated, “Depression (reactive) with anxiety… There are no symptoms of psychosis.” The GP queried an eating disorder.

12. The Court has noted all the concerns that the father has in relation to the children spending unsupervised time with the mother, including his submissions, in particular relating to his concerns as to the mother’s mental health. The Court is of the view, at this interim stage, that the children will not be exposed to an unacceptable risk of harm, through neglect, abuse or family violence, in being returned to the mother’s primary care, provided that protective orders are made by the Court as follows:

    a) The mother is restrained from having sexual relations in the presence of the children or whilst the children are in the mothers care or control.

    b) The parties shall refrain from making critical or derogatory remarks about each other or members of their families in the presence of or within the hearing of any of the children.

    c) The parties shall refrain from physically chastising the children and shall take all reasonable steps to ensure that no third person physically chastises the children.

    d) The mother shall forthwith re-engage with Brighter Futures, including (omitted) Personalised Care, or any delegate of the Department of Family and Community Services, in relation to her care of the children, and comply with their recommendations for such care.

    e) The mother shall forthwith enrol in and complete in a timely fashion an Anger Management course and provide evidence of such enrolment and completion to the Independent Children’s Lawyer.

    f) The mother be restrained from associating with any persons who have been charged or convicted of sexual assault or indecent assault offence involving a person under the age of 18 years.

    g) The mother shall continue to attend upon counselling sessions with Dr E, psychologist, including the counselling session on 30 March 2017, and shall comply with treatment recommendations of the said Dr.

    h) The mother shall forthwith take all reasonable steps to obtain a further mental health assessment from Dr N, Mental Health Care Centre, (omitted) Hospital, pursuant to the referral to such doctor from Dr L dated 15 March 2017, and take part in all treatment programs and counselling recommended by Dr N.

Section 60CC(3) - Additional Considerations

(a) Any views expressed by the child and any factors (such as the child maturity or level of understanding) that the court thinks are relevant to the weight it should give to the child’s views

1. The Court refers to its discussions above under the meaningful relationship primary consideration.

2. The Court notes the fairly young ages of the children and at this interim stage would attach some weight to their views. Again, the Court notes the most recent evidence of the children’s views, expressed to the mother at her  recent encounter with them at the (omitted) train station, that they wish to return to the care of the mother from the paternal grandmother.

(b) The nature of the relationship of the child with each of the child’s parents; and other persons (including any grandparent or other relative of the child)

1. The Court refers to its discussions above under the meaningful relationship primary consideration. It would appear that the children have a positive relationship with the paternal grandmother.

(c) The extent to which each of the child’s parents has taken or failed to take the opportunity; to participate in making decisions about major long-term issues in relation to the child; and to spend time with the child; and to communicate with the child

1. The Court notes the father’s unilateral decision to leave the family for about six months in the second half of 2015, and go to (omitted) and his time spent in jail for some 8 months in 2016. There is no evidence presently before the Court as to whether the children spent time with the father, or otherwise communicated with him, whilst he was incarcerated. Otherwise, the parties would appear to have taken such opportunities.

(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

1. The evidence in relation to this additional consideration is somewhat sparse at this interim stage, although it would appear that each party has maintained the children whilst they have been in their respective care.

(d) The likely effect of any changes in the child’s circumstances, including the likely effect on the child of any separation from either of his or her parents; or any other child, or other person (including any grandparent or other relative of the child), with whom he or she has been living

1. The Court refers to its discussion above under the meaningful relationship primary consideration.

(3) e) The practical difficulty and expense of a child spending time with and communicating with the 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

1. There would not appear to be any such significant difficulties or expenses, however the Court notes that the mother does not drive and relies on public transport.

3(f) The capacity of each of the child’s parents; and 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

1. Subject to the Court’s discussion above under the meaningful relationship primary consideration, both parties would appear to have such capacities.

3) (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

1. The Court notes that the youngest child has a bowel condition requiring particular attention by his carers to toileting.

(i) The attitude to the child, and to the responsibilities of parenthood, demonstrated by each of the child's parents

1. The Court refers to its discussions above under both the primary and additional considerations. There is some force to the mother’s submission that the father’s evidence does not address the potential detrimental emotional impact upon the children of the father’s conduct in unilaterally retaining the children on or about 17 December 2016 to date, including unilaterally changing the children’s school, and the children’s absence from the mother during that period.

2. The Court notes that the evidence presently before the Court, suggests a willingness on the part of the mother to facilitate and maintain the children’s meaningful relationship with the father, in particular during the period following the father being released from jail.

3. The Court refers to the mother’s evidence relating to her historical care of the children, including specific evidence relating to the youngest child Y, including reference to the child’s paediatrician, that child’s teacher’s aide at his former school who assisted him with toileting, and prospective treatment for that child’s lazy eye.

(j) Any family violence involving the child or a member of the child's family.

1. The mother alleges that the father perpetrated physical violence against her during the relationship, including hitting her, putting a knife against her throat, and punched her with his clenched fists in her stomach. The father admitted to some “pushing and shoving” of the mother and an occasion when he slapped the mother (and in this context the father asserts that this was in response to the mother punching the middle child on the back of the head), but otherwise denies such physical violence against the mother.

2. Each party asserts that the other verbally abused the other in the presence of the children.

3. The mother asserts that during an argument when the parties were living together the father threw a cup at her which hit the TV and shattered. The mother asserts that the father then walked towards her and pushed her into a bench resulting in the mother hurting her back. She asserts that the father then started punching her with his closed fists. Apart from the father denying that he punched the mother during this incident, he otherwise does not expressly deny the mother’s assertions, although he asserts that the mother made a report to the police regarding the incident but no action was taken by the police against him.

4. The mother asserts that there was an incident when she returned home and saw that some of her belongings, such as photos, clothes, perfume were burnt in the backyard on the grass. The father admits that he burnt the mother’s belongings, in the context of the mother having an affair with another man, and he was charged and entered a plea of guilty. The mother asserts that in the context of this incident the father put his hands around the mother’s throat tightly and punched her in the chest, which is denied by the father.

5. The mother asserts another incident where the father took a speaker and hit the mother on the nose which is denied by the father.

6. The mother asserts that the eldest child hit her on one occasion. The father states that this child hit the mother in response to the mother hitting the child on the back of head which she did regularly when he did not do as he was told or listen to her. The mother denies the father’s allegations that she has physically disciplined or physically hurt any of the children.

7. The mother asserts that on 23 March 2016 Brighter Futures placed the children and herself in a motel for the mother’s safety which the father does not dispute.

8. The father told the Child Dispute Conference Family Consultant that he has completed courses in anger management and domestic violence as part of his parole.

9. Without proceeding to making findings of fact, the mother’s submission that the father has perpetrated family violence against her appears to have some merit.

10. The evidence before the Court at this interim stage would indicate that the parties have experienced volatile disputation between themselves, that there is poor communication between them with significant levels of aggression. Accordingly, the parties in particular should not come into physical contact with each other in the presence of the children.

(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: the nature of the order; the circumstances in which the order was made; any findings made by the Court in, or in proceedings for, the order; any other relevant matter.

1. Or about 31 January 2017, an existing ADVO made on 22 March 2016 was varied. The order is in force for two years until 30 January 2019. The ADVO includes an order that the father not go within 50m of any place where the mother lives or any place where she works.

(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.

1. These are interim proceedings.

m) Any other fact or circumstance that the Court thinks is relevant.

1. Acting cautiously, and by reference to the parties’ historical use of illicit drugs, but noting in particular the father’s significant historical dependency upon illicit drugs (and noting the father’s assertions that he has not ingested illicit drugs for some 12 months), the Court proposes to make an interim order that the parties not consume alcohol, drugs or any illicit substances in the presence of the children, or be in any way affected by them whilst the children are in that person’s care or control, together with a further similar interim order in respect to third persons not been so affected by such substances in the presence of the children.

Equal shared parental responsibility: section 61DA(1) and (2)

1. At this very early interim stage, in all the circumstances, the Court is of the view that it would not be in the best interests of the children to make an express order for parental responsibility.

2. The presumption of equal shared parental responsibility may well not apply by reason of past family violence perpetrated by the father against the mother, although the Court refrains from making a finding on this issue at this early stage.

3. In any event, by reason of serious historical and current conflict between the parties, and noting their present poor communication and mutual lack of trust, it would not be in the best interests of the children for the parties to care for the children in an equal time arrangement. (In this context, the Court notes that the father proposes, in the event that the Court makes the mother’s proposed recovery order that he spend 3 nights each week with the children. The Court also notes the father’s proposed interim parenting order for daily telephone contact with the children, again in the event that the Court makes the mother’s proposed recovery order; at this interim stage, such daily telephone contact would carry the real risk of increased conflict between the parties in the presence of the children which would not be in their best interests, and the Court is of the view that a less regular regime of telephone communication would be in the children’s best interests.)

4. The Court’s proposed interim parenting order that the children spend time with the father from after school Friday to the commencement of school Monday in each fortnight will probably approach substantial and significant time as defined under the Act, apart from occasions and events that are of particular significance to the children which issues are yet to be considered by the parties and Independent Children’s Lawyer to be appointed; it is premature to fully consider these issues at this early interim stage.

Summary

1. The applications presently before the Court result in the Court having to make in some respects a finely balanced decision. The Court proposes to appoint an Independent Children’s Lawyer, and order the parties and all the children of the relationship to attend an expedited Child Inclusive Conference; should the Independent Children’s Lawyer have any significant concerns about the Court’s proposed interim parenting arrangements (see below), following his/her relevant investigations, then the Court would be prepared to re-consider those arrangements, and the Court will give the Independent Children’s Lawyer liberty to relist the proceedings on 72 hours’ notice.

2. Nevertheless, evaluating the above considerations under section 60CC of the Act, the Court is of the view at this interim stage that it will be proper, and being in the best interests of the children, to make the proposed recovery order sought by the mother in respect of the children, and in this context the court will make these orders:

   1. The father forthwith return the children X born (omitted) 2008 and Y born (omitted) 2009 (the children) to the mother, by facilitating the mother collecting the children from (omitted) Public School at the conclusion of school at 3 PM on 22 March 2017. For this purpose, the father is restrained from attending the said school at this time.

   2. Failing compliance with the above order, then pursuant to Section 67Q of the Family Law Act 1975, a Recovery Order issue authorising and directing the Marshal, all officers of the Australian Federal Police and all officers of the Police Forces of all the States and Territories of the Commonwealth of Australia to find and recover the children X born (omitted) 2008 and Y born (omitted) 2009 and return them to the care of the applicant Ms Zafiris.

3. It will also be in the best interests of the children to make interim orders as follows:

   3. The children live with the mother.

   4. The children spend time with the father from after school Friday to the commencement of school on Monday each fortnight, with such time to commence on Friday 31 March 2017, and any other time as agreed between the parties. The father will collect the children at the commencement of his time with them from school and return the children to school at the completion of his time.

   5. Commencing 24 March 2017, the children communicate by telephone with the party that they are not spending time with, as agreed between the parties, and in default of agreement each second day between the hours of 6PM to 7PM.

   6. The parties shall not change the children’s present school ((omitted) Public School) unless otherwise agreed to by the parties in writing. 

   7. The parties not consume alcohol, drugs or any illicit substances in the presence of the children, or be in any way affected by them whilst the children are in that person’s care or control.

   8. The parties ensure that no third person consumes alcohol, drugs or any illicit substances in the presence of the children, or be in any way affected by them in the presence of the children.

   9. The mother is restrained from having sexual relations with any person in the presence of the children or whilst the children are in the mother’s care or control.

   10. The parties are restrained from making critical or derogatory remarks about each other or members of their families in the presence of or within the hearing of any of the children.

   11. The parties are restrained from physically chastising the children and shall take all reasonable steps to ensure that no third person physically chastises the children.

   12. The mother shall forthwith re-engage with Brighter Futures, or any delegate of the Department of Family and Community Services, in relation to her care of the children, and comply with their recommendations for such care.

   13. The mother shall forthwith enrol in and complete in a timely fashion an Anger Management course and provide evidence of such enrolment and completion to the Independent Children’s Lawyer.

   14. The mother be restrained from associating with any persons who have been charged or convicted of sexual assault or indecent assault offence involving a person under the age of 18 years.

   15. The mother shall continue to attend upon counselling sessions with Dr E, psychologist, including the counselling session on 30 March 2017, and shall comply with treatment recommendations of the said Doctor.

   16. The mother shall forthwith take all reasonable steps to obtain a mental health assessment from Dr N, Mental Health Care Centre, (omitted) Hospital, pursuant to the referral to such Doctor from Dr L dated 15 March 2017, and take part in all treatment programs and counselling recommended by Dr N.

   17. The parties and the children of the relationship shall attend a Child Inclusive Conference on (expedited).

   18. Pursuant to Section 68L of the Family Law Act 1975 the children, as well as the child Z born (omitted) 2004, shall be independently represented and request that the Legal Aid Commission provide that representation.

   19. The solicitors for the parties are to forward copies of all applications, responses, affidavits and any other relevant documents to Legal Aid NSW for the attention and use of the Independent Children’s Lawyer when appointed. Liberty to the Independent Children’s Lawyer to relist the proceedings on 72 hours’ notice.

   20. Pursuant to Section 91B of the Family Law Act 1975 it is requested that the Department of Family and Community Services, NSW, intervene in these proceedings in relation to the children X born (omitted) 2008 and Y born (omitted) 2009.

   21. The Court, at the request of the Department, is to provide to the Department of Family and Community Services forthwith all documents thus far filed in these proceedings by the parties together with all existing orders and copies of any relevant reports.

   22. Pursuant to Section 248 of the Children and Young Persons (Care and Protection) Act 1998, the Director General of the Department of Family and Community Services (Community Services) is requested to provide to this Court within 24 hours after receipt by them of this request, a Personal History Summary relating to the following children:

   X born (omitted) 2008

   Y born (omitted) 2009

   or any of them.

I certify that the preceding one hundred and eleven (111) paragraphs are a true copy of the reasons for judgment of Judge Newbrun

Date:  21 March 2017