Children to remain living with Father

Children to remain living with Father

McMahon & Bellwood

Issues in Dispute

25. The issues in dispute at this interim stage are what spend time with arrangements for the children are in their best interest and whether the children are at risk in the mother’s care such that there needs to be safeguards put in place in respect of any time they are to spend with the mother.
26. Like most of the interim matters which come before this Court there is significant dispute about many facts. The facts which are uncontested have been referred to at the beginning of these reasons.
27. In Banks & Banks [2015] FamCAFC 36; (2015) FLC 93-637 the Full Court stated:
    [50] When it is obvious that the findings made as to some of the s 60CC factors will be determinative of the child’s best interests on an interim basis, it is a sterile and unnecessary exercise to address other factors. Moreover, it will be a sterile exercise to determine whether or not particular facts are disputed if they are relevant only to one of the non-determinative s 60CC considerations. Properly understood, we do not interpret what was said in Goode as meaning that in an interim case, each and every fact must be characterised as disputed or not; and that each s 60CC factor must be traversed where it is obvious on the facts and issues joined that there are only one or two decisive factors.
28. The absence of discussion of any particular s 60CC factor below does not reflect any failure to consider it. Rather, it is reflective of the Court’s assessment that such factor has no sufficient relevance in the circumstances of this case to displace the determinative significance of those factors which were specifically addressed: Banks & Banks at [52].

Primary Considerations

29. The protection of the child from harm is an important matter for the Court’s consideration when weighing up the primary considerations.

Unacceptable Risk of Harm

30. At this stage of the proceedings, particularly noting that much of the evidence is in dispute and that there has been no testing of the evidence in cross-examination, the Court is not able to make any findings in relation to the following matters which are asserted by the father:
    1. That the mother is in a relationship with Mr C;
    2. That Mr C has a history of violence against his former partners;
    100. That the mother has been untruthful to the Court in her evidence in relation to her relationship with Mr C;
    4. That the mother has breached her undertakings to the Court in relation to Mr C;
    5. That the mother suffers from mental health issues;
    6. That the mental health issues which the mother suffers from place the children at an unacceptable risk of harm if they are to spend time with the mother where such time is not supervised;
    7. That the mother is a user of illicit substances;
    8. That the mother’s use of illicit substances places the children at an unacceptable risk of harm if they are to spend time with the mother where such time is not supervised; and
    9. That the mother is not able to meet the children’s physical needs such that the children would be neglected if they were to spend time with the mother other than in accordance with the July 2015 orders until such time as the Family Report becomes available and makes appropriate recommendations.
31. The Court has before it sworn evidence from the mother.
32. The Court has before it sworn evidence from the father.
33. Much of the father’s evidence though appears to be hearsay, and as such must be carefully considered. The difficulty with the reliability of hearsay evidence does not diminish due to the operation of s69ZT(1)(c) of the Act, and such evidence may be given such weight (if any) as the Court thinks fit: s69ZT(2).^[10]
34. It was submitted on behalf of the father that the mother is prepared to expose the children to Mr C, who has exposed his previous partners to domestic violence. It was further submitted that the mother is misleading the Court and everybody else, and that the Court cannot be sure what the mother’s true situation domestically is. Such submissions are based on factual assertions, which at this stage of the proceedings, remain in dispute.
35. The issue is not simply about the risk of harm, it is about the nature of the risk, the degree of risk, what might be done about the risk and the balancing of assessed risks against the benefit of the child having a relationship with the parent against whom the risk of harm is alleged to be unacceptable.^[11] The issue is the extent of the risk and the things that might be done reasonably to alleviate (not eliminate, but alleviate) the risk.^[12]

Mother’s Alleged Relationship with Mr C

36. On 29 June 2016 the mother provided an undertaking that she would ensure that the children do not come into contact with Mr C whilst the children are in her care.
37. The father places before the Court an Affidavit of a witness who deposes that she is a former partner of Mr C and that during their ten month relationship there was ongoing domestic violence. Some particulars of the alleged violence are given. The witness also deposes that there is a domestic violence order against Mr C. The order itself is not annexed to the Affidavit. No dates are provided whether in respect of the order or in respect of when the incidents of violence are said to have occurred. There is no other evidence before the Court, for example, by way of documents produced under Subpoena from New South Wales Police which might shed some light on these allegations. Such lack of evidence might properly be the subject of a Jones & Dunkel^[13] inference, however, at this stage of the proceedings no such inference is drawn.
38. Despite what the father says are breaches by the mother of her undertakings^[14], he has continued to facilitate time between the mother and the children. Such continued facilitation of time might be viewed as being reflective of the level of concern the father has in that respect.

Mother’s Mental Health

39. There is no evidence before the Court that the mother suffers from any mental health issues.
40. There is evidence of an admission to hospital on 13 April 2015. The mother was discharged on 15 April 2015. Exhibit 1 shows that the diagnosis was “grief reaction” with the additional diagnosis being “situational crisis” and “self-harm”. Annexed to the mother’s Affidavit is a short letter from the mother’s treating general practitioner, which indicates that the mother had been prescribed anti-depressants in the past, but this has been discontinued. She was also referred to ‘Headspace’ and has attended once and will continue to attend. Dr R does “not hold any concerns in relation to Ms Bellwood being a risk to herself or to others.”
41. The Court is not satisfied that the mother’s hospitalisation in April 2015 and subsequent treatment translates to an unacceptable risk of harm to the children in March 2017, noting that there were no further reported incidents of alleged self-harm.

Mother’s alleged drug use

42. Annexed to the mother’s Affidavit are the results of two drug urine analysis. Both show negative results for the presence of the tested substances.
43. The mother denies use of any illicit substances.

In conclusion

44. The children have been spending time with the mother since July 2015, it appears largely in accordance with the interim consent orders made on 30 July 2015.
45. There is no evidence before the Court that the children have been harmed whether physically or psychologically by virtue of being subjected to or exposed to abuse, neglect or family violence while spending time with the mother, or that they have come in harm’s way.
46. This is so despite the assertions that the mother is in breach of her undertakings, that she is in a relationship with Mr C or otherwise as a result of the alleged neglect, alleged drug use or mental health issues which are asserted. This is not to suggest that evidence of actual harm is what is required. The risk alleged must have a foundation in the evidence which is incompatible with the welfare of the child.^[15]
47. When examining the issue of unacceptable risk of harm to the child, the Court finds that the father’s evidence, even at its highest and noting that it remains untested, does not support the requisite standard for a finding that there is an unacceptable risk of harm to the children if they were to spend unsupervised time with the mother and/or more time than the July 2015 orders provide for.

Benefit of a Meaningful Relationship

48. Both parents have something to offer the children. They both, on their own evidence, appear to be loving, caring parents, who seek to be involved in the children’s future. For those reasons, the Court finds that there is a benefit to the children having a meaningful relationship with both parents.
49. There are a number of protective factors for the children in any event which are provided for in the orders. The children will, at present, remain living with the father in an environment they know and they will be spending regular and limited day time with the mother only.

Other Relevant Section 60CC Factors

50. The children have been spending limited time with the mother since the interim orders in July 2015.
51. It is in the children’s best interest for them to have a relationship with the mother and for time with the mother to progress to time which will facilitate a relationship between the children and the mother.
52. The children at present appear to be primarily cared for by the father’s partner – as the father often works in excess of 40 and sometimes 50 hours per week.
53. The orders proposed by the father would see no change in the children’s routines.
54. The orders proposed by the mother would see a significant change in the children’s routine. The Court is not persuaded that at present such orders are in the children’s best interest.
55. These are only interim orders. A Family Report has already been ordered. However, it is likely that if the matter proceeds to final hearing, there may be a time period of at least eight to twelve months before the matter is determined on a final basis.
56. The length of time that the matter will take to reach readiness for a final hearing is also something which the Court has considered in making these interim orders, particularly in trying to balance the children having a meaningful relationship with both of their parents given the limited time that the children have spent with the mother since the July 2015 orders, risk of harm issues aside.
57. Many of the facts alleged by each of the parents are disputed. Even if the Court is unable to make findings of fact about many of the issues, the Court is still obliged to take into consideration the various allegations which have been made. In doing so the Court must weigh up any risk of harm to the child, all the while considering what might be in the child’s best interest.

Parental Responsibility

58. Section 61C of the Act provides that each of the parents of a child who is not 18 years has parental responsibility for the child. This section states the legal position that prevails in relation to parental responsibility to the extent to which it is not displaced by a parenting order.^[16] Section 61DA provides for a presumption of equal shared parental responsibility that the Court does apply when making a parenting order.
59. As noted earlier, in interim proceedings, the presumption applies unless the Court considers that it would not be appropriate in the circumstances for the presumption to be applied when making an interim order.^[17]
60. The Court is mindful of what the Full Court said in Salah & Salah^[18] in respect of applying a cautious approach in the context of disputed allegations of family violence, the rebuttal of the presumption of equal shared parental responsibility contained in s61DA(3) and having regard to the Court’s obligations under s60CG.
61. The parents do not have a good working relationship at present. There appears to be very little trust between them, but the evidence is not such that it would lead the Court to conclude that any long term decisions in relation to the child would not be capable of being made jointly by the parents.
62. At this stage of the proceedings the Court is not minded to make an order for sole parental responsibility and the Court does not find that on the evidence the presumption of equal shared parental responsibility has been rebutted. As such, an order for equal shared parental responsibility is made.
63. It is noted for the benefit of the parties that in making a final parenting order in relation to a child, the Court must disregard the allocation of parental responsibility made in the interim order.^[19]
64. Section 65DAA was discussed earlier in these reasons, noting that this section is enlivened due to the order for equal shared parental responsibility. Relevantly, s65DAA states:

(3) 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.

65. Having regard to the above criteria and the various considerations discussed throughout these Reasons, at this interim stage equal time is not supported by the facts in this matter, and neither is significant and substantial time^[20].